UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT SUMMER WHITESIDE, individually No. 23-55581 and on behalf of all others similarly situated, D.C. No. 5:22-cv-01988- Plaintiff-Appellant, JGB-SP v. KIMBERLY CLARK CORP., OPINION

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California Jesus G. Bernal, District Judge, Presiding

Argued and Submitted May 13, 2024 Pasadena, California

Filed July 17, 2024

Before: Ronald Lee Gilman, * Ronald M. Gould, and Salvador Mendoza, Jr., Circuit Judges.

Opinion by Judge Gould * The Honorable Ronald Lee Gilman, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. 2 WHITESIDE V. KIMBERLY CLARK CORP.

SUMMARY **

Product Labels

The panel affirmed in part and reversed in part the district court’s dismissal of a putative class action brought against Kimberly Clark Corp., alleging that the label of Defendant’s baby wipes was misleading in violation of California’s false advertising laws. Plaintiff claimed that the words “plant-based wipes” and “natural care®” on the front label, together with nature- themed imagery on the packaging, suggested that Defendant’s baby wipes contain only natural ingredients with no chemical modifications or processing. The baby wipes contain synthetic ingredients. The district court separated the label designs into two categories: (1) labels where an asterisk was placed after “plant-based wipes*” with a corresponding qualifying statement elsewhere on the front label (“Asterisked Products”); and (2) labels on which no asterisk or qualifying statement appeared on the front label (“Unasterisked Products”). The district court concluded that both the Asterisked Products and Unasterisked Products were not misleading as a matter of law. California’s Unfair Competition Law, False Advertising Law, and Consumer Legal Remedies Act prohibit advertising that has a capacity to mislead a reasonable consumer. If a product’s front label is plausibly misleading to a reasonable consumer, then the court does not consider ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. WHITESIDE V. KIMBERLY CLARK CORP. 3

the back label at the pleadings stage, but the back label may be considered if the front label is ambiguous. The panel agreed with Plaintiff that a front label can be unambiguous for Fed. R. Civ. Pro. 12(b)(6) purposes even if it may have two possible meanings, so long as the plaintiff has plausibly alleged that a reasonable consumer would view the label as having one unambiguous (and deceptive) meaning. The panel reversed the district court’s dismissal of Plaintiff’s claims as to the Unasterisked Products. The panel rejected Defendant’s contention that the Unasterisked Products’ front label was ambiguous, such that the district court correctly considered the back label. Plaintiff plausibly alleged that a reasonable consumer could interpret the front label as unambiguously representing that the Products do not contain synthetic ingredients, precluding Defendant’s reliance on the back-label ingredients list. The panel affirmed the district court’s dismissal of Plaintiff’s claims as to the Asterisked Products. The asterisk and qualifying statements on the Asterisked Products, paired with the back label ingredients, make it impossible for the plaintiff to prove that a reasonable consumer was likely to be deceived. The panel rejected Defendant’s claim that Fed. R. Civ.