Consumer Fraud Class Action Review – 2025

held that the plaintiff’s stated harm – the experience of being unable to rely on pricing information – was sufficiently concrete to establish Article III standing. However, the Ninth Circuit affirmed the district court’s dismissal of retrospective equitable relief on the basis that state law could not broaden or restrain a federal court’s power to issue equitable relief. In two consolidated actions, the plaintiffs in Lowe, et al. v. Edgewell Personal Care Co., 2024 U.S. Dist. LEXIS 7238 (N.D. Cal. Jan. 12, 2024), alleged that Edgewell made false and misleading representations regarding two tampon product lines - o.b. Organic™ tampons and Playtex Gentle Glide tampons, both of which contained harmful per and polyfluoroalkyl substances (PFAS). The plaintiffs alleged that PFAS – which are synthetic chemicals harmful even at low levels of exposure and have been linked to various health issues. The plaintiffs alleged that they knew this because they conducted independent third-party testing on the tampons, which used organic fluorine analysis to confirm the presence of PFAS. The plaintiffs’ third-party testing allegedly concluded that both the finished tampon products and their individual components contained PFAS. The defendant filed a motion to dismiss, arguing that the plaintiffs failed to plausibly allege the presence of PFAS in the tampons because the allegations regarding the third-party testing lacked specificity and the plaintiffs’ reliance on patent applications and product labels was speculative. The court granted the motion to dismiss. It found that the plaintiffs’ allegations were insufficient to state a plausible claim for relief pursuant to Rule 12(b)(6). The court emphasized the lack of specificity in the third-party testing results and rejected the notion that the presence of hydrophobic components implied the presence of PFAS. Additionally, the court ordered the parties to confer on how to efficiently litigate related cases, and it contemplated the possibility of staying one or both matters to avoid parallel litigation with overlapping issues. Finally, in Myers, et al. v. Starbucks Corp., 2024 U.S. App. LEXIS 15223 (9th Cir. June 24, 2024), the plaintiffs filed a putative class action under the California Consumers Legal Remedies Act (CLRA) and California’s Unfair Competition Law (UCL) alleging that the label of Mars’ Dove Dark Chocolate products misled them to believe the products were made without employing child slave labor or contributing to rainforest deforestation. The plaintiffs contended that the label’s “We buy cocoa from Rainforest Alliance Certified™ farms, traceable from the farms into our factory” led them to believe the company’s Dove Dark Chocolate products contained some amount of cocoa traceable to farms that do not employ child slave labor or contribute to deforestation in West Africa. Id. at *2. The plaintiffs argued that the Dove Dark Chocolate label was misleading because Mars could trace only a fraction of the cocoa it buys to farms where the cocoa beans originated. The district court dismissed the plaintiffs’ false advertising action because it found that the label was “carefully worded” and “technically true.” Id. at *3. On appeal, the Ninth Circuit explained that the district court’s reason for its dismissal – that the label was “carefully worded” and “technically true” – was erroneous because under California law, literal truth was not a defense to false advertising claims. Id. Despite this, the Ninth Circuit ultimately affirmed the dismissal order because, it held, that while consumers might have reasonably assumed, from the language of the label and its exclusive placement on Dove Dark Chocolate products, that some amount of beans from Rainforest Alliance Certified farms were used in the production of Dove Dark Chocolate, the label did not represent that Rainforest Alliance Certified farms avoided deforestation and the use of child labor. As a result, the Ninth Circuit reasoned that the putative class of plaintiffs failed to state a false advertising claim for which relief could be granted.

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