Can you promote the fact that your product is “free of” certain harmful ingredients if the ingredients you used instead are also not safe?  That was the issue in a recent decision issued by the Ninth Circuit. 

Some consumers sued the hair care company Madison Reed, alleging that the company misled consumers by truthfully promoting that its product was “free of” ammonia, resorcinol, and PPD, because the ingredients that the company replaced them with were less safe.  The plaintiffs argued that the statement on the front packaging that the product was “free of" these ingredients communicates that the product had been materially improved (which they said was not, in fact, the case).

The district court dismissed the case and the Ninth Circuit affirmed.  Here's why. 

“Free of”

Applying the “reasonable consumer" standard, the Ninth Circuit held that there was no actionable misrepresentation.  The court explained, “the statements on the label were accurate, and there were no other words, pictures, or diagrams adorning the packaging from which any inference could be drawn or on which any reasonable belief could be based.”  And, to the extent that the “free of “ statement could potentially be communicating other messages, the court held that ”Any ambiguity arising from the ‘free of’ statement on the package front can be resolved by reference to the back label."  

What's interesting about this holding is that there's a good chance that if the Federal Trade Commission looked at this, it would come out differently.  In its Guides for the Use of Environmental Marketing Claims, the FTC says that a truthful claim that a product doesn't have an ingredient may still be deceptive if it “contains or uses substances that pose the same or similar environmental risks as the substance that is not present.”  

It's also unlikely that the FTC would be at all persuaded by the fact that there's additional information on the back of the packaging that could help clear up the confusion.  According to the FTC, in order for qualifying information to be effective, it needs to “difficult to miss.”  If the  qualifying information isn't in close proximity to the claim – let alone on the same side of the package – there's very little chance that the FTC would think that that type of disclosure would be effective. 

Puffery

The Ninth Circuit also considered whether Madison Reed's claims that its product was “salon gorgeous” and “salon quality, ” and had “ingredients with integrity," were actionable.  Not surprisingly, the court held that they were not, saying that the terms were simply non-actionable puffery.  The court explained that terms such as “salon” and “integrity” are “abstract and do not suggest anything about Madison Reed's product safety.”  

Brown v. Madison Reed, 2023 WL 8613496 (9th Cir. 2023).