Friday, November 11, 2022

diaper "no harsh ingredients" claim not puffery

Rice v. Kimberly-Clark Corp., No. 2:21-cv-01519-DAD-KJN, 2022 WL 16804522 (E.D. Cal. Nov. 8, 2022)

Plaintiffs claimed that Huggies Snug and Dry diapers were falsely advertised as safe/not harsh for babies, but their son developed “severe and persistent rashes, lesions, blistering, and what appeared to be chemical burns on his skin” under the diaper. On its storefront, Huggies represents, among other things, that Snug and Dry diapers help keep an infant “dry & comfortable” and contain “[n]o harsh ingredients.” But some negative consumer reviews of the product, dating to 2012, describe moderate to severe bumps, rashes, blisters, bleeding, peeling, and/or chemical burns that developed on their babies under the area covered by the diaper after they began using the Snug and Dry product. They brought the usual California claims.

Under Ninth Circuit law, their equitable restitution claims were dismissed because they have adequate remedies at law. But injunctive relief was still possible because they alleged that they and other future consumers will continue to be misled.

KC’s knowledge: The complaint quoted specific consumer reviews, responded to in many cases by the “Huggies team.” “The significant number of complaints pre-dating plaintiffs’ purchase by up to two years, the alleged responses by defendant’s agents to those complaints, the fact many of the complaints were posted on defendant’s own website, and the many similar complaints on top retailers’ websites is sufficient, in combination, to allege defendant’s knowledge at this stage.”

Fraudulent affirmative misrepresentations: Adequately alleged, despite KC’s arguments that the statements at issue were puffery and that no reasonable consumer would need to be warned about the possibility of diaper rash resulting from the use of diapers. Although the court wouldn’t credit general allegations about a “pervasive” marketing campaign without more detail, it did consider arguments about KC’s Snug and Dry storefront.

The Amazon storefront claimed that Snug and Dry diapers offer “unbeatable protection,” contain “[n]o harsh ingredients,” are “[h]ypoallergenic and free of fragrances, parabens, elemental chlorine & natural rubber latex,” “help[ ] prevent leaks for up to 12 hours, day or night,” and “absorb[ ] wetness in seconds to help keep baby dry & comfortable.” While “unbeatable protection” is puffery, “No Harsh Ingredients – Hypoallergenic and free of fragrances, parabens, elemental chlorine & natural rubber latex,” “help[ ] prevent leaks for up to 12 hours, day or night,” and “absorb[ ] wetness in seconds to help keep baby dry & comfortable” were all “specific representations of fact on which a reasonable consumer could rely.” Taken together, they could lead a reasonable consumer “to believe Snug and Dry diapers keep a child’s skin dry, minimize diaper rash, do not contain ingredients that could harm infant skin, are suitable for sensitive skin, and are ‘safe for ... intended use,’ when in reality a ‘significant number of children who wear [them] will develop’ serious injuries.”

Plaintifs didn’t allege that KC implied that the diapers would never cause diaper rash, but that the statements suggested the diapers will never cause more severe, “unexpected” injuries, including chemical burns.

Fraudulent omissions: KC allegedly omitted (1) a statement qualifying defendant’s claims regarding the safety of Snug and Dry diapers, and (2) a label on the packaging warning consumers to stop using the diapers if a child suffers an unusual adverse skin reaction, as the diapers “may be the source of their child’s injury ....” To adequately plead a deceptive advertising claim under the FAL, plaintiffs must “identify specific advertisements and promotional materials; allege when [they] were exposed to the materials; and explain how such materials were false or misleading.” That was done here with the Amazon storefront and its affirmative statements, allegedly misleading because of the omitted information.

Under the CLRA/UCL unlawful prong, plaintiffs had to show that KC had a duty to disclose information regarding the Snug and Dry diaper’s alleged “propensity to cause prolonged adverse skin reactions.” This requires a material omission central to the product’s function, combined with at least one of the following: the defendant “has exclusive knowledge of material facts not known or reasonably accessible to the plaintiff,” “actively conceals a material fact from the plaintiff,” or “makes partial representations that are misleading because some other material fact has not been disclosed.” Here, plaintiffs plausibly alleged that KC made partial statements that misled consumers into believing the diapers were safe for all babies.

Even if some diaper rash is a fact of life, plaintiffs alleged “more severe, unusual, and persistent injuries, including ‘chemical burns’ resulting exclusively from the Snug and Dry diapers.” KC itself implicitly acknowledged that a chemical burn is not diaper rash when it responded to a customer review alleging the diapers caused “severe chemical burns,” by saying “Huggies products can’t cause a chemical burn ....”

Fraud and unfairness prong UCL claims also survived for now.

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