The labels of Enfamil infant formula say that the product is "mlik-based."  Does that mean that milk is just one of the ingredients in the product or that it is the product's primary ingredient?  That was the issue in a recent case in federal court in California. 

A consumer sued Mead Johnson, the maker of Enfamil, alleging false advertising and other claims under California law, claiming that she interpreted the "milk-based" claim to mean that milk was the primary ingredient.  She alleged that, instead of primarily being made from milk, the primary ingredient in the formula was corn syrup solids.  

In California, false advertising (and related) claims are governed by the reasonable consumer test, as they are in many states.  Under this standard, the plaintiff must show that members of the public "are likely to be deceived."  It's not enough that a few consumers are misled, however.  Rather, as the court explained, "there must be a probability that a significant portion of the general consumer public or of targeted consumers, acting reasonably in the circumstances, could be misled."  

Mead Johnson moved to dismiss the claims, and the court granted the motion.  While acknowledging that the plaintiff may genuinely have been misled, the court thought that her take-away was "only one person's rather narrow interpretation."  The court explained that that the plaintiff had alleged "no factual support for why a reasonable consumer would narrowly interpret a something-based label to mean that that something must contribute the most to the product's weight, relative to any other ingredient." 

The court noted that there are some contexts where an item-based claim could communicate that the item comprises most of, if not all of, the product.  The court said, however, that "contexts do vary, and they do matter."  

The court also gave weight to the fact that the nutrition label on the back of the product listed the product's ingredients.  The court explained, "Consumers could easily turn the bottle around to read the ingredient label, whereupon they would see that milk is an ingredient, even though it is not the first ingredient listed."   Although the court recognized that consumers are not "expected to look beyond misleading representations on the front," the court simply didn't believe that the plaintiff had sufficiently alleged here that "milk-based" was, in fact, deceptive, when it is actually one of the ingredients in the product. 

Martinez v. Mead Johnson, 2022 WL 1505334 (C.D. Cal.  2022).