Hernandez v. Zenlen, Inc.

Background

Ashton Hernandez brought the case on behalf of herself and a proposed class of similarly situated consumers. She alleged that Zenlen, Inc., which does business as “Native Cos.,” falsely advertised its whole-body deodorant as “clinically proven 72-hour odor protection.” Hernandez alleged that she saw the advertisements, bought the deodorant at Target for $14, paid more than she would have paid for competing products without that claim, and found that the product did not protect against odor for more than a day.

Hernandez asserted claims under New York General Business Law §§ 349 and 350. Section 349 addresses deceptive acts or practices in business, and Section 350 addresses false advertising. The original complaint alleged that Zenlen had “never” clinically tested the deodorant. After Zenlen provided Hernandez’s counsel with evidence that it had conducted a clinical study, the court allowed Hernandez one opportunity to amend. She filed a first amended complaint, and Zenlen renewed its motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), which permits dismissal when a complaint does not adequately state a legal claim.

Arguments and legal standard

To survive a Rule 12(b)(6) motion, a complaint must allege enough facts to make the claim plausible, assuming the factual allegations are true and drawing reasonable inferences for the plaintiff. Conclusory statements—bare assertions without supporting facts—are not treated as true for this analysis.

The parties did not dispute that Zenlen’s advertising was directed to consumers. The dispute concerned whether Hernandez adequately alleged that the advertising was materially misleading. Under New York law, a plaintiff must allege consumer-oriented conduct, materially misleading conduct, and injury caused by the deceptive conduct. The court noted that it could decide as a matter of law whether an advertisement would mislead a reasonable consumer.

Court’s analysis

The court held that the amended complaint did not adequately plead materially misleading conduct. Although the complaint repeated the allegation that Zenlen had “never” clinically tested the deodorant, it provided no facts supporting that conclusion. The complaint also alleged that Zenlen’s counsel had provided a redacted document purporting to describe a clinical study, while asserting that the document was incomprehensible and methodologically flawed. The court explained that even a flawed test is still a test, making the allegation that no test existed inconsistent with the complaint’s own allegations.

Hernandez’s opposition brief attempted to change the theory of the case. She argued that Zenlen’s study showed only that the deodorant reduced odor compared with using no deodorant, rather than proving 72-hour odor elimination. The court held that Hernandez could not add a new theory through a brief instead of amending the complaint. It also held that the proposed theory would not be plausible even if it had appeared in the complaint, because it would require alleging that a reasonable consumer understands “odor protection” to mean complete odor elimination for three days, rather than any reduction in odor.

The court rejected Hernandez’s argument that Zenlen’s refusal to provide an unredacted study implied that the study did not support the advertising claim. It also distinguished cases involving “clinically proven” claims supported by studies that plaintiffs had plausibly alleged were unreliable or had not tested the product at issue. According to the court, Hernandez’s amended complaint did not allege specific facts showing that Zenlen’s study was unreliable or methodologically deficient; instead, it implausibly alleged that the study did not exist.

Disposition

Judge Denise Cote granted Zenlen’s January 31, 2025 motion to dismiss the amended complaint. Because the court found that Hernandez had not adequately alleged materially misleading conduct, it did not address Zenlen’s separate argument that Hernandez had failed to plead a legally cognizable injury. The Clerk of Court was directed to enter judgment for Zenlen and close the case. The opinion does not expressly state whether the dismissal was with or without prejudice.