The California Attorney General has joined the fray in Souter v. Edgewell, an otherwise little‑watched putative class action pending in the Ninth Circuit over allegedly misleading label claims about the efficacy and safety of the defendant’s hand wipes.  The Attorney General is urging the Ninth Circuit to make it far more difficult for defendants to defeat misrepresentation claims at the pleading stages.

After the district court granted the defendant’s motion to dismiss with prejudice and the plaintiff appealed, the Attorney General filed an amicus brief urging the Ninth Circuit to reverse the district court’s ruling that the plaintiff failed to plausibly allege that a reasonable consumer would be misled by the challenged representations.  Most of the Attorney General’s amicus brief is dedicated to a sweeping argument that deceptive-advertising claims raise inherently fact‑intensive issues not appropriate for resolution on the pleadings, and moreover, that research suggests real-world consumers behave differently from judges or lawyers in making purchasing decisions.  Thus, the brief argues, courts should rarely grant motions to dismiss such claims under California’s “reasonable consumer” standard before considering evidence of how real‑world consumers interpret the marketing claims at issue.  As to the plaintiff’s claims, the brief contends there was sufficient ambiguity in the challenged representations that the district court should not have “assumed” at the pleading stages how a real-world consumer exercising “situational reasonableness” would understand the labels.

The State’s interpretation of California’s “reasonable consumer” standard, if adopted by the court of appeals, could make it significantly more difficult for class-action defendants to challenge deceptive-advertising claims at the pleading stages.  The outcome of this appeal will be of interest to companies that are at risk of class-action litigation over consumer products.