Mack v. Edgewell Personal Care Company

Opinion

BRIGETTE LOWE, Case No. 23-cv-00834-AMO

Plaintiff, ORDER GRANTING MOTIONS TO DISMISS, DENYING AS MOOT v. REQUESTS FOR JUDICIAL NOTICE; DENYING AS MOOT MOTION FOR EDGEWELL PERSONAL CARE LEAVE TO RESPOND TO NOTICE OF COMPANY, SUPPLEMENTAL AUTHORITY Defendant. Re: Dkt. Nos. 37, 38, 55

SARAHA MACK, et al., Related Case No. 23-cv-00837-AMO Plaintiffs, v.

EDGEWELL PERSONAL CARE Re: Dkt. Nos. 38, 39, 56 COMPANY, Defendant.

These related putative class actions against Edgewell Personal Care Company concern two different tampon product lines: o.b. Organic™ tampons and Playtex Gentle Glide tampons. Lowe Am. Compl. (ECF 34) ¶ 1 n.1; Mack Am. Compl. (ECF 32) ¶ 1. The gravamen of each complaint is that the tampons contain harmful “per and polyfluoroalkyl substances (‘PFAS’),” otherwise known as “forever chemicals,” rendering various representations about the products false and misleading. Lowe Am. Compl. ¶¶ 10, 48, 94-119; Mack Am. Compl. ¶¶ 10, 49, 94-120. In each case, Edgewell filed a motion to dismiss and a request for judicial notice. Lowe Mot. (ECF 37), Lowe RJN (ECF 38); Mack Mot. (ECF 38), Mack RJN (ECF 39).1 The motions are fully briefed and suitable for disposition without argument pursuant to Civil Local Rule 7-1(b). Accordingly, the Court VACATES the hearing currently set for January 18, 2024. Having considered the parties’ papers, the relevant legal authority, and good cause appearing, the Court GRANTS Edgewell’s motions to dismiss, DENIES AS MOOT the accompanying requests for judicial notice, and DENIES AS MOOT Plaintiffs’2 requests for leave to respond to supplemental authority. A. Factual background 1. PFAS According to Plaintiffs, forever chemicals are “man-made,” “not naturally occurring,” and “indisputably synthetic chemicals.” Lowe Am. Compl. ¶¶ 44-45; Mack Am. Compl. ¶¶ 46-47. These substances’ hydrophobic properties “make tampons more absorbent by drawing liquid into the products’ absorbent core and preventing wicking and leakage.” Lowe Am. Compl. ¶¶ 46-47; Mack Am. Compl. ¶¶ 47-48. Plaintiffs allege that “all PFAS are harmful” and “can be harmful even at extremely low levels of exposure.” Lowe Am. Compl. ¶¶ 50-51; Mack Am. Compl. ¶¶ 51- 52. Plaintiffs further allege that PFAS have been linked to decreased fertility, negative developmental effects in children, increased risk of cancer, liver damage, thyroid disease, adverse impacts on the immune system, interference with hormones, and increased cholesterol levels. Lowe Am. Compl. ¶ 54; Mack Am. Compl. ¶ 55. Plaintiffs assert that “[t]here is no treatment to remove PFAS from the body,” so “experts agree the most effective strategy to decrease risk is to avoid and/or limit exposure to products known to contain PFAS.” Lowe Am. Compl. ¶ 63; Mack Am. Compl. ¶ 64. 1 Edgewell previously moved to dismiss Plaintiffs’ original complaints. Lowe ECF 25, Mack ECF 26. Plaintiffs filed the operative complaints in lieu of opposing those motions. Lowe ECF 34; Mack ECF 32.

2 “Plaintiffs” as used herein refers to Brigette Lowe, a former California resident and current 2. Plaintiffs’ testing Though they allege that “it is impractical, if not impossible for scientists and researchers to test for the presence” of the 12,000+ PFAS currently in existence by using a “targeted analysis method,” Plaintiffs also allege that their own “independent third-party testing” confirmed the presence of PFAS in the tampons at issue here. Lowe Am. Compl. ¶¶ 10, 68, 70; Mack Am. Compl. ¶¶ 10, 68, 70. Plaintiffs tested for “organic fluorine,” a substance Plaintiffs describe as “a surrogate or proxy for PFAS chemicals, meaning its presence is indicative that a sample contains PFAS.” Lowe Am. Compl. ¶¶ 68-69; Mack Am. Compl. ¶¶ 68-69. Plaintiffs allege that this organic fluorine analysis is “widely accepted by scientists, researchers, and regulators,” and that “the state of California uses [it] to measure PFAS in its regulation of consumer products.” Lowe Am. Compl. ¶ 74; Mack Am. Compl. ¶¶ 71-72. In each case, Plaintiffs’ testing proceeded in two phases. Lowe Am. Compl. ¶ 75; Mack Am. Compl. ¶ 73. In March 2022, Plaintiffs first tested “the whole finished [t]ampon [p]roduct.” Lowe Am. Compl. ¶ 75; Mack Am. Compl. ¶ 73. In April 2023, Plaintiffs “then conducted a second round of testing . . . , this time analyzing each individual component of the [t]ampon [p]roducts—the absorbent core, the fabric overwrap, the string, and the applicator (where applicable).” Lowe Am. Compl. ¶ 75; Mack Am. Compl. ¶ 73. Plaintiffs allege that their “testing uniformly showed that the finished [t]ampon [p]roducts contained PFAS.” Lowe Am. Compl. ¶ 76; Mack Am. Compl. ¶ 74. According to Plaintiff Lowe, based on these testing results, patent applications showing the use of hydrophobic components in Edgewell’s tampon products, and known industry practices,3 “it is reasonable to conclude that the use of PFAS is part of the [t]ampon product’s design in order to improve product performance by increasing absorbency and reducing leaks and surface wetness.” Lowe Am. Compl. ¶ 78. Plaintiffs Mack and Solano make a similar allegation, though

3 Plaintiff Lowe does not specify what these “known industry practices” are. See generally Lowe they rely on the products’ “listed ingredients”4 instead of unspecified “known industry practices.” Mack Am. Compl. ¶ 78. B. Procedural background Plaintiff Lowe commenced this action on February 24, 2023. Lowe Compl. (ECF 1). On the basis of the “reasonable conclusion” described above, Lowe alleges that Edgewell’s claims that its o.b. tampons are “100% Organic Cotton,” “Free from Chlorine,” “Made from 100% certified organic cotton – from tip to string,” “Responsibly sourced. Free from pesticides,” contain “no Fragrances or Dyes,” and include “Only what you need, nothing you don’t” (collectively, the “Organic Representations”) are false and misleading. Lowe Am. Compl. ¶¶ 5-7, 35-37 (emphasis in original). Plaintiffs Mack and Solano also filed suit on February 24, 2023. Mack Compl. (ECF 1). They too rely on the above-described conclusion in alleging that, as to the Playtex Gentle Glide tampons, the use of “SIMPLY” in the name “Playtex SIMPLY gentle glide,” the representations that the tampons are “SIMPLE. GENTLE. RELIABLE[,]” “free from colors, dyes, and BPA,” and contain “purified fibers,” and the assurance that “Every ingredient used in Simply Gentle Glide is rigorously evaluated to provide reliable protection that you can trust to be gentle and safe for your body” (collectively, the “Safe, Gentle, and Purified representations”) are false and misleading. Mack Am. Compl. ¶¶ 5-6, 37-39. Plaintiffs seek to represent the following three putative classes:

• Nationwide Class: “During the fullest period allowed by law, all persons who purchased the [t]ampon [p]roducts in the United States within the applicable statute of limitations for personal use and not resale, until the date notice is disseminated.” • Multi-State Consumer Protection Class: “During the fullest period allowed by law, all persons who purchased the [t]ampon [p]roducts in the States of California, Florida, Illinois, New York, Massachusetts, Michigan, Minnesota, Missouri, New Jersey, Washington within the applicable statute of limitations for personal use and not resale, until the date notice is disseminated.”

4 The listed ingredients include “rayon and/or cotton fiber, polyester, polysorbate 20, wax blend • California Class: “During the fullest period allowed by law, all persons who purchased the [t]ampon [p]roducts in the State of California within the applicable statute of limitations for personal use and not resale, until the date notice is disseminated.” Lowe Am. Compl. ¶¶ 152-154 (footnotes omitted); Mack Am. Compl. ¶¶ 161-163 (footnotes omitted). Plaintiffs assert the following claims in each case: (1) violation of consumer protection statutes (under the laws of California, Florida, Illinois, Massachusetts, Michigan, Minnesota, Missouri, New Jersey, New York, and Washington), (2) violation of the California Consumers Legal Remedies Act, Cal. Civ. Code §§ 1750, et seq., (3) violation of California’s Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200, et seq., (4) violation of the California False Advertising Law, Cal. Bus. & Prof. Code §§ 17500, et seq., and (5) “unjust enrichment/quasi- contract.” Lowe Am. Compl. ¶¶ 164-172, ¶¶ 173-193, ¶¶ 194-204, ¶¶ 205-216, ¶¶ 217-223 & n.66; Mack Am. Compl. ¶¶ 173-181, ¶¶ 182-202, ¶¶ 203-215, ¶¶ 216-227, ¶¶ 228-234 & n.61. On July 7, 2023, Edgewell filed a motion to dismiss in each case, with an accompanying request for judicial notice. Lowe Mot. (ECF 37), Lowe RJN (ECF 38); Mack Mot. (ECF 38), Mack RJN (ECF 39). Edgewell seeks dismissal of each complaint in its entirety because Plaintiffs (1) have not plausibly alleged that the products contain PFAs and have not plausibly alleged that the products contain PFAs that are harmful, and thus fail to state a plausible claim for relief, (2) lack Article III standing, (3) fail to meet Rule 9(b)’s heightened pleading standard, (4) do not allege representations that would mislead reasonable consumers (5) do not allege that Edgewell had a duty to disclose PFAs, (6) cannot plead a claim for unjust enrichment where there is an adequate remedy at law and where it is not actionable as a stand-alone cause of action, (7) assert claims that are expressly or impliedly preempted, and (8) lack standing to assert claims based on laws of states other than California. Lowe Mot. at 9-22; Mack Mot. at 9-21. Plaintiffs filed their oppositions to the motions on August 4, 2023. Lowe Opp. (ECF 46); Mack Opp. (ECF 45). They also filed oppositions to Edgewell’s requests for judicial notice. Lowe RJN Opp. (ECF 47); Mack RJN Opp. (ECF 46). Edgewell filed replies in support of its motions to dismiss on August 18, 2023. Lowe Reply (ECF 48); Mack Reply (ECF 49). It also filed replies in support of Following the close of briefing, Edgewell submitted three statements of recent decision in each case. Lowe ECF 52, 53, 54; Mack ECF 53, 54, 55. Plaintiffs then moved for leave to respond to Edgewell’s supplemental authority, noticing that motion for hearing on January 25, 2024.5 Lowe ECF 55; Mack ECF 56. The Court vacated the hearing and indicated that counsel could address the supplemental authority during the anticipated January 18, 2024 hearing on the motions resolved by this order.6 See Lowe ECF 58; Mack ECF 59. Federal Rule of Civil Procedure 8 requires a complaint to include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A complaint that fails to meet this standard may be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). To overcome a Rule 12(b)(6) motion to dismiss, the factual allegations in the plaintiff’s complaint “‘must . . . suggest that the claim has at least a plausible chance of success.’” Levitt v. Yelp! Inc., 765 F.3d 1123, 1135 (9th Cir. 2014) (quoting In re Century Aluminum Co. Sec. Litig., 729 F.3d 1104, 1107 (9th Cir. 2013) (alterations in original)). In ruling on the motion, courts “accept factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008) (citation omitted). “[A]llegations in a complaint . . . may not simply recite the elements of a cause of action [and] must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.” Levitt, 765 F.3d at 1135 (quoting Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011)). The court may dismiss a claim “where there is either a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal claim.”

5 Going forward, such motions should be filed as administrative motions pursuant to Civil L.R. 7- 11. See Michael Taylor Designs, Inc. v. Travelers Prop. Cas. Co. of Am., 761 F. Supp. 2d 904, 909 (N.D. Cal. 2011). Hinds Invs., L.P. v. Angioli, 654 F.3d 846, 850 (9th Cir. 2011) (citing Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008)). “[T]he non-conclusory ‘factual content’ and reasonable inferences from that content must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). Dismissal is appropriate here because, as Defendants argue, Plaintiffs do not plausibly allege that Edgewell’s tampon products contain forever chemicals. Plaintiffs’ limited allegations on that issue are as follows: Lowe Mack 10. However, despite Edgewell’s consistent 10. However, despite Edgewell’s consistent and pervasive marketing of the Tampon and pervasive marketing of the Tampon Products as Organic, Plaintiff’s independent Products as Safe, Gentle and Purified, testing has shown that the Tampon Products Plaintiffs’ independent testing has shown that contain per- and polyfluoroalkyl substances the Tampon Products contain per- and (“PFAS”), a category of human-made polyfluoroalkyl substances (“PFAS”), a chemicals with a toxic, persistent, and category of human-made chemicals bioaccumulative nature which are associated with a toxic, persistent, and bioaccumulative with numerous health concerns. nature which are associated with numerous health concerns. 68. Plaintiff sought independent third-party 68. Plaintiffs sought independent third-party testing to confirm the presence of PFAS testing to confirm the presence of PFAS chemicals in the Tampon Products. chemicals in the Tampon Products.

69. Plaintiffs [sic] testing utilized total organic 69. Plaintiffs[’] testing utilized total organic fluorine (TOF) analysis, which is an accepted fluorine (TOF) analysis, which is an accepted method for detecting PFAS. Organic fluorine method for detecting PFAS. Organic fluorine is a surrogate or proxy for PFAS chemicals, is a surrogate or proxy for PFAS chemicals, meaning its presence is indicative that a meaning its presence is indicative that a sample contains PFAS. sample contains PFAS. 70. There are more than 12,000 PFAS 70. There are more than 12,000 PFAS chemicals currently in existence. chemicals currently in existence. Accordingly, it is impractical, if not Accordingly, it is impractical, if not impossible, for scientists and researchers to impossible, for scientists and researchers to test for the presence of each of these 12,000 use a targeted analysis method to test for the chemicals in any particular sample. presence of each of these 12,000 chemicals in any particular sample.

validated EPA methods. Recently scientists validated EPA methods. Recently scientists were able to build off of existing methods to were able to build off of existing methods to develop an advanced test which can detect 70 develop an advanced test which can detect 70 PFAS, but even with this significant PFAS, but even with this significant advancement, targeted testing can still only advancement, targeted testing can still only detect 0.006% of PFAS in existence. detect 0.006% of PFAS in existence. The results of targeted analysis would not, and could not, provide a comprehensive measure of the total quantity of PFAS that may be present in a sample since it would only be able to detect a mere fraction of potential PFAS. TOF is the only method that can reliably indicate the presence—or absence— of any PFAS. As a result of the various shortcomings associated with targeted analysis, TOF analysis has emerged as a reliable and efficient way of identifying the presence of PFAS. Accordingly, TOF analysis has been widely accepted by scientists, researchers, and regulators as a reliable indicator that a sample contains PFAS. 72. The results of targeted analysis would not, 72. For example, the state of California uses and could not, provide a comprehensive organic fluorine to measure PFAS in its measure of the total quantity of PFAS that may regulation of consumer products. See, e.g., be present in a sample since it would only be Cal. Health & Safety Code §§ 108945 et seq. able to detect a mere fraction of potential PFAS. TOF is the only method that can reliably indicate the presence—or absence—of any PFAS. 73. As a result of the various shortcomings 73. Here, Plaintiffs tested two different associated with targeted analysis, TOF analysis samples of the Tampon Products. Plaintiffs has emerged as a reliable and efficient way of first tested the whole finished Tampon identifying the presence of PFAS. Product in March 2022. Plaintiffs then conducted a second round of testing in April 2023, this time analyzing each individual component of the Tampon Products— the absorbent core, the fabric overwrap, the string, and the applicator. 74. Accordingly, TOF analysis has been 74. Plainitffs’ [sic] testing uniformly showed widely accepted by scientists, researchers, and that the finished Tampon Products and each regulators as a reliable indicator that a sample of their individual components contained contains PFAS. For example, the state of PFAS. California uses organic fluorine to measure PFAS in its regulation of consumer products. See, e.g., Cal. Health & Safety Code 75. Here, Plaintiff[] tested a total of six 75. These results are further supported by different samples of the Tampon Products, Defendant’s patents, which disclose the use of including those with and without an applicator. various hydrophobic materials in the Tampon Plaintiff[] first tested four samples of the Products. As discussed above, PFAS are whole finished Tampon Product in March frequently used as a treatment or coating on 2022. Plaintiffs then conducted a second textiles and other materials to make them round of testing in April 2023, this time hydrophobic (i.e., water-repellant). analyzing each individual component of the Tampon Products—the absorbent core, the fabric overwrap, the string, and the applicator (where applicable). 76. Plaintiffs’ [sic] testing uniformly showed 76. For example, one patent states that the that the finished Tampon Products contained design of its tampon strings are treated with a PFAS. “hydrophobic wax” coating to reduce string absorbency and wicking. Yet another patent states that the Tampon Products’ “leak shield” is comprised of various layers of hydrophobic materials which divert liquid to the absorbent core of the tampon. 77. Patents issued to Johnson & Johnson prior 77. PFAS has historically been used as a to Edgewell’s acquisition indicate the use of dispersing agent to impart water repelancy on hydrophobic components in the use of its various surfaces, leading to the reasonable tampons. As discussed herein, PFAS is conclusion that the “polymer wax dispersion” frequently used as a treatment to make listed as an ingredient on the Tampon materials hydrophobic, which can improve the Products’ packaging is likely comprised of function of feminine hygiene products by, PFAS. among other things, reducing the surface wetness and drawing liquid into the more product’s absorbent core. 78. Accordingly, based on Plaintiffs’ [sic] 78. Accordingly, based on Plaintiffs’ testing testing results, patent applications and known results, the Tampon Products’ listed industry practices, it is reasonable to conclude ingredients, and Defendants’ patents, it is that the use of PFAS is a part of the Tampon reasonable to conclude that the use of PFAS Products’ design in order to improve product is a part of the Tampon Products’ design in performance by increasing absorbency and order to improve product performance by reducing leaks and surface wetness. increasing absorbency, reducing leaks, and preventing wicking. Lowe Compl. ¶¶ 10, 68-78 (footnotes omitted); Mack Compl. ¶¶ 10, 68-78 (footnotes omitted). These allegations are insufficient to state a plausible claim for relief. The testing allegations are cursory, providing no specificity as to the results reached or any other findings that would support Plaintiffs’ interpretation of those results. As such, these allegations are devoid of the factual content necessary to nudge Plaintiffs’ claims, based on the theory that Edgewell’s tampons contain PFAS, from possible to plausible. Similarly, allegations referencing patent applications or product labels that mention certain tampon components or ingredients are likewise deficient, as Plaintiffs merely speculate that the hydrophobic components mentioned therein must or are likely to contain forever chemicals because those chemicals are “frequently” used to make materials water-repellant. The cases Plaintiffs discuss in opposition to Edgewell’s motions on this point do not compel a different conclusion. In Warren v. Whole Foods Market California, Inc., the plaintiffs brought false advertising claims because coffee creamer labeled “Vanilla” and “Naturally Flavored” contained artificial flavoring. No. 21-cv-04577-EMC, 2022 WL 2644103, at *1 (N.D. Cal. July 8, 2022). In that case, the plaintiffs alleged that they conducted testing that detected “atypically elevated levels” of guaiacol, which suggested the presence of “chemically synthesized vanillin” that is not derived from the vanilla plant. Id. The plaintiffs included a photocopy of their test results showing ethyl vanillin at a concentration of 2.205 parts per million, a “non- infinitesimal amount” that was “not explained by relation to any other compounds.” Id. at *5, *7. The plaintiffs also alleged that the specific vanillin detected during their testing was an artificial, synthetic ingredient that was not naturally derived. Id. Their allegation that the substance was not naturally derived was based in part, on the related allegation that there was “an absence of expected amounts of key aromatic compounds.” Id. at *7. No such allegations are present here. The complaints are silent as to the amount of organic fluorine detected and whether that amount is negligible or significant.7 See Lowe Compl. ¶ 76 (“Plaintiffs’ testing uniformly showed that the finished [t]ampon [p]roducts contained PFAS.”); 7 The Court notes Plaintiffs’ allegation that “even ‘trace’ levels of PFAS can pose a risk to humans.” Lowe Compl. ¶ 52; Mack Compl. ¶ 53. While PFAS may be harmful in any amount, Plaintiffs must still plausibly allege that forever chemicals are present in Edgewell’s tampon products. Indeed, the cases Plaintiffs discuss in their opposition briefs on this point all allege some level of organic fluorine in the products at issue. See Warren, 2022 WL 2644103, at *1 (plaintiffs alleged PFA levels of 2.205 parts per million, a “non-infinitesimal amount”); Kanan v. Thinx Inc., No. CV 20-10341 JVS, 2021 WL 4464200, at *4 (C.D. Cal. June 23, 2021) (plaintiffs alleged PFAS levels “above trace amounts”); Hamman v. Cava Group, Inc., No. 22-CV-593- MMA, 2023 WL 3450654, at *5 (S.D. Cal. Feb. 8, 2023) (plaintiffs alleged heightened levels of Mack Compl. ¶ 74 (“Plainitffs’ testing uniformly showed that the finished Tampon Products and each of their individual components contained PFAS.”). The complaints contain no allegations about whether the organic fluroine may be indicative of natural sources or is largely, if not exclusively, linked to forever chemicals. See Lowe Compl. ¶ 69 (alleging only that “[o]rganic fluorine is a surrogate or proxy for PFAS, meaning its presence is indicative that a sample contains PFAS.”); Mack Compl. ¶ 69 (same). Nor do the complaints allege whether the presence or absence of any other substance might bolster Plaintiffs’ interpretation of their testing’s findings. See generally Lowe Compl.; Mack Compl. Unlike these allegations, those in Kanan v. Thinx Inc. included allegations that the defendant’s underwear products contained levels of PFAS that were “above trace amounts.” See 2021 WL 4464200, at *4. The plaintiffs in Hamman v. Cava Group, Inc. likewise alleged the presence of “heightened levels of organic fluorine” in the defendant’s grain and salad bowl products. See 2023 WL 3450654, at *5. These cases illustrate that Plaintiffs must allege more to survive the instant motions to dismiss. Because Plaintiffs fail to plausibly allege the presence of PFAS in Edgewell’s tampon products, the Court need not reach the remaining grounds upon which Edgewell seeks dismissal. For the reasons set forth above, the Court GRANTS Edgewell’s motions to dismiss. Edgewell’s requests for judicial notice are DENIED AS MOOT, as the Court has not considered those materials in reaching its ruling. For the same reason, the Court DENIES AS MOOT Plaintiffs’ motions for leave to file a response to supplemental authority. The Court further orders the parties to meet and confer on how to efficiently litigate these related cases and the overlapping matter of Bounthon v. The Procter & Gamble Company, No. 23- cv-00765-AMO (filed Feb. 21, 2023). The Court is inclined to stay two matters while one continues. Proceeding in this manner will avoid burdening the Court and the parties with parallel litigation involving overlapping issues, while still giving Plaintiffs, who are represented by the same counsel in all three matters, the benefit of rulings in one case that will inform the other two. 1 set for February 1, 2024. The parties should include their respective positions on this issue in the 2 joint case management statement due by noon on January 25, 2024. The Court will set a deadline 3 for a second amended complaint at the case management conference. 5 Dated: January 12, 2024 col Mod .

8 ARACELI MARTINEZ-OLGUIN United States District Judge 9 10 11 12

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