"up to" absorbency claims for period underwear were plausibly misleading

Gamino v. Thinx Inc., No. EDCV 23-2067 JGB (SHKx), 2024 WL 2429307 (C.D. Cal. Apr. 18, 2024)

Gamino brought a host of California statutory and common law claims against Thinx, alleging that Thinx’s period underwear didn’t function as advertised; specifically, that it was incapable of holding the amount of liquid advertised. The court declined to dismiss the complaint on a variety of grounds.  

Thinx argued that the absorbency of its products is advertised as performing “up to” a certain threshold, and that reasonable consumers therefore expect that the products’ performance could be less than the maximum. In addition, it argued that no reasonable consumer would read the phrase “prevents leaks” as guaranteeing the products will “absorb whatever amount of fluid is dispensed into them.”

The court disagreed:

The basis of Plaintiff’s claims is not that Defendant’s products occasionally perform below the maximum absorbency advertised, but that the products “do not hold” and “cannot absorb” the “claimed amounts of fluid, and instead leak.” … Plaintiff alleges that Defendant represents its products’ absorbency using specific fluid amounts on its website, product pages, and packaging. … Plaintiff also alleges that testing reveals representative Thinx products cannot absorb the amount advertised on Thinx’s packaging and website, but that each of the products leaks. …  Finally, Plaintiff alleges that other consumers of Thinx products have experienced leakage “with even the smallest amount[t] of blood” or “in less than 15 minutes.” … Based on Plaintiff’s allegations, a reasonable consumer could be misled into believing Defendant’s products can fulfill their advertised, maximum absorbency.

The court quoted prior caselaw: “[M]ultiple courts have found that ‘up to’ representations may materially mislead reasonable consumers.” The allegation that Thinx’s products lacked the capacity to absorb the advertised amounts, plus the lack of allegations that Thinx listed customer-specific factors which could reduce performance (beyond the broad statement that “individual results may vary”), meant that “up to” was no help.

Thinx also argued that Gamino did not suffer an economic injury because she could have received a refund for her purchase. That conflated injury with remedy—despite available refunds, she suffered an economic injury “as soon as she relie[d] on a defendant’s deceptive advertising and part[ed] with more money than she otherwise would have paid.”

Also, Gamino plausibly alleged lack of absorption with allegations of (1) her own experience, (2) the experiences of other consumers, and (3) testing “by using cough syrup to mimic the viscosity of menstrual flow, just as some manufacturers do to test pads and tampons.” At this stage, she didn’t need to allege “which products were tested, who did the testing, whether Thinx uses the same method to test its products,” or “how much the products absorbed when she wore them.”

Gamino also had standing to seek equitable remedies because she plausibly pled that she was still interested in period underwear and wanted to purchase it if she could rely on the advertising. “While the Court likely cannot order Defendant to manufacture a wholly new product ... it surely can issue some form of injunctive relief that would redress Plaintiff’s injury.”

Finally, the court declined to wait for the FDA under the primary jurisdiction doctrine. Among other things, “there is no concrete evidence that the FDA is currently involved in creating a new regulation about how to test the absorbency of period underwear.” Courts “have generally declined to dismiss the complaint on primary jurisdiction absent concrete evidence that the FDA is currently involved in creating a new regulation concerning the subject of the lawsuit.”