Assume the following: plaintiff brings a putative class action under state consumer protection laws alleging that he bought a product based on false claims on its packaging. He seeks monetary and injunctive relief. However, plaintiff vows never to buy the product displaying the allegedly false advertising again or cannot purchase the product so-labeled because the advertiser has discontinued the claims. Does a plaintiff have standing to seek an injunction even though those products do not threaten future harm to him or her? Two recent decisions suggest potentially differing approaches to this question in the federal courts.

In one case against The Proctor & Gamble Company (“P&G”) in the Eastern District of New York, plaintiff alleges that he purchased Charmin Freshmates flushable wipes because they claimed to be “flushable” and “septic safe.”

Contrary to these claims, plaintiff alleges that the flushable wipes clogged his sewage pipes necessitating over $500 in plumbing repairs. Accordingly, he brought suit under New York’s Deceptive Acts and Practices law (N.Y. GBS Law §349) seeking to enjoin P&G from representing Charmin Freshmates as “flushable.” P&G moved to dismiss his claims for injunctive relief, arguing that because plaintiff was unlikely to purchase this product again, an injunction against making the “flushable” claim could not redress the injury plaintiff suffered.

Sidestepping the issue of whether the plaintiff’s injury could be redressed with an injunction, the Court reasoned, based on the breadth of New York’s deceptive practices act, that plaintiff had standing to seek an injunction against P&G. The Court explained that an “injunction in connection with a class action is designed to afford protection of future consumers from the same fraud. It does this by permitting the plaintiff to sue on their behalf” even if that plaintiff will not buy the product at issue again.

By contrast, a court in the Southern District of Florida gave short shrift to plaintiff’s claim under that state’s Deceptive and Unfair Trade Practices Act for injunctive relief against Neutrogena arising from advertising for its sunscreen products. The case concerned three allegedly misleading claims Neutrogena used on its sunscreen, namely that: (1) Neutrogena Body Mist “provided ‘water resistant’ SPF 30 level protection for a full 80 minutes after application”; (2) Neutrogena Beach Defense “was waterproof and provided ‘sun barrier’ protection from the sun’s harmful UV radiation”; and (3) Neutrogena Beach Defense, a high SPF sunscreen, provided “superior sun protection.”

Neutrogena argued that the plaintiff lacked standing to seek an injunction because there was no threat of future harm either to the plaintiff or subsequent consumers. The Florida court noted that the statute might confer standing on a plaintiff to seek injunctive relief even if that plaintiff had no intention of buying the product in future. Unlike the facts before the court in New York, however, Neutrogena discontinued at least one of the claims at issue, which removed the possibility of “any threat of future harm from those products.” The Court denied standing for this reason.

As for the other claims based on the disputed advertising, the Court reasoned that the plaintiff failed to allege that he individually would suffer future injury as required for standing to pursue an injunction under Article III of the United States Constitution because he failed to allege that he had personally purchased or used those products. Accordingly, the Sunshine State Court dismissed plaintiff’s remaining claims for injunctive relief.

While the New York court may have come to the same conclusion if P&G had discontinued its allegedly false claims, tension remains between these courts as to standing requirements to sue for false advertising injunctions. These divergent results underscore that moving to dismiss claims for injunctive relief for lack of standing on grounds that the plaintiff will not or will not be able to purchase challenged products in the future can be an effective strategy, but it depends on the court.


Want to talk advertising? We welcome your questions, ideas, and thoughts on our posts. Email or call us at /212-969-3240 or /212-969-3671. We are editors of Proskauer on Advertising Law and partners in Proskauer’s False Advertising & Trademark practice.