OAKLAND, Calif. (Legal Newsline) – Clorox fails to specify how much sodium hypochlorite is in its Splash-Less gel product that is too weak to disinfect, lawyers pushing a class action are claiming.
Attorneys at Levinson Stockton, Telfer Faherty and Wright Law Office on Nov. 5 filed their opposition to the company’s motion to dismiss the lawsuit they filed earlier this year in Oakland, Calif., federal court.
Clorox said in its Oct. 8 motion that plaintiff Shana Gudgel could have easily ascertained the disinfecting capabilities of its Splash-Less products if she had read the label.
“(W)hile the exact amount of the disinfectant, sodium hypochlorite, is stated on the other regular product, it is conspicuously missing on the splashless variety,” Gudgel’s lawyers wrote.
Photos show the difference between labels on regular bleach that say 6% of the product is sodium hypochlorite while the Splash-Less product merely says it contains sodium hypochlorite without disclosing a percentage.
“Defendant fails to disclose that the Splash-Less Regular Bleach is a diluted formula and does not comply with the Center for Disease Control’s guidelines on disinfecting during the pandemic,” the response says.
The plaintiffs lawyers are hoping a federal judge will not buy Clorox’s argument that the case is too weak to proceed past the motion –to-dismiss phase.
Clorox counters the product is advertised for laundry and other uses to whiten, brighten and deodorize – not protect against COVID-19.
“The core problem for plaintiff is that her own allegations disprove her claims,” lawyers at Covington & Burling wrote for Clorox.
“The Splash-Less label at issue, in contrast to the Regular-Bleach label, made no disinfection or sanitization claim— dooming plaintiff’s theory that Clorox affirmatively misrepresented the properties of the Splash-Less product.
“What is more, the Splash-Less label expressly disclosed that the product is ‘[n]ot for sanitization or disinfection. To sanitize and disinfect, use Clorox® Regular-Bleach.’ Plaintiff cannot proceed with a fraudulent-omission theory of deception when the label makes the very disclosure she complains was omitted.”