A decision was made by Judge Todd W. Robinson in a suit initially filed by plaintiff Lauren Souter (both individually and on behalf of all others similarly situated) against defendants Edgewell Personal Care Company, Edgewell Personal Care Brands, LLC, and Edgewell Personal Care, LLC. The order granting the defendants’ motion to dismiss was granted in the Southern District of Florida on Wednesday.
Souter had initially alleged that the defendants had misrepresented their antibacterial hand wipe product, Wet Ones, which violated the California Unfair Competition Law (UCL), the False Advertising Law (FAL), and the California Consumer Remedies Act (CLRA). The plaintiff also cited counts of breach of express warranty and quasi-contract in her initial claim.
Specifically, the suit took issue with the representations that the wipes kill 99.9 percent of germs and that they are “hypoallergenic and gentle.” Souter argued that the representations were “false and misleading and would likely deceive reasonable consumers,” adding that the hand wipes do not kill 99.9 percent of germs and the products contained known allergens despite claiming to be hypoallergenic.
The defendants moved to dismiss this first complaint, citing Souter’s lack of constitutional and statutory standing, failure to satisfy the heightened pleading standard under Federal Rule of Civil Procedure, failure to satisfy the reasonable consumer test, primary jurisdiction, and preemption. The Court granted the motion, agreeing that Souter failed to satisfy the reasonable consumer test, and provided the plaintiff with the option of filing an amended complaint.
After Souter filed the first amended complaint (FAC), the defendants once again filed for a motion to dismiss which was once again granted by the Court on Wednesday. The second motion to dismiss again argued that Souter’s FAC was inadequate given its “lack of constitutional and statutory standing, failure to satisfy the reasonable consumer standard, preemption, and primary jurisdiction.”
While the court stated they were not persuaded by some of the arguments, the Court was supportive of their argument that the plaintiff failed to satisfy the reasonable consumer standard, contending that Souter “has not adequately alleged facts that establish that diseases transmissible by hand, preventable by keeping one’s hands clean, and unresponsive to Wet Ones, total more than 0.01% of germs.” They add that she also “does not sufficiently allege that the Skin Safety Representation is false or that a reasonable consumer, after reading that the product is “hypoallergenic,” would assume that Wet Ones has no potential allergens.”
The court also granted the defendant’s arguments that the claims for breach of express warranty and quasi-contract had not been developed to be sufficiently convincing. They conclude by stating that these insufficient arguments by Souter have led the court to grant the motion for dismissal. Souter will have 30 days to file an amended complaint.
The plaintiff is represented by KamberLaw LLC, while the defendants are represented by Stinson LLP and Seltzer Caplan McMahon Vitek.
