Ninth Circuit denies en banc rehearing and modifies its opinion in Williams v. Gerber Products Co.

On Monday, the Ninth Circuit issued an order denying en banc rehearing and modifying its opinion in Williams v. Gerber Products Co., 523 F.3d 934 (9th Cir. 2008). Originally, the opinion contained these three sentences:

We do not, however, think that a busy parent walking through the aisles of a grocery store should be expected to verify that the representations on the front of the box are confirmed in the ingredient list. Instead, reasonable consumers expect that the ingredient list contains more detailed information about the product that confirms other representations on the packaging. We do not think that the FDA requires an ingredient list so that manufacturers can mislead consumers and then rely on the ingredient list to correct those misinterpretations and provide a shield for liability for the deception.

Slip op. at 4197 (emphasis added). The first sentence has been omitted, and the other two reversed, to read:

We do not think that the FDA requires an ingredient list so that manufacturers can mislead consumers and then rely on the ingredient list to correct those misinterpretations and provide a shield for liability for the deception. Instead, reasonable consumers expect that the ingredient list contains more detailed information about the product that confirms other representations on the packaging.

Slip op. at 16639.  Here is my original blog post on the Gerber decision.  Thanks to the blog reader who emailed to advise of this development.