The Ninth Circuit Court of Appeals heard oral arguments Tuesday in a case where a man is suing CVS Pharmacy, alleging that the company misled consumers with its claim that its store-brand hand sanitizer kills 99.99% of germs. The attorney for the plaintiff, Thiago M. Coelho of Wilshire Law Firm PLC, argued that an asterisk on the product’s label does not absolve CVS of wrongdoing, despite a recent Ninth Circuit ruling that emphasized the significance of such asterisks in labeling.
Coelho urged the panel to revive his client’s claims, which had been previously dismissed with prejudice by a district court. He contended that the asterisk, which directs consumers to a statement on the back label, only exacerbates confusion. While the front label claims the sanitizer kills 99.99% of germs, the back label states it kills “many” germs—an ambiguous and imprecise statement that leaves consumers uncertain about the true efficacy of the product.
This case is part of a broader legal debate about the clarity of product labels, with similar cases like Whiteside v. Kimberly-Clark Corp. influencing arguments in the current litigation. Judge Ryan D. Nelson noted that the significance of an asterisk had been debated in previous rulings, with some cases asserting that the asterisk signals additional information, but it must serve a “specific purpose” and not create further confusion.
The lawsuit, filed in 2019 by Joseph Mier, asserts that CVS’s false advertising violates consumer protection laws by misleading customers about the hand sanitizer’s effectiveness. Vi-Jon LLC, the manufacturer of the product, was granted permission to intervene in the case in 2020.
In January 2024, the district court dismissed the case, citing the McGinity v. Procter & Gamble decision, where the Ninth Circuit ruled that ambiguous labeling did not equate to deceptive practices. However, Mier’s legal team challenges this conclusion, citing survey data showing that 85% of consumers were still confused by the product’s claims, even after reading the back label.
Coelho distinguished this case from McGinity, arguing that the confusion here was more pronounced because the back label’s statement was less precise. CVS’s legal representative, Anthony Hopp of Steptoe LLP, argued that the front label did not promise what the plaintiff claimed it did, but the panel’s questioning suggested doubts about whether the label’s ambiguity sufficiently protected the company.
Judge Jennifer Sung also highlighted the importance of clarity in labeling, stating that California law does not allow companies to rely on vague or ambiguous statements to avoid responsibility. She noted that the back label in this case failed to clear up the confusion caused by the front label’s claim.
The case, Joseph Mier et al. v. CVS Pharmacy Inc. et al., is currently pending before the Ninth Circuit, with a decision expected in the coming months.
