Applying the reasonable consumer test, this decision holds that defendant’s lip balm is not deceptively labeled or packaged in violation of the UCL. The label states the correct weight of the product in the screw tube dispenser. The fact that the label does not disclose that 25% of the product remains in the tube and inaccessible to the consumer when the tube is screwed fully open is not deceptive since the consumer can see that product remains in the tube when it is fully screwed open and so cannot reasonably expect that 100% of the disclosed weight of the product is usable. Also, the bulk and weight of the dispenser tube and its packaging are not deceptive but customary in high-end cosmetics of this sort. It is what consumers expect and reasonable ones are not misled into thinking that weighty or bulky packaging equates to more product.
Ninth Circuit Court of Appeals (Tashima, J.); March 17, 2016; 2016 WL 1056088