The United States Supreme Court refused a request to hear arguments regarding whether or not a consumer can bring a case for false advertising about flushable wipes. The plaintiff had prevailed at the appellate level, and now defendant Kimberly Clark Corporation’s hopes are down the drain.

Appellate Court Claims Plaintiff Can Hope

Jennifer Davidson, a consumer, brought a class-action lawsuit in a California district court for false advertising of Scott Naturals Flushable Moist Wipes, claiming its ads violated California’s Consumer Legal Remedies Act and False Advertising Law, and Unfair Competition Law.

The district court granted a motion to dismiss the case, claiming that Davidson didn’t have standing to sue, since her plumbing was not clogged from use of the wipes, and it was clear that she would never buy the product again, and therefore there was no future harm or risk. But on appeal, the Ninth Circuit reversed this ruling, claiming that there could be an “actual and imminent, not conjectural or hypothetical” threat of future harm because “knowledge that the advertisement or label was false in the past does not equate to knowledge that it will remain false in the future.”

Fool Me Once, Shame on You; Fool Me Twice, Shame on You

Consumer Litigation plaintiffs usually seek injunctive relief, rather than damages. Plaintiffs are generally requesting that defendants refrain from packaging and advertising a product in a certain way. The threat of suffering future harm is required for injunctive relief.

Some defendants have successfully argued that consumers who gain knowledge that advertising is false lack standing to sue because they may be fooled once by the ads, but if they are fooled a second time, it’s at their own peril. But what the appellate court ruled here is that there is still the possibility of future harm. It may be reasonable for a plaintiff to think that circumstances may change, such as the product becoming more flushable or sewage technology advancing, so that the advertising, in fact, becomes true.

If you believe you have been the victim of false advertising, contact a local consumer protection attorney. A legal adviser can best inform you of your standing and rights concerning false advertising.

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