Lowe v. Edgewell Personal Care Company

Background

Lowe and a related putative class action concerned two Edgewell product lines: o.b. Organic tampons and Playtex Gentle Glide tampons. The plaintiffs alleged that the products contained per- and polyfluoroalkyl substances (PFAS), sometimes called “forever chemicals,” making various product representations false or misleading. The claims included alleged violations of multiple state consumer-protection laws, California’s Consumers Legal Remedies Act, California’s Unfair Competition Law, California’s False Advertising Law, and unjust enrichment or quasi-contract theories.

The plaintiffs alleged that independent testing detected organic fluorine in the tampon products. They described organic fluorine as a surrogate or proxy for PFAS. They also relied on patents, listed ingredients, and allegations about the use of hydrophobic materials in tampon design. The complaints alleged that PFAS could improve absorbency, reduce leaks, and prevent wicking.

Motion to dismiss

Edgewell moved to dismiss both complaints in their entirety. Its arguments included that the plaintiffs had not plausibly alleged that the products contained PFAS or harmful PFAS, lacked standing under Article III of the Constitution, failed to satisfy the heightened pleading standard for fraud-based allegations under Rule 9(b), had not alleged misleading representations or a duty to disclose, could not pursue unjust-enrichment claims, faced preemption problems, and lacked standing to assert claims under the laws of states other than California.

The court applied Federal Rule of Civil Procedure 12(b)(6), which permits dismissal when a complaint does not state a legally sufficient claim. At this stage, the court accepts well-pleaded factual allegations as true and asks whether they plausibly support a right to relief.

Court’s reasoning

The court held that the plaintiffs did not plausibly allege that Edgewell’s tampons contained PFAS. The testing allegations were described as cursory because the complaints did not identify the test results’ specific findings or provide other facts supporting the plaintiffs’ interpretation. In particular, the complaints did not state the amount of organic fluorine detected, whether the amount was negligible or significant, whether the fluorine could have come from natural sources, or whether other substances supported the conclusion that PFAS was present.

The court also found that references to patent applications and product labels were insufficient. The plaintiffs had inferred that hydrophobic components or listed ingredients must contain PFAS because PFAS is frequently used to make materials water-repellent. The court characterized that reasoning as speculation rather than factual support sufficient to meet the plausibility requirement.

Because the plaintiffs failed to plausibly allege the presence of PFAS, the court did not reach Edgewell’s other grounds for dismissal.

Disposition

The court GRANTED Edgewell’s motions to dismiss. The court DENIED AS MOOT Edgewell’s requests for judicial notice because it did not consider those materials. The court also DENIED AS MOOT the plaintiffs’ requests for leave to respond to supplemental authority. The opinion does not state that the dismissal was with or without prejudice. The court ordered the parties to meet and confer about managing the related cases and stated that it would set a deadline for a second amended complaint at the case-management conference.