Rikos v. Procter & Gamble Co.
782 F. Supp. 2d 522
| S.D. Ohio | 2011Background
- Align is marketed as providing clinically proven digestive health benefits via probiotic Bifantis; Plaintiff alleges these claims are false/misleading under California consumer protections and breach of express warranty.
- Plaintiff sues Procter & Gamble under CLRA, UCL, and for breach of express warranty based on Align labeling/advertising.
- Defendant moves to dismiss for lack of subject matter jurisdiction and failure to state a claim; Plaintiff responds with asserted reliance and standing.
- Court considers whether misrepresentation/substantiation claims are legally actionable as false advertising, not merely as lack of substantiation.
- Plaintiff seeks injunctive relief and monetary damages; the court addresses standing, substantiation, and pleading standards.
- Court will grant in part and deny in part Defendant’s motion, dismissing injunctive relief claims but preserving other claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the complaint states a plausible false advertising claim | Plaintiff contends statements on Align labels/ads are false/misleading and lack of substantiation supports CLRA/UCL claims | Plaintiff must plead actual falsity, not just lack of substantiation | Plaintiff states plausible false advertising claims; not limited to substantiation theory |
| Applicability of the primary jurisdiction doctrine | Agency expertise not required to resolve consumer-protection claims | Matters relate to FDA/FTC substantiation; should be referred | Primary jurisdiction not applicable |
| Article III standing for economic injury and injunctive relief | Purchasing Align in reliance on claims and suffered economic injury; seeks injunctive relief for class | Economic injury may suffice; injunctive relief requires real future risk | Plaintiff has Article III standing for economic injury but lacks standing for injunctive relief for named plaintiff |
| UCL/CLRA standing and reliance requirement | Plaintiff relied on Align label; California Prop. 64 standing satisfied; reliance shown | Need specificity of reliance on particular ads/statements | Plaintiff adequately pled reliance and standing under UCL/CLRA at this stage |
| Breach of express warranty sufficiency | Advertising/labeling constitutes express warranties forming basis of the contract | Plaintiff failed to identify exact affirmations; lack of reliance not required for warranty | Breach of express warranty adequately pled; claim survives dismissal |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (pleading standard; plausibility guidance)
- Twombly, 550 U.S. 544 (U.S. 2007) (pleading must plead plausible claims, not mere conclusory statements)
- Tobacco II Cases, 46 Cal.4th 298 (Cal. 2009) (California standing/causation for UCL Prop. 64; injury in fact and causation required)
- Kwikset Corp. v. Superior Court, 46 Cal.4th 510 (Cal. 2011) (Prop. 64 standing requirements for injury in fact and causation)
- Perez v. Nidek Co., 657 F. Supp. 2d 1156 (S.D. Cal. 2009) (FDCA-preemption considerations; allows some false advertising claims to proceed)