A California federal court dismissed a complaint alleging that a company misled  consumers concerning the properties of its Splash-Less bleach cleaner.  See Gudgel v. The Clorox Co., No.  4:20-cv-05712 (N.D. Calif. 1/21/21 ). Plaintiff filed this suit on behalf of herself and a putative class, asserting five causes of action against Clorox: (1) violation of the California Consumers Legal Remedies Act (“CLRA”) § 1750; (2) violation of California Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code § 17500; (3) violation of California False Adverting Law (“FAL”), Cal. Bus. & Prof. Code § 17500; (4) negligent misrepresentation; and (5) unjust enrichment.

Plaintiff’s central allegation was that the product’s packaging and marketing would lead a reasonable consumer to believe that the product is suitable for disinfecting, and because the product was allegedly not suitable for that purpose, its packaging and marketing were misleading.  Specifically, plaintiff alleged that she was misled by Clorox’s labeling and advertising into believing that the splash-less product would be effective for disinfecting. Plaintiff alleged that, “only on the back of the label, in small print, does the company disclose” that the product is not to be used for disinfecting.

The Ninth Circuit has explained that “these [three] California statutes are governed by the ‘reasonable consumer’ test.” Williams, 552 F.3d at 938 (quoting Freeman v. Time, Inc., 68 F.3d 285, 289 (9th Cir. 1995)); accord Consumer Advocates v. Echostar Satellite Corp., 113 Cal. App. 4th 1351, 1360 (2003). “Under the reasonable consumer standard, [plaintiffs] must show that members of the public are likely to be deceived.” Williams, 552
F.3d at 938.  The reasonable consumer test requires more than a mere possibility that defendant’s product “might conceivably be misunderstood by some few consumers viewing it in an unreasonable manner.” Lavie v. Procter & Gamble Co., 105 Cal. App. 4th 496, 508 (2003). Rather, the test requires a probability “that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled.” Id.

Defendant pointed out that plaintiff did not identify a valid theory of deception, because plaintiff alleged no facts showing an affirmative misrepresentation or fraudulent omission. The label made no statement or suggestion that the product at issue is suitable for sanitization or disinfection. And Clorox further pointed out that the product’s back label specifically states: “Not for sanitization or disinfection.”  Thus, Clorox contended that a reasonable consumer would not be misled, and as a result, plaintiff’s statutory claims should be dismissed.  The court agreed.

The court rejected plaintiff’s arguments based on cases finding that a misrepresentation on the front of the package could not be cured by a disclaimer on the back of the package.  This case involved no actual misrepresentation or deception that conflicted with the language of the product’s disclaimer that it is “not for sanitization or disinfection.” In other words, the Clorox label at issue contained no misleading words or images that  would lead a reasonable consumer to  believe that the product was capable of sanitizing or disinfecting. So the adequacy of, or even need for, a disclaimer was not an issue.

Moreover, plaintiff had not adequately explained how a reasonable consumer would be deceived by the lack of ingredient percentages, especially in light of the disclaimer stating that the product is “not for sanitization or disinfection.” Similarly, the  “10x Deep Cleaning Benefits” clearly referred to the fact that the product is in concentrated form and must be diluted before use. The court concluded that the phrase “10x Deep Cleaning Benefits” did not constitute a representation that the product may be used for sanitizing or disinfecting purposes.

Plaintiff further argued that Clorox did not disclose that the product does not comply with CDC guidelines for disinfecting. However, as discussed above, the product’s label contained no representation that the product is capable of disinfecting, nor any representation that it complied with such CDC guidelines. Accordingly, in the absence of any specific misrepresentation regarding compliance with CDC guidelines, plaintiff cannot state a claim under the reasonable consumer test based on the product’s alleged lack of compliance with CDC guidelines.

The court concluded that there was no affirmative misrepresentation or deception on the product’s label. Where “there is no deceptive act to be dispelled”, then there is no basis to conclude that a reasonable consumer would be deceived.