Northern California Record

Tuesday, November 19, 2019

Ninth Circuit rules against Kimberly-Clark in toilet paper suit

By John Revak | Nov 20, 2017

Law money 07

The Ninth Circuit Court of Appeals has reversed and remanded a district court’s ruling on a lawsuit involving personal care giant Kimberly-Clark.

The class action suit, dismissed by California’s Northern District, alleged the company falsely advertised four of their cleansing wipes as “flushable”.

The products in question were Cottonelle wipes, Scott wipes, Huggies wipes, and Kotex wipes. The packaging of these products contained a disclaimer that the wipes would break apart after flushing. These wipes were sold at a premium price higher than their non-flushable counter parts.

Judge Murguia |

A concerned consumer, Jennifer Davidson, realized the wipes did not break down upon flushing. She quickly became concerned about the resulting effects on her own plumbing and San Francisco’s wastewater treatment facilities and filed a class action lawsuit. She brought four causes of action under California State Law, including common law fraud, violation of the Consumer Legal Remedies Act, False Advertising Law and Unfair Competition Law.

Davidson sought to enjoin Kimberly-Clark from marketing the products in question as marketable, she also sought to recover the premium she paid for the wipes.

On appeal the main issues were the damages plaintiff needed to maintain a cause of action, whether plaintiff needed to show how she came to believe that the wipes were not flushable, and whether she had standing to seek an injunction.

The Ninth Circuit, led by Judge Mary A. Murguia, found in Davidson’s favor on all three issues.

Regarding the damages needed to maintain the cause of action, the court found that the plaintiff did not need to establish actual damage to her plumbing, but only that she paid a premium for a falsely advertised product.

Additionally, the Ninth Circuit found no need for the plaintiff to show how she came to believe that the product was not flushable, finding no basis under California law for such a requirement.

“Under California’s consumer protection laws, a consumer who pays extra for a falsely labeled or advertised product, may recover the premium she paid for that product,” Murguia’s opinion read.

Finally, the majority found that standing for injunctive relief was present. To seek an injunction in a false advertising case, they stated that the plaintiff needs to show an impeding risk that they will be subject to the false advertising again. They found that Davidson had met this standard, and whether or not she knew, or believed, the representation to be false in the past was irrelevant.

“A consumer’s inability to rely in the future on a representation made on a package, even if the consumer knew or continued to believe that same representation was false in the past, is an ongoing injury that may justify an order barring the false advertising,” Murguia’s opinion read.


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U.S. Court of Appeals for the Ninth Circuit