IN RE: S.C. JOHNSON & SON, INC. WINDEX NON-TOXIC LITIGATION

Background

Michelle Moran and Monica Waddell filed consolidated actions against S.C. Johnson & Son, Inc. They alleged that S.C. Johnson used false and misleading labels stating that four Windex products had a “non-toxic formula”: Windex Vinegar Non-Toxic Formula, Windex Original Non-Toxic Formula, Windex Ammonia-Free Non-Toxic Formula, and Windex Multi-Surface Non-Toxic Formula.

The plaintiffs alleged that the products contained ingredients that could cause harm to humans, animals, and the environment, including eye and skin irritation, breathing difficulties, and other injuries. They alleged that S.C. Johnson “greenwashed” the products by representing them as safe and that consumers paid an unwarranted premium for them.

The plaintiffs asserted claims under California’s Unfair Competition Law, False Advertising Law, and Consumer Legal Remedies Act. They also asserted claims for breach of warranty and unjust enrichment. They sought to represent a nationwide class of people who purchased the products and a California subclass of people who purchased them during the specified limitations period.

Motion and legal standard

S.C. Johnson moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which permits dismissal when a complaint does not state a legally sufficient claim. The court had to accept well-pleaded factual allegations as true and determine whether the complaint plausibly showed an entitlement to relief.

Standing for unpurchased products

S.C. Johnson argued that the plaintiffs lacked standing—meaning a legally sufficient personal stake—to challenge products they did not purchase. Moran bought Windex Original Non-Toxic Formula, and Waddell bought Windex Vinegar Non-Toxic Formula. Neither plaintiff allegedly bought the Ammonia-Free or Multi-Surface products.

The court explained that there was no controlling Ninth Circuit authority on standing for products a plaintiff did not purchase. It followed the approach under which a plaintiff may have standing when the purchased and unpurchased products, labels, alleged misrepresentations, and consumer injuries are substantially similar. The court focused on whether the type of claim and consumer injury were substantially similar and whether the claims would be resolved in the same way.

The court found the allegations sufficient. The four products had nearly identical “non-toxic formula” labels, and the plaintiffs alleged that all contained ingredients capable of causing similar types of harm. The court therefore found that the plaintiffs had adequately alleged substantial similarity and denied the motion on this ground.

Standing for injunctive relief

S.C. Johnson also argued that the plaintiffs could not seek injunctive relief because they had not adequately alleged a likelihood of future harm or a definite plan to buy the products again.

The court held that the plaintiffs adequately alleged future injury. They alleged that they desired to purchase the products again if the products were truly non-toxic, but could not rely on the “non-toxic” labels. The court found these allegations closely tracked Ninth Circuit precedent recognizing that a previously deceived consumer may seek an injunction when the consumer cannot confidently rely on a product’s advertising or labeling in the future.

The court rejected S.C. Johnson’s argument that the plaintiffs could avoid future deception by reviewing ingredient lists on the company’s website. It stated that consumers should not have to conduct a detailed website investigation to determine whether a prominent “non-toxic” label is accurate. The court found that the plaintiffs had standing to seek injunctive relief.

Unfair competition, false advertising, and consumer-protection claims

S.C. Johnson argued that the plaintiffs had not pleaded fraud with the particularity required by Rule 9(b), which requires a complaint alleging fraud to identify the basic details of the alleged misconduct, including who made the statement, what was said, when and where it was said, and how it was misleading. S.C. Johnson also argued that the plaintiffs’ interpretation of “non-toxic” was unreasonable and that reasonable consumers would not be deceived.

The court found the Rule 9(b) allegations sufficient as to the product labels. The plaintiffs identified the products they purchased, alleged that the labels falsely claimed a “non-toxic formula,” alleged that they believed the products posed no risk of harm, and alleged that they relied on the labels when deciding to purchase the products. The court noted that the complaint did not identify advertisements apart from the product labels with sufficient particularity, but it understood the claims to be based on the labels themselves.

The court also found the allegations about the products’ alleged toxicity sufficient at the motion-to-dismiss stage. It stated that it was not deciding whether the products were actually toxic. The plaintiffs had alleged that particular ingredients, at the concentrations in the products, could harm humans, animals, or the environment.

Under California’s reasonable-consumer test, the question was whether a significant portion of reasonable consumers could be misled by the “non-toxic” labels. The court found it plausible that consumers could understand “non-toxic” to mean that the products posed no risk of harm to humans, the environment, or household pets. The complaint cited federal guidance, evaluations by the National Advertising Division and National Advertising Review Board, and assessments by the Environmental Working Group that supported the plaintiffs’ interpretation.

The court emphasized that it did not need to decide which interpretation was ultimately more persuasive. At this stage, the plaintiffs’ interpretation was plausible, and the court could not conclude that no reasonable consumer could be misled. It therefore denied the motion as to the Unfair Competition Law, False Advertising Law, and Consumer Legal Remedies Act claims.

Breach of warranty

S.C. Johnson argued that the plaintiffs had not adequately explained why the products were not “non-toxic” or why a reasonable consumer would understand the label to mean that the products posed no risk of harm. The court rejected those arguments for the reasons stated in its discussion of the consumer-protection claims. It held that the plaintiffs had sufficiently alleged that the products were not non-toxic as labeled and that S.C. Johnson breached an express warranty appearing on the products. The court denied the motion as to the warranty claim without deciding whether the allegations were ultimately true.

Unjust enrichment

S.C. Johnson argued that the unjust-enrichment claim should fail because it depended on the other claims. The court explained that California generally does not recognize unjust enrichment as an independent cause of action. Instead, unjust enrichment describes an effect and is often treated as a request for restitution—a remedy seeking repayment of a benefit allegedly obtained unfairly—or as a quasi-contract claim, meaning a contract-like claim imposed to prevent unjust gain when no valid contract governs.

The plaintiffs asked the court to treat their unjust-enrichment claim as a request for restitution. Because the court found that the plaintiffs adequately alleged that the product labels were fraudulent and misleading, it construed the claim as a quasi-contract claim seeking restitution rather than dismissing it.

Judicial notice and disposition

The court granted in part S.C. Johnson’s request for judicial notice as to Merriam-Webster’s definition of “toxic” and the Federal Trade Commission’s Green Guides materials. Judicial notice allows a court to consider certain materials without requiring the parties to prove their authenticity or existence in the usual way. The court stated that the ingredient lists on S.C. Johnson’s website were irrelevant to the standing analysis concerning future deception.

The court denied S.C. Johnson’s motion to dismiss. It also set a case-management conference for August 17, 2021, and required a joint case-management statement by August 10, 2021.