The Ninth Circuit and I simply have differing views about the reasonable expectations of consumers.
There's a lip balm called the Sugar Lip Treatment that's basically (as I understand it, anyway) just a high-end sort of Chapstick or Burt's Bees. The package says it contains 4.3 grams of lip balm or, for the "mini" size, 2.2 grams. And that's right.
To a degree.
I say "to a degree" because the Sugar Lip Treatment packaging makes sure that the user can only actually use 75% of the product. There's a "plastic stop device" that stops the other 25% from going over the top of the applicator and hence being applied to the lips.
I agree with Judge Tashima that there's no legal violation for the actual statement that there's 4.3 (or 2.2) grams of actual product. Because there is, in fact, that amount of product.
But Judge Tashima, and the rest of the panel, also think it's okay not to include a supplemental statement that discloses something like "But you can only actually use 3.2 or 3.3 of those 4.3 grams because we have designed the package to make you throw away a full quarter of the product, unlike some other manufacturers (like Burt's Bees) who let you use the whole thing." That's because, according to Judge Tashima, every "reasonable consumer" would "understand that some product
may be left in the tube to anchor the bullet in place" since they're familiar with these sorts of tubes.
That's where the panel and I part ways.
First off, it's simply not true. Factually. Or, at a minimum, there's one consumer in the universe who thinks it's not true. Me. Because there some plastic stop gaps come over the lip of the dispenser, thus allowing you to apply all the product. At least if you try hard enough.
I'm admittedly not intimately familiar with lip balm. But I do use roll-on deodorant, which works on the same principle. And you can get at all, or virtually all, of the product if the plastic "holder" stops over -- rather than under -- the lip. That can happen. That does happen.
So when Judge Tashima says that everyone understands that some product may be left in the tube, I think that statement's only accurate if you put a heavy emphasis on the word "may". Maybe it could be. Maybe it wouldn't be. Maybe all of it will be usable. We don't uniformly understand that every tube leaves a block of the product deliberately stuck down the tube.
More importantly, even if I -- and everyone else -- knows that there might be some product left in the tube, that doesn't mean necessarily mean it's okay for a quarter of the product to be designed to get stuck down there. Yeah, truthfully, I know that when I get to the end of a deodorant thingy (I don't know what they're technically called -- that's my dysnomia showing itself), there's often a bit left in the little gap. And when I have to rub my underarm against the plastic to get the rest out, that hacks me off a bit.
But I'd be super hacked if a quarter of the thing was left. That is not what I would expect. And I'd be miffed -- super miffed -- if I bought a product and discovered it was packaged that way. Indeed, were I to know that at the outset, I might well not buy it.
That, in my mind, is what a reasonable consumer might expect. They might expect a tiny bit of some product to be left in the can. But not a huge amount.
And twenty-five percent sounds huge.
That's the part of Judge Tashima's opinion I don't get. Nowhere does he address how much -- if any -- is too much. And there's got to be a line, otherwise I definitely disagree with the opinion. At least according to the actual words of the opinion, the Ninth Circuit's holding seems to be that a product in a tube wouldn't be deceptive even if 99.999% of the product was stuck beneath the tip, unusable. It seems like the Ninth Circuit would simply say, as it does here, that "the consumer’s
knowledge that some additional product lies below the tube’s
opening is sufficient to dispel any deception; at that point, it
is up to the consumer to decide whether it is worth the effort
to extract any remaining product with a finger or a small tool."
Yeah, because that's what a reasonable consumer would be fine with. Ninety nine percent of the product underneath the tube's just fine so long as I can eventually get at it with a toothpick or pocket knife and slab it on my face. That's definitely what I'm paying for.
If this had been a case on summary judgment, and there were uniform consumer surveys that said that everyone's cool with having a full 25% of the product below the line, I'd be okay with the result. I'd be surprised, admittedly. But were that the state of the evidence, well, it is what it is. Maybe at the high end of the lip balm industry people are fine with 25%, or 50%, or 99% (or whatever) wasting away in the tube. Not me, mind you. I'm likely hacked off once the number starts hitting the double digits. And I'd call myself a reasonable -- indeed, informed -- consumer. But I admit I'm not the kind of guy who pumps his lips full of lip balm, and if all of those people are happy with 99% wasted, so be it. Summary judgment.
But this is a 12(b)(6) motion. The Ninth Circuit decides, as a matter of law, that no reasonable consumer could possibly care or be deceived about a product that says it contains 4.4 grams of product but in fact is deliberately designed so you can only get at 75% of it.
I'll have to respectfully disagree with that. 'Cause I think I'd be precisely such a consumer. And can readily conceive that there might be at least one of me who might buy this particular product.
Hence the need for actual evidence.
At some point, I could get on Judge Tashima's bandwagon. At 1% loss, I'd be on board for saying that no reasonable consumer would be deceived. Ditto for 5%.
And I can't tell you exactly where I'd end. Might change from product to product.
But I can tell you that at 25%, we're way past the line. At least for me to dismiss a lawsuit as a matter of law.
It's a pernicious opinion. Consumers should be informed. Manufacturers shouldn't have an incentive to employ designs that force you to buy more than you intend. God forbid that Pringles start getting packaged in a Chapstick-like tube where you've got to dig out a quarter of the Pringles with a fork.
So I don't like this one. It seems wrong to me to decide this as a matter of law.
It's an opinion that makes the marketplace less informed, not more. Less efficient, even.