General Publications June 7, 2022

“Split Looms over 9th Circ. Injunctive Relief on False Labeling,” Law360, June 7, 2022.

Extracted from Law360

In the 2016 Spokeo Inc. v. Robins decision, the U.S. Supreme Court observed that for a plaintiff to unlock the doors to federal court, she must demonstrate that she suffered an injury-in-fact that is "concrete and particularized and actual or imminent" to satisfy Article III standing. Mere "conjectural or hypothetical" harms, on the other hand, just will not do.

Yet in a developing trend in false labeling decisions coming out of the U.S. Court of Appeals for the Ninth Circuit, it seems that asserting standing for injunctive relief has never been easier.

In two recent cases — Nacarino v. Chobani LLC and Johnson-Jack v. Health-Ade LLC, decided on Feb. 4 and Feb 24, respectively — the U.S. District Court for the Northern District of California seemingly glossed over the plaintiffs' allegations of future harm, crediting their bare assertions that they "would purchase" the defendant's product in the future and still would somehow be misled.

In doing so, these decisions seemingly have whittled the standing issue down to a matter of artful pleading and semantics — rather than a matter of plausible assertions of imminent future harm — opening the door to expensive discovery and class certification briefing before a court may decide this potentially dispositive issue. Who knew that the bar for Article III standing could be set so low?

But can it? Recent cases out of the Second and Seventh Circuits — like the U.S. District Court for the Southern District of New York's March 18 Gordon v. Target Corp. order and the U.S. District Court for the Northern District of Illinois' March 1 Chiappetta v. Kellogg Sales Co. order — and even some decisions from the Ninth Circuit suggest that it is not, and that this recent trend has strayed far from the actual requirements of Article III.

A Little Background

In the 2018 Davidson v. Kimberly-Clark Corp. case, the Ninth Circuit issued a significant Article III decision about sanitary wipes infamously labeled as "flushable."[1] The plaintiff there sought to certify an injunctive relief class to stop the defendant from marketing its wipes as flushable. In a highly fact-specific decision, the Ninth Circuit concluded that the plaintiff had alleged a sufficient threat of an imminent future injury to establish standing to pursue injunctive relief. It did so on two necessary bases.

First, the plaintiff raised specific, plausible allegations of an imminent, actual threat of future harm and committed that she "would purchase truly flushable wipes manufactured by [the defendant] if it were possible to determine prior to purchase if the wipes were suitable to be flushed."

Second, in the court's eyes, that commitment plus the plaintiff's plausible allegations that in the future she would have "no way" to verify the truth of the label's claims — whether a wipe is, in fact, truly flushable — moved the needle from the speculative and abstract, or no standing, to the imminent and concrete, or standing.

Three years later, In the August 2021 In re: Coca-Cola Products Marketing and Sales Practices Litigation, the Ninth Circuit revisited injunctive relief standing in a labeling case that challenged the defendant's claim "no artificial flavors. no preservatives added. since 1886" on its products.[2]

Applying Davidson, the Ninth Circuit examined the plaintiffs' deposition testimony to conclude that they lacked standing. First, some of the plaintiffs hedged on whether they continued to "desire to purchase [the product] as advertised," and instead testified only that they "would consider purchasing [the product]."

Second, other plaintiffs asserted merely "an abstract interest in compliance with labeling requirements," which cannot sustain Article III standing. Neither someday aspirations nor abstract fancies that a defendant tell the truth can establish an imminent threat of future harm to confer standing for injunctive relief.

The Intra-Ninth Circuit Split

After Davidson and In re: Coca-Cola, plaintiffs in the Ninth Circuit increasingly have relied on artfully pleaded allegations to assert standing for injunctive relief. And with some success.

A group of plaintiffs in Johnson-Jack v. Health-Ade LLC challenged a kombucha product's use of the term "Health-Ade" because its nutrition facts disclosed that it is sweetened with sugar.[3]

On Feb. 24, the U.S. District Court for the Northern District of California disagreed with the defendant that these allegations amounted to only a "conjectural and hypothetical" future injury because the plaintiffs claimed that "they want to purchase [the kombucha] in the future."

Even though the Northern District of California acknowledged that injunctive relief fails "where a plaintiff's knowledge forecloses the risk of future harm" and that injunctive relief failed in an earlier "no sugar added" case because the plaintiff knew that the product contained sugar, it nevertheless allowed this plaintiff to pursue injunctive relief despite similar apparent failings, citing its 2018 Rahman v. Mott's LLP decision.[4]

In the Feb. 4. Nacarino v. Chobani LLC case, the Northern District of California found standing for injunctive relief when the plaintiffs merely alleged that they "would purchase" the defendant's product in the future only if it changed in some way: if it were relabeled so that "its labels were accurate" or if it were reformulated.[5]

Yet the district court seemed all vanilla with the plaintiff's seemingly contradictory allegations that she would not have purchased the product had she known it was purportedly mislabeled.

These and a handful of other decisions in the Ninth Circuit appear to have credited thin, conclusory allegations that plaintiffs are likely to be harmed in the future from labeling that they already know the truth about.

But in doing so, they appear to part with Davidson's more fact-specific and nuanced analysis, along with established standing jurisprudence across the country. As the Southern District of New York observed in Gordon v. Target Corp., the "Second Circuit has squarely foreclosed the possibility of injunctive relief for past purchasers."[6]

Plausible Allegations of Future Purchases?

On the flip side of the coin, one example from the Northern District of California[7] hews far closer to Davidson's guidance that a plaintiff must assert plausible allegations about her commitment to continue purchasing the product in the future.

The plaintiff in Hanscom v. Reynolds Consumer Products LLC claimed that she would like to purchase the defendant's labeled "recycling" trash bags in the future, but only if they were reformulated to be truly recyclable. In January, the district court rejected this allegation as conclusory and implausible.

The plaintiff, observed the district court, actually conceded that plastic trash bags — like the defendant's — should not be used or play any role in recycling collection. These contradictory allegations rendered it implausible that the plaintiff would even want to purchase the trash bags again or, consequently, that the plaintiff was likely to be harmed in the future.

And in a 2020 Geske v. PNY Technologies Inc. decision, the Northern District of Illinois was equally emphatic that a plaintiff must assert plausible — not conclusory — allegations of future purchases that are necessary to show standing for injunctive relief.[8] The Southern District of New York rejected the premise altogether, stating that allegations of future purchases contemplate hypothetical future harms that cannot confer Article III standing:

If [the plaintiffs] choose to purchase [the chocolate products] in the future, then they may be harmed. The conditionality of this alleged injury removes it from the harms that Article III authorizes federal courts to remedy. Plaintiffs rest on precisely the sort of "allegations of possible future injury" that are insufficient to create subject-matter jurisdiction.[9]

Unringing the Bell on a Consumer's Awareness of the Labeling?

Plausible allegations on future deception also matter in the standing analysis. In Davidson, the Ninth Circuit focused on whether there was any way for the plaintiff to determine whether "the representation 'flushable' is in fact true" in the unique circumstances of that case. In less opaque — and less plumbing-dependent — false labeling cases, other courts reflect Davidson's emphasis on whether the information available to the plaintiff forecloses the risk of future harm.

In the Mott's case, the court concluded that the plaintiff lacked standing because, despite his allegations of deception, he "is now fully aware that 'No Sugar Added' simply means that no sugar was added to the product, not that the product does not contain sugar."[10]

Injunctive relief may not even be available to most plaintiffs in food and beverage labeling cases because they would know where to look on the product label to dispel supposed deception in the future. After all, according to the U.S. District Court for the Eastern District of New York, "consumers are trained to look" at certain spots on a product to clarify their understanding of a label.[11] Similarly, they would not be able to unring the bell on their newfound knowledge of where to look on a product label.

Courts in the Seventh and Second Circuits echo this conclusion: Plaintiffs now aware of the allegedly deceptive practice are not likely to be harmed again, so there cannot be "some concrete basis to conclude that the plaintiffs will or must purchase the product again in the future and be deceived," according to the Northern District of Illinois[12]

The Southern District of New York put it as refusing to "put blinders on" the plaintiffs' knowledge and that a contrary conclusion would be "inconsistent with Article III and with Supreme Court and Second Circuit caselaw."[13] Consequently, claims for injunctive relief have been dismissed in candy slack-fill, in the Benson v. Fannie May Confections Brands Inc. and Hesse v. Godiva Chocolatier Inc. cases, and even the widely publicized suit challenging Pop-Tarts with strawberry-flavored filling, Chiappetta v. Kellogg,[14] because the plaintiffs could not unring the bell of their knowledge.


So, what does this mean for practitioners? Although Article III standing is an important threshold issue — after all, it has constitutional implications about a court's subject matter jurisdiction — there certainly appears to be a growing split among the district courts in the Ninth Circuit about what is actually required to establish standing for injunctive relief claims in false labeling cases.

On one hand, according to some courts, and with the backing of the U.S. Supreme Court in the 2013 Clapper v. Amnesty International USA decision, Article III's requirements do not mold to the relief asserted, not even for injunctive relief. "Allegations of possible future injury are not sufficient" to establish standing. They require more than conclusory allegations that a plaintiff could suffer some hypothetical injury in the future to sustain claims for injunctive relief under Article III.[15]

On the other hand, other courts have suggested that plaintiffs need only make the bare assertion that they would purchase the defendant's product in the future and that they simply cannot rely on the defendant's label in the future. Ultimately, these decisions have provided a path for plaintiffs, allowing them to artfully plead themselves into discovery without substantively alleging an actual or imminent future injury to establish standing to seek claims for injunctive relief.

If the latter trend grows, standing for injunctive relief in the false labeling context turns on the inclusion or omission of a single word in their assertions — whether the plaintiff pleads that she "would purchase" a product in the future, or standing, versus whether the plaintiff pleads that she "would consider purchasing" a product in the future, or no standing.

It spells for more decisions in the mold of In re: Coca-Cola: courts weighing in on the fundamental, threshold issue of standing only after the parties engage in expensive discovery and class certification briefing before the court.

If this schism grows, another trip to the Ninth Circuit appears likely, possibly teeing up a circuit split on Article III standing — a favorite topic for the Supreme Court.

For now, however, litigants in the Ninth Circuit should brace for greater unpredictability and increased litigation costs as district courts resolve injunctive relief standing issues on a case-by-case basis.

[1] Davidson v. Kimberly-Clark Corp. , 889 F.3d 956 (9th Cir. 2018).

[2] In re Coca-Cola Prods. Mktg. & Sales Practices Litig. , ___ F. App'x ___, 2021 U.S. App. LEXIS 26239 (9th Cir. Aug. 31, 2021).

[3] Johnson-Jack v. Health-Ade LLC , ___ F. Supp. 3d ___, No. 3:21-cv-07895, 2022 U.S. Dist. LEXIS 32999 (N.D. Cal. Feb. 24, 2022).

[4] Id. at *32 (citing Rahman v. Mott's LLP , 2018 U.S. Dist. LEXIS 164620 (N.D. Cal. Sept. 25, 2018)).

[5] Nacarino v. Chobani, LLC , No. 3:20-cv-07437, 2022 U.S. Dist. LEXIS 20671, at *38-39 (N.D. Cal. Feb. 4, 2022).

[6] Gordon v. Target Corp. , No. 7:20-cv-09589, 2022 U.S. Dist. LEXIS 48769, at *25 n.3 (S.D.N.Y. Mar. 18, 2022).

[7] Hanscom v. Reynolds Consumer Prods. LLC , No. 4:21-cv-03434, 2022 U.S. Dist. LEXIS 34057 (N.D. Cal. Jan. 21, 2022).

[8] Geske v. PNY Techs., Inc. , 503 F. Supp. 3d 687, 703 (N.D. Ill. 2020).

[9] Hesse v. Godiva Chocolatier, Inc. , 463 F. Supp. 3d 453, 465 (S.D.N.Y. 2020).

[10] Mott's LLP, 2018 U.S. Dist. LEXIS 164620, at *7.

[11] Davis v. Hain Celestial Grp., Inc. , 297 F. Supp. 3d 327, 337 (E.D.N.Y. 2018); accord Cheslow v. Ghirardelli Chocolate Co. , 445 F. Supp. 3d 8, 20 (N.D. Cal. 2020).

[12] Benson v. Fannie May Confections Brands, Inc. , No. 1:17-cv-03519, 2018 U.S. Dist. LEXIS 32781, at *13-14 (N.D. Ill. Feb. 28, 2018).

13] Hesse, 463 F. Supp. 3d at 465-66.

[14] Chiappetta v. Kellogg Sales Co. , No. 1:21-cv-03545, 2022 U.S. Dist. LEXIS 35632 (N.D. Ill. Mar. 1, 2022).

[15] Clapper v. Amnesty Int'l USA , 568 U.S. 398, 409 (2013).

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