if an allegedly falsely advertised product isn’t useless, P may have standing to seek injunctive relief

Perez v. Bath & Body Works, LLC, No. 21-cv-05606-BLF, 2023
WL 3467207 (N.D. Cal. May 15, 2023)

Interesting analysis of standing for injunctive relief: Where
the product is a useful one, the court finds standing based on a desire to
purchase it again if truthfully labeled.

Perez alleged that defendant BBW falsely claims that
hyaluronic acid, an ingredient in those products, “attracts and retains up to
1,000x its weight in water to make skin look smoother and more supple.” She
brought the usual
California claims

BBW argued that there was no standing for injunctive relief because she alleged
that it was scientifically impossible for hyaluronic acid to retain 1,000x its
weight in water. Past cases have said, among other things, that plaintiffs who
“explained that they were not concerned with phosphoric acid, but rather with
whether Coca-Cola was telling the truth on its product’s labels” lacked
standing because their “desire for Coca-Cola to truthfully label its products,
without more, is insufficient to demonstrate that they have suffered any particularized
adverse effects.” Perez alleged that she wanted to purchase BBW products “that
could help improve the appearance of her skin, including, specifically, Bath
& Body Works Hyaluronic Acid and moisturizing products such as those
described above.” But, she alleged, without professional testing or other
expert evidence, she couldn’t determine if BBW was telling the truth about its
products’ features. Even if the formulation or advertising changes, “as long as
Defendants may use inaccurate representations about the capabilities of their
hyaluronic acid products, then when presented with Defendants’ advertising, Ms.
Perez continues to have no way of determining whether the representations
regarding those capabilities are true.”

The court found these allegations sufficient. As the Ninth
Circuit has said, “the threat of future harm may be the consumer’s plausible
allegations that she will be unable to rely on the product’s advertising or
labeling in the future, and so will not purchase the product although she would
like to.” BBW argued that the Ninth Circuit was dealing with wipes that could
conceivably be flushable, but Perez alleged that the claim here was
scientifically impossible. “But the Court declines to look at the threatened
injury so narrowly.” While “a plaintiff must show ‘a sufficient likelihood that
he will again be wronged in a similar way,’ … [a court] ‘must be careful not to
employ too narrow or technical an approach.’ ” The inability to rely on
defendant’s representations was a “similar” injury.  

BBW argued that a plaintiff needs to allege a desire to
purchase the product as advertised. But a plaintiff can allege “a concrete,
imminent injury” even without alleging a desire to purchase the product “as
advertised.” Also, this case didn’t involve an allegedly worthless product:
“Even if hyaluronic acid cannot retain 1,000 times its weight in water, it is
not necessarily useless as a moisturizer.”

from Blogger http://tushnet.blogspot.com/2023/05/if-allegedly-falsely-advertised-product.html

This entry was posted in Uncategorized and tagged , , . Bookmark the permalink.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s