Antitrust Law Daily Wrap Up, ADVERTISING—N.D. Cal.: Consumer suit over Costco Baby Wipes will proceed, (May 15, 2025)

By Martin A. Steinberg, J.D.

Costco’s Signature Baby Wipes contain three PFAS chemicals, though Costco claims they are not dangerous.

The federal court in San Francisco refused to dismiss the amended complaint in a case where Plaintiff Larisa Bullard brought a putative class action alleging that Kirkland “Signature Baby Wipes, Fragrance Free,” which are manufactured by defendant Nice-Pak Products, Inc. and marketed and sold by defendant Costco Wholesale Corp., are unfit for their intended use because they contain unsafe levels of per- and polyfluoroalkyl substances (PFAS). A motion to dismiss the original complaint was previously granted with leave to amend on grounds that while the allegations were sufficient to support standing, Plaintiff had not offered a sufficient factual basis that would, if presented at trial, support a fact-finder’s conclusion that Kirkland Baby Wipes include PFAS of a type and in quantities to cause the alleged harms (Bullard v. Costco Wholesale Corp., No. 3:24-cv-03714-RS (N.D. Cal. May. 14, 2025)).

Background. Plaintiff alleged she purchased the Kirkland Baby Wipes at issue multiple times from January 2022 until February 2024. She asserted that she relied on images of a happy baby on the product’s packaging, and the statement that the product was “made with naturally derived ingredients,” which conveyed to her that the product was safe for use on infants and toddlers. Had she known the wipes contained or risked having dangerous levels of PFAS allegedly found in testing, she would not have purchased them, or would have only purchased them under substantially different terms. The original complaint did not identify the specific PFAS supposedly in the product. The amended complaint alleged that independent research conducted by Plaintiff’s counsel, “utilizing a Department of Defense ELAP-certified laboratory, revealed that the Product contains 3.6 parts per billion of perfluoropropionic acid, 0.15 parts per billion of PMPA, and 0.040 parts per billion of R-EVE.”

The complaint asserts that PFAS are a group of synthetic chemicals known to be harmful to children. Because PFAS persist and accumulate over time, they are dangerous even at very low levels. Indeed, laboratory studies have shown several PFAS-linked toxicological effects and have been associated with thyroid disorders, immunotoxic effects, and various cancers.

The complaint raises claims accusing Costco of (1) violating California's Consumers Legal Remedies Act, Cal. Civ. Code § 1750, et seq. (CLRA); (2) violating California's Unfair Competition Law, Cal. Bus. & Prof. Code § 17200, et seq. (UCL); (3) violating California's False Advertising Law, Cal. Bus. & Prof. Code § 17500, et seq (FAL); (4) violating New York Gen. Bus. Law § 349; (5) violating New York Gen. Bus. Law § 350; breach of express warranty; (6) unjust enrichment; (7) fraud; (8) fraudulent concealment or omission; and (9) negligent misrepresentation.

In dismissing the original complaint on February 14, 2025, the court found that Plaintiff failed to allege sufficient facts to show that the product contains ingredients of a type and in such quantities to make her various theories of relief viable. "PFAS" is not a magic word that can be invoked to open the doors to federal litigation automatically. Plaintiff asserted private testing of the product showed it contains 3.7 parts per billion (PPB) of PFAS. While that allegation may distinguish this case from those in which the plaintiffs only used a proxy to test for the presence of PFAS, she failed to offer a sufficient factual basis that would, if presented at trial, support a fact-finder's conclusion that Kirkland Baby Wipes include PFAS of a type and in quantities to cause the alleged harms.

The court at that time had found that, at least at the pleading stage, the allegations of economic injury were sufficient to preclude dismissal for lack of standing. Although a plaintiff may not rely on a "bare legal conclusion to assert injury-in-fact," Maya v. Centex Corp., 658 F.3d 1060, 1068 (9th Cir. 2011), the threshold question of whether Plaintiff has standing and the court has jurisdiction is distinct from the merits of her claim. Instead, the jurisdictional question of standing precedes, and does not require, analysis of the merits. Plaintiff filed its amended complaint shortly thereafter.

Standing revisited. As both sides acknowledged, the order on the prior motion to dismiss rejected Defendants’ contention that Plaintiff had not pleaded sufficient facts to support standing. Defendants expressly disclaimed any challenge to standing in the present motion. Plaintiff’s opposition, however, pointed out that the Ninth Circuit’s decision in October 2024 in Bowen v. Energizer Holdings, Inc., 118 F.4th 1134 (9th Cir. 2024), addressed a complaint’s adequacy to establish standing at the pleading stage. Bowen reversed the trial court’s dismissal on standing grounds of a plaintiff’s claim that she would not have purchased (or would have paid less for) the defendant’s sunscreen product had she known it contained small amounts of benzene. That decision addressed only what must be pleaded to support standing. That holding, however, is a subject not directly implicated by the current motion to dismiss.

The previous omission has been corrected. The prior order of dismissal concluded that the original complaint failed to state a claim because it did not identify the specific PFAS that the Plaintiff alleged were present in the product. However, the amended complaint alleged that the three specific PFAS chemicals Plaintiff contends were found in the product, and in what quantities. The viability of Plaintiff’s claims did not turn on her ability to prove that the identified PFAS in the product are unsafe, even though the issue in this motion is not standing, per se. Having now named the chemicals, Plaintiff stated sufficient facts to support a plausible claim of economic injury, according to the court.

Some of the materials cited by the parties suggest a growing scientific concern that various PFAS chemicals, including PFPrA, allegedly found in the Kirkland wipes, are becoming increasingly ubiquitous in the environment, including in drinking water sources. The degree to which that presents a public health hazard, and whether and when it will be appropriate to impose liability on makers of particular products in which those chemicals are detected, may become an evolving area of law. Under current pleading standards, however, the motion to dismiss must be denied.

The court further granted Defendants’ unopposed request for judicial notice of certain documents that generally support Defendants’ contention that the particular PFAS allegedly found in the Kirkland wipes have not been shown to be dangerous. However, they do not permit a conclusion at the pleading stage that Plaintiff has no viable claim.

The Case is No. 3:24-cv-03714-RS.

Judge: Seeborg, R.

Attorneys: L. Timothy Fisher (Bursor & Fisher, P.A.) for Larisa Bullard. Eskandar Alex Beroukhim (Arnold & Porter Kaye Scholer LLP) for Costco Wholesale Corp.

Companies: Costco Wholesale Corp.

Cases: Advertising StateUnfairTradePractices CaliforniaNews