On June 7, 2021, the Southern District of California dismissed a case against Edgewell Personal Care, Co., alleging that defendants’ label on its “Wet Ones” antibacterial hand wipes was false and deceptive. Plaintiff brought a putative class action against defendants for making misleading representations about the efficacy and skin safety of its hand wipes. The suit was filed under the California Unfair Competition Law (“UCL”), False Advertising Law (“FAL”), and Consumer Legal Remedies Act (“CLRA”).
Plaintiff alleged that Wet Ones wipes do not kill 99.99% of germs as advertised. The active ingredient in the hand wipes was allegedly ineffective against certain viruses and bacteria. Plaintiff also alleged that the hand wipes contained ingredients that were allergens or skin irritants, contradicting the label’s claim that the hand wipes were hypoallergenic and gentle.
The court determined that plaintiff had standing. Under the UCL and FAL, plaintiff needs to show that she suffered an economic injury that was caused by the unfair business practice or false advertising at the root of the claim, and that she actually relied on the misrepresentations. Here, plaintiff lost money on hand wipes she would not have bought, or bought on different terms, if she knew the truth about their efficacy and she relied on these representations when purchasing.
The court found that plaintiff’s claims failed the reasonable consumer test, which requires a probability that a “significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled” by the representations.
First, the court stated that a reasonable consumer would not expect the hand wipes to kill the types of bacteria, viruses and germs plaintiff named, like the ones that cause polio or food-borne illnesses. A reasonable consumer would only expect the wipes to kill bacteria more likely to be found on hands. Second, the court found that no reasonable consumer would understand hypoallergenic and gentle to mean the product is completely free of ingredients that could cause an allergic reaction. Further, it is unlikely a reasonable consumer would think hypoallergenic and gentle meant that the hand wipes had no risk of irritation, rather than just a lower risk of skin irritation. A reasonable consumer may also understand the label claims to refer to the product’s effect, not the ingredients.
Takeaway: The way in which an average consumer would actually read and understand a label’s promises is key. In a time where consumers rely heavily on cleaning products, this case shows it won’t be enough for a plaintiff to allege any possible misreading of a label; a consumer’s reading of the label needs to be reasonable.