# Leboeuf v. Edgewell Personal Care Company

> District Court, N.D. New York · August 23, 2023

URL: https://www.frixlaw.com/law-library/cases/10316034

## Case

- **Court:** District Court, N.D. New York
- **Decided:** August 23, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10316034

## How later opinions describe it (automated extraction)

- discussing preemption principles in context of the FDCA
- affirming dismissal for failure to state a claim when an allegation first appeared in opposition to a motion to dismiss

## Opinion text

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

6
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

9
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

12
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
13
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

14
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

15
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10316034. Public record. Not legal advice.