I like the current use of "extra" as an adjective to describe a person who's a little over-the-top. "He's just so [eyeroll] EXTRA." The more traditional use of the word, of course, is to indicate something more or additional, like "I brought extra cookies to the picnic, just in case." In advertising, "extra" is often used to indicate that you're getting more than you would usually get for the same price, like "bonus." Sometimes, however, the word is used in a product name. A recent decision from a California district court explores what a reasonable consumer takes away from that use of "extra."

At issue in the case was the product NatureMade Extra Strength Chewable Vitamin C tablets. Just like NatureMade regular strength Vitamin C tablets, the Extra Strength tablets each contain 500 mg of vitamin C. The front of the regular strength product label says "500 mg" of Vitamin C and the front of the Extra Strength one says "1000 mg". The Extra Strength product instructs consumers on the back label to take two tablets per day. In other words, consumers get "extra" Vitamin C if they follow the dosage directions and take two tablets.

The plaintiffs sued under both New York and California law, claiming that, based on the "Extra Strength" labeling, they understood that each Extra Strength tablet would contain 1000 mg of vitamin C and that they paid a premium. Defendant moved to dismiss, arguing that no reasonable consumer would be deceived by the Extra Strength label and expect the tablets to contain 1,000 mg of vitamin C per tablet.

The court disagreed. Noting that "an accurate description on the back of a label does not necessarily negate a misleading representation on the front," the court found that the Extra Strength product label could mislead a reasonable consumer to believe that each table has greater potency than the regular strength tablet. In so finding, the court analyzed the defendant's argument that the "per serving" reference on the front of the Extra Strength label provided a "context clue" for consumers, putting them on notice to also check the back of the label. The court rejected this argument because, even with the "clue," consumers would have to take both the Regular Strength and the Extra Strength product off the shelf and compare their labels to figure out that "extra" only meant "take more" rather than "get more." Accordingly, the court held that plaintiffs alleged facts plausibly showing that a reasonable consumer could be deceived by the Extra Strength product's packaging and it denied defendant's motion to dismiss as to that issue.

Courts frequently grapple with the front of label/back of label issue, and to what extent consumers should reasonably be expected to read both. Although courts do sometimes find that reasonable consumers should do just that, this case underscores the risk of expecting consumers to do so. The risk is heightened if, as here, the disclosure arguably contradicts consumers' common sense understanding of the product name or claim. Very extra.

Maria Mendez Whitaker v. Pharmavite LLC, Case #2:22-cv-04732 (CD California)

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