In consumer cases alleging product mislabeling, one frequently litigated question is whether the plaintiff has standing to seek an injunction of the labeling practice that he or she claims is misleading. Over the past decade, consumer protection defendants have often won on this issue by demonstrating that the plaintiff is at no risk of future injury. But last year, in Davidson v. Kimberly-Clark Corp., 889 F.3d 956 (9th Cir. 2018), the Ninth Circuit made this issue tougher for defendants, adopting an exceptionally broad view of plaintiffs’ standing to seek injunctive relief in mislabeling cases. Below, we discuss the aberrant holding in Davidson, and how Ninth Circuit defendants may still be able to distinguish its facts to defeat a claim for injunctive relief.

Standing for Injunctive Relief: An Uphill Battle for Consumer Protection Plaintiffs

To establish standing for injunctive relief, it is not enough to show past harm, such as overpayment for an allegedly mislabeled product. Instead, the plaintiff must show a threat of “actual and imminent” future injury. Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009). So, for example, a company suing its competitor for false advertising can seek injunctive relief on the grounds that it will lose sales and consumer goodwill if the offending ad continues to circulate.

This showing is close to impossible for the typical consumer protection plaintiff, who claims to have been duped by a label statement that she later found out was false. If, as she claims, she has learned the “truth” about the product, how is she at risk of future injury? All she has to do is avoid purchasing the product, and even if she does purchase it, she will do so with eyes wide open.

Many courts have reached exactly this conclusion, and dismissed consumer protection plaintiffs’ claims for injunctive relief. As one court explained, “plaintiffs who are already aware of the deceptive nature of an advertisement are not likely to be misled into buying the relevant product in the future and, therefore, are not capable of being harmed again.” Pinon v. Tristar Prods., 2016 U.S. Dist. LEXIS 118611, at *8 (E.D. Cal. Aug. 31, 2016) (collecting cases). Several circuits have adopted this reasoning. See McNair v. Synapse Grp., Inc., 672 F.3d 213 (3d Cir. 2012); Nicosia v. Amazon.com, Inc., 834 F.3d 220 (2d Cir. 2016); Conrad v. Boiron, Inc., 869 F.3d 536 (7th Cir. 2017).

The Davidson Holding

In Davidson v. Kimberly-Clark Corp., 889 F.3d 956 (9th Cir. 2018), however, the Ninth Circuit became the first and only federal appellate court to depart from this logic and hold that consumers “may” be able to seek injunctive relief in this context. In that case, the plaintiff alleged that she purchased hygienic wipes labeled as “flushable,” only to learn, when her plumbing became clogged after a period of use, that they were not really “flushable” at all. She sought an injunction of the labeling statement, arguing that she was at risk of future injury because she wanted to buy the wipes again, but only if the defendant corrected the alleged defect and made them truly “flushable.”

The issue went up to the Ninth Circuit, which ruled in the plaintiff’s favor. The court reasoned that a “previously deceived consumer may have standing to seek an injunction against false advertising or labeling, even though the consumer now knows or suspects that the advertising was false at the time of the original purchase.” Id. at 969. As the Ninth Circuit saw it, “knowledge that the advertisement or label was false in the past does not equate to knowledge that it will remain false in the future.” Id. Accordingly, the Ninth Circuit held, a threat of future harm may be established where the plaintiff plausibly alleges “that she might purchase the product in the future, despite the fact it was once marred by false advertising or labeling, as she may reasonably, but incorrectly, assume the product was improved.” Id. at 970. In other words, the plaintiff remained at risk of future injury because (1) she wanted to purchase the products if the defendant improved them to be truly “flushable”; but (2) without an injunction, she would have no way of knowing whether she could trust the “flushable” representation.

This conception of standing to seek injunctive relief is generous, to say the least. The plaintiff can easily avoid being taken in again by the “flushable” representation: all she has to do is not buy the product. And as long as she steers clear of the product, the only risk is that Kimberly-Clark will reconstitute its wipes to be truly “flushable,” and the plaintiff will miss out on purchasing them. But that risk will materialize only if Kimberly-Clark reformulates its wipes and the plaintiff’s purchasing preferences remain the same. Is that really an “actual and imminent” risk, as opposed to a “conjectural or hypothetical” one? Summers, 555 U.S. at 493. And even if the risk materializes, does a missed opportunity to purchase flushable wipes really constitute a legally cognizable “injury”?

In light of these and other questions, Kimberly-Clark filed a petition for certiorari, but the Supreme Court denied it in December 2018. So, right or not, Davidson is here to stay.

The Good News: Not Every Consumer Protection Case is Davidson

Although Davidson makes it easier for certain consumer protection plaintiffs to seek injunctive relief, it does not mean that all such plaintiffs can do so. As one court observed, Davidson is “narrower than a blanket conclusion that plaintiffs seeking injunctive relief in mislabeling cases always have standing.” Schneider v. Chipotle Mexican Grill, Inc., 2018 U.S. Dist. LEXIS 169554, at *5 (N.D. Cal. Sep. 29, 2018); see also Levay v. AARP, Inc., 2018 U.S. Dist. LEXIS 116585, at *8-9 (C.D. Cal. July 12, 2018) (describing Davidson as outlining the “limited circumstances” in which a previously deceived consumer might have standing to seek injunctive relief). Rather, its holding is limited to consumer protection plaintiffs who can plausibly establish certain factual predicates.

At a bare minimum, to show standing under Davidson, the consumer must make a credible allegation that she intends to purchase the product again. In the aftermath of Davidson, the Ninth Circuit has made clear that this is an absolute requirement. See Lanovaz v. Twinings N. Am., Inc., 726 Fed. Appx. 590 (9th Cir. 2018) (notwithstanding Davidson, plaintiff’s statement that she would “consider buying” defendant’s product in the future did not satisfy the “actual or imminent” standard for future harm). Consumer protection plaintiffs often fail to include this allegation in their pleadings, or to give deposition testimony supporting it. And in many consumer protection cases, the allegation is simply not plausible in the overall context of the case. For example, a plaintiff who claims that she would never have purchased a candy product if she had known about its high sugar content cannot turn around and claim that she hopes to purchase the product again in the future.

Even where the plaintiff credibly alleges an intent to purchase the product in the future, Davidson requires more. The plaintiff has standing only if (1) the product continues to bear the challenged statement; and (2) the consumer is unable to determine whether the statement remains deceptive, or if the deception has been remedied by the manufacturer. In Davidson, the plaintiff had a “desire to purchase truly flushable wipes,” but was “unable to rely on Kimberly-Clark’s representations of its product in deciding whether or not she should purchase the product in the future.” Id. at 972. Davidson thus only applies where the plaintiff wants to buy a reconstituted product, but has no way of knowing whether the reconstitution has occurred.

Not all consumer protection plaintiffs will be able to demonstrate a risk of this particular injury. For example, what if reformulation isn’t an option under plaintiff’s theory of the case? In Anthony v. Pharmavite, 2019 U.S. Dist. LEXIS 1899 (N.D. Cal. Jan. 4, 2019), the defendant advertised its biotin supplement as “supporting healthy hair, skin and nails.” Plaintiffs alleged that this was misleading because most people are not biotin deficient, and therefore gained no benefit from the supplements. The court denied plaintiffs’ request for injunctive relief—not only because the plaintiffs did not intend to buy the product again, but, “more critically,” because the Davidson claim of future injury would have been implausible on plaintiffs’ facts. This was “not a situation, like in Davidson, where Plaintiffs ‘would [still] like to’ purchase biotin supplements in the future if [the defendant’s] advertising were more truthful, or if [defendant] ‘improved’ its Biotin Products.” Id. (quoting Davidson). The plaintiffs’ issue was with the product concept itself, foreclosing any credible claim that they planned to purchase it again.

Plaintiffs whose allegations pertain to the presence or absence of an ingredient are also unlikely to get much traction from Davidson, because they are rarely “unable” to determine whether the challenged statements remain false. For example, where a plaintiff alleges that the presence of a particular ingredient renders a “no artificial preservatives” claim misleading, the plaintiff will always be able to determine whether the statement is true or false simply by checking the ingredient list. If it is, the consumer will not buy the product, and is at no risk of injury. And if the manufacturer reformulates the product to remove that ingredient (while keeping the “no artificial preservatives” claim), the consumer is able to access that information as well.

Fernandez v. Atkins Nutritionals, Inc., 2018 U.S. Dist. LEXIS 1189 (S.D. Cal. Jan. 3, 2018), illustrates how a plaintiff’s access to knowledge can be used as a means of distinguishing Davidson. In Fernandez, the plaintiff sought to challenge defendant’s method for calculating “net carbs.” But because she “now knows how [the defendant] goes about calculating its net carb claims,” and because she had admitted she “now has knowledge that enables her to make an appropriate choice with respect” to the defendant’s products, there was no future circumstance in which she might be “unable” to determine if it was appropriate to rely on the statements at issue. Id. at *43.

In sum, in the wake of Davidson, defendants in the Ninth Circuit should continue to carefully assess both the plaintiff’s allegations and the particular factual circumstance to see if Davidson can be distinguished. If so, there may be a viable path to having claims for injunctive relief dismissed, even in the Ninth Circuit.