Side panel disclosure not enough to avoid "flushable" false advertising suit

Wyant v. Dude Prods., Inc., 2022 WL 621815, No. 21-cv-00682 (N.D. Ill Mar. 3, 2022)

Plaintiffs sued the makers of Dude Wipes [I really must ask: are men ok?] for falsely advertising them as “flushable” under California’s CLRA/UCL/FAL, NY’s GBL, Illinois’s ICFA, and breach of warranty. Plaintiffs alleged that Dude Wipes “are not flushable because they do not disperse in a reasonable amount of time after flushing or clear sewage systems without causing clogs.” Two of the three packages in the complaint have dagger footnotes by “flushable” directing consumers to the side panel: 

A long list of "do not flush" instructions directing consumers, among other things, to consult "local rules" and not flush if "you are unsure of system capability"

Plaintiffs alleged that they relied on the front label and did not read the side panel disclaimer before purchasing. “After flushing the Wipes, Plaintiffs experienced problems with their home plumbing systems.”

Plaintiffs lacked Article III standing for injunctive relief because they wouldn’t repurchase a product they knew to be deficient. Also, restitution and disgorgement claims under the UCL and FAL had to be dismissed because plaintiffs didn’t plead that they lacked an adequate remedy at law.

The court declined to dismiss the claims based on the side panel disclaimer. “Even if reasonable consumers referenced the side panel to assess the front label’s assertion, the disclaimer language does not destroy Plaintiffs’ claims.” The factual allegation, which the court presumed to be true at this stage, was that Dude Wipes are never flushable. For the same reason, express warranty claims survived, though implied warranty of merchantability went because plaintiffs didn’t allege that Dude Wipes were unfit for their ordinary use (“personal hygiene”).