Antitrust Law Daily Wrap Up, ADVERTISING—N.D. Cal.: Consumer fails to show damage in “flushable” wipe class action, (Dec 23, 2014)

By Linda O’Brien, J.D., LL.M.

In an action against the manufacturer of four cleansing cloths/wipes, a consumer failed to allege sufficient facts showing that the product designation of “flushable” was false and that she was damaged if the wipes were not in fact flushable, the federal district court in Oakland, California has decided. Thus, the consumer’s amended complaint was dismissed (Davidson v. Kimberly-Clark Corporation, December 19, 2014, Hamilton, P.).

Kimberly-Clark is the manufacturer of Scott Naturals® Flushable Moist Wipes, Cottonelle® Fresh Care Flushable Wipes and Cleansing Cloths, Huggies® Pull-Ups® Flushable Moist Wipes, and U by Kotex® Refresh flushable wipes. Jennifer Davidson, a consumer of Scott Naturals, filed a putative class action suit against Kimberly-Clark, alleging that the company deceptively advertised the four products as “flushable,” in violation of California’s Unfair Competition Law (UCL), False Advertising Law (FAL), and Consumer Legal Remedies Act (CLRA). Specifically, Davidson alleged that: (1) she believed the product was specially designed to be suitable for flushing, without causing problems to her plumbing or at a water treatment plant; (2) after several uses, she had serious doubts that the wipes were truly flushable; (3) she stopped using the wipes and has not purchased any “flushable” wipes since that time; and (4) she would not have purchased the wipes had Kimberly-Clark not misrepresented the true nature of the “flushable” products.

In August 2014, Kimberly-Clark’s motion to dismiss the complaint was granted in part. After Davidson filed an amended complaint alleging the same four causes of action as the original complaint, Kimberly-Clark again moved to dismiss.

The court determined that the plaintiff failed to allege sufficient facts to show standing to seek prospective injunctive relief. Although the plaintiff asserted that she desired to purchase wipes that were suitable for disposal in a household toilet, the court noted that the plaintiff indicated that she had no intention of buying the same Kimberly-Clark product in the future. Moreover, the plaintiff’s claim of the threat of future harm – that the defendant might redesign the product, the plaintiff might not know that the redesigned product is flushable, and she might not purchase it – was the type of conjectural or hypothetical injury for which a plaintiff does not have standing. Even if Kimberly-Clark removed the “flushable” label and charged less for the product, the plaintiff still might not buy it if she believed it was not flushable, the court stated.

Additionally, the plaintiff failed to state claims with sufficient particularity under the UCL, FAL, and CLRA. The plaintiff’s argument that she relied on the single word “flushable” on the product packaging of the wipes she purchased was rejected as she failed to allege facts showing that the representation “flushable” was false or misleading as to the defendant’s products. Since she did not personally experience any issues with her household plumbing on account of her use of the defendant’s wipes, the plaintiff must allege facts showing that the designation “flushable” was false. According to the court, her evidence of articles on the Internet and new stories regarding various municipalities having experienced problems tied to “flushable” wipes causing blockages in residential plumbing systems and local sewage treatment plants was insufficient to meet the pleading standing under Federal Rule of Civil Procedure 9(b).

Finally, since the plaintiff had previously been given leave to amend to correct the deficiencies in the complaint, the court determined that further leave to amend would be futile and dismissed the complaint with prejudice.

The case is No. C 14-1783.

Attorneys: Adam Gutride (Gutride Safier LLP) for Jennifer Davidson. Amy P. Lally (Sidley Austin Brown & Wood LLP) for Kimberly-Clark Corporation.

Companies: Kimberly-Clark Corporation

Cases: Advertising StateUnfairTradePractices CaliforniaNews