Back to Nature Foods Company sells organic Stoneground Wheat Crackers.  Right below the product's name, the packaging says, “organic whole wheat flour.”  Does this language communicate that the crackers are predominantly made from whole wheat flour?  That was the issue in a case recently decided by the Second Circuit. 

According to the plaintiff in the lawsuit, the packaging is misleading because the crackers aren't predominantly made from whole wheat flour, but are, in fact, made from unbleached enriched wheat flour.  The plaintiff sued, alleging false advertising under New York law.  The district court dismissed the case, holding that the plaintiffs had failed to plead adequately that a reasonable consumer would be mislead by the packaging. 

On appeal, Back to Nature argued that the front label is, at best, ambiguous about how much whole wheat flour is in the crackers and that any ambiguity can be resolved by looking at the rest of the packaging.  The Second Circuit disagreed, holding that “the front of the package is not merely ambiguous, but arguably falsely implies that a predominantly-mentioned ingredient – one that obviously was the products' primary ingredient – predominates.”  Noting that its decision in the Cheez-It case is controlling, the Second Circuit vacated the judgment of the district court and remanded, finding that the plaintiff plausibly alleged that a consumer could be misled.  

What's the important take-away here?  Use caution when making ingredient claims on the front of your packaging.  If consumers may misinterpret your claim, there's no guarantee that a court will expect consumers to read the rest of your package before making a decision what that claim actually means – even when the claim is arguably ambiguous.  

Venticinque v. Back to Nature Foods Company, 2024 WL 3385136 (2nd Cir. 2024).