Morrison & Foerster LLP

02/21/2024 | News release | Distributed by Public on 02/21/2024 15:59

Testing Plaintiff’s Test Results: What Specificity Is Required at the Pleading Stage in False Advertising Cases

A recent case in the Northern District of California addresses the use of testing in a false advertising case at the pleading stage, and how specific plaintiffs must be when discussing test results in a complaint. In Mack v. Edgewell Personal Care Company, the Court held that cursory allegations regarding testing may be insufficient to survive a motion to dismiss, and that specific factual allegations that explain the test results presented and plaintiff's interpretation of those results are required to meet the plausibility requirement.

Case Background:

A group of plaintiffs sued Edgewell Personal Care Company ("Edgewell") alleging that Edgewell's statements about two of its tampon products were false and misleading. Edgewell made various claims on its packaging, such as "100% Organic Cotton" and "free from colors, dyes, and BPA." Plaintiffs alleged these statements were false and misleading because the products contain polyfluoroalkyl substances ("PFAS").

The Testing Presented:

In support of their allegations, plaintiffs referenced "independent, third-party" testing (which they did not attach), the results of which they alleged showed that Edgewell's products contained PFAS. Plaintiffs stated that their testing utilized total organic fluorine (TOF) analysis. Plaintiffs also alleged that "[o]rganic fluorine is a surrogate or proxy for PFAS chemicals" and that "its presence is indicative that a sample contains PFAS." Plaintiffs further alleged that organic fluorine analysis is widely accepted and that "the state of California uses [it] to measure PFAS in its regulation of consumer products." According to plaintiffs, their testing showed that Edgewell's tampon products contain PFAS. The Complaint did not contain any other information about the testing, including how it was done, or why it showed that Edgewell's products contained PFAS.

The Court's Holding:

In its motion to dismiss, Edgewell argued (among other things) that plaintiffs did not plausibly allege that the products contained PFAS, despite their reference to third-party testing. Judge Martínez-Olguín agreed with defendants and granted their motion to dismiss. In so doing, the Court deemed the test results "cursory" and stated that they provided "no specificity as to the results reached or any other findings that would support plaintiffs' interpretation of those results." The Court further held that the allegations required more factual content to "nudge Plaintiffs' claims, based on the theory that Edgewell's tampons contain PFAS, from possible to plausible." Specifically, plaintiffs excluded "whether the organic fluorine may be indicative of natural sources or is largely, if not exclusively, linked to forever chemicals" or "whether the presence or absence of any other substance might bolster Plaintiffs' interpretation of their testing's findings."

In so reasoning, Judge Martínez-Olguín distinguished Warren v. Whole Foods Market California, Inc., where plaintiffs' test results survived a motion to dismiss.[1] In Warren, plaintiffs alleged that Whole Foods falsely advertised a coffee creamer as "naturally flavored," even though plaintiffs believed it contained artificial vanilla flavoring substances. To support their claim that the creamer contained artificial flavoring, plaintiffs presented test results that they alleged showed the creamer contained artificial flavoring. Judge Edward M. Chen of the Northern District of California ruled that plaintiffs' testing showed the presence of artificial flavoring was probable and therefore denied dismissal. "Plaintiffs offer more than a bare conclusory allegation that the Product contains ethyl vanillin; they support their allegation that the Product contains high levels of artificial flavoring with a photocopy of a test result . . . showing ethyl vanillin at a concentration of 2.205 parts per million."

The difference in what plaintiffs presented in Edgewell and in Warren is stark. In Edgewell, plaintiffs merely provided conclusory allegations that their testing showed PFAS in Edgewell's products. In Warren, plaintiffs attached the test results to their complaint and explained the methodology used to reach their conclusion. These cases suggest that the Northern District of California is requiring more specificity when plaintiffs present test results in their Complaints. Edgewell may also signal a shift in false advertising cases to a more stringent view of what suffices to meet the plausibility requirement.

What This Means for False Advertising Cases

Edgewell highlights the specificity required to withstand a motion to dismiss when a plaintiff uses test results to bolster the allegations in their Complaint. Judge Martínez-Olguín's ruling shows that it is not enough to allege that tests were conducted and that those tests support plaintiff's position. Rather, courts will look to see whether plaintiffs include specific factual allegations regarding the methodology used in their testing and a discussion of why the findings support plaintiffs' claims.

Morrison Foerster will continue to monitor the impact of this ruling and is available to provide legal guidance to clients on the ramifications of this decision.

[1] Warren v. Whole Foods Mkt. California, Inc., No. 21-CV-04577-EMC, 2022 WL 2644103 (N.D. Cal. July 8, 2022).