Antitrust Law Daily Wrap Up, ADVERTISING—N.D. Cal.: Menopause indicator kit labeling not deceptive, (Sep 23, 2025)

By Jody Coultas, J.D.

The kit purchasers were unable to show that the labeling would mislead a reasonable consumer.

Purchasers of Clearblue Menopause State Indicator kits were unable to state California Unfair Competition Law (UCL) and Consumer Legal Remedies Act (CLRA) claims against the maker and distributor of the kits because the labeling would not deceive a reasonable consumer, according to the federal district court in San Francisco, California. The consumers alleged that the product name – Clearblue Menopause Stage Indicator – misled reasonable consumers into believing that the test sticks indicated menopause stages by measuring follicle-stimulating hormones. However, the court held that the labeling would not mislead a reasonable consumer. Also, the court found that the consumers failed to plead falsity. The court determined that further amendment would be futile and denied leave to amend (Marshall v. Procter & Gamble Company, No. 25-cv-00923-AMO (N.D. Cal. Sept. 17, 2025)).

Product. Clearblue Menopause Stage Indicator is manufactured by SPD Swiss Precision Diagnostics GmbH and marketed and distributed by The Procter & Gamble Company. SPD and P&G advertised that Clearblue Menopause Stage Indicator kits can help women understand more about what is going on with their body and enable more meaningful conversations with doctors. Follicle-stimulating hormone (FSH) levels increase as a woman enters menopause. The product works by capturing data through five FSH urine tests over the course of 10 days. The front label states that the “Likely menopause stage given only when test sticks are used with FREE app,” and the side label further explains that the app “combines 5 FSH test results with other factors including cycle history and age to calculate your likely menopause stage.”

Allegations. The consumers alleged that because FSH alone cannot indicate menopause stage because FSH levels vary, a test for FSH levels cannot provide an accurate snapshot of a person’s menopause status.

Reasonable consumer. The court dismissed the UCL and CLRA claims for failure to meet the reasonable consumer standard. The allegations that the FSH test sticks were ineffective on their own did not account for the label’s statement that the related app employs an algorithm to combine FSH measurements and other factors including cycle history and age to provide the user their likely menopause stage. Because the assertion of falsity rests on only a portion of the product to the ignorance of the label’s clear reference to the app and algorithm, the consumers were unable to show that the reasonable consumer was likely to be misled.

Falsity. The consumers argued that the menopause stages mirror irrelevant staging criteria that are not used in a clinical setting, and which do not consider FSH levels. However, the court noted that the equivocal nature of the statement cited by the consumers demonstrated the speculative nature of their theory regarding the staging criteria and undermined the plausibility of the claims. Also, the premises that the stages themselves are false and that the stages cannot rely on FSH levels were both contradicted by another source incorporated into their pleading.

The consumers also alleged that the claims regarding the efficacy of FSH tests to indicate menopause were false because FSH levels can fluctuate. However, the court found that the consumers failed to allege or identify any source that plausibly undermined that the product’s protocol (alternating testing every other day for 10 days) and algorithm accounts for FSH variability in indicating a likely menopause stage. Because the sources cited by the consumers contradicted the basic contention that FSH levels are provably irrelevant in assessing menopause transition stages, the consumers failed to allege falsity.

The case is No. 25-cv-00923-AMO.

Judge: Martínez-Olguín, A.

Attorneys: Annick Marie Persinger (Tycko & Zavareei LLP) for Cassandra Marshall. Norman C. Simon (Herbert Smith Freehills Kramer LLP) for Procter & Gamble Co.

Companies: Procter & Gamble Co.

Cases: Advertising StateUnfairTradePractices CaliforniaNews