Judge Phyllis J. Hamilton of the Northern District of California recently granted Kimberly-Clark’s motion to dismiss a case challenging the truthfulness of the defendant’s claims that its wipes are flushable. Davidson v. Kimberly-Clark Corp. et al. Case No. C 14-1783 PJH (N.D. Cal. Dec. 19, 2014). The court dismissed the plaintiff’s claims based on failure to plead Article III standing, and failure to plead her claims with Rule 9(b) specificity. The key takeaway is that plaintiffs must plead specific facts regarding their alleged injury, rather than rely on general allegations regarding the experience of third parties.

In Davidson, the plaintiff challenged the “Flushable” label on four Kimberly-Clark Corp. products: Kleenex® Cottonelle® Fresh Care Flushable Wipes & Cleansing Cloths; Scott Naturals® Flushable Moist Wipes; Huggies® Pull-Ups® Flushable Moist Wipes; and U by Kotex® Refresh flushable wipes. She alleged that the “flushable” representation was false because flushing the wipes “created a substantial risk” that a consumer would clog or damage her household plumbing or municipal sewer systems. The plaintiff brought claims for injunctive relief, restitution, punitive damages, actual damages, and statutory damages under the Consumer Legal Remedies Act (CLRA), the False Advertising Act (FAL), and California’s Unfair Competition Law (UCL) on behalf of herself and other members of a proposed class. Kimberly-Clark Corp. filed a motion to dismiss, which Judge Hamilton granted.

Lack of Article III Standing for Injunctive Relief

The plaintiff’s claim for injunctive relief was dismissed for lack of Article III standing. First, the court found that the plaintiff failed to plead that she personally suffered any injury by using the flushable wipes in her toilet. Instead, she pointed to general allegations that some wipes have caused clogs or blockages in local wastewater systems, and to a few consumer comments on Kimberly-Clark’s website. Second, the court found that the plaintiff failed to plead that there was a risk of future or imminent harm because she alleged that she would not purchase the defendant’s wipes in the future. As such, the court found her injunctive relief claim was based on a hypothetical injury insufficient to satisfy Article III standing.

Rule 9(b): Plaintiff Must Allege Facts Showing Why the Claim Is False

The plaintiff’s remaining claims under the CLRA, FAL and UCL were dismissed under Rule 9(b) for lack of specificity. The court found that the plaintiff had not alleged facts showing that the products were in fact falsely advertised as “flushable.” The court stated:

“It is not enough for [plaintiff] to simply claim that [the “flushable” representation] is false—she must allege facts showing why it is false.”

The court further found that the plaintiff’s citation to articles on the Internet discussing problems with clogs and blockages at wastewater treatment facilities, and comments by consumers posted on Kimberly-Clark’s website, were insufficient to meet Rule 9(b) requirements. The articles discussing the wastewater treatment issues suggested that other causes may have been responsible for the clogging, such as people flushing “non-flushable” materials down the toilet. As for the comments by consumers on the defendant’s website, those were vague and lacking in detail, and also appeared to involve damage to septic tanks, not municipal sewer systems.

Conclusion

Judge Hamilton’s order is a victory for companies defending against false advertising claims, as it requires plaintiffs to plead specific facts showing why a representation is false, rather than just claiming that it is false. In particular, relying on general allegations, such as articles on the Internet about third-party experiences, is not sufficient.