OAKLAND – Attorney General Bonta filed an amicus brief in the Ninth Circuit Court of Appeals in defense of California laws protecting consumers from false and misleading advertising. The brief was filed in support of the plaintiff in Souter v. Edgewell Personal Care Co, who alleged in a false advertising lawsuit that defendants’ Wet Ones Antibacterial Hand Sanitizing Wipes do not in fact “kill 99.99% of germs” as their labels claim. Plaintiff alleged that the products are in fact ineffective against many common, harmful viruses, and bacteria.
“It is challenging enough for consumers to make healthy, well-informed purchasing decisions without worrying that advertisers might be making deceptive claims about their products,” said Attorney General Bonta. “When companies make claims about their products, they have a responsibility to ensure those claims are fully accurate, and when consumers raise plausible allegations that advertising is misleading, they have a right to their day in court. I urge the Ninth Circuit to reverse the district court’s decision and allow this case to move forward.”
The case is currently being heard on appeal in the Ninth Circuit of appeal. The case was originally presented before the United States District Court for the Southern District of California, but the district court dismissed the plaintiff’s claims that the manufacturer had engaged in deceptive advertising. In the brief, Attorney General Bonta argues that the district court erred in dismissing the case prior to receiving evidence, and failed to properly consider real-world consumer behavior in reaching its decision. The brief takes no position on the ultimate outcome of the case at trial.
In the brief, Attorney General Bonta argues the district court erred in dismissing Souter’s case for two reasons. First, deceptive advertising claims generally present questions of fact that are not appropriate for dismissal in the initial stages of litigation, except in rare circumstances not present here. Second, courts must consider how reasonable consumers actually behave in the real-world context in which they make every day purchasing decisions. As cited in the Psychological Foundations of Marketing, “the average package only has one tenth of a second to make an impression on the shopper.” Reasonable consumers prioritize easily accessible information right in front of them over additional or contradictory information that might require research or expertise.
Attorney General Bonta is committed to enhancing consumer protections. In March 2022, the Attorney General filed a similar brief in Moreno v. Vi-Jon, LLC, a case centering around false advertising relating to claims made on the front and back labels of Vi-Jon’s hand sanitizer products.
A copy of the amicus brief is available here.