false advertising claim survives because math is hard for reasonable consumers

Robertson v. Clean Control Corp., No. 5:24-cv-01478-SSS-DTBx, 2024 WL 5193852 (C.D. Cal. Dec. 18, 2024)

Robertson bought Odoban, a concentrated multi-purpose cleaning product, which states “Makes up to 32 Gallons” on the front label. That principally describes Odoban as a “Disinfectant” usable as “Laundry & Air Freshener.” When using Odoban for nine of its ten advertised uses, the concentrate does not produce up to 32 gallons. When using Odoban for laundry, it only produces one gallon, and when using Odoban as an air freshener, it produces 6.8 gallons. Only when using Odoban as a “cleaning solution” does the product deliver up to 32 gallons. Robertson brought CLRA and UCL claims, as well as breach of express warranty claims, seeking monetary and injunctive relief.

Odoban argued that the back of the label clarified what “up to” meant by providing instructions and stating that some uses “require more concentrate” and “will provide less than the maximum yield.” But a front label is only ambiguous enough to require a reasonable consumer to read the back label “if ‘reasonable consumers would necessarily require more information before they could reasonably conclude’ that the front label was making a specific representation.” Here, “a reasonable consumer would likely conclude the concentrate produces ‘up to 32 gallons’ of laundry and air freshener, the only two cleaning uses named on the front-label.” That’s not true, and it’s not true by a lot: Odoban can only make 1 gallon of laundry detergent and 6.8 gallons of air freshener. “Makes up to 32 Gallons,” like “One a Day,” states a “concrete number” which “carries a tangible meaning to a reasonable consumer.” “Though reasonable consumers may wonder which of Odoban’s many uses will result in 32 gallons of cleaning product, it is reasonable to assume the only two named uses on the front-label –laundry and air freshener – would, at the bare minimum, produce a quantity in the ballpark of 32 gallons. Some reasonable consumers may even assume the majority of Odoban’s uses would result in 32 gallons.”

The court also noted an FTC report attached to the complaint that studied the effects of “up to” in ads, which found that “a significant proportion of people” exposed to “up to” advertisements “saw the ad as communicating that [product] users would typically” reach the “up to” quantity.

Further, even with the back label, it was plausible that a “significant portion of the general consuming public ... could be misled.” “Understanding which cleaning uses result in 32 gallons, and which result in substantially less, requires math more complicated than a reasonable consumer should be expected to calculate.”

The front label has the “up to” representation and states that a bottle has “1 Gallon (3.79 L[iters]).” The back label instructs consumers to mix a certain number of ounces of Odoban per gallon of water.

Thus, to understand how many gallons of cleaning product a bottle of Odoban produces, a consumer would need to (1) know how many ounces are in a gallon (i.e., 128 ounces), and (2) divide that number by ounces of Odoban used per cleaning product (ex. 22 ounces per gallon of water for air freshener) to arrive at the number of gallons of specified cleaning product (ex. 5.8181811). “Barring a consumer’s exceptional skill” at long division, “it is difficult to imagine how a consumer could generate an accurate estimate” of which cleaning products make up to 32 gallons.

Indeed, the court noted, the complaint pled that one gallon of Odoban produces 6.8 gallons of air freshener when using Clean Control’s suggested 22 ounces per gallon of water. But 128 divided by 22 is 5.818181. “Robertson’s mathematical error further underscores how unreasonable it is to expect consumers, much less those with professional degrees, to calculate the gallons of cleaning product Odoban can produce.” (Or is it that you get 6.8 gallons of air freshener comprised of 5.8 gallons of water and 1 gallon of Odoban? Anyway, the court’s point is made either way, it seems to me.) “Odoban’s label does not clarify which of its ten advertised uses produces 32 gallons of cleaning product, instead relying on consumers to conduct long division in the aisle of a general store.”

Likewise, “Makes up to 32 Gallons” is a specific promise to consumers, one with a set meaning, such that Odoban’s label creates an express warranty.

And, for similar reasons, Robertson had standing to pursue injunctive relief, because there was still a threat of future harm.  She might reasonably, but incorrectly, assume the product was improved in the future.