A federal court in California, considering consolidated consumer fraud claims against the company that makes Fresh Step® cat litter, has granted in part Clorox’s motion to dismiss and denied its motion to strike the class allegations. In re Clorox Consumer Litig., No. 12-00280 (U.S. Dist. Ct., N.D. Cal., order entered August 24, 2012). The consolidated claims involve seven individual named plaintiffs from five different states, seeking to represent nationwide or statewide classes of cat litter purchasers and alleging violations of California false advertising and unfair competition laws. The case filed by a New York resident is summarized in the February 9, 2012, issue of this Report. These complaints followed lawsuits filed by a Clorox competitor which conducted laboratory tests to determine that product preferences and odor claims made in Clorox commercials could not be substantiated. The putative class actions are based, in part, on the test results asserted in the competitor’s Lanham Act lawsuits. Additional information about the suit that resulted in a preliminary injunction against Clorox appears in the January 12, 2012, issue of this Report.

The court dismissed with prejudice claims based on Clorox’s advertising assertions that cats “like” or “are smart enough to choose Fresh Step,” finding them non-actionable puffery and not, as plaintiffs’ claimed, statements that amount to measurable claims about cats’ litter preferences. The court also dismissed, without prejudice, the plaintiffs’ claim for breach of express warranty to the extent that it is based on product labels or other statements not expressly identified in the complaint. The plaintiffs were given 30 days to amend this claim “so as to specifically identify the exact terms of the warranties upon which the claim is based.”

The court denied Clorox’s motion to dismiss the statutory claims on the ground that they are predicated on non-cognizable allegations that the company’s marketing campaign conveyed factual statements that lacked substantiation. While the court agreed that private plaintiffs may not make substantiation demands under California law, it found that the gravamen of the allegations is not that the advertising claims are unsubstantiated, but that they are provably false. The court also found that the statutory claims did not fail due to a purported failure to satisfy the heightened pleading requirements for fraud, finding the allegations sufficient to place Clorox on notice of the basis of the claims.

As to the motion to strike the class allegations, the court found the record insufficiently developed to rule on this motion. Clorox had not “explained how differences in the various states’ consumer protection laws would materially affect the adjudication of Plaintiffs’ claims or otherwise explained why foreign laws should apply.” The court also rejected Clorox’s argument that the out-of-state plaintiffs lacked standing to sue under California law because the plaintiffs had “sufficiently pled that Clorox’s conduct originated in or had strong connections to California.”