Antitrust Law Daily Wrap Up, ADVERTISING—S.D.N.Y.: Deceptive safety claims against Honey Pot feminine wash dismissed, (Mar 6, 2024)

By Martin A. Steinberg, J.D.

The consumer failed to present sufficient evidence that the products or their ingredients were harmful.

The federal district court in New York City dismissed a putative class action brought by two consumers challenging the advertising of feminine care foaming washes manufactured and sold by The Honey Pot Company, LLC. The consumers alleged that while Honey Pot claimed that their products were safe for women, they were, in fact, not. The court held that the consumers failed to show that the statements were likely to deceive or mislead a reasonable consumer (McAuley v. Honey Pot Co., LLC, March 1, 2024, Torres, A.).

Honey Pot, a Georgia company, manufactures and sells feminine care foaming washes that include four types: normal, sensitive, cucumber aloe, and bergamot rose. The labels of the Products stated that they are “feminine care” products to “wash intimate parts.” Its website stated that the company is “gynecologist-approved,” that “[y]our vulva hygiene routine should include cleansing daily with... cleanser,” and that the Products include “safe, high-quality formulas down to the last drop.” Plaintiffs claimed these statements were false and misleading because feminine hygiene products like these are not only unsafe for vulvar use because the ingredients in the Products can cause infections and make women more susceptible to disease, but also are unnecessary because the vagina and vulva are self-cleaning.

Plaintiffs each bought the sensitive version of the Product from Target in reliance of the advertised statements. Plaintiffs claimed that they were injured by paying a substantial price premium because of the representation that the product was suitable as a feminine care wash for the vulva and did not receive the benefit of the bargain.

Standing. The court denied Defendant’s motion to dismiss for lack of standing, by finding that Plaintiffs’ failure to identify the prices of competing products to establish the premium that they paid was not fatal at the motion-to-dismiss stage. The injury-in-fact requirement has a low threshold that can be satisfied with general factual allegations of injury at the pleading stage. First, Plaintiffs claimed that they purchased the Products because of Honey Pot’s false representation that they are suitable as feminine care washes for the vulva. Plaintiffs were able to demonstrate an injury-in-fact by showing that they purchased the products bearing allegedly misleading labels and sustained financial injury by paying a premium. An allegation that Plaintiffs would not have purchased the product or would not have paid the same amount comfortably satisfied the injury-in-fact prong of Article III standing.

N.Y. General Business Law. The court dismissed Plaintiffs’ claims under the New York General Business Law because they failed to show that the advertising statements were likely to deceive or mislead a reasonable consumer. To state a claim for a violation of New York General Business Law §§ 349 or 350, Plaintiffs needed to allege that Defendant engaged in consumer-oriented conduct that was materially misleading and that Plaintiffs suffered a resulting injury. For a practice to be deceptive or “materially misleading,” Plaintiffs had to show that it was likely to mislead a reasonable consumer acting reasonably under the circumstances. The reasonable consumer analysis focuses on the precise representations made and the context and specificity of the representations.

Plaintiffs asserted that the statements were false and misleading because they claimed, based on articles cited in the amended complaint, that the Products were unsuitable for use on the vulva. However, the court found that these articles did not support their claim. Plaintiffs first referenced five articles that stated that warm water is sufficient to cleanse the vulva. Yet, these articles did not sufficiently support the inference that the Defendant’s statements were false or misleading. None of the cited articles specifically discuss the Products nor did they provide any details about the Products’ ingredients. Though the articles discouraged use of soap on the vulva, the court could not conclude that the articles’ broad cautions about soaps rendered Honey Pot’s more specific statements false or misleading. Moreover, a single equivocal quotation from a gynecologist about how the potential harm of long-term use of fragrance was insufficient to “raise plausible inferences” that the statements were untrue or materially misleading. In any case, fragrance could potentially be an issue only for the bergamot rose product, the only product with a fragrance. In any case, Plaintiffs did not purchase this item.

Remaining claims. Finally, the court held that Plaintiffs’ remaining claims failed because they also required proof that the product labeling, taken as a whole, was deceptive. The court had already determined that the complaint failed to adequately allege that Honey Pot engaged in deceptive conduct.

Leave to amend. The court found that in the interests of justice, Plaintiffs should be granted leave to file a motion to amend. There is a particularly strong preference for allowing amendment when a plaintiff has not had the benefit of a court ruling with respect to the deficiencies of its pleading. Though Plaintiffs already amended their complaint once after Defendant alerted them to the potential deficiencies in their complaint, Plaintiffs did not previously have the benefit of a court ruling putting them on notice of these deficiencies. The court gave Plaintiffs until April 15, 2024, to move to amend their complaint.

The Case is No. 1:23-cv-01986-AT-JW.

Attorneys: Brittany Scott (Bursor & Fisher P.A.) for Nicole McAuley. Caitlin C. Blanche (K&L Gates LLP) for Honey Pot Co., LLC.

Companies: Honey Pot Co., LLC

Cases: Advertising StateUnfairTradePractices NewYorkNews