Leboeuf v. Edgewell Pers. Care Co.

1

NANCY LEBOEUF, individually and on behalf of all others similarly situated, Plaintiff, v. EDGEWELL PERSONAL CARE COMPANY; EDGEWELL PERSONAL CARE BRANDS, LLC; and EDGEWELL PERSONAL CARE, LLC, Defendants.

No. 1:22-cv-642 (MAD/CFH)

United States District Court, N.D. New York

August 23, 2023

APPEARANCES:

SCHLANGER LAW GROUP LLP

Attorneys for Plaintiff

WILSHIRE LAW FIRM, PLC

Attorneys for Plaintiff

STINSON LLP

Attorneys for Defendants

OF COUNSEL:

DANIEL A. SCHLANGER, ESQ.

EVAN S. ROTHFARB, ESQ.

JONAS PALMER MANN, ESQ.

THIAGO COELHO, ESQ.

JOHN W. MOTICKA, ESQ.

KIERAN M. CORCORAN, ESQ.

MEGAN MCCURDY, ESQ.

ASHLEY M. CRISAFULLI, ESQ.

MEMORANDUM-DECISION AND ORDER

MAE A. D'AGOSTINO, U.S. DISTRICT JUDGE.

I. INTRODUCTION

On June 15, 2022, Plaintiff commenced this putative class action alleging that Defendants' claim that their product "Kills 99.99% of Germs" is false and misleading because the active ingredient, Benzalkonium Chloride, is purportedly "ineffective at killing certain gram-negative bacteria, bacteria spores, fungi, and many viruses." Dkt. No. 38 at ¶ 5; see also Dkt. No. 1.

Plaintiff alleges claims for violations of the New York General Business Law §§ 349-50, fraud, and unjust enrichment. See Dkt. No. 38 at ¶¶ 47-92.

Currently before the Court is Defendants' motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. See Dkt. No. 45.

II. BACKGROUND

Defendant Edgewell Personal Care Company is a Missouri corporation. See Dkt. No. 38 at ¶ 1. Defendants Edgewell Personal Care Brands, LLC, and Edgewell Personal Care, LLC are both Delaware limited liability companies. See id. All three Defendants are headquartered in Shelton, Connecticut. See id.

Defendants and their agents manufacture, market, distribute, label, promote, advertise and sell "Wet Ones Antibacterial Hand Wipes" ("Wet Ones" or the "Product") in various sizes, scents and other variations. See id. at ¶ 2. The active ingredient in Wet Ones is 0.13% Benzalkonium Chloride ("BAC"). The front label of Defendants' Product includes a statement that it "Kills 99.99% of Germs." Id. The back label contains a second statement, which restates the promise of the front label by claiming that "Wet Ones Antibacterial Hand Wipes kill 99.99% of germs and wipe away dirt, providing a better clean than hand sanitizers. They are specifically formulated to be tough on dirt and germs, yet gentle on skin, so that you can confidently keep your hands fresh and clean when soap and water are not available." Id.

Plaintiff is an individual who purchased Defendants' Product in order to protect herself from germs. See id. at ¶ 19. The front label of the Product that Plaintiff purchased stated prominently that it "Kills 99.99% of Germs." Id. Similarly, the back label of the Product Plaintiff purchased contained the same promise as set forth above. See id. at ¶ 20.

According to the amended complaint, both the representations made on Defendants' front and back labels are false, deceptive, and materially misleading to a reasonable consumer. See Id. at ¶ 21. "No scientific study indicates that BAC-based hand wipes kill 99.99% of all germs. In fact, many scientific studies show that BAC is not effective [at] killing many prominent and harmful germs, and that they are less effective than washing one's hands." Id. Plaintiff alleges that "BAC, particularly at the concentrations offered in the Products, does not kill 99.99% of germs. The BAC concentration in commercial disinfectants such as Defendants' Products have been found to be ineffective at killing many strains of bacteria, and resistance to BAC has been measured in at least 57 bacteria species." Id. at ¶ 22 (footnote omitted). "In particular, BAC-resistant genes have been found in several E. coli strains. This is particularly alarming, as researchers have now determined that [the] likeliest route of human-to-human transmission for antibiotic-resistant strains of E. coli is through contact with unwashed hands." Id. (footnotes omitted).

The amended complaint also claims that "BAC is known to be ineffective against gramnegative bacteria, bacterial spores, fungi and many viruses." Dkt. No. 38 at ¶ 24. "According to the Center for Food Security & Public Health, BAC is ineffective at killing, among others: (1) pseudomonads (a type of gram-negative bacteria commonly found in the environment and may be transmitted through hands); (2) chlamydiae; (3) non-enveloped viruses (such as rhinovirus - the predominant cause of the common cold in humans); (4) parvoviruses (DNA viruses transmittable through respiratory secretions); acid-fast bacteria (such as Mycobacteria and some Nocardia); (5) bacterial spores (such as Clostridioides difficile, described below); (6) coccidia (causes infections in dogs); and (7) prions (misfolded proteins responsible for several fatal neurodegenerative diseases in humans)." Id. at ¶ 24.

By way of example, the amended complaint contends that Defendants' Products are ineffective at killing pseudomonas aeruginosa, a gram-negative bacterium commonly transmitted through contaminated hands, equipment, or surfaces. See id. at ¶ 25. Studies have found pseudomonas aeruginosa to be resistant to BAC at concentrations as high as 0.36 - almost three times higher than in Defendants' Products. See id. (footnote omitted). In 2017, pseudomonas aeruginosa caused an estimated 32,600 infections in hospitalized patients and 2,700 deaths. See id. (footnote omitted). The amended complaint further alleges that BAC is similarly ineffective at killing clostridioides difficile, a highly common spore-forming bacteria. See id. (footnote omitted). Clostridioides difficile is frequently transmitted through contaminated hands, is estimated to cause 55% of all diarrheas, and leads to an approximate 233,900 infections and 12,800 deaths per year. See id.

Plaintiff also claims that Defendants' Products are ineffective at killing COVID-19. See id. at ¶ 26. "Tests conducted on BAC's efficacy in killing COVID-19 showed that a mere 30 seconds of exposure to 80% alcohol was more effective at killing COVID-19 than 30 minutes of exposure to 0.1% BAC. Needless to say, consumers do not wipe their hands with Defendants' Products for 30 minutes at a time. Defendants' Products are ineffective at killing COVID-19." Id. (emphasis in original).

The amended complaint also notes that as far back as 1958, studies have indicated that BAC is an ineffective skin disinfectant and claims that the use of BAC as a skin disinfectant in hospitals has been associated with numerous bacterial outbreaks or pseudo-outbreaks throughout the United States. See id. at ¶ 27. "Accordingly, researchers recommend against using BAC for the sanitation of anything other than 'non-critical surfaces [such] as walls or furniture.'" Id. (footnote omitted).

Plaintiff claims that, "[i]n light of the fact that evidence shows that many types of germs are not killed by BAC-based hand wipes, and that the use of BAC-based hand wipes may actually be counter-productive to the goal of killing germs, it appears extremely doubtful that BAC-based hand wipes in fact kill 99.99% of all germs. Certainly, no study shows that Defendants' Products kill any given amount of germs such that an exact percentage of germs killed could be stated. Yet, that is exactly what Defendants have done. Defendants made false statements." Id. at ¶ 28.

Plaintiff claims that she purchased Defendants' Products in reliance on their representations, "believing that it had in fact been scientifically proven that the hand wipes killed 99.99% of all germs." Id. at ¶ 29. Plaintiff, however, contends that she did not in fact receive a product proven to kill 99.99% of germs and that she was denied the benefit of the bargain she sought. See id. Plaintiff claims that Defendants knew that their "99.99% message" was more compelling to consumers than simply stating that the Products are "antibacterial," and that the language on the packaging knowingly misleads consumers in an effort to maximize profits. See id. at ¶¶ 30-31.

Plaintiff claims that on several occasions within the last year, she purchased a twenty-pack of Defendants' Wet Ones Antibacterial Hand Wipes in the "Tropical Splash" variety at a Walmart store for the price of $1.97, or approximately $0.098 per wipe. See Dkt. No. 38 at ¶ 32. Plaintiff alleges that she "was induced to purchase this product because its front label claimed that it would Kill[] 99.99% of germs.'" Id.

In comparison, Plaintiff claims that a twenty-pack of "Medi-First Extra Large Antiseptic Wipes" is sold at webstaurantstore.com for $1.49, or approximately $0.0745 per wipe. See id. at ¶ 33. The Medi-First hand wipes also feature 0.13% BAC as its active ingredient, but do not include a claim on its front or back label promising to kill 99.99% of germs. See id. "Instead, it merely promises to 'decrease bacteria on skin.'" Id.

Likewise, a forty-pack of Defendants' Wet Ones Antibacterial Hand Wipes in the "Tropical Splash" variety is sold at Target for $3.59, or approximately $0.09 per wipe. See id. at ¶ 34. In comparison, a forty-pack of "Mighty Good Sanitize Those Hands Antibacterial Hand Wipes" is sold at Walmart for $3.12, or approximately $0.078 per wipe. See id. The Mighty Good hand wipes also feature 0.13% BAC as its active ingredient, but do not include a claim on its front or back label promising to kill 99.99% of germs. See id.

Plaintiff claims that, prior to purchasing Defendants' Products Plaintiff was aware of these alternatives, considered purchasing them, but did not do so. See Dkt. No. 38 at ¶ 35. Instead, Plaintiff claims that, "as a reasonable consumer acting reasonably under the circumstances, [she] relied...