ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS
I. INTRODUCTION
Plaintiffs bring this putative, nationwide class action against Defendant The Clorox Company (“Clorox”) in connection with its marketing and advertising of Fresh Step cat litter. Clorox’s Fresh Step uses carbon to eliminate cat odors, whereas other cat litter products typically use baking soda. Clorox’s marketing campaign allegedly conveys that (1) Fresh Step is more effective at eliminating cat odors than products that do not contain carbon, and (2) cats choose Fresh Step over these other cat litters. Plaintiffs, consumers of Fresh Step from five different states, allege that these statements are false and misleading and are contradicted by scientific studies.
Clorox now moves to dismiss Plaintiffs’ Amended Consolidated Class Action Complaint pursuant to Federal Rules of Civil Procedure 9(b) and 12(b)(6). ECF No. 43 (“MTD”). As part of its motion to dismiss, Clorox asks the Court to strike Plaintiffs’ class allegations from the complaint pursuant to Federal Rule of Civil Procedure 12(f). The motion is fully briefed. ECF Nos. 46 (“Opp’n”), 49 (“Reply”). Pursuant to Civil Local Rule 7-l(b), the Court finds this matter appropriate for disposition without oral argument. As detailed herein, Clorox’s motion is GRANTED in part and DENIED in part.
II. BACKGROUND
In 1984, Clorox began producing Fresh Step cat litter, the “only litter that contains carbon.” ECF No. 29 (“Compl.”) ¶ 27. The carbon particles in Fresh Step control cat waste odors. See id. ¶ 25. Other cat litter brands use different active ingredients to control these odors. See id. ¶ 37. For example, Church & Dwight (“C & D”) markets Super Scoop, a cat litter which uses Arm & Hammer baking soda. Id.
In October 2010, Clorox launched a new advertising campaign to promote Fresh Step. Id. ¶ 28. From October 2010 to Jan
In early January 2011, Clorox ran another television commercial featuring videos of cats engaged in playful activities, such as opening jars of cat food, unlocking doors, and thwarting a dog from entering a house. Compl. Ex. C; Schlesinger Decl. ¶ 3, Ex. A. Like the earlier commercials, this commercial concludes by showing cats choosing a box of Fresh Step over a box of Super Scoop. Compl. Ex. C.; Schlesinger Decl. Ex. A. As the video plays, a voice-over states: “Cats are smart. They can outsmart their humans. Their canines. And locked doors. They’re also smart enough to choose the litter with less odors. That’s because Fresh Step Seoopable Litter with carbon is better at eliminating litter box odors than Arm & Hammer Super Scoop. Fresh Step, cats know what they like.” Id.
In response to these commercials (the “First Commercials”), C & D filed an action against Clorox in the Southern District of New York in January 2011. Compl. ¶43, RJN Ex. I.
In February 2011, Clorox began running a new set of commercials (the “Second Commercials”). Compl. ¶ 32. These commercials also show cats engaged in playful activities. Id. Exs. D-E; Schlesinger Decl. Ex. A. They also depict two laboratory beakers, one filled with a black substance labeled “carbon” and the other filled with a white substance labeled “baking soda.” Id. Green gas is then shown floating through the beakers; the green gas in the carbon beaker rapidly dissipates, while the gas in the baking soda beaker barely dissipates. Id. During this demonstration, the voiceover states: “That’s why Fresh Step Scoopable has carbon, which is more effective at absorbing odors than baking soda.” Id. The following text appears at the bottom of the screen during the demonstration: “Dramatization of cat waste malodor after 1 day. Based on sensory lab test.” Id.
In response to the Second Commercials, C & D filed a second lawsuit against Clorox in the Southern District of New York. Compl. ¶ 44, RJN Ex. 3. C & D alleged that it had commissioned an independent laboratory to conduct a ten-day sensory study involving a panel of persons trained in odor evaluation that compared Fresh Step to one of C & D’s baking soda-based cat litters. Compl. ¶¶ 40-41; RJN Ex. 3 ¶ 8. C & D further alleged that, on every single day of the study, and overall across all days, the panelists’ average rating for C & D’s baking soda-based litter was lower than the average rating for Fresh Step, with a lower rating representing a more palatable odor. Compl. ¶ 41; RJN Ex. 3 ¶ 9. Again, C & D alleged that Clorox’s commercials conveyed misleading information about the respective merits of Fresh Step and C & D cat litter products and asserted a Lanham Act claim. RJN Ex. 3 ¶¶ 70-78.
On January 3, 2012, District Judge Jed. S. Rakoff (“Judge Rakoff’) granted C & D’s motion for a preliminary injunction and enjoined Clorox from further airing the Second Commercials. Church & Dwight Co., Inc. v. Clorox Co. (“C & D v. Clorox II”),
A few weeks after Judge Rakoff issued a preliminary injunction in C & D v. Clorox II, Megan Sterritt filed the instant action against Clorox. ECF No. 1. Five additional cases were later filed in the Northern District of California and other out-of-state district courts. ECF Nos. 20, 28. These cases are now consolidated before this Court. Id. Plaintiffs are seven individuals from five different states — California, Florida, New Jersey, New York, and Texas — who purchased Fresh Step sometime after the First Commercials aired in October 2010. Compl. ¶¶ 15-21.
Plaintiffs filed an Amended Consolidated Class Action Complaint (the “Complaint”) on April 11, 2012. Plaintiffs’ Complaint adopts many of C & D’s allegations concerning laboratory tests comparing C & D and Clorox litter products. See id. ¶¶ 37-42. Plaintiffs seek certification of a nationwide class action under California consumer protection statutes on behalf of “[a]ll persons or entities that purchased
III. LEGAL STANDARD
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the legal sufficiency of a claim.” Navarro v. Block,
IV. DISCUSSION
A. Lack of Substantiation
Clorox argues that Plaintiffs’ UCL, CLRA, and FAL claims fail because they are predicated on allegations that Clorox’s Fresh Step marketing campaign conveyed factual statements which lack substantiation. MTD at 12-16. Clorox contends that such allegations are not cognizable under California law. Before analyzing the substance of these arguments, the Court reviews the legal elements of a claim for false advertising under California’s UCL, CLRA, and FAL.
The UCL prohibits “any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising.” Cal. Bus. & Prof.Code § 17200. The CLRA prohibits “unfair methods of competition and unfair or deceptive acts or practices.” Cal. Civ.Code § 1770(a). The FAL makes it unlawful to induce the public to enter into any obligation through the dissemination of “untrue or misleading” statements. Cal. Bus. & Prof.Code § 17500.
In evaluating false advertising claims under these statutes, courts are guided “by the reasonable consumer test.” Williams v. Gerber Prods. Co.,
Courts have been careful to distinguish between allegations that a defendant’s advertising claims are actually false and allegations that such claims lack substantiation. See, e.g., Fraker v. Bayer Corp., No. 08-1564 AWI GSA,
This principle arises, at least in part, from California Business and Professions Code section 17508. Section 17508 establishes an administrative procedure whereby certain government authorities may require a business to substantiate advertising claims. These authorities include the Director of Consumer Affairs, the Attorney General, any city attorney, or any district attorney. Cal. Bus. & Prof.Code § 17508(b). Section 17508 does not authorize consumers or other private entities to make substantiation demands. See Nat’l Council Against Health Fraud, Inc. v. King Bio Pharm., Inc.,
Clorox argues that Plaintiffs’ action runs afoul of this limitation since “the primary focus of the complaint is the supposed lack of substantiation for Clorox’s claim that carbon is more effective than baking soda at fighting odors.” MTD at 14. Clorox contends that Plaintiffs have attempted to “conceal the essence of their complaint” by deleting references to the word “substantiation” that appeared in an earlier pleading filed by one of the Plaintiffs before the case was consolidated. Id. at 13. Plaintiffs respond that the gravamen of their allegations is not that Clorox’s advertising claims are unsubstantiated, but that they are provably false.
The Court finds Plaintiffs’ position more persuasive: As an initial matter, Plaintiffs’ operative complaint is the only pleading relevant to Clorox’s motion to dismiss. Whether or not Plaintiffs’ prior, non-operative complaint stated a cognizable claim is unimportant and Plaintiffs are free to change their legal theories through amendment. See The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25,
Specifically, Plaintiffs target Clorox’s alleged representations that: (1) carbon-based cat litter is more effective at eliminating cat odors than other brands that do not use carbon, and (2) cats choose carbon-based cat litter over other litters. See, e.g., Compl. ¶ 1. Plaintiffs then allege that two scientific studies commissioned by C & D directly contradict these representations. See, e.g., Compl. ¶7 (“as scientific studies have shown, carbon-based eat litter is not superior to other cat litters”). Ac
B. Puffery
Clorox also moves to dismiss Plaintiffs’ action to the extent that it is based on advertising claims that cats “like” or “are smart enough to choose Fresh Step.” MTD at 18-19. Clorox reasons that these statements could not deceive a reasonable consumer since they amount to mere puffery. Id.
Puffery is “exaggerated advertising, blustering, and boasting upon which no reasonable buyer would rely.” Southland Sod Farms v. Stover Seed Co.,
Plaintiffs argue that representations about what cats “like” or “choose” amount to measurable claims about cats’ litter preferences. Opp’n at 9. Plaintiffs point out that one of the studies commissioned by C & D actually measured such preferences by determining the frequency with which cats reject Fresh Step as opposed to a baking soda-based cat litter. Id. Plaintiffs argue that the demonstrations depicted in the First Commercials also represent that cats prefer Fresh Step to other brands. Id. Specifically, these demonstrations show cats rejecting a litter box filled with baking soda-based cat litter in favor of a litter box filled with Fresh Step. Plaintiffs contend that these depictions “give the impression that the preference statements are based upon scientific testing and are not merely ‘outrageous generalized statements.’ ” Id. at 10.
The Court agrees that the First Commercials generally convey the message that cats prefer Fresh Step to other cat litter brands. However, the commercials provide no basis for the claim. Contrary to Plaintiffs’ assertion, the depiction of four or five cats choosing to playfully jump into a litter box of Fresh Step rather than a litter box of the competitor’s brand does not give the impression of scientific testing — especially since this demonstration follows several videos of cats playing with boxes. Further, the First Commercials do not make quantifiable claims which could be proved or disproved. The overall message of the commercials is that cats prefer Fresh Step because they are “smart enough to choose the litter with less odors.” No reasonable consumer would consider such a message to be a statement of fact.
Though neither party addresses the issue, it is worth noting that the voiceovers
For the reasons set forth above, the Court dismisses Plaintiffs’ claims to the extent that they are based on the statements that cats “like” or “are smart enough to choose Fresh Step.”
C. Rule 9(b) Pleading Requirements
Clorox argues that Plaintiffs’ UCL, CLRA, and FAL claims fail because Plaintiffs have not satisfied the heightened pleading requirements for fraud set forth in Federal Rule of Civil Procedure 9(b). MTD at 19-20. Specifically, Clorox contends that “[t]he complaint is devoid of basic facts of what alleged misrepresentations Plaintiffs saw, when they saw them, or where they saw them.” Id. at 19. Plaintiffs do not contest that Rule 9(b) applies, but assert that they have met its heightened pleading requirements by submitting examples of the allegedly false and misleading commercials. Opp’n at 11-12.
Rule 9(b) requires that a party “state with particularity the circumstances constituting fraud or mistake.” “Thus, [a]verments of fraud must be accompanied by ‘the who, what, when, where, and how1 of the misconduct charged.” Vess v. Ciba-Geigy Corp. USA
In this case, requiring Plaintiffs to plead additional facts would not advance any of these goals. The Complaint identifies each of the commercials upon which the Plaintiffs allegedly relied and specifically describes their contents. Compl. ¶¶ 28-34. Plaintiffs allege when these commercials aired and provide detailed storyboard images for each. Id. ¶¶ 28-34, Exs. A-E. Plaintiffs also allege that they purchased Fresh Step in reliance on the representations set forth in these commercials. Id. ¶¶ 15-21. This detailed information is sufficient to place Clorox on notice of the basis of Plaintiffs’ claims and demonstrates that Plaintiffs are not on a fishing expedition. Indeed, based upon Plaintiffs’ allegations, Clorox has already been able to locate and produce videos of the commercials described in the Complaint. See Schlesinger Deck Ex. A. Accordingly, the Court finds that Plaintiffs have satisfied the heightened pleading requirements of Rule 9(b).
Clorox next moves to dismiss Plaintiffs’ cause of action for breach of warranty. “To state a claim for breach of express warranty under California law, a plaintiff must allege (1) the exact terms of the warranty; (2) reasonable reliance thereon; and (3) a breach of warranty which proximately caused plaintiffs injury.” Nabors v. Google, Inc., 5:10-CV-03897 EJD,
Plaintiffs specifically identify two alleged warranties arising out of the commercials described in the Complaint: (1) carbon-based Fresh Step is better at eliminating and absorbing odors than baking soda-based cat litters, and (2) cats “are smart enough to choose” carbon-based Fresh Step over baking soda-based cat litters. Compl. ¶ 159. Plaintiffs also allege that Clorox’s product labels constitute express warranties, but they do not provide any specifics concerning the labels’ contents. Id. ¶ 158.
The Court has already found that Clorox’s statements that cats are “smart enough” to choose Fresh Step amount to puffery and are therefore not actionable under California’s consumer protection statutes. See Section IV.B supra. As puffery, these statements are also not actionable under a theory of breach of express warranty. See Edmunson v. Procter & Gamble Co., 10-CV-2256-IEG NLS,
Additionally, Plaintiffs’ vague allegation concerning “product labels” cannot support a claim for breach of warranty. Since Plaintiffs do not allege what these labels say, they have failed to identify the exact terms of the warranty. See Nabors,
The Court reaches a different conclusion with respect to Plaintiffs’ claim that Clorox warranted that Fresh Step is better at eliminating odors than other cat litters. Plaintiffs allege the specific contents of this warranty and that they reasonably relied on the warranty when they purchased Fresh Step. See Section IV.C supra; Compl. ¶ 60. Plaintiffs also allege that Clorox breached the warranty because scientific studies show that baking soda-based cat litters are better at eliminating odors. Compl. ¶¶ 41-42. Finally, Plaintiffs allege that they were injured by this breach because they paid a premium for Fresh Step. Id. ¶ 8. These allegations are sufficient to state a plausible claim for breach of express warranty.
Clorox argues that the challenged statements comparing the odor reduction properties of baking soda and carbon-based cat litter are not actionable because they are “highly subjective product superiority claims.” MTD at 21. The Court disagrees. Clorox’s representation that “Fresh Step ... is better at eliminating litter box odors than Arm & Hammer Super Scoop” is likely to be considered a statement of fact by a reasonable consumer. Contrary to Clorox’s argument, the statement is neither “vague” nor “highly subjective.” Clorox identifies both a point of comparison—Arm & Hammer Super Scoop—and a metric for comparison— elimination of cat odors. Further, the beaker comparison depicted in the Second
Clorox also argues that Plaintiffs’ breach of warranty claim fails because there is no privity. Under California law, “[t]he general rule is that privity of contract is required in an action for breach of either express or implied warranty and that there is no privity between the original seller and a subsequent purchaser who is in no way a party to the original sale.” Burr v. Sherwin Williams Co.,
In sum, Plaintiffs’ breach of warranty claim fails to the extent that it is predicated on Clorox’s representations that cats prefer Clorox or on unidentified statements appearing on Fresh Step’s packaging. The claim may proceed to the extent that it is predicated on Clorox’s representations that Fresh Step is better at eliminating odor than other baking soda-based cat litters.
E. Class Allegations
Plaintiffs bring this action on behalf of all persons that purchased Fresh Step in the United States between October 2010 and the date of the final disposition of this action. Compl. ¶49. In the alternative, Plaintiffs seek certification of five subclasses. Id. ¶¶ 50-55. Each of these subclasses would be represented by a lead plaintiff from one of five states and would encompass “all persons or entities who purchased Fresh Step cat litter in the United States during the period between October 2010 and the date of the final disposition of this action.” Id. Clorox now moves to strike Plaintiffs’ nationwide class and subclass allegations pursuant to Federal Rule of Civil Procedure 12(f). MTD at 22-25. Plaintiffs respond that Clorox’s motion to strike is premature.
Federal Rule of Civil Procedure 12(f) provides that a court may, on its own or on a motion, “strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Motions to strike “are generally disfavored ... [and] are generally not granted unless it is clear that the matter sought to be stricken could have no possible bearing on the subject matter of the litigation.” Rosales v. Citibank,
Here, Clorox argues that Plaintiffs’ class allegations should be struck because the Ninth Circuit’s decision in Mazza v. American Honda Motor Co.,
Significantly, Mazza was decided on a motion for class certification, not a motion to strike. At this stage of the instant litigation, a detailed choice-of-law analysis would be inappropriate. See Donohue v. Apple, Inc.,
Clorox also argues that the out-of-state Plaintiffs lack standing to sue under California law. MTD at 24. As a general rule, California statutes do not have force beyond the boundaries of California. See Morgan v. Harmonix Music Sys., Inc., C08-5211BZ,
Accordingly, the Court DENIES Clorox’s motion to strike the class allegations.
V. CONCLUSION
For the reasons set forth above, the Court GRANTS in part and DENIES in part The Clorox Company’s motion to dismiss. The Court DISMISSES WITH PREJUDICE Plaintiffs’ action to the extent that it is predicated on Clorox’s advertising claims that cats “like” or “are smart enough to choose Fresh Step.” The Court also DISMISSES Plaintiffs’ claim for breach of express warranty to the extent that it is predicated on product labels or other statements not expressly identified in the Complaint. Plaintiffs may amend the breach of express warranty claim so as to specifically identify the exact terms of the warranties upon which the claim is based within thirty (30) days of this Order. Finally, Clorox’s motion to strike Plaintiffs’ class allegations is DENIED.
The Court hereby sets a case management conference for September 7, 2012 at 10:00 a.m. in Courtroom 1, 450 Golden Gate Avenue, San Francisco, California. The parties are to file a joint ease management statement no fewer than seven days prior.
IT IS SO ORDERED.
. Clorox requests that the Court take judicial notice of various documents filed in C & D's lawsuits against Clorox in the Southern District of New York, as well as video clips of the Fresh Step commercials described in the Complaint. ECF No. 44 (“RJN”). Plaintiffs have not opposed the motion. Pursuant to Federal Rule of Evidence 201, the Court may take judicial notice of any fact that is "not subject to reasonable dispute because it ... can be accurately and readily determined from sources whose accuracy cannot be reasonably questioned.” Fed. R. Ev. 201(b). Relying on Rule 201, “[c]ourts routinely take judicial notice of legal documents filed in related litigation, including pleadings, motions, and judgments.” Ha v. U.S. Attorney Gen., No. 09-5281,
. See Docket Entries 55 and 58 in C & D v. Clorox II,
. It appears that Clorox intended to convey that the statement "Fresh Step’s scoopable litter with carbon is better at eliminating odors than Arm & Hammer’s Super Scoop” is based on lab tests. The voiceover makes this statement as the text "based on lab tests” appears on the screen.
.Clorox also argues that this warranty claim fails because it is "predicated on the unsupported legal proposition that an advertising claim creates both a contractual obligation as to the claim’s truthfulness and a contractually enforceable duty of the advertiser to have at hand scientific evidence to substantiate the claim.” MTD at 21 (quoting Fraker,
. Clorox argues that the exception is limited to written warranties. Reply at 10. However, it fails to cite any case law indicating that this exception should be so limited.
. Clorox does not respond to this argument or otherwise address Plaintiffs’ class allegations in its reply brief.