How COVID Has Changed False Advertising Rules

What manufacturers should note: Plaintiffs’ lawyers are filing an increasing number of false advertising claims alleging that cleaning and sanitizing products do not do what they purport to do. While plaintiffs must still satisfy the existing legal standards for false advertising claims, these claims may lead some manufacturers to consider adjusting their marketing strategies.

Businesses across the country are facing challenges, including lawsuits, as they grapple with how COVID-19 has impacted their operations, work forces, and supply chains. The wave of litigation is rising, and it appears that no industry is immune. Schiff Hardin’s Coronavirus Task Force is publishing this series to identify of-the-moment issues and potential liabilities facing businesses as they begin to re-open, transform their processes, and face the new reality.

One recent cleaning-product lawsuit is the proposed class action Gudgel v. Clorox Co, in which a California plaintiff alleges that The Clorox Company misrepresented the disinfecting capability of its Splash-Less® bleach product. The complaint asserts that, by adding the ingredients necessary to achieve the higher viscosity of its splashless formula, Clorox altered the concentration of sanitizing agent sodium hypochlorite to a variable 1-5 percent, which the complaint alleges is insufficiently strong to disinfect. The complaint alleges that a solution requires at least a 5 percent concentration of sodium hypochlorite to be effective against bacteria, fungi, and viruses. Clorox’s regular bleach product contains a concentration of between 5 percent and 6.5 percent. The plaintiff alleges common law tort claims and violations of California consumer protection and false advertising laws.

The complaint details the impact of the COVID-19 pandemic on consumer buying habits, and the plaintiff alleges that she purchased the splashless product believing that it could be used to disinfect surfaces and control viral spread.

In October 2020, Clorox moved to dismiss the complaint for failure to state a claim, arguing that the plaintiff “d[id] not identify a valid theory of deception, because [she] alleges no facts showing an affirmative misrepresentation or fraudulent omission.”

The court sided with Clorox, dismissing Plaintiff’s claims without prejudice on January 21, 2021. The court explained that Plaintiff’s California consumer law allegations are governed by the “reasonable consumer” standard, which requires a plaintiff to demonstrate a probability “that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled.” While the question of whether a reasonable consumer is likely to be deceived is generally a question of fact, in “rare situations” a court may decide that a plaintiff’s allegations of deceptive acts are “simply not plausible” as a matter of law.

The court held that none of the terms or phrases cited by Plaintiff implied that the product was capable of sanitizing or disinfecting. For that reason, Clorox was not required to include a disclaimer of any type. Nor, the court found, was it necessary for Clorox to disclose the concentration of sodium hypochlorite. The court also held that, because Clorox did not hold the product out as compliant under Centers for Disease Control and Prevention (CDC) standards, it did not need to disclose that the Splash-Less® product did not meet those guidelines.

How COVID Might Change the Reasonable Consumer Standard

There’s no question that the pandemic has affected consumer behavior, but in Gudgel, it did not affect how the court analyzed the plaintiff’s false advertising claims. As the Court in Gudgel noted, the reasonable consumer test requires more than a mere possibility that a defendant’s product “might conceivably be misunderstood by some few consumers viewing it in an unreasonable manner.”

What Companies Can Do Now

Notwithstanding the outcome in Gudgel, companies may wish to consider adjusting their marketing efforts to deter COVID-related litigation. One way to do this may be via on-product labels.

Even before Gudgel was filed, it appears that Clorox had already tailored at least some of its messaging to current events. Its website began identifying products that had “received approval from the EPA for kill claims” against the coronavirus and contained a page explaining the differences between “cleaning” and “disinfecting.” Clorox also added a pop-up window to its website with the following language: “An Important Safety Message … Bleach and other disinfectants are not suitable for consumption or injection under any circumstances.” A judge or jury would not likely find that a “reasonable” consumer could believe that ingesting bleach is an effective or safe treatment for the coronavirus even without this warning, but Clorox issued it nonetheless.

Though manufacturers’ focus will continue to be on warnings and instructions that allow their products to be used safely, the threat of COVID-related litigation may lead some manufacturers to consider whether to include warnings against wholly unexpected and unreasonable uses, simply as an attempt to mitigate litigation expenses related to those uses.