United States District Court, N.D. California
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION TO DISMISS DOCKET NO. 44
M. CHEN UNITED STATES DISTRICT JUDGE
Clorox Company (“Clorox”) brings suit against
Defendant Reckitt Benckiser, LLC (“Reckitt”) for
false advertising under the Lanham Act and California's
Unfair Competition Law and False Advertising Law. Currently
before the Court is Reckitt's motion to dismiss
Clorox's complaint. For the reasons discussed below, the
Court GRANTS in part and
DENIES in part Reckitt's motion.
Factual and Procedural Background
complaint alleges the following. Docket No. 1
(“Compl.”). Clorox produces and sells household
cleaning and disinfecting products under the Clorox brand.
Id. ¶ 2. Reckitt produces and sells household
cleaning, sanitizing, and disinfecting products under the
Lysol brand. Id. Clorox and Lysol are the top two
brands in the United States market for household cleaning
products, as measured by sales revenue. Id. ¶
claims that Reckitt has undertaken multiple false and
deceptive advertising campaigns designed to erode consumer
confidence in Clorox and boost sales of Lysol products.
Id. ¶ 6. The advertisements purport to reveal
deficiencies in Clorox products while claiming the
superiority of Lysol products. Id. ¶ 20. Each
challenged advertisement is described in detail below. Clorox
alleges that its goodwill and business have been injured due
to Reckitt's advertisements because they lead customers
to doubt the efficacy and safety of Clorox products.
Id. ¶ 110. Clorox also claims that the
advertisements have diverted its sales to Reckitt.
Id. ¶ 111.
filed the complaint on March 20, 2019, asserting three causes
of action: (1) false advertising in violation of Section
43(a) of the Lanham Act, 15 U.S.C. § 1125(a); (2)
violation of California's Unfair Competition Law
(“UCL”), Business and Professional Code §
172000, et seq; and (3) violation of
California's False Advertising Law, Business and
Professional Code § 175000, et seq. Reckitt
filed the instant motion to dismiss on May 6, 2019. Docket
No. 44 (“Mot.”).
Advertisements at Issue
complaint identifies six categories of offending Reckitt
“Bleach Indicator Test” Advertisements for
Lysol Daily Cleanser
“Bleach Indicator Test” television advertisement
depicts a side-by-side test of Clorox Clean Up and Lysol
Daily Cleanser. Compl. ¶ 38. One cutting board is first
cleaned with Clorox Clean Up and another cleaned with Lysol
Daily Cleanser, then an apple slice is placed on each cutting
board. Id. The apple slice placed on the board
cleaned with the Clorox product turns brown, while the other
apple slice does not. Id. ¶ 39. Four
individuals labeled as “real people” negatively
react to the browned apple. Id. ¶ 40. One
person says, “I wouldn't even want to touch
this.” Docket No. 56 (“Opp.”) at 4. Another
says, “What do you do with that? Like who's going
to eat that?” Id. Finally, a voice-over
states, “unlike Clorox Clean Up, Lysol Daily Cleanser
has only three simple ingredients and leaves surfaces free
from harsh chemical residue.” Compl. ¶ 41.
has a similar advertisement on YouTube which depicts
“real people” applying a “bleach indicator
test” to food preparation surfaces treated with Clorox
Clean Up and Lysol Daily Cleanser. Id. ¶ 43.
When the Clorox product activates the test and the Lysol
product does not, the “real people” indicate that
they prefer the Lysol product. Id.
“Spray Away” Advertisements for Lysol Daily
Reckitt advertisement disseminated on social media platforms
shows an image of Clorox Clean Up and its list of ingredients
being sprayed and wiped away with Lysol Daily Cleanser.
Compl. ¶ 49. The advertisement then flashes banners
stating: “Lysol Daily Cleanser[;] Only 3 ingredients,
” “Kills 99.9% of germs (when used as directed),
” and “No harsh chemical residue.”
Id. ¶ 50. A Facebook advertisement juxtaposes
the safety warnings of Clorox Clean Up and Lysol Daily
Cleanser and concludes with this same statement. Id.
“Fake It, ” “Game Over, ” and
“Spray Away” Advertisements for Lysol
television advertisement shows a group of children pretending
to have colds to get out of going to school. Compl.
¶¶ 62-63. The mother sprays a counter with Lysol
Disinfectant Spray and an announcer states, “You
can't protect them from an imaginary cold. But with Lysol
you can help protect them from a real one.”
Id. ¶ 64. Then the ad shows a split screen with
the Clorox and Lysol symbols on either side, and
“germs” on both sides of the screen; the germs on
the Lysol side of the screen disappear while those on the
Clorox side remain. Id. ¶¶ 65-66. In place
of the germs, the Lysol screen displays the statement,
“KILLS THE #1 CAUSE OF THE COLD” and an announcer
states, “Lysol Disinfectant Spray kills the number one
cause of the cold and Clorox Wipes don't.”
Id. ¶¶ 66-67. After the commercial had
been running for several months, in response to a protest by
Clorox, Reckitt revised the side-by-side images to clarify in
“minuscule type” that the comparison was between
Clorox Disinfecting Wipes and Lysol Disinfecting
Spray. Id. ¶ 69.
television commercial entitled “Game Over”
portrays a videogame-like scene in which the Lysol
Disinfecting Spray shoots down germs (assumed to be
rhinovirus) while Clorox Disinfecting Wipes do so with less
efficiency, thereby losing the game. Id. ¶ 72.
The screen then flashes “Lysol wins” and a second
screen depicts the Lysol spray and states “Kills the #1
cause of the cold. Clorox wipes don't.”
“Spray Away” online advertisement shows Lysol
Disinfecting Spray and the statement “Lysol Kills the
#1 cause of colds.” Id. ¶ 74. Next, the
Lysol spray sprays a container of Clorox Disinfecting Wipes
off the screen. Id. The screen flashes,
“Clorox wipes don't.” Id.
“Strength Test” Advertisement for Lysol
commercial depicts four people at the gym putting
disinfectant wipes to a “strength test” by using
them to pick up kettlebell weights. Compl. ¶¶
84-85. The Clorox wipe rips immediately while the Lysol wipes
holds the weight for several seconds. Id. ¶ 86.
A disclaimer states, “Dramatization. Based on lab
results. Supervised demonstration. Do not attempt.”
second, nearly identical version of this advertisement
consists of different people at the gym doing the same
strength test and contains the same disclaimer; a voice-over
declares “Lysol for the win, ” and labels the
Lysol wipe the “winner.” Id. ¶ 88.
different Facebook advertisement claims, “Lysol wipes
are stronger than competition” and depicts a Lysol wipe
intact next to a torn “competitive” wipe that
“appears below a version of the famous Clorox chevron,
in which the Clorox brand name has been replaced with the
words ‘vs leading competitor.'” Id.
“No Scrubbing” Advertisements for Lysol Power
Toilet Bowl Cleaner
television commercial shows a woman squirting Lysol Power
Toilet Bowl Cleaner into a toilet and flushing it; the toilet
bowl instantly becomes clean without the use of a brush.
Compl. ¶ 96. She says, “that was surprisingly not
terrible.” Id. It then depicts the results of
a side-by-side efficacy test comparing Lysol Power Toilet
Bowl Cleaner and Clorox Regular Liquid Bleach. Id.
¶ 97. The results show the Lysol surface is clean and
the Clorox surface is dirty. Id.; see also
id., Exh. 6. A small disclaimer states, “Cleaning
Power vs. Clorox Regular Liquid Bleach on limescale and rust
stains. Results after contact with product for 10 minutes,
followed by rinsing.” Id. ¶ 98. A small
banner states, “10X more cleaning power than
Clorox.” Id. ¶ 97.
similar commercial shows the same side-by-side test in which
the Clorox side fails to clear limescale buildup while the
Lysol side cleans it completely. Id. ¶ 99. A
voiceover states, “Clorox Toilet Bowl Cleaner with
Bleach is no match against limescale, ” and a banner
that states, “10X” flashes across the screen.
Id. A “minuscule” disclaimer states that
the results involve Lysol Power Toilet Bowl Cleaner and
Clorox Toilet Bowl Cleaner Clinging Bleach Gel, which is a
distinct product from the “Clorox Toilet Bowl Cleaner
with Bleach” product referenced in the voice-over.
Id. ¶ 100.
the “10X More Cleaning Power than Bleach” claim
also appears on various in-store displays and on product
packaging. Id., Exh. 8; id. ¶ 101.
Clorox also claims Reckitt uses the phrase “10X
Cleaning Power” on its product packaging Id.
advertisement shows actors spraying and immediately wiping
surfaces clean, and an announcer states that Lysol Daily
Cleanser kills “99.9% of germs.” Compl. ¶
online advertisement shows a boy sneezing at a table, then
displays the Lysol Disinfecting Spray with the words,
“kills over 100 illnesses causing germs” and a
disclaimer that “Lysol Disinfecting Spray kills germs
on hard surfaces when used as directed.” Id.
¶ 79. The next screen depicts Lysol Disinfecting Spray
along with Lysol Disinfecting Wipes and the tagline
“What it takes to protect.” Id. ¶
80. A near-identical advertisement shows a different boy
sneezing on a couch. Id. ¶ 81.
8(a)(2) of the Federal Rules of Civil Procedure requires a
complaint to include “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” A complaint that fails to meet this standard
may be dismissed pursuant to Rule 12(b)(6). Fed.R.Civ.P.
12(b)(6). To overcome a Rule 12(b)(6) motion to dismiss, a
plaintiff must plead “enough facts to state a claim to
relief that is plausible on its face.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). “The plausibility standard is not
akin to a probability requirement, but it asks for more than
a sheer possibility that a defendant has acted
unlawfully.” Id. (internal quotation marks
Rule 12(b)(6) motion, the Court “accept[s] factual
allegations in the complaint as true and construe[s] the
pleadings in the light most favorable to the nonmoving
party.” Manzarek v. St. Paul Fire & Marine Ins.
Co., 519 F.3d 1025, 1031 (9th Cir. 2008). The Court need
not, however, “assume the truth of legal conclusions
merely because they are cast in the form of factual
allegations.” Fayer v. Vaughn, 649 F.3d 1061,
1064 (9th Cir. 2011) (per curiam) (internal quotation marks
omitted). Thus, “a Plaintiff's obligation to
provide the ‘grounds' of his ‘entitlement to
relief' requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555 (citing
Papasan v. Allain, 478 U.S. 265, 286 (1986)).
sounding in fraud or mistake are subject to the heightened
pleading requirements of Federal Rule of Civil Procedure
9(b), which requires that a plaintiff alleging fraud
“must state with particularity the circumstances
constituting fraud.” Fed.R.Civ.P. 9(b). To comply with
this heightened pleading standard, the plaintiff must allege
the “who, what, when, where, and how” of the
alleged fraud. Vess v. Ciba-Geigy Corp. USA, 317
F.3d 1097, 1106 (9th Cir. 2003). “The plaintiff must
set forth what is false or misleading about a statement, and
why it is false.” Id.
the Ninth Circuit has not definitively spoken as to whether
Rule 9(b) applies to Lanham Act claims, “the better
reasoned [district court] authority is that, where a Lanham
Act claim is predicated on the theory that the defendant
engaged in a knowing and intentional misrepresentation, then
Rule 9(b) is applicable.” 23andMe, Inc. v.
Ancestry.com DNA, LLC, 356 F.Supp.3d 889, 908 (N.D. Cal.
2018). The false advertisement allegations in Clorox's
complaint imply that Reckitt knowingly or intentionally
deceived consumers. See, e.g., Compl. ¶ 45
(“Reckitt appears to have deliberately designed its
test to not detect the ...