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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
`
`LAUREN SOUTER, individually, and on
`behalf of others similarly situated,
`Plaintiff,
`
`v.
`EDGEWELL PERSONAL CARE
`COMPANY; EDGEWELL PERSONAL
`CARE BRANDS, LLC; and EDGEWELL
`PERSONAL CARE, LLC,
`
`Defendants.
`
`Case No.: 20-CV-1486 TWR (BLM)
`
`ORDER GRANTING DEFENDANTS’
`MOTION TO DISMISS
`
`(ECF No. 58)
`
`Presently before the Court is Defendants Edgewell Personal Care Company;
`Edgewell Personal Care Brands, LLC; and Edgewell Personal Care, LLC’s Motion to
`Dismiss Plaintiff’s First Amended Complaint (“Mot.,” ECF No. 58). Plaintiff Lauren
`Souter has filed a Response in Opposition to (“Opp’n,” ECF No. 59) and Defendant has
`filed a Reply in Support of (“Reply,” ECF No. 60) the Motion. The Court heard oral
`argument on the Motion on December 8, 2021. (See generally ECF No. 61.) Having
`carefully considered Plaintiff’s First Amended Complaint (“FAC,” ECF No. 55), the
`Parties’ arguments, and the law, the Court GRANTS Defendants’ Motion.
`/ / /
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`FACTUAL ALLEGATIONS
`Plaintiff initiated this putative class action against the Defendants based on
`allegedly misleading representations associated with their antibacterial hand wipes
`known as “Wet Ones,” which Plaintiff purchased multiple times during the class period.
`(See FAC ¶¶ 2, 17.) Plaintiff alleges that the misleading representations violate
`California’s Unfair Competition Law (“UCL”), False Advertising Law (“FAL”), and
`California Consumer Remedies Act (“CLRA”). (See generally FAC.) Plaintiff further
`alleges breach of express warranty and quasi-contract. (See generally id.) Two
`representations are at issue: (1) that the hand wipes kill 99.99 percent of germs (the
`“Efficacy Representations”), and (2) that the hand wipes are “hypoallergenic” and
`“gentle” (the “Skin Safety Representations”). (See id. ¶¶ 25, 82.) According to Plaintiff,
`these representations were false and misleading and would likely deceive reasonable
`consumers. (See id. ¶¶ 8, 9.) In buying the hand wipes, Plaintiff alleges that she relied
`on the Efficacy and Skin Safety Representations on the product label. (See id. ¶ 10.) If
`she had known the truth, Plaintiff claims, she would not have purchased the hand wipes
`or would have purchased them on different terms. (See id. ¶ 12.)
`I.
`The Efficacy Representations
`With respect to the Efficacy Representations, Plaintiff argues that Defendants’
`hand wipes do not kill 99.99 percent of germs, as stated on the product label. (See FAC
`¶ 27.) According to Plaintiff, the active ingredient in these hand wipes, benzalkonium
`chloride (“BAC”), is ineffective against certain viruses, bacteria, and spores, which
`comprise more than 0.01 percent of germs and can cause serious diseases. (See id. ¶¶ 29,
`41.) Some of those diseases include norovirus, human papillomavirus, picornavirus,
`crypotosporidium, and clostridium difficile. (Id. ¶¶ 41, 43.) Plaintiff also claims that the
`hand wipes are ineffective against COVID-19. (See id. ¶ 55–57.) Further, Plaintiff
`alleges that Wet Ones cannot be assumed to prevent the listed viruses, bacteria, and
`spores because these illnesses are transmissible by hands and/or surfaces. (See id. ¶¶ 46,
`48, 52, 58, 68, 71.)
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`Plaintiff does not claim that Wet Ones were purchased with the intention to prevent
`the illnesses listed in the First Amended Complaint or that Wet Ones failed to protect her
`from contracting any of the listed illnesses. (See id. ¶ 35–36.) Instead, Plaintiff claims
`that if she had known that the Efficacy Representation was false, she would have paid
`less for Wet Ones or would not have purchased them at all. (See id.)
`II. The Skin Safety Representations
`In addition, Plaintiff claims Defendants’ product label is false and misleading by
`stating that the hand wipes are “hypoallergenic” and “specifically formulated to be tough
`on dirt and germs, yet gentle on the skin.” (See FAC ¶ 83.) Contrary to this
`representation, Plaintiff contends, the hand wipes allegedly contain ingredients that are
`“known allergens or skin irritants.” (See id. ¶ 88–104.)
`Plaintiff does not claim that she or any member of her family suffered an allergic
`reaction because of using the hand wipes. (See id. ¶ 86–87.) Instead, Plaintiff claims that
`if she had known of the skin irritants and allergens in Wet Ones, she would have paid less
`for the hand wipes or would not have purchased them at all. (See id.)
`PROCEDURAL BACKGROUND
`Plaintiff filed her initial Complaint on July 31, 2020. (See generally ECF No. 1.)
`On October 6, 2020, Defendants moved to dismiss Plaintiffs Complaint on five grounds:
`(1) lack of constitutional and statutory standing, (2) failure to satisfy the heightened
`pleading standard under Federal Rule of Civil Procedure 9(b), (3) failure to satisfy the
`reasonable consumer test, (4) primary jurisdiction, and (5) preemption. (See generally
`ECF No. 22.) On June 7, 2021, the Court granted Defendants’ motion to dismiss on the
`ground that Plaintiff failed to satisfy the reasonable consumer test, and granted Plaintiff
`leave to amend. (See generally ECF No. 54.)
`Plaintiff filed the operative First Amended Complaint on July 7, 2021. (See
`generally ECF No. 55.) On August 6, 2021, Defendants filed the instant Motion. (See
`generally ECF No. 58.)
`/ / /
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`I.
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`LEGAL STANDARDS
`Federal Rule of Civil Procedure 12(b)(1)
`A party may challenge the court’s subject-matter jurisdiction through a motion
`filed pursuant to Federal Rule of Civil Procedure 12(b)(1). See Fed. R. Civ. P. 12(b)(1);
`see also White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). Because “[f]ederal courts are
`courts of limited jurisdiction,” “[i]t is to be presumed that a cause lies outside this limited
`jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
`Consequently, “the burden of establishing the contrary rests upon the party asserting
`jurisdiction.” Id.
`“Rule 12(b)(1) jurisdictional attacks can be either facial or factual.” White, 227
`F.2d at 1242. “A ‘facial’ attack accepts the truth of the plaintiff’s allegations but asserts
`that they ‘are insufficient on their face to invoke federal jurisdiction.’” Leite v. Crane
`Co., 749 F.3d 1117, 1121 (9th Cir. 2014) (quoting Safe Air for Everyone v. Meyer, 373
`F.3d 1035, 1039 (9th Cir. 2004)). “The district court resolves a facial attack as it would a
`motion to dismiss under Rule 12(b)(6): Accepting the plaintiff’s allegations as true and
`drawing all reasonable inferences in the plaintiff’s favor, the court determines whether
`the allegations are sufficient as a legal matter to invoke the court’s jurisdiction.” Id.
`(citing Pride v. Correa, 719 F.3d 1130, 1133 (9th Cir. 2013)).
`“A ‘factual’ attack, by contrast, contests the truth of the plaintiff’s factual
`allegations, usually by introducing evidence outside the pleadings.” Id. (citing Safe Air
`for Everyone, 373 F.3d at 1039; Thornhill Publ’g Co. v. Gen. Tel. & Elec. Corp., 594
`F.2d 730, 733 (9th Cir. 1979)). “When the defendant raises a factual attack, the plaintiff
`must support her jurisdictional allegations with ‘competent proof[]’” and “prov[e] by a
`preponderance of the evidence that each of the requirements for subject-matter
`jurisdiction has been met.” Id. (citing Hertz Corp. v. Friend, 559 U.S. 77, 96–97 (2010);
`Harris v. Rand, 682 F.3d 846, 851 (9th Cir. 2012)). Generally, “if the existence of
`jurisdiction turns on disputed factual issues, the district court may resolve those factual
`disputes itself.” Id. at 1121–22 (citing Safe Air for Everyone, 373 F.3d at 1039–40;
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`Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983); Thornhill Publ’g, 594
`F.2d at 733).
`“Because standing . . . pertain[s] to a federal court’s subject-matter jurisdiction
`under Article III, [it is] properly raised in a motion to dismiss under Federal Rule of Civil
`Procedure 12(b)(1).” White, 227 F.3d at 1242 (citing Bland v. Fessler, 88 F.3d 729, 732
`n.4 (9th Cir. 1996)).
`II.
`Federal Rule of Civil Procedure 12(b)(6)
`“A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to
`state a claim upon which relief can be granted ‘tests the legal sufficiency of a claim.’”
`Conservation Force v. Salazar, 646 F.3d 1240, 1241–42 (9th Cir. 2011) (quoting
`Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001)). “A district court’s dismissal for
`failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) is proper if there is
`a ‘lack of a cognizable legal theory or the absence of sufficient facts alleged under a
`cognizable legal theory.’” Id. at 1242 (quoting Balistreri v. Pacifica Police Dep’t, 901
`F.2d 696, 699 (9th Cir. 1988)).
`“Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a ‘short
`and plain statement of the claim showing that the pleader is entitled to relief.’” Ashcroft
`v. Iqbal, 556 U.S. 662, 677–78 (2009) (quoting Fed. R. Civ. P. 8(a)(2)). “[T]he pleading
`standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands
`more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. at 678
`(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, “[a]
`pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of
`a cause of action will not do.’” Id. (quoting Twombly, 550 U.S. at 555).
`“To survive a motion to dismiss, a complaint must contain sufficient factual
`matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id.
`(quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff
`pleads factual content that allows the court to draw the reasonable inference that the
`defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).
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`“[W]here the well-pleaded facts do not permit the court to infer more than the mere
`possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the
`pleader is entitled to relief.’” Id. at 679 (second alteration in original) (quoting Fed. R.
`Civ. P. 8(a)(2)).
`Federal “Rule [of Civil Procedure] 9(b) requires that, when fraud is alleged, ‘a
`party must state with particularity the circumstances constituting fraud.’” Kearns v. Ford
`Motor Co., 567 F.3d 1120, 1124 (9th Cir. 2009) (quoting Fed. R. Civ. P. 9(b)). “Rule
`9(b) demands that the circumstances constituting the alleged fraud be specific enough to
`give defendants notice of the particular misconduct . . . so that they can defend against
`the charge and not just deny that they have done anything wrong.” Id. (alteration in
`original) (internal quotation mark omitted) (quoting Bly-Magee v. California, 236 F.3d
`1014, 1019 (9th Cir. 2001)). “Averments of fraud must be accompanied by the who,
`what, when, where, and how of the misconduct charged.” Id. (internal quotation marks
`omitted) (quoting Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003)).
`“If a complaint is dismissed for failure to state a claim, leave to amend should be
`granted ‘unless the court determines that the allegation of other facts consistent with the
`challenged pleading could not possibly cure the deficiency.’” DeSoto v. Yellow Freight
`Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv-Well
`Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). “A district court does not err in
`denying leave to amend where the amendment would be futile.” Id. (citing Reddy v.
`Litton Indus., 912 F.2d 291, 296 (9th Cir. 1990), cert. denied, 502 U.S. 921 (1991)).
`ANALYSIS
`Defendants move to dismiss on four grounds: (1) lack of constitutional and
`statutory standing,
`(2)
`failure
`to satisfy
`the
`reasonable consumer standard,
`(3) preemption, and (4) primary jurisdiction. (See generally Mot. at 1; see also generally
`ECF No. 58-1 (“Mem.”) at 3–19.) Defendants also maintain that Plaintiff’s claim for
`equitable relief should be dismissed. (See generally Mot. at 1; see also generally Mem.
`at 19.) Defendants have not offered new arguments to change the Court’s previous ruling
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`on preemption and primary jurisdiction; consequently, the Court reaffirms its previous
`ruling denying Defendants’ motion to dismiss on those grounds. The Court addresses
`Defendants’ remaining arguments in turn.
`I.
`Constitutional and Statutory Standing
`Defendants reassert their claim that Plaintiff lacks constitutional and statutory
`standing based on Plaintiff’s failure to allege a cognizable injury. (See Mem. at 13–16.)
`The Court is not persuaded by the Defendants’ new arguments and finds that Plaintiff has
`both statutory and constitutional standing.
`To have constitutional standing, the plaintiff must have “(1) suffered an injury in
`fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is
`likely to be redressed by a favorable judicial decision.” Maya v. Centex Corp., 658 F.3d
`1060, 1067 (9th Cir. 2011) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61
`(1992)). To establish standing to bring a claim under UCL, FAL, and CLRA, those
`claiming an economic harm—such as Plaintiff—must meet an economic injury-in-fact
`requirement, which “demands no more than the corresponding requirement under Article
`III of the U.S. Constitution.” Reid v. Johnson & Johnson, 780 F.3d 952, 958 (9th Cir.
`2015). To satisfy the economic injury requirement under the UCL and FAL, Plaintiff
`must “(1) establish a loss or deprivation of money or property sufficient to qualify as
`injury in fact, i.e., economic injury, and (2) show that that economic injury was the result
`of, i.e., caused by, the unfair business practice or false advertising that is the gravamen of
`the claim.” Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 1048 (9th Cir.
`2017) (emphasis in original) (quoting Kwikset Corp. v. Super. Ct., 51 Cal. 4th 310, 322
`(2011)). “[A]ny plaintiff who has standing under the UCL’s and FAL’s ‘lost money or
`property’ requirement will, a fortiori, have suffered ‘any damage’ for purposes of
`establishing CLRA standing.” Moore v. Mars Petcare US, Inc., 966 F.3d 1007, 1020
`(9th Cir. 2020) (quoting Hinojos v. Kohl’s Corp., 718 F.3d 1098, 1108 (9th Cir. 2013)).
`Under these statutes, “plaintiffs meet this requirement if they show that, by relying on a
`misrepresentation on a product label, they paid more for a product than they otherwise
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`would have paid, or bought it when they otherwise would not have done so.” Reid, 780
`F.3d at 958. “Reliance is alleged where the misrepresentation or nondisclosure was an
`immediate cause of the plaintiff’s injury-producing conduct, such as where the plaintiff in
`all reasonable probability would not have engaged in [that] conduct in the absence of the
`fraud.” Beyer v. Symantec Corp., 333 F. Supp. 3d 966, 980 (N.D. Cal. 2018) (internal
`quotation marks omitted).
`A.
`Economic Injury-In-Fact Requirement
`Defendants argue that because Plaintiff suffered no physical injury, Plaintiff has no
`standing. (See Mot. at 14.) Economic injury-in-fact, however, need not be based on a
`physical injury but can be based on a misrepresentation that led the plaintiff to buy the
`product. See Reid, 780 F.3d at 958.
`Plaintiff’s allegations suffice. Plaintiff alleges that Wet Ones has skin-irritating
`ingredients and that a consumer could contract germs that they would expect Wet Ones to
`eliminate, rendering Wet Ones’ Efficacy and Skin Safety Representations false. (See
`FAC ¶¶ 34, 85.) Plaintiff further claims that she would not have bought the hand wipes
`or would have bought them on different terms if she had known the truth. (See id. ¶¶ 36,
`87.) Courts repeatedly have found that similar allegations satisfy the requirements to
`establish economic injury-in-fact. See Stanwood v. Mary Kay, Inc., 941 F. Supp. 2d
`1212, 1218 (C.D. Cal. 2012) (“The harm was not that the product was somehow
`inferiorly made, but simply that the consumer would not have purchased it at the price he
`paid, but for the misrepresentations.”); see also Moore, 966 F.3d at 1020 (“A consumer
`who relies on a product label and challenges a misrepresentation contained therein can
`satisfy the standing requirement of [the UCL] by alleging . . . that he or she would not
`have bought the product but for the misrepresentation.” (alterations in original) (quoting
`Kwikset Corp., 51 Cal. 4th at 330)); Hawkins v. Kroger Co., 906 F.3d 763, 769 (9th Cir.
`2018) (“Because [the plaintiff] adequately alleged that she relied on the label’s
`misrepresentations and would not have purchased
`the product without
`those
`misrepresentations, she has adequately alleged standing for her labeling claim.”). This
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`Court is bound to follow this well-established precedent and finds that Plaintiff
`adequately has alleged an economic injury-in-fact.
`B.
`Benefit of the Bargain Theory
`Second, Defendants apply the “benefit of the bargain” theory, claiming that
`Plaintiff was not deprived of the benefit for which she actually bargained, and thus
`experienced no economic injury. (See Mot. at 15.) The Court disagrees.
`The “benefit of the bargain” theory is permissible only if the misrepresentation that
`the consumer alleges was not “material.” See Hinojos, 718 F.3d at 1107 (citing Kwikset
`Corp., 51 Cal. 4th at 332). A representation is “material” “if a reasonable consumer
`would attach importance to it or if ‘the maker of the representation knows or has reason
`to know that its recipient regards or is likely to regard the matter as important in
`determining his choice of action.’” Id. (emphasis in original) (quoting Kwikset Corp., 51
`Cal. 4th at 332–33). Misrepresentations that are considered material include: meat falsely
`labeled as kosher or halal, wine labeled with the wrong region or year, blood diamonds
`mislabeled as conflict-free, and goods falsely suggesting they were produced by union
`labor. Id. (citing Kwikset Corp., 51 Cal. 4th at 328–29). The materiality of a
`misrepresentation is typically an issue of fact and is not decided at the motion to dismiss
`stage. Id. (citing In re Steroid Hormone Prod. Cases, 181 Cal. App. 4th 145, 156
`(2010)). Although Defendants presented cases in which the “benefit of the bargain”
`theory was successful at the motion to dismiss stage, the Court finds that those cases are
`inapplicable given the current posture of this case.
`In McGee, Birdsong, and Moreno, the plaintiffs failed to allege a misrepresentation
`that they relied on when purchasing the product. See McGee v. S-L Snacks Nat’l, 982
`F.3d 700, 706 (9th Cir. 2020); Birdsong v. Apple Inc., 590 F.3d 955, 961 (9th Cir. 2009);
`Anthony Moreno, v. Vi-Jon, LLC., 20CV1446 JM(BGS), 2021 WL 5771229, at *1 (S.D.
`Cal. Dec. 6, 2021). In McGee, for example, the court found that plaintiff did not contend
`any misrepresentations were made about Pop Secret’s health and safety and that her
`purchase was not made on the basis of false or misleading representations. See 982 F.3d
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`at 706. The artificial trans-fat in the popcorn, at issue in the case, was included in the
`nutritional label on the product box, and the plaintiff did not allege that the product made
`any representations about its safety. See id. Similarly, in Birdsong, the court held that
`the plaintiff had not been deprived of an agreed-upon benefit because the plaintiff did not
`allege that Apple had provided any misrepresentation as to using the Apple iPod at high
`volumes, but only alleged a potential risk in using the product at high volumes for an
`extended period of time. See 590 F.3d at 961. Even more, Apple had provided a warning
`against the use of the device in that manner. See id. Finally, in Moreno, the
`misrepresentation alleged was not present on the product label because the plaintiff
`alleged that the product represented that it could kill 99.99% of all germs, whereas the
`product label stated that it could kill 99.99% of common germs. See 2021 WL 5771229
`at *4. Given the misrepresentation alleged was not advertised on the product and was
`just assumed to be on the product’s label, the court found that the plaintiff was not
`deprived of an agreed-upon benefit of the product. See id. at *7. Here, by contrast,
`Plaintiff points to two distinct representations—the Efficacy Representation and Skin
`Safety Representation—as representations that led her to purchase the product. (See, e.g.,
`FAC ¶ 10.) Defendants do not argue that these representations are not included on the
`product’s label, making this case unlike McGee, Birdsong, and Moreno. See McGee, 982
`F.3d at 706; Birdsong, 590 F.3d at 961; Moreno, 2021 WL 5771229 at *4. Plaintiff
`alleges actual misrepresentations she relied upon that are included on the product’s label.
`Consequently, as pled, Plaintiff adequately has established materiality at the motion to
`dismiss stage.
`In Boysen and Herrington, the plaintiffs did not make claims to distinct
`misrepresentations but proffered that there might potentially be a misrepresentation on
`the product’s label. See Boysen v Walgreens Co., No. C 1-06262 SI, 2012 WL 2953069
`at *7 (N.D. Cal. July 19, 2012); Herrington v. Johnson & Johnson Consumer Cos., No. C
`09-1597 CW, 2010 WL 3448531, at *3 (N.D. Cal. Sept. 1, 2010). In Herrington, the
`court found that the plaintiffs did not adequality allege that the product misrepresented
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`that it was safe to use and only alleged misrepresentations in uncertain terms. See 2010
`WL 3448531, at *3. The plaintiffs did not allege that the product was carcinogenic for
`humans and unfit or unsafe for use; instead the plaintiffs alleged that the ingredients used
`in the product were “probable” human carcinogens. See id. In Boysen, the court used the
`logic of Herrington to find the plaintiff had no standing to assert that the defendant’s
`juices were mislabeled as safe and healthy because the plaintiff did not expressly allege
`that the levels of lead and arsenic contained in the defendant’s juices would likely cause
`physical harm. See 2012 WL 2953069, at *7. Further, the court in Boysen provided
`examples of incidences that would warrant standing but that were not presented by the
`plaintiff, including the products functioned less well than advertised, a recall had
`occurred, and “had defendant’s juice been differently labeled then he would have
`purchased an alternative juice.” See id. (emphasis added).
`Here, Plaintiff does not allege that Defendants’ representations are “probably”
`false but claims that they are “literally” false. (See Opp’n at 6.) Plaintiff presents studies
`and facts to establish that Wet Ones does not combat certain diseases that comprise more
`than 0.01% of germs and contains ingredients that are known and established skin
`irritants, making the product’s representations allegedly false. (See FAC ¶¶ 22–106.)
`Plaintiff further alleges that (1) Wet Ones provided Efficacy and Skin Safety
`Representations, (2) these Representations were false, (3) Plaintiff saw and relied on the
`labels—and their Representations—for their truth in purchasing Wet Ones, and
`(4) Plaintiff would not have bought Wet Ones otherwise. (See generally id.) The
`allegations here surpass those presented in both Herrington and Boysen. See Herrington,
`2010 WL 3448531, at *3; see also Boysen, 2012 WL 2953069, at *7. Plaintiff also
`claims that, had she known that the Representations were not true, she would not have
`purchased the product, which fits squarely into Boysen’s framework. See Boysen, 2012
`WL 2953069 at *7. The allegations therefore satisfy the requirement of standing. See
`Moore, 966 F.3d at 1007 (Ninth Circuit holding that although the plaintiffs did “not
`provide much detail in their individual allegations,” they still alleged that “as a result of
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`the false and fraudulent prescription requirement, each Plaintiff paid more for [the
`product] than each Plaintiff would have paid in the absence of the requirement or would
`never have purchased [the product]”).
`Thus, the Court DENIES Defendants’ Motion on this ground.
`II. The Reasonable Consumer Test Under the UCL, FAL, and CLRA
`California has enacted several consumer protection statutes to protect its citizens
`from unfair, deceptive, or fraudulent business practices. California’s UCL prohibits any
`“unlawful, unfair or fraudulent business act or practice.” Cal. Bus. & Prof. Code
`§ 17200. California’s FAL prohibits any “unfair, deceptive, untrue or misleading
`advertising,” Cal. Bus. & Prof. Code § 17500, and any FAL violation amounts to a UCL
`violation. See Williams v. Gerber Prod. Co., 552 F.3d 934, 938 (9th Cir. 2008) (quoting
`Kasky v. Nike, Inc., 45 P.3d 243, 250 (2002)). Finally, California’s CLRA prohibits
`“unfair methods of competition and unfair or deceptive acts or practices.” Cal. Civ. Code
`§ 1770. Courts often analyze claims under the UCL, FAL, and CLRA together “because
`they share similar attributes.” In re Sony Gaming Networks & Customer Data Sec.
`Breach Litig., 996 F. Supp. 2d 942, 985 (S.D. Cal. 2014).
`Claims under all three of these statutes are subject to the “reasonable consumer
`test.” Williams, 552 F.3d at 938 (citing Freeman v. Time, Inc., 68 F.3d 285, 289 (9th Cir.
`1995)). The reasonable consumer test requires a probability that a “significant portion of
`the general consuming public or of targeted consumers, acting reasonably in the
`circumstances, could be misled.” Ebner v. Fresh, Inc., 838 F.3d 958, 965 (9th Cir. 2016)
`(internal quotation marks omitted). At the pleading stage, courts have dismissed cases
`under the reasonable consumer test only in select circumstances, particularly where the
`“alleged violations of the UCL, FAL, and CLRA are simply not plausible.” Ham v. Hain
`Celestial Grp., Inc., 70 F. Supp. 3d 1188, 1193 (N.D. Cal. 2014). “[I]f common sense
`would not lead anyone to be misled, then the claim may be disposed of at a motion to
`dismiss stage.” Moore, 966 F.3d at 1018.
`/ / /
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`The Efficacy Representations
`A.
`Plaintiff alleges that Defendants’ Efficacy Representations are false and that a
`reasonable consumer would be misled by the Defendants’ representations. (See Opp’n at
`7.) According to the Ninth Circuit in Moore, although literal truth can sometimes provide
`protection from a misleading claim, “there is no protection for literal falseness.” See
`Moore, 966 F.3d at 1017–19 (finding that the “[p]laintiffs have sufficiently alleged a
`deceptive practice under the reasonable consumer test” where pet food was labeled as
`“prescription” but had no governmental oversight or medicinal properties).
`On the front of Wet Ones’ packaging, it states that the product “Kills 99.99% of
`Germs” and, on the back panel, it states that:
` Wet Ones® Antibacterial Hand Wipes kill 99.99% of germs and wipe away
`dirt, providing a better clean than hand sanitizers. They are specially
`formulated to be tough on dirt and germs, yet gentle on skin, so you can
`confidently keep your hands fresh and clean when soap and water are not
`available.
`
`(FAC ¶ 25; see also ECF No. 58-2 (“Ex. A”).) The Court previously held that “Plaintiff
`does not explain how or why a reasonable consumer would take a wet wipe’s
`representation that it kills 99.9 percent of germs to mean that it would also be effective
`against HPV. . . or the norovirus or polyomavirus.” (See ECF No. 54 (“Order”) at 10.)
`In addition, the Court found that a “reasonable consumer would likely suspect that a hand
`wipe would be effective against bacteria often found on hands,” but in the initial
`Complaint, Plaintiff did not allege how the strains of bacteria listed would be
`transmissible by hand. (Id.)
`The Court accepts as true that Wet Ones are ineffective against the diseases listed
`in Plaintiff’s First Amended Complaint and that, taken together, these disease-causing
`microorganisms comprise more than 0.01 percent of germs. (See FAC ¶¶ 29–30.) Based
`on the representations made on front and back labels for Wet Ones, however, the Court
`finds that a reasonable consumer would necessarily assume that the product kills 99.99%
`of germs that are transmissible by hand. With that expectation of the reasonable
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`consumer in mind, the Court concludes that Plaintiff has failed adequately to allege that
`Defendant’s Efficacy Representation is false. More specifically, Plaintiff fails to allege
`that the diseases identified in the First Amended Complaint that cannot be killed by Wet
`Ones comprise more than 0.01% of germs transmissible by hand.
`1. Wet Ones Only Applies to Germs Transmissible by Hand
`As an initial matter, Plaintiff argues that only the front label should be examined
`when assessing a reasonable consumer’s expectation of Wet Ones. (See Opp’n at 11.)
`The Court disagrees.
`At the motion to dismiss stage, qualifying language on packaging, usually on the
`back label, that clarifies the meaning of the alleged misrepresentation can “ameliorate
`any tendency of the label to mislead, as would violate California’s False Advertising Law
`(FAL), Unfair Competition Law (UCL), and Consumer Legal Remedies Act (CLRA).”
`See Moore, 966 F.3d at 1017. However, “if a back label ingredients list conflicts with,
`rather than confirms, a front label claim, the plaintiff’s claim is not defeated.” See id; see
`also Moreno, 2021 WL 807683, at *11 (finding that the product’s representation that it
`kills 99.99% of germs including an asterisk that directed consumers to the back panel of
`the product, which clarified the prod