Tuesday, February 07, 2017

P&G fails to clean up "natural" suit over baby wipes

Brenner v. Procter & Gamble Co., No. 16-1093, 2016 WL 8192946 (C.D. Cal. Oct. 20, 2016)

Brenner sued on behalf of a putative nationwide class and a California subclass of those who purchased Pampers “Natural Clean” Baby Wipes.  The individual packaging is green and includes stylized depictions of flowering plants, animals, and leaves:

The overall box is less ornate, but still greenish:

Brenner alleged that this packaging was “false and misleading” because the Natural Clean wipes contained “an unnatural and potentially harmful ingredient called phenoxyethanol.” An FDA press release advising breastfeeding mothers not to use a particular nipple cream that contained phenoxyethanol and another troubling ingredient describes phenoxyethanol as “a preservative that is primarily used in cosmetics and medications” that “can depress the central nervous system and may cause vomiting and diarrhea, which can lead to dehydration in infants.” A May 2012 report from the French Agence Nationale de Sécurité du Médicament et des Produits de Santé cautioned consumers not to use wipes containing phenoxyethanol on infants under the age of three because of concerns about the compound’s “reproductive and developmental toxicity.” The FTC took at least two enforcement actions within the past year against cosmetic manufacturers of “natural”-labeled products because they contained phenoxyethanol. The FTC’s press release about the enforcement actions describes phenoxyethanol as an “artificial ingredient[ ].”  Brenner brought the usual California claims.

P&G argued that Brenner didn’t suffer an an Article III injury-in-fact because she could not have believed that Pampers Natural Clean Wipes were free of synthetic chemicals, given her prior lawsuit against Kimberly-Clark for its Huggies “natural & pure” baby diapers and “Natural Care” wipes must have made her aware that “natural”-branded baby wipes aren’t free of synthetic chemicals, including phenoxyethanol. The court refused to conclude on a motion to dismiss that “any reasonable consumer who was allegedly misled by a ‘natural’ label would, without question, research every ingredient found in any similar ‘natural’-branded products to check for synthetic or potentially harmful chemicals before making a purchase.”  Further, Brenner alleged that the problematic chemicals involved in the other lawsuit were different, and that her transition from Huggies to Pampers was a reasonable response after “learning that the Huggies brand failed to meet her expectations.”  Thus, her allegedly deceptively induced purchases constituted classic Article III injury.

Still, she couldn’t seek injunctive relief because she didn’t allege an intent to purchase again if the labeling were fixed.

Because the California statutes use the reasonable consumer test, they don’t require a showing of fraud unless the plaintiff alleges “a unified course of fraudulent conduct and rel[ies] entirely on that course of conduct as the basis of that claim.”  If a claim only partially sounds in fraud, the court should disregard the allegations of fraud and consider whether the plaintiff states a claim.  Here, the court wasn’t convinced that the complaint sounded wholly in fraud. The general allegation that Defendant knew about the FDA and French government findings didn’t “necessarily” imply that Defendant made its “natural” claim with the intent to defraud; it was “equally consistent with an inference that Defendant disagreed with these governmental findings or found them irrelevant to its product.”

Under this standard, Brenner stated a claim.  The FTC, at least in certain contexts, views phenoxyethanol to be “artificial” and thus not “natural.” This conclusion wasn’t dispositive evidence of meaning, but it raised a plausible inference that a significant portion of consumers could be misled. The product packaging, which uses a lot of green and depictions of flowering plants, reinforced the plausibility of misleadingness.  Also, even if a reasonable consumer wouldn’t believe that a “Natural Clean” baby wipe contained no synthetic ingredients, it was plausible that a reasonable consumer would believe such a product did not contain any potentially harmful chemicals.

The bulleted text below the label, “unscented with a touch of aloe,” was not enough to limit the “natural” claim: it wouldn’t prevent a reasonable consumer from thinking that the claim meant anything more than “unscented with a touch of aloe.”  The court refused to find as a matter of law that a “natural” claim, unmodified by “100%” or “all,” couldn’t plausibly be deceptive.  Likewise, the fact that “Natural Clean” was a trade name didn’t prevent it from being deceptive; trademark law doesn’t preempt California consumer protection law.

P&G also argued that the “Natural Clean” label couldn’t be actionable because “natural” has no generally-accepted meaning. Most of the dictionary definitions to which P&G pointed were clearly inapposite: P&G definitely wasn’t claiming that its wipes are “based on an inherent sense of right and wrong” (as in “natural justice”) or “relat[ed] by actual consanguinity as distinguished from adoption” (as in “natural parents”).  But the more pertinent definition, “existing in or produced by nature : not artificial,” was consistent with Brenner’s allegations.

The FDA and FTC haven’t defined “natural,” but that didn’t make deception implausible; both entities have indicated that misuse of the term could be deceptive.  The FTC has taken at least two enforcement actions against cosmetic manufacturers for their use of “natural” claims because the product contained phenoxyethanol.  While the FTC has said that “natural may be used in numerous contexts and may convey different meanings depending on that context,” that just indicates that “natural” doesn’t have a universal meaning across product categories; it could still have a falsifiable meaning in a given context.

The court also declined to stay this action under the primary jurisdiction doctrine.

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