Craw v. Clorox Co.

692 F.Supp.3d 854

Tiffany CRAW, individually and on behalf of all others similarly situated, Plaintiff, v. The CLOROX COMPANY, Defendant.

Case No. 22-CV-2225

United States District Court, C.D. Illinois, Urbana Division

Signed September 15, 2023

Spencer I. Sheehan, Sheehan and Associates PC, Great Neck, NY, for Plaintiff.

Dean N. Panos, Jenner & Block LLP, Chicago, IL, Alexander Smith, Jenner & Block LLP, Los Angeles, CA, for Defendant.

ORDER

COLIN S. BRUCE, UNITED STATES DISTRICT JUDGE

Plaintiff, Tiffany Craw, filed a Complaint (#1) against Defendant, The Clorox Company, on October 19, 2022. Therein, Plaintiff raises a claim under the Illinois Consumer Fraud and Deceptive Business Practices Act ("ICFA"), 815 Ill. Comp. Stat. 505/1 et seq., and myriad related claims based on the allegedly misleading labeling of Defendant's laundry sanitizer product.

Presently before the court is Defendant's Motion to Dismiss (#7), filed on February 17, 2023. Plaintiff filed a Response (#11) on March 3, 2023, and Defendant filed a Reply (#13) on March 13, 2023. For the reasons set forth below, Defendant's Motion to Dismiss (#7) is GRANTED.

BACKGROUND

The following background facts are taken from the allegations in the Complaint. At this stage of the proceedings, the court accepts as true all material allegations in the Complaint, drawing all reasonable inferences therefrom in Plaintiff's favor. See Lewert v. P.F. Chang's China Bistro, Inc., 819 F.3d 963, 966 (7th Cir. 2016).

Defendant manufactures, markets, and sells laundry sanitizer ("the product") under the Clorox brand.¹ The label on the product states: "Kills 99.9% of bacteria on laundry."

Per the Complaint, while textiles and fabrics can be a source of substantial numbers of pathogenic microorganisms, the Centers for Disease Control and Prevention ("CDC") has concluded that diseases and infections linked to contaminated fabrics are so few that any risk of transmission as a result of the laundering process likely is negligible. Carol McLay, an Infection Prevention Consultant with the Association for Professionals in Infection Control and Epidemiology, Inc., concurred with the CDC's findings. McLay stated that transmission of infectious diseases from laundered textiles are so rare that during the past 43 years, only 12 have been reported worldwide. Plaintiff thus alleges that "[t]he reasonable conclusion is that laundering in the domestic context poses a risk of bacteria transmission and harm that is less than negligible."

Plaintiff further alleges that the majority of Americans wash clothes in hot water, and that washing in hot water inactivates microorganisms, accelerates the activation of detergents, and facilitates the mechanical removal of soil and other particulates. Even cold water, Plaintiff alleges, when "followed by a normal drying cycle, reduces the risk of bacteria survival and harm to a negligible level." The use of a tumble drier or exposure to sunlight further reduces the potential for bacteria to survive. No credible and accepted studies of domestic laundry practices have shown that hot, warm, and even cold water, detergent, and a drying cycle, are insufficient to prevent the spread of bacteria and cause any harm.

Plaintiff asserts that Defendant's claim that the product kills 99.9% of bacteria on laundry is "misleading in light of the absence of any evidence that survival of bacteria from a standard laundering process poses any risk." She maintains that consumers will wrongly expect that the product can "provide a meaningful benefit beyond the standard laundering process."

Plaintiff alleges that she bought the product on more than one occasion while relying on the representations that it would "sanitize" her laundry and kill 99.9% of the bacteria on it. She was not aware that her laundry was "sufficiently sanitized through the standard laundering process." She "expected the claim to kill 99.9% of bacteria meant it provided a meaningful benefit in reduction of bacteria beyond this." Plaintiff paid more for the product than she otherwise would have had she known the truth.

Plaintiff's Complaint is a putative class action, purporting to assert claims on behalf of Plaintiff, a putative class of Illinois consumers, and a putative multi-state class of Kansas, Kentucky, Nebraska, North Carolina, South Dakota, Utah, West Virginia, and Wyoming consumers.

Plaintiff's primary claim arises under the ICFA. She also raises a single, general claim for violations of various unidentified state consumer fraud acts. Next, under a single count, Plaintiff brings claims for breaches of express warranty and implied warranty of merchantability/fitness for a particular purpose, as well as violation of the Magnuson Moss Warranty Act, 15 U.S.C. § 2301 et seq. Plaintiff also brings separate Illinois common law claims for negligent misrepresentation, fraud, and unjust enrichment. Finally, Plaintiff seeks injunctive relief.

ANALYSIS

In order to survive a motion to dismiss under Rule 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

In ruling on a motion to dismiss for failure to state a claim, the court views the complaint in the light most favorable to the plaintiff, assuming all well-pleaded facts to be true and drawing all reasonable inferences in the plaintiff's favor. Roe v. Dettelbach, 59 F.4th 255, 262 (7th Cir. 2023). The court need not, however, accept as true any legal assertions, threadbare recitals of the elements of a cause of action, or conclusory statements. See Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.

Plaintiff's ICFA Claim

Defendant contends in its Motion to Dismiss that Plaintiff has failed to plausibly allege a deceptive or unfair act or practice by Defendant. Defendant points out that Plaintiff does not actually dispute the veracity of the label claims in question, i.e., that the product kills 99.9% of bacteria on laundry or that the product "sanitize[s]" laundry. Defendant argues that Plaintiff's interpretation of those truthful claims to mean that the product would provide a meaningful benefit beyond "the standard laundering process" is unreasonable, idiosyncratic, and insufficient to state a claim under the ICFA. Alternatively, Defendant argues that Plaintiff's ICFA claim is preempted by the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), 7 U.S.C. § 136, et seq., which requires that the label of the product be approved by the Environmental Protection Agency ("EPA").

In response, Plaintiff maintains that even truthful statements can be misleading, and that she has alleged facts plausibly establishing deception. Plaintiff also argues that her claim is not preempted by the FIFRA.

To state a claim under the ICFA, a plaintiff must allege "(1) a deceptive or unfair act or practice by the defendant; (2) the defendant's intent that the plaintiff rely on the deceptive or unfair practice; and (3) the unfair or deceptive practice occurred during a course of conduct involving trade or commerce." Wigod v. Wells Fargo Bank, N.A., 673 F. 3d 547, 574 (7th Cir. 2012). Under the ICFA, "a statement is deceptive if it creates a likelihood of deception or has the capacity to deceive." Bober v. Glaxo Wellcome PLC, 246 F.3d 934, 938 (7th Cir. 2001). Specifically, where an ICFA claim is based upon purportedly misleading labeling, "a plaintiff must plead that 'the relevant labels are likely to deceive reasonable consumers,' which 'requires a probability that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled.' " DeMaso v. Walmart Inc., 655 F.Supp.3d 696, 702 (N.D. Ill. Feb. 7, 2023) (quoting Bell v. Publix Super Markets, Inc., 982 F.3d 468, 474-75 (7th Cir. 2020)). "Although ICFA claims often involve disputed questions of fact not suitable to a motion to dismiss, a court may dismiss the complaint if the challenged statement was not misleading as a matter of law." Ibarrola v. Kind, LLC, 83 F.Supp.3d 751, 756 (N.D. Ill. 2015).

"Under limited circumstances, representations that are literally true have been found to be potentially misleading under ICFA." Oettle v. Walmart, Inc., 2022 WL 3584944, at *4 (S.D. Ill. Aug. 22, 2022); see also Beardsall v. CVS Pharmacy, Inc., 953 F.3d 969, 973 (7th Cir. 2020) ("A label is deceptive if it is likely to mislead a reasonable consumer in a material respect, even if it is not literally false."). "[T]he few cases which have found a true statement to be actionable under ICFA typically involve a facially obvious omission or deception as to a material fact." Oettle, 2022 WL 3584944, at *5.

In the instant case, Plaintiff does not dispute the literal truth of the claim that the product kills 99.9% of bacteria on laundry. Nor does Plaintiff dispute that this amounts to a sanitization of the laundry. Instead, Plaintiff asserts that those claims are deceptive insofar as they imply that that the product will make a meaningful difference in the transmission of infectious disease through laundry, because that risk is already "negligible"² for items undergoing the "standard laundering process."

Plaintiff has not identified a "facially obvious omission or deception." Id. On the contrary, she maintains that the claims on the product's label are misleading only when a specific set of assumptions and inferences are made. The product asserts on its label that it kills 99.9% of bacteria on laundry. From this, Plaintiff apparently assumed that the product must cause a meaningful reduction in the potential for transmission of...