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Law360 (January 22, 2021, 5:32 PM EST ) A California federal judge has handed The Clorox Co. a win in a suit alleging it misleads consumers into thinking its Splash-Less bleach can disinfect surfaces, finding that there's nothing on the label indicating the product is capable of doing so.
In an order filed Thursday, U.S. District Judge Phyllis J. Hamilton dismissed Shana Gudgel's complaint, saying despite her arguments that Clorox Splash-Less Bleach is advertised as having the same capabilities as the regular bleach brand, the company hasn't made any affirmative representations backing up her claims.
In her complaint, Gudgel pointed to a number of label and marketing aspects she said were designed to imply that the Splash-Less bleach could disinfect — or hide that it couldn't — but the judge wrote that even with these elements taken together, a reasonable consumer wouldn't be fooled.
Gudgel sued in August, alleging that by omitting the quantity of its active ingredients on the label, Clorox conceals the Splash-Less bleach's inability to actually disinfect surfaces. According to the complaint, Clorox added ingredients to create higher viscosity, which alters the concentration of sodium hypochlorite from between 5% and 6.5% to between 1% and 5%.
According to the suit, the lower concentration of sodium hypochlorite is not enough to sanitize and disinfect, as it needs a concentration above 5% to be effective against bacteria, fungi and viruses. There is little difference between the packaging for regular Clorox bleach and its Splash-Less variety, Gudgel wrote, leading to consumers buying the wrong one and unable to properly disinfect.
In her complaint, Gudgel pointed to claims on the Splash-Less label that it is "concentrated" or "regular" and that it has "10x Deep Cleaning Benefits," plus Clorox's marketing the product as "the same Clorox product you love." She also referenced the disclaimer saying it can't disinfect is small and hidden in the back.
In Thursday's order, however, Judge Hamilton said the terms "regular" and "concentrated" and claims about its "deep cleaning" don't imply it can disinfect, agreeing with Clorox that the "concentrated" tag just means the product needs to be diluted before it's used.
The label therefore has no actual misrepresentation leading customers to believe it can disinfect, the judge wrote, saying there's nothing contradictory for the disclaimer to cure, so its small print and placement on the back don't make the label deceptive.
The judge also wrote the claim "the same Clorox product you love" doesn't appear on the label, and Gudgel doesn't point to where she actually saw the phrase.
Nor does the label's omission of the sodium hypochlorite percentage lead to deception, Judge Hamilton wrote, saying Gudgel hasn't adequately explained how a reasonable consumer would be deceived given the disclaimer saying the product is not for sanitation or disinfection.
Gudgel also alleged that Clorox didn't disclose to buyers that the product doesn't comply with Centers for Disease Control and Prevention guidelines for disinfecting, but the judge found that the product never claims to comply with those guidelines in the first place or that it can disinfect.
The judge gave Gudgel leave to amend the complaint, however, but said she is "skeptical" as Gudgel hasn't said there are additional facts she would add to an amended complaint, and any amended complaint would most likely involve the same labeling representations as the original.
"We're certainly pleased with the outcome," a Clorox spokesperson told Law360 on Friday. "We take seriously our role in educating consumers about which products to use and how to use them properly."
Representatives for Gudgel could not immediately be reached for comment Friday.
Gudgel is represented by Daniel Levinson and Justin Stockton of Levinson Stockton LLP, William Wright of The Wright Law Office LLP and Daniel Faherty of Telfer Faherty & Anderson PL.
Clorox is represented by Emily Johnson Henn, Kathryn E. Cahoy and Ashley M. Simonsen of Covington & Burling LLP.
The case is Gudgel v. The Clorox Co., case number 4:20-cv-05712, in the U.S. District Court for the Northern District of California.
--Editing by Ellen Johnson.
For a reprint of this article, please contact reprints@law360.com.
