Friday, May 19, 2023

if an allegedly falsely advertised product isn't useless, P may have standing to seek injunctive relief

Perez v. Bath & Body Works, LLC, No. 21-cv-05606-BLF, 2023 WL 3467207 (N.D. Cal. May 15, 2023)

Interesting analysis of standing for injunctive relief: Where the product is a useful one, the court finds standing based on a desire to purchase it again if truthfully labeled.

Perez alleged that defendant BBW falsely claims that hyaluronic acid, an ingredient in those products, “attracts and retains up to 1,000x its weight in water to make skin look smoother and more supple.” She brought the usual California claims

BBW argued that there was no standing for injunctive relief because she alleged that it was scientifically impossible for hyaluronic acid to retain 1,000x its weight in water. Past cases have said, among other things, that plaintiffs who “explained that they were not concerned with phosphoric acid, but rather with whether Coca-Cola was telling the truth on its product’s labels” lacked standing because their “desire for Coca-Cola to truthfully label its products, without more, is insufficient to demonstrate that they have suffered any particularized adverse effects.” Perez alleged that she wanted to purchase BBW products “that could help improve the appearance of her skin, including, specifically, Bath & Body Works Hyaluronic Acid and moisturizing products such as those described above.” But, she alleged, without professional testing or other expert evidence, she couldn’t determine if BBW was telling the truth about its products’ features. Even if the formulation or advertising changes, “as long as Defendants may use inaccurate representations about the capabilities of their hyaluronic acid products, then when presented with Defendants’ advertising, Ms. Perez continues to have no way of determining whether the representations regarding those capabilities are true.”

The court found these allegations sufficient. As the Ninth Circuit has said, “the threat of future harm may be the consumer’s plausible allegations that she will be unable to rely on the product’s advertising or labeling in the future, and so will not purchase the product although she would like to.” BBW argued that the Ninth Circuit was dealing with wipes that could conceivably be flushable, but Perez alleged that the claim here was scientifically impossible. “But the Court declines to look at the threatened injury so narrowly.” While “a plaintiff must show ‘a sufficient likelihood that he will again be wronged in a similar way,’ … [a court] ‘must be careful not to employ too narrow or technical an approach.’ ” The inability to rely on defendant’s representations was a “similar” injury.  

BBW argued that a plaintiff needs to allege a desire to purchase the product as advertised. But a plaintiff can allege “a concrete, imminent injury” even without alleging a desire to purchase the product “as advertised.” Also, this case didn’t involve an allegedly worthless product: “Even if hyaluronic acid cannot retain 1,000 times its weight in water, it is not necessarily useless as a moisturizer.”

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