[00:01:19] Speaker 04:
Kimberly-Clark's argument amounts to, as a matter of law, a front label cannot be deceptive if there's any way to read it consistently with a rear label, even if the label actually deceives most consumers and even if it had been carefully designed to deceive them.

[00:01:38] Speaker 04:
That state of affairs, that eventuality was rejected by the court in Bell, by the Seventh Circuit, has been rejected by the Second Circuit in Mantegas, and was rejected by this circuit in Willie

[00:02:22] Speaker 03:
with plant-based, I guess I'm trying to understand that.

[00:02:25] Speaker 03:
Are you saying that because it says 100 percent, or I see because you say plant-based, that someone should think, I mean one would think that yes that doesn't have any animal in it if it says plant-based, right?

[00:02:38] Speaker 03:
Because that sort of, that term is from the world of sort of nutrition and food and

[00:03:00] Speaker 04:
or non-food items, that's potentially true.

[00:03:04] Speaker 04:
I mean, I would say that on the front label there is a statement that it is natural.

[00:03:10] Speaker 04:
Natural, even if it said nothing about plant-based, natural itself has been held to be where it's unqualified as it is here, one that leads a reasonable

[00:03:37] Speaker 04:
poos.

[00:04:43] Speaker 04:
definition of a back label, you know, cover or disclosure, forgetting the fact that it's in very small font, very hard to parse among three paragraphs of text.

[00:04:54] Speaker 04:
That itself makes it contra the front label and that brings it directly within the world of Williams and

[00:05:24] Speaker 04:
if the court were to adopt some contrary rule

[00:06:03] Speaker 03:
different than regular marketing.

[00:06:05] Speaker 04:
Right, so I'll take the

[00:07:00] Speaker 04:
is a natural product, that it is also plant-based, and that it is also one where there are prominent pictures of green leaves all over it.

[00:07:10] Speaker 04:
That would leave the reasonable consumer to think, okay, I'm getting a natural product.

[00:07:15] Speaker 04:
On the back label it says,

[00:07:42] Speaker 00:
more precisely what the composition of the product was.

[00:07:51] Speaker 00:
What was the precise language in the labels with the asterisk?

[00:07:57] Speaker 04:
So in the labels that had the asterisk, the precise

[00:08:19] Speaker 04:
It has no clear meaning.

[00:08:21] Speaker 04:
What does that mean?

[00:08:22] Speaker 04:
What is it modifying?

[00:08:23] Speaker 04:
Now, the district court put in helpfully brackets that said what it believed that it modified, but that's not what the

[00:08:47] Speaker 04:
in microscopic and sort of surreptitious font to say, actually, this is 70% plus or minus by weight.

[00:10:06] Speaker 01:
Is it the babies that don't like the synthetic baby wipes?

[00:10:10] Speaker 04:
I would believe that it's the parents who are paying extra.

[00:10:14] Speaker 04:
Oh, I'm sorry.

[00:10:15] Speaker 04:
I believe it's the parents who are paying extra so that their children can have on their bodies a natural product, as well as parents who are concerned about landfill and other sorts of environment.

[00:10:27] Speaker 04:
Landfill, because I gather the babies aren't crying more because... That's outside the record, Your Honor.

[00:10:32] Speaker 04:
I don't know.

[00:10:44] Speaker 00:
suggesting that there's 70% natural or 70% plant-based.

[00:10:57] Speaker 00:
That's the other language on the front label.

[00:11:01] Speaker 00:
So if there's an asterisk that has that 70% language I'm having, we'll see why that's deceptive.

[00:11:43] Speaker 04:
unclear.

[00:11:44] Speaker 04:
The asterisk and what it modifies is unclear.

[00:11:47] Speaker 04:
But under McGinnity that means you turn it over in the back.

[00:11:51] Speaker 04:
McGinnity is talking about front label statements and back label disclosures.

[00:11:57] Speaker 04:
Here the 70 percent is the disclosure.

[00:11:59] Speaker 04:
There's nothing to turn and find out more of at least about that.

[00:12:02] Speaker 04:
That's the only statement on the box that speaks to

[00:12:12] Speaker 04:
I'm saying our position on the estrous products is that it's unclear what it means.

[00:12:18] Speaker 04:
It could mean that it's 70% white versus water, that it's 70% cloth, fiber versus liquid.

[00:12:25] Speaker 04:
It could mean any number of different things.

[00:12:28] Speaker 04:
And that's the disclosure, though, which is different than a front label statement.

[00:12:31] Speaker 03:
Council, you have two and a half minutes.

[00:12:33] Speaker 03:
Let me ask Judge Cool.

[00:12:34] Speaker 03:
Do you have any questions right now?

[00:12:37] Speaker 03:
No.

[00:12:37] Speaker 03:
All right.

[00:12:38] Speaker 03:
All right.

[00:12:38] Speaker 03:
Thank you very much.

[00:13:01] Speaker 02:
including the ones without the ass.

[00:13:51] Speaker 02:
didn't address it until page 50 because they have no answer for it.

[00:13:55] Speaker 02:
And Judge Mendoza, you were stating the standard correctly.

[00:13:57] Speaker 02:
McGinney synthesized this rich body of cases from this circuit and said a couple of things.

[00:14:03] Speaker 02:
First, the burden is not a small one for a plaintiff in these circumstances.

[00:14:08] Speaker 02:
The plaintiff must show that there's a probability that a significant portion of the general consuming public would be likely to be misled.

[00:15:03] Speaker 02:
for the natural council, isn't that?

[00:15:05] Speaker 02:
It is, Your Honor.

[00:15:06] Speaker 02:
Natural is different.

[00:15:08] Speaker 02:
Natural care modified by plant-based, and this is why I'm putting aside the asterisk, a reasonable consumer who cared about these issues, who cared about having natural products, at a bare minimum, it might be ambiguous.

[00:15:25] Speaker 02:
And that takes us directly to McGinty, where the court declared that where the front label

[00:15:39] Speaker 02:
The back label says in capital letters, natural and synthetic ingredients.

[00:15:45] Speaker 02:
And this is just McGinnity all over again.

[00:15:48] Speaker 02:
In McGinnity, two councils said, well, there was natural fusion was the label.

[00:15:53] Speaker 02:
But the plaintiffs in McGinnity argued that

[00:16:37] Speaker 02:
And in McGinnity, the consumer had to look at the ingredients and determine what was natural and what was synthetic.

[00:16:43] Speaker 02:
So here, this is McGinnity Plus.

[00:16:47] Speaker ?:
It's a stronger case than McGinnity.

[00:16:50] Speaker 02:
The other point that counsel made on the question, well,

[00:17:10] Speaker 02:
of the key cases that district court relied on.

[00:17:13] Speaker 02:
And let me address that, because McGinney relied on Moore.

[00:17:17] Speaker 02:
It didn't say it was some outlier because it had this particular type of honey.

[00:17:21] Speaker 02:
It said that McGinney, and it cites the Bell case from the Seventh Circuit that counsel relies on, McGinney said that Moore stood for the proposition

[00:17:55] Speaker 02:
and the court still found that it was appropriate to look at the total mix of information.

[00:18:01] Speaker 03:
And here, plaintiff- If we look at the total mix of information, I mean, you showered this packaging in green leaves.

[00:18:31] Speaker 02:
There was, it was natural fusion.

[00:18:33] Speaker 02:
Uh, uh, an avocado sitting on a green leaf.

[00:18:37] Speaker 02:
Here you have trees, pine trees.

[00:18:40] Speaker 02:
The product here is 70% wood pulp.

[00:18:42] Speaker 02:
There's nothing misleading about showing trees.

[00:18:44] Speaker 02:
There's in one of the labels, it's on page 60 of the ER.

[00:19:00] Speaker 02:
ingredients and so the the

[00:19:30] Speaker 02:
target according to their own appendix has the 70 percent

[00:19:59] Speaker ?:
their baby.

[00:20:01] Speaker 02:
This goes back to the point I wanted to make.

[00:21:02] Speaker 01:
Why don't the plans have a cause of action?

[00:21:33] Speaker 02:
That context and everything is contextual but here your honor again

[00:22:07] Speaker 02:
That's not correct in this circumstance.

[00:22:09] Speaker 02:
That if there are two, they say equally plausible in their brief interpretations of the front label, that means it's at best ambiguous.

[00:22:18] Speaker 02:
If it's ambiguous, this court doesn't need to blind itself to the back of the label, which Judge Gilman says

[00:22:34] Speaker 02:
our interpretation is reasonable.

[00:22:36] Speaker 02:
Okay, I'll give them that.

[00:22:38] Speaker 02:
If their interpretation is reasonable, so is our alternative, just like in McGinnity, that a reasonable consumer would say, plant-based, natural care, that sounds like it might be all natural, but this is where the Manuka honey case comes in.

[00:22:55] Speaker 01:
We hear from you, I assume, with this California court of appeals case called Brady versus Bayer Court.

[00:23:00] Speaker 02:
It's my favorite

[00:23:21] Speaker 02:
That's an example of an unambiguously deceptive front label because it said one a day and That would have been like this label saying all natural or this is what the court said in the beginning or 100% natural then you go to the back and it says natural and synthetic that would be an

[00:23:59] Speaker 02:
I'm not sure it did, but Brady, it cited the Williams case, which Brady relied on Williams.

[00:24:06] Speaker 02:
And let me address Williams, because that's their big case.

[00:24:09] Speaker 02:
Williams has been refined and explained, both in Trader Joe's and the Fresh case regarding the lip balm, and in McGinnity.

[00:24:18] Speaker 02:
And the court pointed out there, again, the contrast is stark.

[00:24:22] Speaker 02:
There were pictures of cherries and all sorts

[00:24:29] Speaker 02:
of all other natural ingredients.

[00:24:32] Speaker 02:
It turned out when you looked at the back label

[00:24:50] Speaker 02:
care means, that's the exact circumstance that this court contemplated in the McGinnity case.

[00:24:56] Speaker 02:
So we think McGinnity did a great job of synthesizing these principles.

[00:25:02] Speaker 02:
And I think the description of these labels that counsel is giving, of course, when it says plant-based asterisk, and then there's an asterisk that says 70% plus by weight, a reasonable consumer would say,

[00:25:21] Speaker 02:
and they were curious, they would look at the back of the label to see, well maybe, maybe I'm not getting this, it's ambiguous.

[00:25:28] Speaker 02:
That's what McGinnity stands for.

[00:25:31] Speaker 02:
And that's where we don't even need McGinnity for the 70% asterisk labels.

[00:25:42] Speaker 02:
I grant you that there are different interpretations one could have

[00:25:53] Speaker 02:
As plaintiff's complaint alleged, something that is plant-based is primarily, one dictionary definition, is primarily made of plants.

[00:26:05] Speaker 02:
So that then means that a reasonable consumer would read that and think it's primarily based on plants, which is true, 70% or more, wood pulp.

[00:26:15] Speaker 02:
99% of the liquid is purified water, which, yes.

[00:26:38] Speaker 02:
all based on plans.

[00:26:41] Speaker 02:
But another reasonable consumer could think what I'm saying is what the district will find that it's primarily.

[00:27:09] Speaker 01:
That's a little different.

[00:27:53] Speaker 03:
big old leaves on it, saying natural care and have this plant base.

[00:28:00] Speaker 03:
I guess, what's your position on that, that today is kind of

[00:28:32] Speaker 02:
that a reasonable consumer would know that a product, a mass-produced product that includes material wipes in a plastic container

[00:29:04] Speaker 02:
clean their baby.

[00:29:05] Speaker 02:
And that goes to my second point.

[00:29:08] Speaker 02:
I was about to make this before, that it's one thing to be shopping for honey, people care about it.

[00:29:13] Speaker 02:
As you're pointing out, Judge Mendoza, people do care about natural ingredients.

[00:29:17] Speaker 02:
So someone who cares would take the time, this is what the court said in McGinnity, to turn over the label, to check, to make sure

[00:29:38] Speaker 03:
Do you have any other questions?

[00:29:39] Speaker 00:
I do, but I have a question.

[00:29:41] Speaker 00:
Yes, Your Honor.

[00:29:42] Speaker 00:
From Mr. Guthros.

[00:29:44] Speaker 00:
So, in your view of the case, does the asterisk on the label matter, or do you think the label without the asterisk

[00:30:24] Speaker 02:
label, which says natural and synthetic agreements.

[00:30:27] Speaker 02:
The asterisk matters in the sense that it's a slam dunk.

[00:30:30] Speaker 02:
How can it possibly be when it says plant-based 70% of reasonable consumer would interpret that to mean 100%?

[00:30:38] Speaker 02:
That makes no sense.

[00:30:39] Speaker 02:
It's absurd.

[00:30:39] Speaker 02:
No reasonable consumer would think that.

[00:30:42] Speaker 02:
And so we believe the court should affirm.

[00:30:44] Speaker 02:
Thank you so much.

[00:30:45] Speaker 02:
Thank you.

[00:30:51] Speaker 04:
Thank you very much.

[00:30:51] Speaker 04:
I just want to hit a couple of points to respond

[00:30:59] Speaker 04:
in Souter held that the reasonable consumer is not wary or suspicious of advertising claims.

[00:31:07] Speaker 04:
This is in stark contrast to the Trader Joe's case where, again, a niche product, a very expensive product like Manuka Honey that apparently has a very devoted and knowledgeable fan base, that is a different kind of product

[00:31:42] Speaker 04:
Only those that only got a rear label disclosure, those people have stated a claim under a motion to dismiss standard.

[00:31:51] Speaker 04:
One can't say as a matter of law that they can't state a claim.

[00:31:55] Speaker 04:
That's exactly what I believe Judge Gilman was getting at.

[00:31:59] Speaker 04:
We're asking about Brady.

[00:32:15] Speaker 04:
does not have to be forced to look at the back label.

[00:32:52] Speaker 04:
reasonable consumer would know, hey, this is not natural.

[00:32:57] Speaker 04:
We're not suggesting that it hasn't been changed from its natural state.

[00:33:01] Speaker 04:
We don't believe that it's actually a tree wrapped in plastic.

[00:33:05] Speaker 04:
We think that the reasonable consumer believes that it's getting a tree that's been turned into wipes by a factory process without having other chemicals or other harsh products added to it.

[00:33:19] Speaker 04:
That's all this is about.

[00:33:40] Speaker 04:
The majority of the ingredients are synthetic.

[00:34:16] Speaker 03:
additional questions.