A federal court in California has dismissed a putative class action alleging that companies making and selling children’s bath products violated state consumer protection laws by promoting their products as safe when they, in fact, contain carcinogens and other toxic substances. Herrington v. Johnson & Johnson Consumer Cos., No. C 09-1597 (U.S. Dist. Ct., N.D. Cal., decided September 1, 2010). Because the court found that the plaintiffs had not pleaded an injury-in-fact sufficient to confer Article III standing and did not allege facts tending to show an imminent threat of future harm or actual economic damage, the court concluded that it lacked subject matter jurisdiction over their claims.  

Still, the court gave the plaintiffs leave to amend their complaint “to plead facts that support their standing to bring suit.” The court also carefully analyzed each of their claims “to provide guidance for any amended pleading.” In this regard, the court sets forth the elements for pleading each claim and discusses how the specific allegations fall short. For example, the court notes that the plaintiffs’ fraud claims include allegations that “they would not have purchased Defendants’ products had they known of the presence of 1,4-dioxane and formaldehyde,” but because they “have not averred facts that show that the levels of these substances caused them or their children harm, under the objective test for materiality, the alleged non-disclosures are not actionable.”