What’s at Stake
Whether consumers can sue P&G for misrepresenting Tampax “Pure Cotton” tampons as “pure” and “100% organic cotton” when plaintiffs allege they tested the tampons, and the tampons contain “organic fluorine”—a chemical compound that, despite its name, is almost exclusively man-made and commonly found in products like pesticides and per- and polyfluoroalkyl substances (PFAS), a class of industrial chemicals often referred to as forever chemicals.
Summary
Brittany Bounthon, Vivianna Rivera, and Gina Allen regularly bought Tampax Pure Cotton tampons because they wanted an alternative for managing their menstrual flow that limited their exposure to chemicals or contaminants, as traditional tampons can be chock full of potentially concerning ingredients. Rather than take the risk of exposure, the plaintiffs and other consumers relied on P&G’s false and misleading representations and paid more for tampons they reasonably thought were “pure” and “organic.”
They filed a class action against P&G in the Northern District of California, alleging that reasonable consumers like them believe that products labeled “pure” and “100% organic cotton” are chemical- or contaminant-free; that P&G misrepresents Tampax Pure Cotton tampons with “100% organic cotton” because they contain an undisclosed man-made chemical compound; and P&G is able to charge more for these tampons because consumers reasonably believe they are a premium alternative to traditional products that limits their exposure to chemicals or contaminants.
Even though plaintiffs included test results in their complaint showing that organic fluorine was found in the tampons and alleged that organic fluorine is almost always artificial, the district court granted P&G’s motion to dismiss, holding that plaintiffs failed to plausibly allege their misrepresentation claims. The plaintiffs appealed to the Ninth Circuit.
Core Legal Questions
The core issue on appeal is whether plaintiffs must prove their interpretation of the science—and disprove the defendants—at the pleading stage. If permitted to stand, the district court’s decision would raise pleading standards beyond was the law requires and force the plaintiffs to prove their claims before getting to factual or expert discovery.