After years of litigation regarding whether and when a “reasonable consumer” can be expected to consult text on the back or side label of a product, the Second Circuit has now clarified its 2018 opinion in Mantikas v. Kellogg, 910 F.3d 633 (2d Cir. 2018). Recently, in Hardy v. Olé Mexican Foods, the U.S. Court of Appeals for the Second Circuit revisited Mantikas in a summary order, shedding light on when and how lower courts should apply the principles articulated therein—while leaving some issues open for future litigation.
A Look Back: ‘Mantikas’
It has been nearly five years since the Second Circuit held in Mantikas that the “reasonable consumer,” viewing a misrepresentation on the front label of a product, “should not be expected” to seek clarification from a nutritional label on the side or back of the packaging. Mantikas, 910 at 637. At the time, there was noticeable tension between that holding and the well-established proposition—also stated in Mantikas—that courts considering a motion to dismiss false labeling claims must consider the packaging as a whole because, in such cases, “context is crucial.” See generally Do “Reasonable Consumers” Read the Ingredients List, Blog Post (Feb. 22, 2019) (noting this tension and suggesting that lower courts would find Mantikas difficult to square with cases in which reasonable consumers are expected to consult nutritional labels). And that tension has played out over the past few years in district court decisions that narrowly interpret or distinguish Mantikas. Just recently, in Foster v. Whole Foods Market Group, 2023 WL 1766167 (E.D.N.Y. Feb. 3, 2023), the district court articulated a test that limited Mantikas to cases where the front-label statement is “unambiguously misleading.” See generally Nothing Fishy About Expecting Consumers to Read the Ingredients List, Blog Post, March 1, 2023 (explaining that this limitation on Mantikas is consistent with pre-Mantikas Second Circuit cases and cases from outside the Second Circuit).