In the era of COVID-19, nothing has become quite as ubiquitous as cleaning and sanitizing products. As the demand grew for these products, so did the inspection into their efficacy. In one case, a consumer challenged Clorox’s advertising claims concerning the disinfectant ability of one of its products.
Although the proposed class action, Gudgel v. Clorox Co., was ultimately dismissed for failure to state a claim, its allegations raise an important point about advertisements in the COVID-19 age. Society has become even more dedicated to protecting itself from the virus by cleaning and sanitizing. As a result, cleaning products and their advertisement claims will likely be taken more seriously and placed under stricter scrutiny.
Cleaning Frenzy
Although already a household name, the Clorox brand reached unfathomable popularity in pandemic times. Demand for the company’s disinfectant wipes was at an all-time high. People even began to stockpile the product. The market saw a supply shortage that even Clorox’s production of 1.5 million canisters a day could barely quell.
The buying frenzy was largely due to various claims that common household cleaners containing bleach were effective in killing the coronavirus on surfaces. But any such label advertising referenced previously known strains of the virus, not a new variation.
The Lawsuit’s Allegations
In Gudgel v. The Clorox Company, 20-CV-5712, filed in the U.S. District Court of the Northern District of California, the plaintiff filed a proposed class action lawsuit. The complaint claims that Clorox’ Splash-less Bleach, does not, in fact, disinfect. The plaintiff purchased the bleach in response to the pandemic but subsequently learned that this version was unsuitable for disinfecting purposes.
The complaint alleges that there is a critical difference between Clorox’s regular formula and its Splash-less Bleach. The newer product’s formula has a higher viscosity, or thickness, to prevent bleach splashing. In order to increase the viscosity, Clorox lowered the product’s concentration of sodium hypochlorite, an active cleaning ingredient. The complaint alleges that sodium hypochlorite must be above 5% in order to effectively disinfect. However, the Splash-less Bleach’s concentration fell anywhere from 1-5%.
Misleading Marketing
Clorox marketed its Splash-less Bleach with statements such as: “It’s the same Clorox product you love, now with more power per drop,” and “10x Deep Cleaning Benefits.” The complaint alleges that this marketing was misleading. Further, the plaintiff explains that “only on the back of the label, in small print, does the company disclose” the product is not a disinfectant. The plaintiff claims that she and other similarly situated consumers would not have purchased the product but for the representation that it worked as a disinfectant agent.
The complaint asserts five causes of action against Clorox. This includes violations of the California Consumers Legal Remedies Act, the California Unfair Competition Law, and the California False Advertising Law. The complaint also claims negligent misrepresentation and unjust enrichment. The plaintiff seeks compensatory and punitive damages. She also seeks an injunction requiring Clorox to stop its allegedly deceptive practices.
Basis for Dismissal
In January 2021, the district court granted Clorox’s motion to dismiss the complaint. The court made their determination using the “reasonable consumer” test of California’s consumer, unfair competition, and advertising laws. Under the reasonable consumer standard, a plaintiff must show that members of the public are likely to be deceived by both false advertising and even true advertising that is meant to mislead or confuse. Although the question of whether a reasonable consumer would be deceived under the circumstances is not a question for a motion to dismiss, the court noted it had the ability in rare situations to determine that alleged violations of CLRA, UCL, and FAL are “simply not plausible.”
Clorox had argued that its label makes no statement or suggestion that its Splash-less Bleach is suitable for sanitization or disinfection, and refers to its small print stating such. The court agreed, finding that its label contained no misleading words or images that conflicted with its disclaimer. The court explained that comparison to the regular formula wouldn’t lead a reasonable consumer to believe it had disinfecting capabilities. Finding that there is simply no misrepresentation on which to base the claims, the court dismissed the complaint without prejudice, expressing skepticism that the plaintiff would be able to address any deficiencies in an amended complaint.
Future of False Advertising in the COVID-19 Era
Although Clorox won this particular battle, the lawsuit may be a sign of a bigger war to come. Clorox, Lysol, and other household cleaning products have long touted their efficacy by advertising a record of near flawlessness in killing “99.9% of germs.” They also advertise their products’ ability to fight diseases such as the flu, E. coli, and salmonella. Plus, consumers are becoming hyperaware about disinfecting. This is especially true when operating under the assumption that proper sanitation comes at very high stakes. As a result, cleaning product advertisement claims will be closely examined.
Governmental agencies, such as the EPA, CDC, and American Chemistry Council, have released lists of products—Clorox included—that can be used to fight the coronavirus. But even these agencies make clear that they do not guarantee the standard of any product. Coupled with the fact that cleaning products market their effectiveness against pathogens that are only similar but nonetheless distinct from COVID-19, it is unlikely that any company could make perfectly accurate claims about their ability to wipe out such a novel virus. Therefore, manufacturers should be vigilant in ensuring that all of their advertisements are straightforward. They’ll also want to be sure ads are free of any deception or confusion when it comes to COVID-19.
