two “kills 99.9% of germs” cases, divergent results

Mier
v. CVS Pharmacy, Inc., 2021 WL 1559367, No. SA CV 20-01979-DOC-ADS (C.D. Cal.
Mar. 22, 2021)

Another
pandemic case, this one alleging that CVS’s Advanced Formula Hand Sanitizer
misleads consumers by representing that it kills 99.99% of germs. The front
label read “Kills 99.99% of Germs*.” The asterisk referred to language on the
back label: “*Effective at eliminating 99.99% of many common harmful germs and
bacteria in as little as 15 seconds.” Mier alleged that many types of germs are
not killed by alcohol-based hand sanitizers and that no scientific evidence
supports the claim that alcohol-based hand sanitizers kill 99.99% of all germs.

He
properly alleged an injury in fact, and plausibly alleged misleadingness. This
was not a lack of substantiation claim: Mier alleged the existence of scientific
studies that show that hand sanitizer doesn’t kill 99.99% of all germs, that
certain types of bacteria are becoming alcohol-resistant, and that
alcohol-based hand sanitizers do not kill many non-enveloped viruses, bacterial
spores, and protozoan cysts.

But
would a reasonable consumer, reading the labels as a whole, interpret them to
mean that the product “kill[s] every conceivable disease-causing microorganism”?
The back label couldn’t, for purposes of a motion to dismiss, take away the
alleged falsity of the front. “If anything, as the Plaintiff suggests, the
mention of the Product’s speed and efficiency on the back label may be read as
an additional claim, having the effect of reassuring a consumer of the
Product’s efficacy.” Anyway, reasonable consumers aren’t required to look for
corrections to the front in small print on the back.

There
was also no preemption by the FDCA, despite a lot of regulation of
antimicrobial products. Nothing about the case required interpretation of
federal law or regulation.

Under Sonner,
Mier could seek equitable relief under FAL and UCL to the extent that his
claims are premised on alleged future harm.

Souter v. Edgewell Personal Care Company, — F.Supp.3d —-,
2021 WL 3892670, No. 20-CV-1486 TWR (BLM) (S.D. Cal. Jun. 7, 2021)

Plaintiff alleged that advertising for Wet Ones
misrepresented that the hand wipes kill 99.99 percent of germs and that the
hand wipes are “hypoallergenic” and gentle.” The court dismissed the claims.

For the efficacy representations, plaintiff alleged that the
active ingredient in these hand wipes, benzalkonium chloride, is ineffective
against certain viruses, bacteria, and spores, which comprise more than 0.01
percent of germs and can cause serious diseases. “Some of those diseases
include polio, norovirus, human papillomavirus, picornavirus, crypotosporidium,
and C. difficile,” as well as COVID-19. For the skin safety representations,
plaintiff alleged that the hand wipes contained ingredients that are “known
allergens or skin irritants.”

The court first got rid of defendants’ dumb argument against
standing: that Souter never got sick or suffered skin damage due to the hand
wipes, which of course is not required for constitutional or statutory standing
under the usual California statutes. Likewise, Rule 9(b) was satisfied.

However, the allegations didn’t plausibly plead that a
reasonable consumer would be misled.

Efficacy:

No reasonable consumer would
believe that a hand wipe advertised to kill 99.99 percent of germs would be
effective against the bacteria and viruses that Plaintiff names. For example,
Plaintiff does not explain how or why a reasonable consumer would take a hand
wipe’s representation that it kills 99.99 percent of germs to mean that it
would also be effective against HPV, a sexually transmitted disease, or the
norovirus and polyomavirus, which are food-borne illnesses. It also seems
implausible that a reasonable consumer would believe that a hand wipe would be
effective against polio, a virus that has not had an active case in the United
States since 1979. … If anything, a reasonable consumer would likely suspect
that a hand wipe would be effective against bacteria often found on hands, and
Plaintiff has not alleged how likely these strains of bacteria appear on hands.

Skin safety:

No reasonable consumer would read
“hypoallergenic” and “gentle” to mean that it is completely free of ingredients
that can cause an allergic reaction. … And what is more, a reasonable consumer
may not even think those words suggest anything about the hand wipes’
ingredients as opposed to the hand wipes’ performance. In other words, a
reasonable consumer may take “hypoallergenic” and “gentle” to mean something
about the effect of the hand wipes when applied on the skin—i.e., that it would
not cause skin irritation and be smooth and gentle—regardless of its
ingredients, such as whether they contain skin irritants. Either way,
“hypoallergenic” and “gentle” do not suggest anything about how the hand wipes
may affect the central nervous system, lungs, eyes, kidneys, or the liver, as
Plaintiff argues here.

However, there was no preemption, and the doctrine of
primary jurisdiction didn’t warrant avoiding a decision. As to the latter,
misleadingness is “not a technical area in which the FDA [has] greater
technical expertise than the courts.” As to preemption, the plaintiff wasn’t
asking the court to impose additional labeling requirements, but challenging
the present label as misleading.

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