package claim that required users to double serving size and add ingredient was plausibly misleading despite disclaimer

Mencia-Montes v. Fit Foods Distrib., Inc., 2025 WL 1185372,No. 24-cv-01768-EKL (N.D. Cal. Mar. 31, 2025)

Courts in the 9^th Circuit have increasingly held,in consumer protection cases, that an asterisk puts the consumer on notice ofimportant qualifications. But sometimes an advertiser goes too far with that;so here. Defendant’s protein supplement, “Mutant Mass Extreme 2500 Muscle MassGainer” says “92G PROTEIN†††” on the front of the package. A disclaimer on thebottom right-hand corner of the package reads” “†††Per 2 servings when taken asdirected with milk.” The disclaimer in the bottom right-hand corner is evensmaller font than the “PROTEIN†††” text.

The back shows three columns of nutrition facts. The firstcolumn, “Per 1 serving with water,” reflects 30 grams of protein; the secondcolumn, “Per 2 servings with water,” reflects 60 grams of protein; and thethird column, “Per 2 servings with 1% milk (31.8 fl. oz total),” reflects 92grams of protein.

Mencia-Montez brought the usualCalifornia statutory claims.

The court found that it was plausible that reasonable consumerswere likely to be deceived into thinking there were 92 grams of protein perserving, rather than 30.  “This type ofstatement is likely to deceive a reasonable consumer because it represents aseemingly concrete detail about the Product’s nutritional content.” What aboutthat triple-dagger mark? Whether it was sufficient to put a reasonable consumeron notice was a fact question that couldn’t be resolved at this stage. First, plaintiffalleged that the reference mark is “barely legible, insufficiently offset bythe much larger and prominent text that surrounds [it], and [is] lost withinthe various other symbols contained elsewhere on the Product’s label.” Second,the triple-dagger symbol wasn’t “an ‘asterisk’ but, rather a less familiarsymbol, which evidently lacks a name in common parlance, and, at best, leadsthe consumer to a partial disclosure.” Third, Plaintiff the purporteddisclaimer itself was allegedly “buried on the bottom of the label, in smallprint and among other fine print language, and is completely separated from theat-issue ‘92G Protein’ claim such that it can easily be missed by a reasonableconsumer.” (There was also at least one other “dagger” disclaimer on the frontrelating to protein, so the consumer would have to find the right one.)

Moreover, the disclaimer itself was plausibly misleadingbecause it required consumers to both double the serving size and add aningredient.  Then they’d have to figureout how much additional milk would be required (31.8 fluid oz).

However, plaintiff lacked standing to seek injunctive relief,which kicked out the CLRA claims entirely.