Leboeuf v. Edgewell Personal Care Company

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

____________________________________________

NANCY LEBOEUF, individually and on behalf of

all others similarly situated,

Plaintiff,

vs. 1:22-cv-642

(MAD/CFH)

EDGEWELL PERSONAL CARE COMPANY;

EDGEWELL PERSONAL CARE BRANDS, LLC;

and EDGEWELL PERSONAL CARE, LLC,

Defendants.

____________________________________________

APPEARANCES: OF COUNSEL:

SCHLANGER LAW GROUP LLP DANIEL A. SCHLANGER, ESQ.

80 Broad Street, Suite 1301 EVAN S. ROTHFARB, ESQ.

New York, New York 10004

Attorneys for Plaintiff

WILSHIRE LAW FIRM, PLC JONAS PALMER MANN, ESQ.

3055 Wilshire Blvd., 12th Floor THIAGO COELHO, ESQ.

Los Angeles, California 90010

Attorneys for Plaintiff

STINSON LLP JOHN W. MOTICKA, ESQ.

7700 Forsyth Blvd. – Suite 1100 KIERAN M. CORCORAN, ESQ.

Saint Louis, Missouri 63105 MEGAN MCCURDY, ESQ.

Attorneys for Defendants ASHLEY M. CRISAFULLI, ESQ.

Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

On June 15, 2022, Plaintiff commenced this putative class action alleging that Defendants'

claim that their product "Kills 99.99% of Germs" is false and misleading because the active

ingredient, Benzalkonium Chloride, is purportedly "ineffective at killing certain gram-negative

bacteria, bacteria spores, fungi, and many viruses." Dkt. No. 38 at ¶ 5; see also Dkt. No. 1.

Plaintiff alleges claims for violations of the New York General Business Law §§ 349-50, fraud,

and unjust enrichment. See Dkt. No. 38 at ¶¶ 47-92.

Currently before the Court is Defendants' motion to dismiss pursuant to Rules 12(b)(1)

and 12(b)(6) of the Federal Rules of Civil Procedure. See Dkt. No. 45.

II. BACKGROUND

Defendant Edgewell Personal Care Company is a Missouri corporation. See Dkt. No. 38

at ¶ 1. Defendants Edgewell Personal Care Brands, LLC, and Edgewell Personal Care, LLC are

both Delaware limited liability companies. See id. All three Defendants are headquartered in

Shelton, Connecticut. See id.

Defendants and their agents manufacture, market, distribute, label, promote, advertise and

sell "Wet Ones Antibacterial Hand Wipes" ("Wet Ones" or the "Product") in various sizes, scents

and other variations. See id. at ¶ 2. The active ingredient in Wet Ones is 0.13% Benzalkonium

Chloride ("BAC"). The front label of Defendants' Product includes a statement that it "Kills

99.99% of Germs." Id. The back label contains a second statement, which restates the promise of

the front label by claiming that "Wet Ones Antibacterial Hand Wipes kill 99.99% of germs and

wipe away dirt, providing a better clean than hand sanitizers. They are specifically formulated to

be tough on dirt and germs, yet gentle on skin, so that you can confidently keep your hands fresh

and clean when soap and water are not available." Id.

Plaintiff is an individual who purchased Defendants' Product in order to protect herself

from germs. See id. at ¶ 19. The front label of the Product that Plaintiff purchased stated

prominently that it "Kills 99.99% of Germs." Id. Similarly, the back label of the Product Plaintiff

purchased contained the same promise as set forth above. See id. at ¶ 20.

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According to the amended complaint, both the representations made on Defendants' front

and back labels are false, deceptive, and materially misleading to a reasonable consumer. See id.

at ¶ 21. "No scientific study indicates that BAC-based hand wipes kill 99.99% of all germs. In

fact, many scientific studies show that BAC is not effective [at] killing many prominent and

harmful germs, and that they are less effective than washing one's hands." Id. Plaintiff alleges

that "BAC, particularly at the concentrations offered in the Products, does not kill 99.99% of

germs. The BAC concentration in commercial disinfectants such as Defendants' Products have

been found to be ineffective at killing many strains of bacteria, and resistance to BAC has been

measured in at least 57 bacteria species." Id. at ¶ 22 (footnote omitted). "In particular, BAC-

resistant genes have been found in several E. coli strains. This is particularly alarming, as

researchers have now determined that [the] likeliest route of human-to-human transmission for

antibiotic-resistant strains of E. coli is through contact with unwashed hands." Id. (footnotes

omitted).

The amended complaint also claims that "BAC is known to be ineffective against gram-

negative bacteria, bacterial spores, fungi and many viruses." Dkt. No. 38 at ¶ 24. "According to

the Center for Food Security & Public Health, BAC is ineffective at killing, among others: (1)

pseudomonads (a type of gram-negative bacteria commonly found in the environment and may be

transmitted through hands); (2) chlamydiae; (3) non-enveloped viruses (such as rhinovirus — the

predominant cause of the common cold in humans); (4) parvoviruses (DNA viruses transmittable

through respiratory secretions); acid-fast bacteria (such as Mycobacteria and some Nocardia); (5)

bacterial spores (such as Clostridioides difficile, described below); (6) coccidia (causes infections

in dogs); and (7) prions (misfolded proteins responsible for several fatal neurodegenerative

diseases in humans)." Id. at ¶ 24.

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By way of example, the amended complaint contends that Defendants' Products are

ineffective at killing pseudomonas aeruginosa, a gram-negative bacterium commonly transmitted

through contaminated hands, equipment, or surfaces. See id. at ¶ 25. Studies have found

pseudomonas aeruginosa to be resistant to BAC at concentrations as high as 0.36 – almost three

times higher than in Defendants' Products. See id. (footnote omitted). In 2017, pseudomonas

aeruginosa caused an estimated 32,600 infections in hospitalized patients and 2,700 deaths. See

id. (footnote omitted). The amended complaint further alleges that BAC is similarly ineffective at

killing clostridioides difficile, a highly common spore-forming bacteria. See id. (footnote

omitted). Clostridioides difficile is frequently transmitted through contaminated hands, is

estimated to cause 55% of all diarrheas, and leads to an approximate 233,900 infections and

12,800 deaths per year. See id.

Plaintiff also claims that Defendants' Products are ineffective at killing COVID-19. See

id. at ¶ 26. "Tests conducted on BAC's efficacy in killing COVID-19 showed that a mere 30

seconds of exposure to 80% alcohol was more effective at killing COVID-19 than 30 minutes of

exposure to 0.1% BAC. Needless to say, consumers do not wipe their hands with Defendants'

Products for 30 minutes at a time. Defendants' Products are ineffective at killing COVID-19." Id.

(emphasis in original).

The amended complaint also notes that as far back as 1958, studies have indicated that

BAC is an ineffective skin disinfectant and claims that the use of BAC as a skin disinfectant in

hospitals has been associated with numerous bacterial outbreaks or pseudo-outbreaks throughout

the United States. See id. at ¶ 27. "Accordingly, researchers recommend against using BAC for

the sanitation of anything other than 'non-critical surfaces [such] as walls or furniture.'" Id.

(footnote omitted).

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Plaintiff claims that, "[i]n light of the fact that evidence shows that many types of germs

are not killed by BAC-based hand wipes, and that the use of BAC-based hand wipes may actually

be counter-productive to the goal of killing germs, it appears extremely doubtful that BAC-based

hand wipes in fact kill 99.99% of all germs. Certainly, no study shows that Defendants' Products

kill any given amount of germs such that an exact percentage of germs killed could be stated.

Yet, that is exactly what Defendants have done. Defendants made false statements." Id. at ¶ 28.

Plaintiff claims that she purchased Defendants' Products in reliance on their

representations, "believing that it had in fact been scientifically proven that the hand wipes killed

99.99% of all germs." Id. at ¶ 29. Plaintiff, however, contends that she did not in fact receive a

product proven to kill 99.99% of germs and that she was denied the benefit of the bargain she

sought. See id. Plaintiff claims that Defendants knew that their "99.99% message" was more

compelling to consumers than simply stating that the Products are "antibacterial," and that the

language on the packaging knowingly misleads consumers in an effort to maximize profits. See

id. at ¶¶ 30-31.

Plaintiff claims that on several occasions within the last year, she purchased a twenty-pack

of Defendants' Wet Ones Antibacterial Hand Wipes in the "Tropical Splash" variety at a Walmart

store for the price of $1.97, or approximately $0.098 per wipe. See Dkt. No. 38 at ¶ 32. Plaintiff

alleges that she "was induced to purchase this product because its front label claimed that it would

'Kill[] 99.99% of germs.'" Id.

In comparison, Plaintiff claims that a twenty-pack of "Medi-First Extra Large Antiseptic

Wipes" is sold at webstaurantstore.com for $1.49, or approximately $0.0745 per wipe. See id. at

¶ 33. The Medi-First hand wipes also feature 0.13% BAC as its active ingredient, but do not

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include a claim on its front or back label promising to kill 99.99% of germs. See id. "Instead, it

merely promises to 'decrease bacteria on skin.'" Id.

Likewise, a forty-pack of Defendants' Wet Ones Antibacterial Hand Wipes in the

"Tropical Splash" variety is sold at Target for $3.59, or approximately $0.09 per wipe. See id. at

¶ 34. In comparison, a forty-pack of "Mighty Good Sanitize Those Hands Antibacterial Hand

Wipes" is sold at Walmart for $3.12, or approximately $0.078 per wipe. See id. The Mighty

Good hand wipes also feature 0.13% BAC as its active ingredient, but do not include a claim on

its front or back label promising to kill 99.99% of germs. See id.

Plaintiff claims that, prior to purchasing Defendants' Products, Plaintiff was aware of these

alternatives, considered purchasing them, but did not do so. See Dkt. No. 38 at ¶ 35. Instead,

Plaintiff claims that, "as a reasonable consumer acting reasonably under the circumstances, [she]

relied upon the 'Kills 99.99% of Germs' promise on the labels of Defendants' Products and was

misled into purchasing Defendants' Products at a price premium under the false belief that

Defendants' hand wipes were more effective at killing germs." Id. Plaintiff contends that, had

Defendants informed its consumers that its hand wipes did not actually kill 99.99% of germs,

Plaintiff and other reasonable consumers would not pay a price premium for Defendants'

Products, but rather would opt to purchase cheaper hand wipes which do not make that promise.

See id. at ¶ 36.

Plaintiff notes that Defendants sell two varieties of "Wet Ones Antibacterial Hand Wipes"

– "Ocean Bliss" and "Spring Breeze" (the "Nonclaim Products") – which contain BAC as their

active ingredient, but which do not include promises that they will kill 99.99% of germs, for

roughly the same price as the Products. See id. at ¶ 37. The Nonclaim Products are distinct from

the Products at issue here in that the are formulated with a "Touch of Aloe" and other ingredients

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commonly known to provide moisturizing and skincare benefits, while only containing 0.11% of

BAC, instead of the 0.13% BAC contained in the Products. See id. Therefore, while the

Nonclaim Products command roughly the same price as the Products, they do so because

consumers associate a separate price premium for products which are formulated with aloe and

chamomile. See id.

Plaintiff claims that she continues to desire to purchase hand wipes which will actually

kill 99.99% of germs and would purchase Defendants' Products again if Defendants reformulate

their hand wipes to actually kill 99.99% of germs. See id. at ¶ 38. "However, as Defendants'

labeling is currently false and misleading, Plaintiff cannot rely upon it to determine if or when

Defendants' Products are reformulated to actually kill 99.99% of germs. Accordingly, Plaintiff

requires an injunction against Defendants' false and misleading advertising practices, until such

time that Defendants' "Kills 99.99% of Germs" representation is true and accurate." Id.

III. DISCUSSION

A. Standard of Review

1. Rule 12(b)(1)

"Pre-answer motions to dismiss for lack of standing are governed by Federal Rule of Civil

Procedure 12(b)(1)." Amadei v. Nielsen, 348 F. Supp. 3d 145, 154 (E.D.N.Y. 2018). "In order to

survive a defendant's motion to dismiss for lack of subject matter jurisdiction, a plaintiff must

allege facts 'that affirmatively and plausibly suggest that it has standing to sue.'" Brady v. Basic

Research, L.L.C., 101 F. Supp. 3d 217, 227 (E.D.N.Y. 2015) (quoting Amidax Trading Grp. v.

S.W.I.F.T. SCRL, 671 F.3d 140, 145 (2d Cir. 2011)). "[A]t the pleading stage, standing

allegations need not be crafted with precise detail, nor must the plaintiff prove his allegations of

injury." Fin. Guar. Ins. Co. v. Putnam Advisory Co., LLC, 783 F.3d 395, 401 (2d Cir. 2015).

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When standing is challenged on the basis of the pleadings, the court must "'accept as true

all material allegations of the complaint, and must construe the complaint in favor of [Plaintiffs].'"

All. for Open Society Int'l, Inc. v. U.S. Agency for Int'l Dev., 651 F.3d 218, 227 (2d Cir. 2011)

(quotation omitted). "When the Rule 12(b)(1) motion is facial, i.e., based solely on the

allegations of the complaint or the complaint and exhibits attached to it ..., the plaintiff has no

evidentiary burden." Carter v. HealthPort Technologies, LLC, 822 F.3d 47, 56 (2d Cir. 2016)

(citation omitted).

Importantly, "[t]o establish standing to obtain prospective relief, a plaintiff 'must show a

likelihood that he will be injured in the future.'" Carver v. City of New York, 621 F.3d 221, 228

(2d Cir. 2010) (quotation omitted); see also Abidor v. Napolitano, 990 F. Supp. 2d 260, 272

(E.D.N.Y. 2013) ("An action for declaratory judgment does not provide an occasion for

addressing a claim of alleged injury based on speculation as to conduct which may or may not

occur at some unspecified future date"). "That is, a plaintiff must demonstrate a 'certainly

impending' future injury." Marcavage v. City of New York, 689 F.3d 98, 103 (2d Cir. 2012)

(quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)). To do so, "a plaintiff cannot rely

solely on past injuries; rather, the plaintiff must establish how he or she will be injured

prospectively and that injury would be prevented by the equitable relief sought." Id.

2. Rule 12(b)(6)

A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal

Rules of Civil Procedure tests the legal sufficiency of the party's claim for relief. See Patane v.

Clark, 508 F.3d 106, 111-12 (2d Cir. 2007). In considering the legal sufficiency, a court must

accept as true all well-pleaded facts in the pleading and draw all reasonable inferences in the

pleader's favor. See ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007)

8

(citation omitted). This presumption of truth, however, does not extend to legal conclusions. See

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). Although a court's review of a

motion to dismiss is generally limited to the facts presented in the pleading, the court may

consider documents that are "integral" to that pleading, even if they are neither physically

attached to, nor incorporated by reference into, the pleading. See Mangiafico v. Blumenthal, 471

F.3d 391, 398 (2d Cir. 2006) (quoting Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d

Cir. 2002)).

To survive a motion to dismiss, a party need only plead "a short and plain statement of the

claim," see Fed. R. Civ. P. 8(a)(2), with sufficient factual "heft to 'sho[w] that the pleader is

entitled to relief.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (quotation omitted).

Under this standard, the pleading's "[f]actual allegations must be enough to raise a right of relief

above the speculative level," see id. at 555 (citation omitted), and present claims that are

"plausible on [their] face," id. at 570. "The plausibility standard is not akin to a 'probability

requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully."

Iqbal, 556 U.S. at 678 (citation omitted). "Where a complaint pleads facts that are 'merely

consistent with' a defendant's liability, it 'stops short of the line between possibility and

plausibility of "entitlement to relief."'" Id. (quoting Twombly, 550 U.S. at 557). Ultimately,

"when the allegations in a complaint, however true, could not raise a claim of entitlement to

relief," Twombly, 550 U.S. at 558, or where a plaintiff has "not nudged [its] claims across the line

from conceivable to plausible, the[] complaint must be dismissed[,]" id. at 570.

B. Constitutional and Statutory Standing

Defendants argue that Plaintiff fails to establish Article III standing because "(A) she fails

to allege an economic injury-in-fact that is concrete and particularized, as opposed to conjectural

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and hypothetical; (B) she fails to allege an injury that is not premised on a hypothetical risk of

harm; (C) she lacks standing for an injunction; and (D) she has not pled an injury establishing

statutory standing." Dkt. No. 45-1 at 16-24. Plaintiff responds that her allegations that she paid

more for the Products than she would have otherwise due to a false advertisement is sufficient to

establish the injury-in-fact requirement, and that the injury she has alleged is concrete and

particularized, and not conjectural or hypothetical. See Dkt. No. 50 at 25-28.

As the Second Circuit has explained, standing has two components: "constitutional

standing, a mandate of the case or controversy requirement in Article III [of the United States

Constitution], and prudential considerations of standing, which involve judicially self-imposed

limits on the exercise of federal jurisdiction." United Steel, Paper & Forestry, Rubber, Mfg.,

Energy, Allied Indus. & Serv. Workers Int'l Union, AFL-CIO/CLC v. Cookson Am., Inc., 710 F.3d

470, 474 (2d Cir. 2013). It is settled law that constitutional standing requires a plaintiff to

demonstrate that "(1) it has suffered an 'injury in fact' that is (a) concrete and particularized and

(b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the

challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the

injury will be redressed by a favorable decision." Friends of the Earth, Inc. v. Laidlaw Envtl.

Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000). On the other hand, "[p]rudential standing

includes, inter alia, 'the general prohibition on a litigant's raising another person's legal rights' and

'the rule barring adjudication of generalized grievances more appropriately addressed in the

representative branches [of government].'" Keepers, Inc. v. City of Milford, 807 F.3d 24, 39 (2d

Cir. 2015) (quoting Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004)). "The party

invoking federal jurisdiction bears the burden of establishing prudential and constitutional

standing[.]" Id. Further, a plaintiff must have Article III standing in order for the Court to have

10

subject matter jurisdiction over its claims. See Lujan v. Defenders of Wildlife, 504 U.S. 555,

560-61 (1992); see also Warth v. Seldin, 422 U.S. 490, 498 (1975) (describing Article III standing

as "the threshold question in every federal case, determining the power of the court to entertain

the suit").

In their motion, Defendants rely on, among other cases, Moreno v. Vi-Jon, LLC, No. 3:20-

cv-14460, 2021 WL 5771229 (S.D. Cal. Dec. 6, 2021), where the district court dismissed the

plaintiff's claims for lack of standing. In Moreno, the plaintiff brought a class action suit against a

manufacturer of hand sanitizers, alleging false or deceptive advertising and related claims. See

id. at *1. In the complaint, the plaintiff alleged that he would not have purchased or paid as much

for the defendant's products if he had known the truth about their effectiveness, i.e., that they do

not kill 99.99% of germs. See id. at *1-2. The district court granted the defendant's motion to

dismiss for lack of standing, holding that the plaintiff "only pled a speculative, conjectural and

hypothetical injury." Id. at *5. On appeal, the Ninth Circuit reversed, finding that the plaintiff

adequately pled an economic injury because he alleged "that he wouldn't have purchased or paid

as much for [the defendant's] products if he had known the truth about their effectiveness."

Moreno v. Vi-Jon, LLC, No. 21-56370, 2022 WL 17668457, *1 (9th Cir. Dec. 14, 2022).

Defendants also rely on Aleisa v. GoJo Industries, Inc., 538 F. Supp. 3d 764 (N.D. Ohio

2021). In that case, the court dismissed the plaintiff's claims for lack of standing where the

plaintiffs "claim[ed] they would not have purchased Purell Advanced Hand Sanitizer had

Defendant not marketed it as killing over 99.9% of germs," reasoning that, "[a]ssuming the truth

of this allegation, Plaintiffs have not suffered an injury. They received fair value for what they

paid. They paid for hand sanitizer. They received hand sanitizer. And they did so in an arm's

length transaction." Id. at 772-73. However, the Aleisa court acknowledged that a claim that the

11

plaintiffs "paid too much for Defendant's hand sanitizer based on its allegedly false claims about

the product" could be sufficient to confer standing if it were factually supported. See id. at 773.

In this case, Plaintiff alleges that she paid a premium based on Defendants' allegedly false

statements about the germ-killing efficacy of its Products and identified two, lower-priced hand

wipes with the same active ingredient (0.13% BAC) that do not make similar claims. See Dkt.

No. 38 at ¶¶ 33-34. This is sufficient to plead an economic injury, which is in turn sufficient to

satisfy the requirements of Article III standing. See Catholdi-Jankowski v. CVS Health Corp.,

___ F. Supp. 3d ___, 2023 WL 2028926, *3 (W.D.N.Y. Feb. 16, 2023) (holding that the plaintiff

satisfied the Article III standing requirements where she alleged that she alleged that she paid a

premium for the defendant's hand sanitizer based on false statements about its germ-killing

efficacy and identified lower priced hand sanitizers that did not make similar claims); see also

Colpitts v. Blue Diamond Growers, 527 F. Supp. 3d 562, 575 (S.D.N.Y. 2021) (holding that "an

allegation that a plaintiff would not have purchased a product or would not have paid the same

amount comfortably satisfies the injury-in-fact prong of Article III standing"). Accordingly, the

Court denies this aspect of Defendants' motion to dismiss.

Defendants also contend that Plaintiff lacks standing to bring a claim for prospective

injunctive relief. "'[S]tanding is not dispensed in gross'" and "'a plaintiff must demonstrate

standing for each claim he [or she] seeks to press and for each form of relief that is sought.'" Town

of Chester, N.Y. v. Laroe Ests., Inc., 581 U.S. 433, 439 (2017) (quotations omitted). "In order to

meet the constitutional minimum of standing to seek injunctive relief," a plaintiff "cannot rely on

past injury" but instead must show a likelihood that he or she will be injured in the future. Shain

v. Ellison, 356 F.3d 211, 215 (2d Cir. 2004) (citation omitted). "There is no exception to

demonstrating future injury when the plaintiff is pursuing a class action." Buonasera v. Honest

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Co., Inc., 208 F. Supp. 3d 555, 564 (S.D.N.Y. 2016) (citing Simon v. E. Kentucky Welfare Rights

Org., 426 U.S. 26, 40 n.20 (1976)).

In this case, Plaintiff alleges that she has sufficiently alleged standing to pursue injunctive

relief based on the following allegation:

Plaintiff continues to desire to purchase hand wipes which will

actually kill 99.99% of germs. As such, Plaintiff would purchase

Defendants' Products again if Defendants reformulate their hand

wipes to actually kill 99.99% of germs. However, as Defendants'

labeling is currently false and misleading, Plaintiff cannot rely upon

it to determine if or when Defendants' Products are reformulated to

actually kill 99.99% of germs. Accordingly, Plaintiff requires an

injunction against Defendants' false and misleading advertising

practices, until such a time that Defendants' "Kills 99.99% of

Germs" representation is true and accurate.

Dkt. No. 38 at ¶ 38.

As Defendants note, however, elsewhere in her amended complaint Plaintiff alleges that it

is scientifically impossible for BAC hand wipes, such as those at issue here, to actually kill

99.99% of germs. See id. at ¶¶ 21, 25-29, 51. Morever, Plaintiff contends that it is impossible to

make the statement that a product kills 99.99% of germs because there "is estimated to be

somewhere between 100 billion and 1 trillion different microbial species on earth" and "[t]he

current catalogues species of microbes accounts for approximately 0.001% of germs in existence.

In other words, 99.999% of germs are yet to be discovered and identified." Id. at ¶ 9. According

to Plaintiff, "no amount of testing during the present time can substantiate the claim that BAC-

based hand wipes kill '99.99% of germs.'" Id.

"'[T]he question of whether a plaintiff seeking injunctive relief for consumer deception

will be able to demonstrate standing where, as here, they allege they would buy the products in

the future if not mislabeled, is unsettled in this Circuit, and district courts examining the issue

have reached divergent conclusions.'" Catholdi-Jankowski, 2023 WL 2028926, at *4 (quoting

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Mancuso v. RFA Brands, LLC, 454 F. Supp. 3d 197, 205 (W.D.N.Y. 2020)) (collecting cases).

"However, 'a ... thorough survey of authority in the Second Circuit suggests that' a plaintiff who

alleges an intent to make future purchases of a product only if its advertising or labeling is

changed has failed to sufficiently allege future injury for purposes of establishing standing to seek

injunctive relief: any case holding otherwise 'is an outlier in the Circuit's jurisprudence.'"

Mancuso, 454 F. Supp. 3d at 205 (quoting Lugones v. Pete & Gerry's Organic, LLC, 440 F. Supp.

3d 226, 238 (S.D.N.Y. 2020)); see also Duchimaza v. Niagara Bottling, LLC, No. 21-cv-6434,

___ F. Supp. 3d ___, 2022 WL 3139898, *6 (S.D.N.Y. Aug. 5, 2022) (holding that allegations

that the plaintiff "desires to purchase water bottles from Defendant Niagara that are, in fact, 100%

recyclable, but cannot rely on Defendant Niagara's representations regarding recyclability" were

not sufficient to "plead an injury-in-fact to support injunctive relief," because they "mirror[ed]

pleadings that courts in this Circuit repeatedly have held insufficient where a consumer plaintiff

has sought to enjoin the further sale of a deceptively marketed product she purchased" and "[a]s

these courts have held, allegations that the plaintiff would purchase a product if re-engineered or

re-marketed does not plead a real or immediate threat of future injury") (emphasis in original).

Here, as in Catholdi-Jankowski, this Court agrees with the majority view in this Circuit,

and finds that the reasoning of these cases particularly persuasive in this case, where Plaintiff's

own allegations are that the product could not be reformulated to meet her standards for

purchasing. "In other words, Plaintiff's allegation that she would like to purchase a reformulated

hand sanitizer that kill 99.99% of germs is inherently speculative if one also credits her

allegations that such a reformulation is not scientifically feasible." Catholdi-Jankowski, 2023 WL

2028926, at *5. As such, Plaintiff cannot show a likelihood of future harm because – according

to her own amended complaint – she will know that any of Defendants' Products that he is

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contemplating purchasing in the future could not possibly have been scientifically proven to kill

99.99% of all germs, as she understands that term. Therefore, Plaintiff lacks standing to seek

injunctive relief and her request for the same is dismissed without prejudice.

Accordingly, Defendants' motion to dismiss for lack of standing is granted in part and

denied in part.

C. Federal Law Preemption and Primary Jurisdiction

Defendants contend that Plaintiff's claims are preempted by the Food Drug and Cosmetic

Act ("FDCA"), 21 U.S.C. § 301 et seq., because Plaintiff seeks to enforce labeling and testing

requirements "'different from or in addition to' the Tentative Final Monograph for Health-Care

Antiseptic Drug Products, 59 FR 31402-01 (June 17, 1994)." Dkt. No. 45-1 at 31. Additionally,

Defendants argue that "the question of whether Wet Ones Antibacterial Hand Wipes' use of the

active ingredient BAC is 'effective' falls within the FDA's primary jurisdiction." Id. (citing 21

C.F.R. § 330.1).

1. Primary Jurisdiction

"The doctrine of primary jurisdiction is concerned with promoting proper relationships

between the courts and administrative agencies charged with particular regulatory duties" and has

a "central aim ... to allocate initial decisionmaking responsibility between courts and agencies and

to ensure that they do not work at cross-purposes." Ellis v. Trib. Television Co., 443 F.3d 71, 81

(2d Cir. 2006) (quotations omitted). It "applies where a claim is originally cognizable in the

courts, but enforcement of the claim requires, or is materially aided by, the resolution of threshold

issues, usually of a factual nature, which are placed within the special competence of the

administrative body." Golden Hill Paugussett Tribe of Indians v. Weicker, 39 F.3d 51, 58-59 (2d

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Cir. 1994). The Second Circuit has highlighted four factors that a court should consider in

determining whether to apply the doctrine of primary jurisdiction:

"(1) whether the question at issue is within the conventional

experience of judges or whether it involves technical or policy

considerations within the agency's particular field of expertise; (2)

whether the question at issue is particularly within the agency's

discretion; (3) whether there exists a substantial danger of

inconsistent rulings; and (4) whether a prior application to the

agency has been made."

Palmer v. Amazon.com, Inc., 51 F.4th 491, 506 (2d Cir. 2022) (quoting Ellis, 443 F.3d at 82-83).

However, "[n]o fixed formula exists for applying the doctrine of primary jurisdiction," Ellis, 443

F.3d at 82 (citation omitted), and the analysis must be performed on a case-by-case basis, Palmer,

51 F.4th at 506. In addition to the Ellis factors, the court "must also balance the advantages of

applying the doctrine against the potential costs resulting from complications and delay in the

administrative proceedings." Id. (quotation omitted). "[O]nce a court determines that the doctrine

applies, it has discretion either: (1) to retain jurisdiction or (2) to dismiss the case without

prejudice." Id. at 505.

Here, Defendants' argument that the doctrine of primary jurisdiction applies here is

somewhat conclusory and fails to meaningfully address some of the Ellis factors. The Court is

not persuaded that the doctrine of primary jurisdiction applies under the circumstances of this

case.

Notably absent from Defendants' motion is any decision from a court that found primary

jurisdiction would apply to false advertising claims in an analogous case. Upon review, however,

it is clear that courts throughout the United States have consistently rejected this argument in

cases involving false advertising claims against producers/retailers of BAC antibacterial products.

See Catholdi-Jankowski, 2023 WL 2028926, at *7-9 (rejecting the defendants' argument that the

16

primary jurisdiction doctrine precluded the plaintiff's New York General Business Law claims

relating to the defendants' BAC antibacterial hand wipes); Macormic v. Vi-jon, LLC, No. 4:20-cv-

1267, 2021 WL 6119166, *9 (E.D. Mo. Aug. 6, 2021) (holding that, although it is undisputed that

the FDA has the authority to regulate the labeling and testing of hand sanitizers and antimicrobial

products, the plaintiff's claims "do not turn on determinations that require the expertise of the

FDA" but rather "present a 'typical false advertising case well within the province of the courts

because allegations of deceptive labeling do not require the expertise of the FDA to be resolved in

the courts'") (quotation omitted); Mier v. CVS Pharmacy, Inc., No. 20-cv-1979, 2021 WL

1559367, *12 (C.D. Cal. Mar. 22, 2021) (same); Won Kyung Hwang v. Ohso Clean, Inc., No. 12-

cv-6355, 2013 WL 1632697, *18 (N.D. Cal. Apr. 16, 2013) (same).

The Court agrees with these decisions and finds that the doctrine of primary jurisdiction

does not apply here. It is undisputed that the FDA has the authority to regulate the labeling and

testing of hand sanitizers and antimicrobial products. However, Plaintiff's claims in this case do

not turn on determinations that require the expertise of the FDA. Plaintiff's claims present a

"typical false advertising case well within the province of the courts because allegations of

deceptive labeling do not require the expertise of the FDA to be resolved in the courts, as every

day courts decide whether conduct is misleading." Capaci v. Sports Rsch. Corp., 445 F. Supp. 3d

607, 623 (C.D. Cal. 2020) (citation omitted).

Accordingly, this aspect of Defendants' motion is denied.

2. FDCA Preemption

Under the Supremacy Clause of the United States Constitution, "state law that conflicts

with federal law is without effect." Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992)

(citing U.S. CONST. art. VI, cl. 2). Federal law may preempt state law in various ways.

17

Sometimes Congress expressly preempts state law by statute, and other times state law may be

impliedly preempted if Congress has occupied an entire field or if a state law somehow conflicts

with or otherwise stands as an obstacle to the purpose of a federal law. See generally Oneok, Inc.

v. Learjet, Inc., 575 U.S. 373, 376-77 (2015); Marentette v. Abbott Labs., Inc., 886 F.3d 112, 117

(2d Cir. 2018). In general, for a court to conclude that Congress has preempted state law,

Congress' intent to preempt — whether express or implied — must be "clear and manifest."

Wyeth v. Levine, 555 U.S. 555, 565 (2009); New York State Rest. Ass'n v. New York City Bd. of

Health, 556 F.3d 114, 123 (2d Cir. 2009) (discussing preemption principles in context of the

FDCA).

Again, Defendants' briefing on its preemption argument is not a model of clarity.

Defendants appear to allege that the claims are preempted by Section 376r of the FDCA.

However, Section 376r does not expressly or impliedly preempt Plaintiff's claims because

Plaintiff does not seek to impose additional labeling requirements or testing onto Defendants'

Products. Instead, Plaintiff merely seeks to impose requirements identical to the FDCA

provisions prohibiting false or misleading product labeling. See, e.g., 21 U.S.C. §§ 352(a),

362(a). Such claims are not preempted under Section 379r(a). See Souter v. Edgewell Personal

Care Co., 542 F. Supp. 3d 1083, 1097 (S.D. Cal. 2021) (holding that the plaintiff's allegation that

the defendants' product labels are deceptive or misleading under state law are not preempted by

Section 379r(a) and noting that "'[t]he FDCA is not focused on the truth or falsity of advertising

claims but is instead directed to protect the public by ensuring that drugs sold in the marketplace

are safe, effective and not misbranded'") (quotation omitted); Reid v. GMC Skin Care USA Inc.,

No. 8:15-cv-277, 2016 WL 403497, *10 (N.D.N.Y. Jan. 15, 2016) (finding that false advertising

cases "which simply require Defendant to truthfully state the nature of its product" are not

18

preempted by Section 379r(a)); Dayan v. Swiss-American Prods., Inc., No. 15-cv-6895, 2017 WL

9485702, *4 (E.D.N.Y. Jan. 3, 2017) (holding that preemption did not apply where the defendant

"would be held liable for failing to label properly the product's [germ-killing efficacy], a standard

identical to the standard established by the FDCA"); Macormic v. Vi-jon, LLC, No. 4:20-cv-1267,

2021 WL 6119166, *7-8 (E.D. Mo. Aug. 6, 2021). For this same reason, preemption of Plaintiff's

claims is also precluded by the FDCA's savings clause. See 21 U.S.C. § 379r(f); Dayan, 2017

WL 9485702, at *4.

Further, the fact that Plaintiff's claims may "touch on an area regulated by the FDA" does

not warrant preemption of false advertising claims. See Jovel, 2013 WL 5437065, at *5. Nor are

false advertising claims which arise out of FDA-regulated products considered attempts to

enforce the FDCA. See Macormic, 2021 WL 6119166, at *7-8. Plaintiff's claims "do not by

themselves rely on the FDCA but on state law proscribing false or misleading labels," and her

allegations, if proven, "would give rise to recovery under state law even in the absence of the

FDCA." Dayan, 2017 WL 9485702, at *8. As such, they are not expressly or impliedly

preempted by the FDCA. See id.; see also In re Bayer Corp. Combination Aspirin Prod. Mktg. &

Sales Practices Litig., 701 F. Supp. 2d 356, 375 (E.D.N.Y. 2010) (refusing to find that the

plaintiffs' claims were preempted where the claims "would give rise to recovery even had the

FDCA never been enacted").

Accordingly, the Court denies this aspect of Defendants' motion to dismiss.

D. New York General Business Law Sections 349 and 350

As noted, Plaintiff claims that Defendants violated Sections 349 and 350 of the General

Business Law by misleading reasonable consumers into believing the Products are capable of

killing "99.99% of Germs" (the "Kill Claim").

19

Defendants contend that Plaintiff's claims under Sections 349 and 350 must be dismissed

because (1) Plaintiff has failed to satisfy the statutory standing requirements of the General

Business Law; (2) Plaintiff has failed to allege facts establishing Defendants' knowledge of the

undisclosed information in support of her claims; (3) Plaintiff has failed to allege facts

establishing an injury under the General Business Law; and (4) Plaintiff has failed to plead facts

establishing causation.

1. Plaintiff has Pleaded an Injury Under Sections 349 and 350

Although the Court has found that Plaintiff has adequately pleaded an injury-in-fact for

purposes of Article III standing as to her claim for monetary relief, whether Plaintiff has properly

alleged an injury for her claims under the General Business Law requires a separate inquiry. To

plead an injury pursuant to either Sections 349 or 350, "a plaintiff must allege that, on account of

a materially misleading practice, she purchased a product and did not receive the full value of her

purchase." Orlander, 802 F.3d at 302 (citing Small v. Lorillard Tobacco Co., 94 N.Y.2d 43, 56

(1999)). "In the consumer goods context, an allegation of a defendant's deception alone does not

suffice to plead injury, because a plaintiff may have received the benefit of the bargain despite the

alleged misrepresentation." Colpitts v. Blue Diamond Growers, 527 F. Supp. 3d 562, 576

(S.D.N.Y. 2021) (citing Preira v. Bancorp Bank, 885 F. Supp. 2d 672, 676-77 (S.D.N.Y. 2012);

Small, 94 N.Y.2d at 55-56). Instead, a plaintiff "must plead something more than the defendant's

deception; for example, that 'the price of the product was inflated as a result of defendant's

deception or that use of the product adversely affected plaintiff's health.'" Preira, 885 F. Supp. 2d

at 677 (quoting Baron v. Pfizer, Inc., 42 A.D.3d 627, 629 (3d Dep't 2007)).

An injury under Sections 349 and 350 therefore may be alleged under a price premium

theory whereby a plaintiff claims to have paid more for the product than he or she would have if

20

the defendant did not engage in allegedly deceptive practices. See Orlander, 802 F.3d at 302; see

also Duran v. Henkel of Am., Inc., 450 F. Supp. 3d 337, 350-51 (S.D.N.Y. 2020). "A price

premium theory requires a plaintiff to 'allege[ ] that a company marketed a product as having a

‘unique quality,’ that the marketing allowed the company to charge a price premium for the

product, and that the plaintiff paid the premium and later learned that the product did not, in fact,

have the marketed quality.'" Colpitts, 527 F. Supp. 3d at 577 (quoting Duran, 450 F. Supp. 3d at

350).

In DaCorta v. AM Retail Group, Inc., No. 16-cv-1748, 2018 WL 557909 (S.D.N.Y. Jan.

23, 2018), the court noted that a plaintiff successfully pleads injury under the General Business

Law where they allege "a connection between the misrepresentation and any harm from, or failure

of, the product." Id. at *8. The DaCorta court went on to state as follows:

Such a connection is clear in the Price Premium Cases; the product

is marketed as having a unique quality; it is "all natural" or "100%

olive oil," or contains real bacon or a product to aid in the

absorption and digestion of protein. This marketing allows the

company to charge a premium for the product. Plaintiff pays that

premium and learns that the product does not have the unique

quality it was marketed for; it is not "all natural", it does not contain

real bacon as a primary ingredient, does not contain lactase, or is

not "100% olive oil". In these instances, there is a definitive

connection between the misrepresentation (that the product had a

unique quality) and the harm from the product (plaintiff paid a

premium for a product without this unique quality).

Id.

Here, Plaintiff has clearly alleged the facts necessary to support a price premium theory of

injury. The amended complaint alleges that Defendants' Product is marketed as having a unique

quality: that it "Kills 99.99% of Germs." Moreover, the amended complaint alleges that

Defendants charge a price premium for their Product compared to similar products which do not

include such claims. See Dkt. No. 38 at ¶¶ 32-34. Plaintiff further alleges that she was willing to

21

pay more for Defendants' Product over the less expensive similar products because of Defendants'

promise that their Product "Kills 99.99% of Germs," whereas the cheaper products made no such

promise. See id. These facts are sufficient to allege the requisite injury under the General

Business Law.

Accordingly, this aspect of Defendants' motion to dismiss is denied.

2. Reasonable Consumer Standard

Defendants contend that Plaintiff's General Business Law §§ 349 and 350 claims must be

dismissed because a reasonable consumer would not expect the Products to kill "undiscovered

germs." Dkt. No. 45-1 at 13-14. Defendants note that Plaintiff argues that "'the current

catalogued species of microbes accounts for approximately 0.001% of germs in existence' and 'no

amount of testing during the present time can substantiate the claims that BAC-based hand wipes

kill 99.99% of Germs.'" Id. at 13. Similarly, Defendants contend that a reasonable consumer

would not expect the Products to kill non-hand germs, considering that they are labeled and

marketed as being "hand wipes." Id. at 14-15. The Court agrees.

Section 349 of the New York General Business Law declares unlawful "[d]eceptive acts

or practices in the conduct of any business, trade or commerce or in the furnishing of any

service." N.Y. Gen. Bus. Law § 349(a). Section 350 prohibits "[f]alse advertising in the conduct

of any business, trade, or commerce or in the furnishing of any service." Id. § 350. Sections 349

and 350 are both aimed at conduct that is deceptive — i.e., conduct "likely to mislead a

reasonable consumer acting reasonably under the circumstances." Oswego Laborers' Local 214

Pension Fund v. Marine Midland Bank, N.A., 85 N.Y.2d 20, 26 (1995). "The only difference

between the two is that Section 350 more narrowly targets deceptive or misleading

advertisements, while Section 349 polices a wider range of business practices." Cline v.

22

TouchTunes Music Corp., 211 F. Supp. 3d 628, 635 (S.D.N.Y. 2016); see also Goshen v. Mut.

Life Ins. Co. of N.Y., 98 N.Y.2d 314, 324 n.1 (2002). "To successfully assert a claim under either

section, 'a plaintiff must allege that a defendant has engaged in (1) consumer-oriented conduct

that is (2) materially misleading and that (3) plaintiff suffered injury as a result of the allegedly

deceptive act or practice.'" Orlander v. Staples, Inc., 802 F.3d 289, 300 (2d Cir. 2015) (quoting

Koch v. Acker, Merrall & Condit Co., 18 N.Y.3d 940, 941 (2012)). In a consumable goods case,

"a plaintiff must allege that, on account of a materially misleading practice, she purchased a

product and did not receive the full value of her purchase." Id. at 302.

"To state a claim for false advertising or deceptive business practices under New York ...

law, a plaintiff must plausibly allege that the deceptive conduct was likely to mislead a reasonable

consumer acting reasonably under the circumstances." Mantikas v. Kellogg Co., 910 F.3d 633,

636 (2d Cir. 2018) (quotation omitted). It is "well settled that a court may determine as a matter

of law that an allegedly deceptive advertisement would not have misled a reasonable consumer"

under appropriate circumstances. Fink v. Time Warner Cable, 714 F.3d 739, 741 (2d Cir. 2013).

The reasonable consumer inquiry is an objective one, and "in determining whether a

reasonable consumer would have been misled by a particular advertisement, context is crucial."

Id. at 742. Defendants contend that a reasonable consumer, viewing the statement "kills 99.99%

of germs" in the context of a hand sanitizer label, would understand that it referred to germs and

bacteria commonly found on hands. This argument has been accepted by a number of federal

courts considering similar claims. See Moreno v. Vi-Jon, LLC, No. 20-cv-1446, 2023 WL

4611823, *7-8 (S.D. Cal. July 18, 2023) ("Instead, rather than making any compelling case for the

court to reconsider its ruling, Plaintiff, ignoring the back label information referencing the front

label representations Defendant's Products kill 99.99% of germs, plucks from the universe of all

23

germs certain pathogens he complains are not killed by Defendant's hand sanitizers. Yet

Plaintiff's allegations are devoid of any actual evidence these pathogens are commonly found on

hands. Among these selectively chosen pathogens, for example, are Cryptosporidium, which is

most commonly spread through water and C. difficile, which is shed in feces"); Catholdi-

Jankowski v. CVS Health Corp., ___ F. Supp. ___, 2023 WL 2028926, *9 (W.D.N.Y. 2023)

("This Court agrees with the majority view that a reasonable consumer of hand sanitizer products

would not understand the phrase 'kills 99.99% of germs' to mean all germs in the universe, known

or unknown, and regardless of whether such germs are found on the hands") (citing cases);

Robles v. Gojo Indus., Inc., No. 21-cv-928, 2022 WL 2163846, *6 (C.D. Cal. Mar. 16, 2022)

("[The plaintiff] was purchasing a product that was explicitly intended for use on the hands. In

this context, it would not be reasonable to expect that she was purchasing a product that would

kill germs that are transmitted through other means, or germs that are not yet known to science");

Souter v. Edgewell Pers. Care Co., No. 20-cv-1486, 2022 WL 485000, *8 (S.D. Cal. Feb. 16,

2022) ("The Court accepts as true that [the defendant's hand wipe products' are ineffective against

the diseases listed in Plaintiff's First Amended Complaint and that, taken together, these

disease-causing microorganisms comprise more than 0.01 percent of germs. Based on the

representations made on front and back labels for [the hand wipe products], however, the Court

finds that a reasonable consumer would necessarily assume that the product kills 99.99% of

germs that are transmissible by hand"); Piescik v. CVS Pharmacy, Inc., 576 F. Supp. 3d 1125,

1133 (S.D. Fla. 2021) (holding that "reasonable consumers would not, upon reading a hand

sanitizer label that states the product 'kills 99.99% of germs' assume that this means it kills

99.99% of all conceivable disease-causing microorganisms, regardless of whether they are

commonly found on the hands").

24

This Court agrees with these courts that a reasonable consumer of hand sanitizer would

not understand the phrase "kills 99.99% of germs" to mean all germs in the universe, known or

unknown, regardless of whether such germs are found on the hands. As the Piescik court

explained, "hand sanitizer is called hand sanitizer for a reason.... It defies all logic to assume that

a reasonable consumer who purchases hand sanitizer will also expect it to offer protection against

illnesses most commonly spread by drinking contaminated water, sexual contact, or by 'taking

high doses of antibiotics ... in a healthcare setting.'" Piescik, 576 F. Supp. 3d at 1133 (quotation

omitted). This is especially true now, where "'[h]aving lived through almost two years of a global

pandemic, a reasonable consumer would be expected to know what hand sanitizer does and does

not do.'" Id.

In support of his assertion, Plaintiff specifically references several "germs" that

Defendants' products are ineffective at killing, including "(1) pseudomonads (a type of gram-

negative bacteria commonly found in the environment and may be transmitted through hands); (2)

chlamydiae; (3) non-enveloped viruses (such as rhinovirus – the predominant cause of the

common cold in humans); (4) paroviruses (DNA viruses transmittable through respiratory

secretions); (5) acid-fast bacteria (such as Mycobacteria and some Nocardia); (6) bacterial spores

(such as Clostridioides difficile ...); (7) coccidia (causes infections in dogs); and (8) prions

(misfolded proteins responsible for several fatal neurodegenerative diseases in humans)." Dkt.

No. 38 at ¶ 24. Defendants' Product, however, is specifically marketed for use on the hands, so

only those "germs" commonly found on the hands would be relevant to determining whether a

reasonable consumer would be misled by Defendants' marketing. The courts above all rejected

similar allegations, primarily because most of the cited "germs" are not commonly found on or

transmitted by the hands. For example, as to pseudomonads, there are more than 140 species (25

25

of which are associated with humans) and only 2 species, P. aeruginosa and P. pseudomallei,

produce specific human diseases: glanders and melioidosis. See Medical Microbiology, 4th ed.,

Ch. 27, Pseudomonas, available at https://www.ncbi.nlm.nih.gov/books/NBK8326/ (last visited

Aug. 4, 2023). Additionally, P. aeruginosa and P. maltophilia account for 80 percent of

pseudomonads recovered from clinical specimens. See id. Of the two, only P. aeruginosa is

commonly spread by the hands, while P. maltophilia "is found in water and in both raw and

pasteurized milk." Id. Chlamydia is a sexually transmitted, not transmitted by the hands.

Additionally, C. difficile is "shed in feces." Moreno, 2023 WL 4611823, at *9 (citing

https://www.cdc.gov/cdiff/clinicians/faq.html#transmitted). Rhinovuses are "spread through the

air by coughing and sneezing, [and] close personal contact." See CDC, National Center for

Immunization and Respiratory Diseases ("NCIRD"), Rhinoviruses, available at

https://www.cdc.gov/ncird/rhinoviruses-common-cold.html (last visited Aug. 4, 2023). Similarly,

paroviruses, as Plaintiff acknowledges, are not transmitted through the hands, but through

respiratory secretions. Coccidia, which causes infections in dogs, is most commonly spread by

ingesting water or anything contaminated with oocysts shed in the feces of an infected animal.

Finally, prions "spread between animals through body fluids like feces, saliva, blood, or urine,

either through direct contact or indirectly through environmental contamination of soil, food or

water." CDC, Chronic Wasting Disease (CWD), available at

https://www.cdc.gov/prions/cwd/transmission.html (last visited Aug. 4, 2023).

As Defendants note in their reply, Plaintiff's entire case is premised on the theory that Wet

Ones Antibacterial Hand Wipes does not "kill 99.99% of all germs," including germs not in

existence, germs found on surfaces, and germs not transmissible by hand. See Dkt. No. 38 at ¶¶

7, 21, 89. Wet Ones Antibacterial Hand Wipes' label contains a picture of a hand, states "apply to

26

hands" and "keeps hands fresh and clean when soap and water are not available" on the labeling,

and mentions the word "hand" three additional times. See Dkt. No. 45-2. It is implausible that a

reasonable consumer would understand or expect the Product to kill anything other than germs

commonly found on hands and preventable by keeping hands clean. Plaintiff all but admits that

her "kill 99.99% of all germs" theory of deception is faulty by expressly arguing – for the first

time in her opposition to Defendants' motion – the germ kill claim only applies to "all germs

known to be transmitted through human hands," an allegation not in her amended complaint.

The implausibility of this theory has been confirmed by the vast majority of courts who

have dealt with substantially similar claims. See Moreno, 2023 WL 4611823, at *7-8; Catholdi-

Jankowski, 2023 WL 2028926, at *9; Robles, 2022 WL 2163846, at *6; Souter, 542 F. Supp. 3d

at 1093-94; Piescik, 576 F. Supp. 3d at 1133 ("Consumers purchase hand sanitizer, to, well,

sanitize their hands. It defies all logic to assume that a reasonable consumer who purchases hand

sanitizer will also expect it to offer protection against illnesses most commonly spread by

drinking contaminated water, sexual contact, or by 'taking high doses of antibiotics ... in a

healthcare setting'"). Viewing the packaging as a whole, Plaintiff has failed to plausibly allege

that the kill claim is likely deceive or confuse reasonable consumers.

In her response, Plaintiff inflates the standard for dismissal under the reasonable consumer

standard by citing cases where district courts denied motions to dismiss under the reasonable

consumer standard because there were disputes over relevant factual issues. See Dkt. No. 50 at

16-17 (citing cases). Here, however, there are no fact issues preventing the Court from exercising

its common sense in examining the underlying theory of liability, and the Court need not look

further than the hand sanitizer cases cited above for license to do so at the motion to dismiss

stage. Plaintiff accuses these district courts of engaging in "improper judicial speculation," or

27

making "improper findings of fact," and characterizes their decisions as "arbitrary" and

"defective." Id. at 18-19. Contrary to Plaintiff's characterizations of these decisions, the Court

finds that these courts used their common sense in deciding that hand sanitizer products are

understood by reasonable consumers to be effective at killing germs commonly found on hands.

Because Plaintiff's theory of deception defies common sense, the Court may determine that a

reasonable consumer would not find the labeling deceptive "in light of the context of the whole

label[.]" Hesse v. Godiva Chocolatier, Inc., 463 F. Supp. 3d 453, 466 (S.D.N.Y. 2020). Plaintiff's

arguments to the contrary amount to nothing more than an attempt to prevent the Court from

using its own judgment and common sense.

In her opposition to Defendants' motion, Plaintiff alleges facts not included in her

amended complaint and argues for the first time that Wet Ones Antibacterial Hand Wipes do not

kill germs that are transmissible by hand, preventable by keeping one's hands clean, and that those

germs make up more than 0.01% of germs found on hands. See Dkt. No. 50 at 14-15. Plaintiff

also adds a Pfizer study that states "hands carry on average 3,200 different germs belonging to

more than 150 species." Id. at 15 & n.1 (citing Pfizer, How Clean are Your Hands (Nov. 13,

2019), available at https://www.pfizer.com/news/articles/how_clean_are_your_hands (last visited

Aug. 4, 2023)). Plaintiff concludes in her opposition that the Product does not kill 9 species of

germs and 6% of germs found on hands. See id. However, these allegations are absent from the

amended complaint and must be disregarded because Plaintiff cannot amend her amended

complaint through her opposition to Defendants' motion to dismiss. See Wright v. Ernst & Young

LLP, 152 F.3d 169, 178 (2d Cir. 1998) (affirming dismissal for failure to state a claim when an

allegation first appeared in opposition to a motion to dismiss).

28

Plaintiff further contends that her theory of deception categorically satisfies the reasonable

consumer standard because she alleged the germ kill claim to be "literally false." Dkt. No. 50 at

15. This argument is unpersuasive. "'[A] district court evaluating whether an advertisement is

literally false must analyze the message conveyed in full context[.]'" Catholdi-Jankowski, 2023

WL 2028926, at *10 (quoting Warner Cable, Inc. v. DIRECTV, Inc., 497 F.3d 144, 158 (2d Cir.

2007)). As set forth above, however, Plaintiff has failed to plausibly allege that the kill claim is

false, when considering the fact that it is made in the context of antibacterial hand wipes, and not

in reference to germs not commonly found on the hands. See id. (rejecting the plaintiff's claim

that the statements "kills 99.99% of germs" was literally false when considered in the context of

the product's intended purpose).

Finally, the Court notes that, in an attempt to remedy her theory of deception, Plaintiff

argues that she cites to "credible science" to lend her allegations the veneer of scientific

plausibility. See Dkt. No. 50 at 12 (citing Dkt. No. 38 at ¶¶ 22-27). These studies, however, do

not render Plaintiff's theory of deception plausible. None of the sources cited by Plaintiff are

specific to Wet Ones Antibacterial Hand Wipes or specific germs found on hands. Instead,

Plaintiff attempts to apply research relating to resistance to BAC in surface bacteria in hospitals,

and the effectiveness of BAC in commercial and food industry contexts,1 and for sterilization of

medical and dental instruments2 to Wet Ones Antibacterial Hand Wipes. Plaintiff's reliance on

1 A. Pedreira, et al., A Critical Review of Disinfection Processes to Control SARS-Cov-2

Transmission in the Food Industry (2021),

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7911259/ (last visited Aug. 4, 2023).

2 E. Acosta-Gio, et al., Benzalkonium chloride: unacceptable to sterilize or disinfect

medical or dental instruments (Nov. 2001),

https://www.researchgate.net/publication/11544195_Benzalkonium_chloride_unacceptable_to_st

erilize_or_disinfect_medical_or_dental_instruments (last visited Aug. 4, 2023).

29

studies of different products and in situations for which the Product was not intended to be used is

unpersuasive.

In sum, Plaintiff has not plausibly alleged that an objectively reasonable consumer would

likely be misled by the label of the Product. Accordingly, her claims under the GBL are subject

to dismissal.

E. Fraud

Plaintiff's third cause of action alleges common law fraud. See Dkt. No. 38 at ¶¶ 73-84.

Defendants argue that this claim must be dismissed based on the economic loss doctrine. See

Dkt. No. 45-1 at 28-29. Plaintiff disagrees, arguing that her claim is not barred by the economic

loss doctrine which does not apply to claims of intentional torts. See Dkt. No. 50 at 34-35.

Federal Rule of Civil Procedure 9(b) provides as follows: "In alleging fraud or mistake, a

party must state with particularity the circumstances constituting fraud or mistake. Malice, intent,

knowledge, and other conditions of a person's mind may be alleged generally." Fed. R. Civ. P.

9(b). To state a claim for common law fraud under New York law, a plaintiff must allege "(1) a

material representation or omission of fact; (2) made with knowledge of its falsity; (3) with an

intent to defraud; and (4) reasonable reliance on the part of the plaintiff, (5) that causes damage to

the plaintiff." Haggerty v. Ciarelli & Dempsey, 374 Fed. Appx. 92, 94 (2d Cir. 2010).

"[C]ommon law fraud claims are subject to the particularity requirements of Rule 9(b)." Filler v.

Hanvit Bank, 156 Fed. Appx. 413, 416 (2d Cir. 2005). "To satisfy the pleading standard for a

misleading statement or omission under Rule 9(b), a complaint must '(1) specify the statements

that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the

statements were made, and (4) explain why the statements were fraudulent.'" Employees' Ret. Sys.

of Gov't of the Virgin Islands v. Blanford, 794 F.3d 297, 305 (2d Cir. 2015) (quotation omitted).

30

The Court need not determine whether the economic loss doctrine is appropriately applied

to claims of fraud under New York law because Plaintiff's claim is subject to dismissal on the

merits. As noted above, to state a common law fraud claim in New York, a plaintiff must allege

that there has been a false misrepresentation of a material fact, as well as reasonable reliance

thereon. For all the reasons previously discussed, Plaintiff has not plausibly alleged that her

reliance on her interpretation of the statement "kills 99.99% of germs" to mean all germs,

regardless of whether they are commonly found on hands, was reasonable. Plaintiff's fraud claim

thus fails for essentially the same reasons as her GBL claims to the extent it is premised on the

statement that the hand sanitizer kills 99.99% of germs and Plaintiff has not identified any other

benefit from the hand sanitizer that she expected to receive and did not. See Catholodi-

Jankowski, 2023 WL 2028926, at *11 (citing cases); see also Daniel v. Mondelez Int'l, Inc., 287

F. Supp. 3d 177, 199 (E.D.N.Y. 2018) ("For essentially the same reasons discussed regarding the

material representation prong for the statutory claims, Plaintiff fails to plead reasonable

reliance"); Bautista v. CytoSport, Inc., 223 F. Supp. 3d 182, 192 (S.D.N.Y. 2016) ("But, for the

same reasons that the § 349 claim fails, the fraud claim fails").

Accordingly, the Court grants Defendants' motion to dismiss as to Plaintiff's common law

fraud claim.

F. Unjust Enrichment and Restitution

In their motion, Defendants contend that Plaintiff's claim for unjust enrichment must be

dismissed because it is duplicative of her other claims. See Dkt. No. 45-1 at 29 (citing cases).

Plaintiff has not responded to this argument. See Dkt. No. 50.

In order to state a claim for unjust enrichment in New York, plaintiff must plausibly allege

that the defendant was (1) enriched; (2) at the expense of plaintiff; (3) under circumstances

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wherein equity and good conscience require the defendant to make restitution. See Beth Israel

Med. Ctr. v. Horizon Blue Cross & Blue Shield of N.J., Inc., 448 F.3d 573, 586 (2d Cir. 2006).

While an unjust enrichment claim may be premised on deceptive conduct, "unjust enrichment is

not a catchall cause of action to be used when others fail [and an] unjust enrichment claim is not

available where it simply duplicates, or replaces, a conventional contract or tort claim." Corsello

v. Verizon N.Y., Inc., 18 N.Y.3d 777, 790 (2012); see also Brady v. Anker Innovations Limited,

No. 18-cv-11396, 2020 WL 158760, *12 (S.D.N.Y. Jan. 13, 2020) (dismissing unjust enrichment

claim as duplicative of the plaintiff's claims of breach of express warranty and violation of N.Y.

GBL § 349 and § 350); Gonzalez v. Costco Wholesale Corporation, No. 16-cv-2590, 2018 WL

4783962, *10-11 (E.D.N.Y. Sept. 29, 2018) (dismissing unjust enrichment claim that is

duplicative of the plaintiff's breach of warranty claims); Greene v. Gerber Products Co., 262 F.

Supp. 3d 38, 77 (E.D.N.Y. 2017) (dismissing unjust enrichment clam that is based on the same

allegations as the plaintiff's claims for violation of N.Y. GBL § 349 and § 350, fraudulent

concealment, and intentional or negligent misrepresentation).

Here, Plaintiff's unjust enrichment claim relies on the same operative facts as her other

claims. Thus, "to the extent these claims ultimately succeed, the unjust enrichment claim would

be duplicative, and to the extent the claims fail, the basis for [plaintiff's] unjust enrichment claim

would necessarily crumble." Brady, 2020 WL 158760, at *12. Accordingly, Plaintiff's unjust

enrichment claim is dismissed. Alternatively, the Court find that Plaintiff has abandoned this

claim by failing to respond to this aspect of Defendants' motion to dismiss.

IV. CONCLUSION

After carefully reviewing the entire record in this matter, the parties' submissions and the

applicable law, and for the reasons set forth above, the Court hereby

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ORDERS that Defendants’ motion to dismiss the amended complaint (Dkt. No. 45) is

GRANTED; and the Court further

ORDERS that the Clerk of the Court shall enter judgment in Defendants’ favor and close

this case; and the Court further

ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision

and Order on the parties in accordance with the Local Rules.

IT ISSO ORDERED.

Dated: August 23, 2023 J} 4 ey Ly Y Zc st

Albany, New York Lak: pees

U.S. District Judge

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