Antitrust Law Daily Wrap Up, ADVERTISING—C.D. Cal.: Consumer complaint about Thinx menstrual underwear absorbency survives initial challenges, (Jun 4, 2024)

By Justin Marcus Smith, J.D.

The manufacturer mistakenly thought it could rely on maximum performance conceptualizations to dismiss the suit under the reasonable consumer standard.

A consumer made plausible claims that the advertising and labeling of Thinx, Inc. (Thinx) menstrual underwear products would deceive reasonable consumers about their actual absorbency, held the federal district court in Riverside, California. This consumer plausibly alleged, through personal experience, testing, and other customer complaints, that Thinx’ products do not or cannot provide the specific absorbency advertised for all consumers. Thinx’ representations about the products did not necessarily state an “up to” caveat about maximum performance. Accordingly, the consumer successfully pleaded that reasonable consumers could find the defendant’s absorbency representations deceptive. Thinx conflated injury with remedy, and the consumer did not need to supply any additional factual information about the accuracy of her testing, or the exact amount of fluid absorbed before leaking, to survive a R. 12(b)(6) motion to dismiss. The consumer said she liked the concept of the products and would otherwise buy them again, but she thought Thinx might deceive her again without an injunction, thus perfecting her pleading for equitable relief. With respect to primary jurisdiction, there was no indication that the Food and Drug Administration (FDA) had anything to do with this matter (Gamino v. Thinx Inc., No. 5:23-cv-02067-JGB-SHK (C.D. Cal. April 18, 2024)).

Background. A consumer complained Thinx menstrual underwear tended to leak. She said she relied on Thinx’ representations about absorbency, and she would not have bought the underwear products had she known they “did not hold the advertised amounts of fluid, leaked, and were not fit for use as period underwear.” However, she said she liked the product concept and would buy the products again if she could feel assured that Thinx would not deceive her. In any event, she sought an injunction on the basis that she thought she could not trust Thinx again to sell its underwear as advertised.

Thinx moved to dismiss the consumer’s First Amended Complaint (FAC) under Fed. R. Civ. P. 12(b)(1) and 12(b)(6). Thinx argued: 1) the consumer lacked standing because she could obtain a full refund; 2) Thinx representations were not deceptive as a matter of law; 3) the consumer did not plausibly allege an injury; 4) the consumer’s California False Advertising Law (FAL), Unfair Competition Law (UCL), and unjust enrichment claims should fail because she did not allege the lack of a legal remedy; and, 5) the court should dismiss or stay the action under the primary jurisdiction doctrine.

Standing. The court held the consumer was not, as Thinx had urged, categorically limited to a full refund as the sole form of restitution. Moreover, it appeared Thinx only took issue with the remedy the consumer sought, not the alleged fact of her injury. The court found the consumer sought remedies beyond a full refund, including injunctive relief. The FAL, UCL, and Consumer Legal Remedies Act (CLRA) all permitted injunctive relief in addition to money damages.

The defendant relied here on substantially only one case, Savoy v. Collectors Universe, Inc., 2020 WL 4938464, at *5 (C.D. Cal. July 21, 2020). However, the court found Savoy inapposite because the Savoy plaintiff challenged a refund guarantee itself. The court said the only reason the Savoy plaintiff did not suffer a concrete injury was because he waived a refund. Distinguishable here, the instant consumer did not bring any false advertising claims about a potential refund, so her failure to seek one did not moot her injury-in-fact or her standing.

Reasonable consumer. The court concluded, based on the consumer’s allegations, that a reasonable consumer could be misled into believing that Thinx’ products could fulfill their “advertised, maximum absorbency.” Certain “up to” language could not save Thinx’ dismissal argument. Based on multiple court opinions, reasonable consumers could find performance representations deceptive if the actual performance could not be provided as represented in the advertising. Similarly, this consumer plausibly alleged, through personal experience, testing, and other consumer complaints, that Thinx’ products do not or cannot provide the specific absorbency advertised. It was not a question of maximum performance. Accordingly, the consumer pleaded that reasonable consumers could find the defendant’s absorbency representations deceptive.

Thinx otherwise relied on out-of-circuit cases to argue that the “up to” caveat meant that reasonable consumers would expect product performance to be less than advertised. One of them, even if it had been binding law, was distinguishable because it considered only whether the defendant failed to serve the plaintiff consumer, not whether the defendant was unable to serve any consumer, as advertised. Altogether, the court found the consumer plausibly alleged that a reasonable consumer could find the Thinx absorbency representations deceptive, so the court denied Thinx’ motion as to the reasonable consumer test.

Injury. The court held the consumer alleged the necessary elements to establish standing under the UCL, FAL, and CLRA, where such standing happened to be more rigorous than what the Constitution requires. The court found the consumer pleaded an economic injury by spending money she would not have otherwise spent. She also pleaded reliance on a reading of warranties that the products were fit for use and could “hold” the amounts of fluid advertised.

Thinx repeated its refund argument, but the court once again found that Thinx conflated injury with remedy. The court also disagreed with Thinx that the consumer did not plausibly allege that the products do not absorb the amount of fluids advertised, because, again, the consumer alleged her own experience, other consumers’ experience, and test results indicating leakiness. Taken as true, these allegations were enough to state a facially plausible claim for relief. The consumer did not need to supply any additional details, for example, about the accuracy of her testing, or the exact amount of fluid absorbed before leaking, to survive a R. 12(b)(6) motion to dismiss.

Equitable jurisdiction. The court disagreed with Thinx’ contention that the consumer could not assert UCL, FAL, and unjust enrichment claims if she only sought equitable relief without alleging, further, that she lacked an adequate remedy at law. The court reasoned here that consumers can seek FAL and UCL equitable relief to the extent that they premise their claims on alleged future harm. The court cited to multiple district courts who found requests for equitable relief for future harm were not barred. The instant court concluded this consumer alleged she would not be able to rely on Thinx’ future advertising in a manner consistent with Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 969 (9th Cir. 2018). She said she liked the concept of the products, and would buy them again as advertised, but did not think Thinx would not deceive her again without an injunction.

The court also rejected Thinx’ argument that the consumer sought an injunction that was not judicially redressable. The court reasoned here that the consumer was not asking the court to force Thinx to change its products to make them work specifically for her. Rather, it was within the court’s ambit to require accurate advertising and labeling.

Primary jurisdiction. The court declined to stay or dismiss the present action on the basis that the Food & Drug Administration (FDA) had primary jurisdiction over the consumer’s claims. The court said it did not see anything to suggest that the FDA was or would be involved in regulating period underwear absorbency. The case did not allege any FDA violations. The case pertained, instead, to deceptive advertising and labeling under California law. There was also nothing too complicated about it to reserve for agency review. The court accordingly denied Thinx’ motion as to primary jurisdiction.

The Case is No. 5:23-cv-02067-JGB-SHK.

Judge: Bernal, J.

Attorneys: Grace Bennett (Dovel and Luner, LLP) for Tesha Gamino. Alexander Norman Harris (Gibson Dunn and Crutcher LLP) for Thinx Inc.

Companies: Thinx Inc.

Cases: Advertising StateUnfairTradePractices CaliforniaNews