Marshall v. Procter & Gamble Company

Background

The case was a putative class action concerning the label of the Clearblue Menopause Stage Indicator. The product was manufactured by SPD Swiss Precision Diagnostics GmbH and marketed and distributed by The Procter & Gamble Company. Plaintiffs Cassandra Marshall and Raquel Riley alleged that they purchased the product in 2023.

The product uses five urine tests for follicle-stimulating hormone over 10 days and an accompanying mobile application. According to the complaint, the application combines the test results with the user’s age and menstrual-cycle history to calculate a “likely” menopause stage. The label states that a likely stage is provided only when the test sticks are used with the app, and that the app combines the five test results with other factors. A footnote states that only a physician, after evaluating all clinical and laboratory findings, can make a confirmed menopause-stage diagnosis.

The plaintiffs asserted claims under California’s Consumer Legal Remedies Act and Unfair Competition Law on behalf of a proposed California subclass. They also asserted claims under the consumer-protection laws of all 50 states on behalf of a proposed nationwide class.

Motion to Dismiss

The defendants moved under Federal Rule of Civil Procedure 12(b)(6), which allows dismissal when a complaint does not state a legally sufficient claim. They argued that the product label was not false or misleading and that the plaintiffs had not plausibly alleged a theory of damages. P&G separately moved under Rule 12(b)(2) for lack of personal jurisdiction, arguing that it was an Ohio-based corporation. Because the court found the claims legally insufficient, it did not decide the personal-jurisdiction argument.

The court applied California’s “reasonable consumer” standard. Under that standard, a plaintiff must plausibly allege that a significant portion of reasonable consumers would probably be misled, not merely that some consumers might misunderstand a label.

Court’s Analysis

First, the court held that the plaintiffs’ theory improperly focused on only part of the label. The plaintiffs alleged that the product name led consumers to believe that the test sticks alone indicate menopause stage by measuring follicle-stimulating hormone. The court found that the label, read in full, makes clear that the app uses the test results together with age and menstrual-cycle history to calculate a likely stage. Because the plaintiffs did not account for the app and its algorithm, the court concluded that they had not plausibly alleged that a reasonable consumer would be misled.

Second, the court rejected the plaintiffs’ argument that the product’s menopause stages were false or based on irrelevant criteria. The court found that the materials incorporated into the complaint made that theory speculative or contradicted it. One source cited by the plaintiffs stated only that the product’s criteria might be based on a particular study, while another source stated that the product’s stages were consistent with a widely used tool that considers follicle-stimulating hormone levels among other factors.

Third, the court rejected the allegation that follicle-stimulating hormone measurements are useless for indicating menopause transition. Although the plaintiffs alleged that hormone levels fluctuate, the court found that they did not identify a source plausibly showing that the product’s testing protocol and algorithm could not account for that variability. The court also noted that sources cited by the plaintiffs stated that hormone levels may help indicate menopause or perimenopause when considered with other information.

Leave to Amend and Disposition

The court determined that further amendment would be futile. It reasoned that the complaint’s label allegations failed the reasonable-consumer test as a matter of law, that the product warned consumers that it did not provide a confirmed medical diagnosis, and that sources incorporated into the complaint contradicted the plaintiffs’ central assertions. The court also noted that, at the hearing, plaintiffs’ counsel did not provide a meaningful explanation of how the complaint could be amended to avoid those problems.

Judge Araceli Martinez-Olguin granted the defendants’ motion to dismiss for failure to state a claim, denied leave to amend, and dismissed the claims with prejudice. The opinion does not separately state a disposition of P&G’s personal-jurisdiction motion because the court did not reach that argument.