OAKLAND, Calif. (Legal Newsline) – Class action lawyers have hit a major snag in their lawsuit that claims Clorox’s marketing of its bleach gel product misled customers into thinking it is suitable for disinfecting.
Oakland, Calif., federal court judge Phyllis Hamilton on Jan. 21 threw out the case but will give plaintiffs lawyers a shot to file an amended complaint that fixes the original’s problem, though she is “skeptical” that can be done.
Attorneys at Levinson Stockton, Telfer Faherty and Wright Law Office are pursuing the case but encountered Clorox’s “read the label” defense last year.
“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,” the company’s motion to dismiss said.
“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.”
Hamilton agreed in a 10-page order granting the motion.
“(T)his case involves no actual misrepresentation or deception that conflicts with the language of the product’s disclaimer that it is ‘not for sanitization or disinfection.’ In other words, the Clorox label at issue contains no misleading words or images,” Hamilton 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.
Clorox countered the product is advertised for laundry and other uses to whiten, brighten and deodorize – not protect against COVID-19.
“(P)laintiff has not adequately explained how a reasonable consumer would be deceived by this omission, especially in light of the disclaimer stating that the product is ‘not for sanitization or disinfection,’” Hamilton wrote.
“Accordingly, plaintiff cannot state a claim under the reasonable consumer test based on the omission of the specific percentage of sodium hypochlorite.”