Greenwashing is a relatively new deceptive marketing practice that companies use to mislead consumers about the positive environmental benefits of their products. One consumer claimed he was hoodwinked by a hair conditioner label that pictured an avocado on a leaf on its label, under the words “Natural Fusion.” When he discovered the product was full of “harsh and potentially harmful” synthetic ingredients, he filed a class action suit against manufacturer Proctor & Gamble (P&G) under three different California consumer protection laws.

Plaintiff Sean McGinity lost at trial and in the District Court where Judge Yvonne Gonzales Rogers dismissed his suit without leave to amend. McGinity appealed to the Ninth Circuit, where the justices found no deception because all the ingredients, both natural and synthetic, were listed on the bottle’s back label. In a 3-0 decision, written by Judge Ronald M. Gould on June 9, the justices concluded that the label was not misleading, merely ambiguous. Gould wrote, “Upon seeing the back label, it would be clear to a reasonable consumer that avocado oil is the natural ingredient emphasized in P&G’s labeling and marketing.”

Pantene, one of P&G’s brands, makes “Nature Fusion” hair conditioner. Thinking he was purchasing a natural product in June 2019, McGinity paid a premium price for what he assumed was one of the natural personal care products that he preferred. When he got home and read the label, he discovered his conditioner was full of synthetic ingredients.

McGinity sued P&G under California’s Unfair Competition Law (UCL), False Advertising Law (FAL) and the State’s Legal Remedies Act (CLRA). Rogers granted P&G’s dismissal request because McGinity failed to “allege sufficient facts to show that a reasonable consumer would be deceived.”

To support his claim, McGinity’s attorney commissioned an independent survey of 400 consumers about their impressions of the front, but not the back, product labels. The survey found nearly 75% of the panelists believed the pictures on the front of the label indicated that the product “had more natural than synthetic ingredients.” When asked about the meaning of the phrase ‘Natural Fusion,” 52.6% of those surveyed thought the conditioner did not contain any synthetic ingredients.

The Ninth Circuit was not impressed by the survey, finding it “not particularly instructive or helpful to us in deciding this case” largely because survey participants were not given access to the back label, which listed all the ingredients. “This omission to a degree undermines the extent to which we can fairly rely on the survey results as being instructive of how the “reasonable consumer” understands the phrase “Nature Fusion…,” he wrote.

Gould’s opinion explained that all three of California’s consumer protection laws cited by plaintiff are governed by the “reasonable consumer standard,” which required McGinity to “show that members of the public are likely to be deceived.” The standard “requires more than a mere possibility” of deception and must have “a meaningful capacity to deceive.”

The judge then differentiated ambiguity from deception. In support of his analysis, he cited McGinity’s own survey that found a “nearly 50/50 split about whether the name “Nature Fusion” contained both natural and synthetic ingredients.” McGinity also argued that precedents would disallow P&G from “relying on the back ingredient list to derive the meaning of “Nature Fusion.” The Ninth Circuit found no such precedent. Instead, Gould wrote, “Reasonable consumers expect that the ingredient list (on the back of the package) contains more detailed information about the product that confirms other representations on the packaging.”

Judge Gould pointed out that the conditioner did not claim to be 100% natural or all-natural. It made no such promises and thus the name “Nature Fusion,” could mean any number of things; it could indicate a mixture of natural and synthetic ingredients or “something else entirely.” He concluded “that when, as here, a front label is ambiguous, the ambiguity can be resolved by reference to the back label.”

In an additional concurring opinion, Gould and Judge Marsha S. Berzon discussed their concern about the growing practice of greenwashing. The website of the National Resources Defense Council, an organization of three million members and over 700 scientists, explains that the term greenwashing was first used in a 1986 essay by environmentalist Jay Westerveld. Its website article “What is Greenwashing?” explains that consumers “regularly encounter misleading sustainability claims on packaging” and in “so-called sustainability initiatives promoted by major corporations….who (are) gaming the system or profiting off well-intentioned, sustainability-minded consumers.”

The article gave several examples, including how Chevron launched its “People Do” campaign that “touted its work protecting wildlife,” while it continued its hazardous oil spill practices. It also points out tactics corporations use to give this false impression, including the use of “nature-based imagery,” such as that found on the “Nature Fusion” label, as well as “environmental buzzwords like natural or eco-friendly.”

The article explains that companies are greenwashing because Growing Green sells. The Ninth Circuit’s opinion in McGinity v Proctor and Gamble will do little to clarify the issues or solve the greenwashing problem. Meanwhile, consumers would be wise to read the back as well as the front labels of everything they purchase.