Lowe v. Edgewell Personal Care Company, No. 3:2023cv00834 - Document 59 (N.D. Cal. 2024)

Court Description: ORDER GRANTING 37 MOTION TO DISMISS; DENYING AS MOOT 38 REQUEST FOR JUDICIAL NOTICE, DENYING AS MOOT 55 MOTION FOR LEAVE TO FILE RESPONSE TO SUPPLEMENTAL AUTHORITY. Signed by Judge Araceli Martinez-Olguin on January 12, 2024. (amolc1, COURTSTAFF) (Filed on 1/12/2024)

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Lowe v. Edgewell Personal Care Company Doc. 59 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 BRIGETTE LOWE, Plaintiff, 8 9 10 v. EDGEWELL PERSONAL CARE COMPANY, United States District Court Northern District of California 11 Defendant. Case No. 23-cv-00834-AMO ORDER GRANTING MOTIONS TO DISMISS, DENYING AS MOOT REQUESTS FOR JUDICIAL NOTICE; DENYING AS MOOT MOTION FOR LEAVE TO RESPOND TO NOTICE OF SUPPLEMENTAL AUTHORITY Re: Dkt. Nos. 37, 38, 55 12 13 SARAHA MACK, et al., 14 Plaintiffs, 15 16 17 Related Case No. 23-cv-00837-AMO v. EDGEWELL PERSONAL CARE COMPANY, Defendant. Re: Dkt. Nos. 38, 39, 56 18 19 20 These related putative class actions against Edgewell Personal Care Company concern two 21 different tampon product lines: o.b. Organic™ tampons and Playtex Gentle Glide tampons. Lowe 22 Am. Compl. (ECF 34) ¶ 1 n.1; Mack Am. Compl. (ECF 32) ¶ 1. The gravamen of each complaint 23 is that the tampons contain harmful “per and polyfluoroalkyl substances (‘PFAS’),” otherwise 24 known as “forever chemicals,” rendering various representations about the products false and 25 misleading. Lowe Am. Compl. ¶¶ 10, 48, 94-119; Mack Am. Compl. ¶¶ 10, 49, 94-120. In each 26 case, Edgewell filed a motion to dismiss and a request for judicial notice. Lowe Mot. (ECF 37), 27 28 Dockets.Justia.com 1 Lowe RJN (ECF 38); Mack Mot. (ECF 38), Mack RJN (ECF 39).1 The motions are fully briefed 2 and suitable for disposition without argument pursuant to Civil Local Rule 7-1(b). Accordingly, 3 the Court VACATES the hearing currently set for January 18, 2024. Having considered the 4 parties’ papers, the relevant legal authority, and good cause appearing, the Court GRANTS 5 Edgewell’s motions to dismiss, DENIES AS MOOT the accompanying requests for judicial 6 notice, and DENIES AS MOOT Plaintiffs’2 requests for leave to respond to supplemental 7 authority. 8 I. A. 9 Factual background 1. 10 PFAS According to Plaintiffs, forever chemicals are “man-made,” “not naturally occurring,” and 11 United States District Court Northern District of California BACKGROUND 12 “indisputably synthetic chemicals.” Lowe Am. Compl. ¶¶ 44-45; Mack Am. Compl. ¶¶ 46-47. 13 These substances’ hydrophobic properties “make tampons more absorbent by drawing liquid into 14 the products’ absorbent core and preventing wicking and leakage.” Lowe Am. Compl. ¶¶ 46-47; 15 Mack Am. Compl. ¶¶ 47-48. Plaintiffs allege that “all PFAS are harmful” and “can be harmful 16 even at extremely low levels of exposure.” Lowe Am. Compl. ¶¶ 50-51; Mack Am. Compl. ¶¶ 51- 17 52. Plaintiffs further allege that PFAS have been linked to decreased fertility, negative 18 developmental effects in children, increased risk of cancer, liver damage, thyroid disease, adverse 19 impacts on the immune system, interference with hormones, and increased cholesterol levels. 20 Lowe Am. Compl. ¶ 54; Mack Am. Compl. ¶ 55. Plaintiffs assert that “[t]here is no treatment to 21 remove PFAS from the body,” so “experts agree the most effective strategy to decrease risk is to 22 avoid and/or limit exposure to products known to contain PFAS.” Lowe Am. Compl. ¶ 63; Mack 23 Am. Compl. ¶ 64. 24 1 26 Edgewell previously moved to dismiss Plaintiffs’ original complaints. Lowe ECF 25, Mack ECF 26. Plaintiffs filed the operative complaints in lieu of opposing those motions. Lowe ECF 34; Mack ECF 32. 27 2 25 28 “Plaintiffs” as used herein refers to Brigette Lowe, a former California resident and current Tennessee resident, and Sarah Mack and Yajaira Solano, who are both currently California residents. Lowe Am. Compl. ¶ 19; Mack Am. Compl. ¶¶ 19-20. 2 2. 1 Though they allege that “it is impractical, if not impossible for scientists and researchers to 2 United States District Court Northern District of California Plaintiffs’ testing 3 test for the presence” of the 12,000+ PFAS currently in existence by using a “targeted analysis 4 method,” Plaintiffs also allege that their own “independent third-party testing” confirmed the 5 presence of PFAS in the tampons at issue here. Lowe Am. Compl. ¶¶ 10, 68, 70; Mack Am. 6 Compl. ¶¶ 10, 68, 70. Plaintiffs tested for “organic fluorine,” a substance Plaintiffs describe as “a 7 surrogate or proxy for PFAS chemicals, meaning its presence is indicative that a sample contains 8 PFAS.” Lowe Am. Compl. ¶¶ 68-69; Mack Am. Compl. ¶¶ 68-69. Plaintiffs allege that this 9 organic fluorine analysis is “widely accepted by scientists, researchers, and regulators,” and that 10 “the state of California uses [it] to measure PFAS in its regulation of consumer products.” Lowe 11 Am. Compl. ¶ 74; Mack Am. Compl. ¶¶ 71-72. In each case, Plaintiffs’ testing proceeded in two phases. Lowe Am. Compl. ¶ 75; Mack 12 13 Am. Compl. ¶ 73. In March 2022, Plaintiffs first tested “the whole finished [t]ampon [p]roduct.” 14 Lowe Am. Compl. ¶ 75; Mack Am. Compl. ¶ 73. In April 2023, Plaintiffs “then conducted a 15 second round of testing . . . , this time analyzing each individual component of the [t]ampon 16 [p]roducts—the absorbent core, the fabric overwrap, the string, and the applicator (where 17 applicable).” Lowe Am. Compl. ¶ 75; Mack Am. Compl. ¶ 73. Plaintiffs allege that their “testing 18 uniformly showed that the finished [t]ampon [p]roducts contained PFAS.” Lowe Am. Compl. 19 ¶ 76; Mack Am. Compl. ¶ 74. According to Plaintiff Lowe, based on these testing results, patent applications showing the 20 21 use of hydrophobic components in Edgewell’s tampon products, and known industry practices,3 22 “it is reasonable to conclude that the use of PFAS is part of the [t]ampon product’s design in order 23 to improve product performance by increasing absorbency and reducing leaks and surface 24 wetness.” Lowe Am. Compl. ¶ 78. Plaintiffs Mack and Solano make a similar allegation, though 25 26 27 28 Plaintiff Lowe does not specify what these “known industry practices” are. See generally Lowe Am. Compl. 3 3 1 they rely on the products’ “listed ingredients”4 instead of unspecified “known industry practices.” 2 Mack Am. Compl. ¶ 78. 3 B. 4 Plaintiff Lowe commenced this action on February 24, 2023. Lowe Compl. (ECF 1). On 5 the basis of the “reasonable conclusion” described above, Lowe alleges that Edgewell’s claims 6 that its o.b. tampons are “100% Organic Cotton,” “Free from Chlorine,” “Made from 100% 7 certified organic cotton – from tip to string,” “Responsibly sourced. Free from pesticides,” 8 contain “no Fragrances or Dyes,” and include “Only what you need, nothing you don’t” 9 (collectively, the “Organic Representations”) are false and misleading. Lowe Am. Compl. ¶¶ 5-7, 10 United States District Court Northern District of California Procedural background 35-37 (emphasis in original). 11 Plaintiffs Mack and Solano also filed suit on February 24, 2023. Mack Compl. (ECF 1). 12 They too rely on the above-described conclusion in alleging that, as to the Playtex Gentle Glide 13 tampons, the use of “SIMPLY” in the name “Playtex SIMPLY gentle glide,” the representations 14 that the tampons are “SIMPLE. GENTLE. RELIABLE[,]” “free from colors, dyes, and BPA,” 15 and contain “purified fibers,” and the assurance that “Every ingredient used in Simply Gentle 16 Glide is rigorously evaluated to provide reliable protection that you can trust to be gentle and safe 17 for your body” (collectively, the “Safe, Gentle, and Purified representations”) are false and 18 misleading. Mack Am. Compl. ¶¶ 5-6, 37-39. 19 Plaintiffs seek to represent the following three putative classes: 20 • Nationwide Class: “During the fullest period allowed by law, all persons who purchased the [t]ampon [p]roducts in the United States within the applicable statute of limitations for personal use and not resale, until the date notice is disseminated.” • Multi-State Consumer Protection Class: “During the fullest period allowed by law, all persons who purchased the [t]ampon [p]roducts in the States of California, Florida, Illinois, New York, Massachusetts, Michigan, Minnesota, Missouri, New Jersey, Washington within the applicable statute of limitations for personal use and not resale, until the date notice is disseminated.” 21 22 23 24 25 26 27 28 The listed ingredients include “rayon and/or cotton fiber, polyester, polysorbate 20, wax blend (paraffin, butyl sherate, and carnuba wax) and polymer wax dispersion.” Mack Am. Compl. ¶ 39. 4 4 1 2 • California Class: “During the fullest period allowed by law, all persons who purchased the [t]ampon [p]roducts in the State of California within the applicable statute of limitations for personal use and not resale, until the date notice is disseminated.” United States District Court Northern District of California 3 4 Lowe Am. Compl. ¶¶ 152-154 (footnotes omitted); Mack Am. Compl. ¶¶ 161-163 (footnotes 5 omitted). Plaintiffs assert the following claims in each case: (1) violation of consumer protection 6 statutes (under the laws of California, Florida, Illinois, Massachusetts, Michigan, Minnesota, 7 Missouri, New Jersey, New York, and Washington), (2) violation of the California Consumers 8 Legal Remedies Act, Cal. Civ. Code §§ 1750, et seq., (3) violation of California’s Unfair 9 Competition Law, Cal. Bus. & Prof. Code §§ 17200, et seq., (4) violation of the California False 10 Advertising Law, Cal. Bus. & Prof. Code §§ 17500, et seq., and (5) “unjust enrichment/quasi- 11 contract.” Lowe Am. Compl. ¶¶ 164-172, ¶¶ 173-193, ¶¶ 194-204, ¶¶ 205-216, ¶¶ 217-223 & 12 n.66; Mack Am. Compl. ¶¶ 173-181, ¶¶ 182-202, ¶¶ 203-215, ¶¶ 216-227, ¶¶ 228-234 & n.61. 13 On July 7, 2023, Edgewell filed a motion to dismiss in each case, with an accompanying 14 request for judicial notice. Lowe Mot. (ECF 37), Lowe RJN (ECF 38); Mack Mot. (ECF 38), 15 Mack RJN (ECF 39). Edgewell seeks dismissal of each complaint in its entirety because 16 Plaintiffs (1) have not plausibly alleged that the products contain PFAs and have not plausibly 17 alleged that the products contain PFAs that are harmful, and thus fail to state a plausible claim for 18 relief, (2) lack Article III standing, (3) fail to meet Rule 9(b)’s heightened pleading standard, 19 (4) do not allege representations that would mislead reasonable consumers (5) do not allege that 20 Edgewell had a duty to disclose PFAs, (6) cannot plead a claim for unjust enrichment where there 21 is an adequate remedy at law and where it is not actionable as a stand-alone cause of action, 22 (7) assert claims that are expressly or impliedly preempted, and (8) lack standing to assert claims 23 based on laws of states other than California. Lowe Mot. at 9-22; Mack Mot. at 9-21. Plaintiffs 24 filed their oppositions to the motions on August 4, 2023. Lowe Opp. (ECF 46); Mack Opp. (ECF 25 45). They also filed oppositions to Edgewell’s requests for judicial notice. Lowe RJN Opp. (ECF 26 47); Mack RJN Opp. (ECF 46). Edgewell filed replies in support of its motions to dismiss on 27 August 18, 2023. Lowe Reply (ECF 48); Mack Reply (ECF 49). It also filed replies in support of 28 its requests for judicial notice. Lowe RJN Reply (ECF 49); Mack RJN Reply (ECF 50). 5 Following the close of briefing, Edgewell submitted three statements of recent decision in 1 2 each case. Lowe ECF 52, 53, 54; Mack ECF 53, 54, 55. Plaintiffs then moved for leave to 3 respond to Edgewell’s supplemental authority, noticing that motion for hearing on January 25, 4 2024.5 Lowe ECF 55; Mack ECF 56. The Court vacated the hearing and indicated that counsel 5 could address the supplemental authority during the anticipated January 18, 2024 hearing on the 6 motions resolved by this order.6 See Lowe ECF 58; Mack ECF 59. 7 II. Federal Rule of Civil Procedure 8 requires a complaint to include “a short and plain 8 United States District Court Northern District of California 9 LEGAL STANDARD statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A 10 complaint that fails to meet this standard may be dismissed pursuant to Federal Rule of Civil 11 Procedure 12(b)(6). To overcome a Rule 12(b)(6) motion to dismiss, the factual allegations in the plaintiff’s 12 13 complaint “‘must . . . suggest that the claim has at least a plausible chance of success.’” Levitt v. 14 Yelp! Inc., 765 F.3d 1123, 1135 (9th Cir. 2014) (quoting In re Century Aluminum Co. Sec. Litig., 15 729 F.3d 1104, 1107 (9th Cir. 2013) (alterations in original)). In ruling on the motion, courts 16 “accept factual allegations in the complaint as true and construe the pleadings in the light most 17 favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 18 1031 (9th Cir. 2008) (citation omitted). 19 “[A]llegations in a complaint . . . may not simply recite the elements of a cause of action 20 [and] must contain sufficient allegations of underlying facts to give fair notice and to enable the 21 opposing party to defend itself effectively.” Levitt, 765 F.3d at 1135 (quoting Starr v. Baca, 652 22 F.3d 1202, 1216 (9th Cir. 2011)). The court may dismiss a claim “where there is either a lack of a 23 cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal claim.” 24 25 26 27 5 Going forward, such motions should be filed as administrative motions pursuant to Civil L.R. 711. See Michael Taylor Designs, Inc. v. Travelers Prop. Cas. Co. of Am., 761 F. Supp. 2d 904, 909 (N.D. Cal. 2011). 6 28 Having vacated the January 18, 2024 hearing, the Court revisits its prior order and now denies the motion as moot. 6 1 Hinds Invs., L.P. v. Angioli, 654 F.3d 846, 850 (9th Cir. 2011) (citing Johnson v. Riverside 2 Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008)). “[T]he non-conclusory ‘factual 3 content’ and reasonable inferences from that content must be plausibly suggestive of a claim 4 entitling the plaintiff to relief.” Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 5 III. 6 DISCUSSION Dismissal is appropriate here because, as Defendants argue, Plaintiffs do not plausibly 7 allege that Edgewell’s tampon products contain forever chemicals. Plaintiffs’ limited allegations 8 on that issue are as follows: 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Lowe 10. However, despite Edgewell’s consistent and pervasive marketing of the Tampon Products as Organic, Plaintiff’s independent testing has shown that the Tampon Products contain per- and polyfluoroalkyl substances (“PFAS”), a category of human-made chemicals with a toxic, persistent, and bioaccumulative nature which are associated with numerous health concerns. Mack 10. However, despite Edgewell’s consistent and pervasive marketing of the Tampon Products as Safe, Gentle and Purified, Plaintiffs’ independent testing has shown that the Tampon Products contain per- and polyfluoroalkyl substances (“PFAS”), a category of human-made chemicals with a toxic, persistent, and bioaccumulative nature which are associated with numerous health concerns. 68. Plaintiffs sought independent third-party testing to confirm the presence of PFAS chemicals in the Tampon Products. 68. Plaintiff sought independent third-party testing to confirm the presence of PFAS chemicals in the Tampon Products. 69. Plaintiffs [sic] testing utilized total organic fluorine (TOF) analysis, which is an accepted method for detecting PFAS. Organic fluorine is a surrogate or proxy for PFAS chemicals, meaning its presence is indicative that a sample contains PFAS. 70. There are more than 12,000 PFAS chemicals currently in existence. Accordingly, it is impractical, if not impossible, for scientists and researchers to test for the presence of each of these 12,000 chemicals in any particular sample. 69. Plaintiffs[’] testing utilized total organic fluorine (TOF) analysis, which is an accepted method for detecting PFAS. Organic fluorine is a surrogate or proxy for PFAS chemicals, meaning its presence is indicative that a sample contains PFAS. 70. There are more than 12,000 PFAS chemicals currently in existence. Accordingly, it is impractical, if not impossible, for scientists and researchers to use a targeted analysis method to test for the presence of each of these 12,000 chemicals in any particular sample. 71. More importantly, there are only a few dozen PFAS that can be detected using 71. More importantly, there are only a few dozen PFAS that can be detected using 26 27 28 7 1 2 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 validated EPA methods. Recently scientists were able to build off of existing methods to develop an advanced test which can detect 70 PFAS, but even with this significant advancement, targeted testing can still only detect 0.006% of PFAS in existence. validated EPA methods. Recently scientists were able to build off of existing methods to develop an advanced test which can detect 70 PFAS, but even with this significant advancement, targeted testing can still only detect 0.006% of PFAS in existence. The results of targeted analysis would not, and could not, provide a comprehensive measure of the total quantity of PFAS that may be present in a sample since it would only be able to detect a mere fraction of potential PFAS. TOF is the only method that can reliably indicate the presence—or absence— of any PFAS. As a result of the various shortcomings associated with targeted analysis, TOF analysis has emerged as a reliable and efficient way of identifying the presence of PFAS. Accordingly, TOF analysis has been widely accepted by scientists, researchers, and regulators as a reliable indicator that a sample contains PFAS. 72. The results of targeted analysis would not, 72. For example, the state of California uses and could not, provide a comprehensive organic fluorine to measure PFAS in its measure of the total quantity of PFAS that may regulation of consumer products. See, e.g., be present in a sample since it would only be Cal. Health & Safety Code §§ 108945 et seq. able to detect a mere fraction of potential PFAS. TOF is the only method that can reliably indicate the presence—or absence—of any PFAS. 18 19 20 73. As a result of the various shortcomings associated with targeted analysis, TOF analysis has emerged as a reliable and efficient way of identifying the presence of PFAS. 73. Here, Plaintiffs tested two different samples of the Tampon Products. Plaintiffs first tested the whole finished Tampon Product in March 2022. Plaintiffs then conducted a second round of testing in April 2023, this time analyzing each individual component of the Tampon Products— the absorbent core, the fabric overwrap, the string, and the applicator. 74. Plainitffs’ [sic] testing uniformly showed that the finished Tampon Products and each of their individual components contained PFAS. 21 22 23 24 25 26 27 28 74. Accordingly, TOF analysis has been widely accepted by scientists, researchers, and regulators as a reliable indicator that a sample contains PFAS. For example, the state of California uses organic fluorine to measure PFAS in its regulation of consumer products. See, e.g., Cal. Health & Safety Code §§ 108945 et seq. 8 1 2 3 4 5 6 7 8 75. Here, Plaintiff[] tested a total of six different samples of the Tampon Products, including those with and without an applicator. Plaintiff[] first tested four samples of the whole finished Tampon Product in March 2022. Plaintiffs then conducted a second round of testing in April 2023, this time analyzing each individual component of the Tampon Products—the absorbent core, the fabric overwrap, the string, and the applicator (where applicable). 76. Plaintiffs’ [sic] testing uniformly showed that the finished Tampon Products contained PFAS. 75. These results are further supported by Defendant’s patents, which disclose the use of various hydrophobic materials in the Tampon Products. As discussed above, PFAS are frequently used as a treatment or coating on textiles and other materials to make them hydrophobic (i.e., water-repellant). 76. For example, one patent states that the design of its tampon strings are treated with a “hydrophobic wax” coating to reduce string absorbency and wicking. Yet another patent states that the Tampon Products’ “leak shield” is comprised of various layers of hydrophobic materials which divert liquid to the absorbent core of the tampon. 77. PFAS has historically been used as a dispersing agent to impart water repelancy on various surfaces, leading to the reasonable conclusion that the “polymer wax dispersion” listed as an ingredient on the Tampon Products’ packaging is likely comprised of PFAS. 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 77. Patents issued to Johnson & Johnson prior to Edgewell’s acquisition indicate the use of hydrophobic components in the use of its tampons. As discussed herein, PFAS is frequently used as a treatment to make materials hydrophobic, which can improve the function of feminine hygiene products by, among other things, reducing the surface wetness and drawing liquid into the more product’s absorbent core. 78. Accordingly, based on Plaintiffs’ [sic] testing results, patent applications and known industry practices, it is reasonable to conclude that the use of PFAS is a part of the Tampon Products’ design in order to improve product performance by increasing absorbency and reducing leaks and surface wetness. 78. Accordingly, based on Plaintiffs’ testing results, the Tampon Products’ listed ingredients, and Defendants’ patents, it is reasonable to conclude that the use of PFAS is a part of the Tampon Products’ design in order to improve product performance by increasing absorbency, reducing leaks, and preventing wicking. Lowe Compl. ¶¶ 10, 68-78 (footnotes omitted); Mack Compl. ¶¶ 10, 68-78 (footnotes omitted). These allegations are insufficient to state a plausible claim for relief. The testing allegations are cursory, providing no specificity as to the results reached or any other findings that 25 would support Plaintiffs’ interpretation of those results. As such, these allegations are devoid of 26 the factual content necessary to nudge Plaintiffs’ claims, based on the theory that Edgewell’s 27 tampons contain PFAS, from possible to plausible. Similarly, allegations referencing patent 28 9 1 applications or product labels that mention certain tampon components or ingredients are likewise 2 deficient, as Plaintiffs merely speculate that the hydrophobic components mentioned therein must 3 or are likely to contain forever chemicals because those chemicals are “frequently” used to make 4 materials water-repellant. The cases Plaintiffs discuss in opposition to Edgewell’s motions on this point do not United States District Court Northern District of California 5 6 compel a different conclusion. In Warren v. Whole Foods Market California, Inc., the plaintiffs 7 brought false advertising claims because coffee creamer labeled “Vanilla” and “Naturally 8 Flavored” contained artificial flavoring. No. 21-cv-04577-EMC, 2022 WL 2644103, at *1 (N.D. 9 Cal. July 8, 2022). In that case, the plaintiffs alleged that they conducted testing that detected 10 “atypically elevated levels” of guaiacol, which suggested the presence of “chemically synthesized 11 vanillin” that is not derived from the vanilla plant. Id. The plaintiffs included a photocopy of 12 their test results showing ethyl vanillin at a concentration of 2.205 parts per million, a “non- 13 infinitesimal amount” that was “not explained by relation to any other compounds.” Id. at *5, *7. 14 The plaintiffs also alleged that the specific vanillin detected during their testing was an artificial, 15 synthetic ingredient that was not naturally derived. Id. Their allegation that the substance was not 16 naturally derived was based in part, on the related allegation that there was “an absence of 17 expected amounts of key aromatic compounds.” Id. at *7. No such allegations are present here. The complaints are silent as to the amount of organic 18 19 fluorine detected and whether that amount is negligible or significant.7 See Lowe Compl. ¶ 76 20 (“Plaintiffs’ testing uniformly showed that the finished [t]ampon [p]roducts contained PFAS.”); 21 22 The Court notes Plaintiffs’ allegation that “even ‘trace’ levels of PFAS can pose a risk to humans.” Lowe Compl. ¶ 52; Mack Compl. ¶ 53. While PFAS may be harmful in any amount, Plaintiffs must still plausibly allege that forever chemicals are present in Edgewell’s tampon products. Indeed, the cases Plaintiffs discuss in their opposition briefs on this point all allege some level of organic fluorine in the products at issue. See Warren, 2022 WL 2644103, at *1 (plaintiffs alleged PFA levels of 2.205 parts per million, a “non-infinitesimal amount”); Kanan v. Thinx Inc., No. CV 20-10341 JVS, 2021 WL 4464200, at *4 (C.D. Cal. June 23, 2021) (plaintiffs alleged PFAS levels “above trace amounts”); Hamman v. Cava Group, Inc., No. 22-CV-593MMA, 2023 WL 3450654, at *5 (S.D. Cal. Feb. 8, 2023) (plaintiffs alleged heightened levels of organic fluorine). 7 23 24 25 26 27 28 10 United States District Court Northern District of California 1 Mack Compl. ¶ 74 (“Plainitffs’ testing uniformly showed that the finished Tampon Products and 2 each of their individual components contained PFAS.”). The complaints contain no allegations 3 about whether the organic fluroine may be indicative of natural sources or is largely, if not 4 exclusively, linked to forever chemicals. See Lowe Compl. ¶ 69 (alleging only that “[o]rganic 5 fluorine is a surrogate or proxy for PFAS, meaning its presence is indicative that a sample contains 6 PFAS.”); Mack Compl. ¶ 69 (same). Nor do the complaints allege whether the presence or 7 absence of any other substance might bolster Plaintiffs’ interpretation of their testing’s findings. 8 See generally Lowe Compl.; Mack Compl. 9 Unlike these allegations, those in Kanan v. Thinx Inc. included allegations that the 10 defendant’s underwear products contained levels of PFAS that were “above trace amounts.” See 11 2021 WL 4464200, at *4. The plaintiffs in Hamman v. Cava Group, Inc. likewise alleged the 12 presence of “heightened levels of organic fluorine” in the defendant’s grain and salad bowl 13 products. See 2023 WL 3450654, at *5. These cases illustrate that Plaintiffs must allege more to 14 survive the instant motions to dismiss. Because Plaintiffs fail to plausibly allege the presence of 15 PFAS in Edgewell’s tampon products, the Court need not reach the remaining grounds upon 16 which Edgewell seeks dismissal. 17 IV. 18 CONCLUSION For the reasons set forth above, the Court GRANTS Edgewell’s motions to dismiss. 19 Edgewell’s requests for judicial notice are DENIED AS MOOT, as the Court has not considered 20 those materials in reaching its ruling. For the same reason, the Court DENIES AS MOOT 21 Plaintiffs’ motions for leave to file a response to supplemental authority. 22 The Court further orders the parties to meet and confer on how to efficiently litigate these 23 related cases and the overlapping matter of Bounthon v. The Procter & Gamble Company, No. 23- 24 cv-00765-AMO (filed Feb. 21, 2023). The Court is inclined to stay two matters while one 25 continues. Proceeding in this manner will avoid burdening the Court and the parties with parallel 26 litigation involving overlapping issues, while still giving Plaintiffs, who are represented by the 27 same counsel in all three matters, the benefit of rulings in one case that will inform the other two. 28 The Court will address these matters with the parties at the case management conference currently 11 1 set for February 1, 2024. The parties should include their respective positions on this issue in the 2 joint case management statement due by noon on January 25, 2024. The Court will set a deadline 3 for a second amended complaint at the case management conference. 4 5 IT IS SO ORDERED. Dated: January 12, 2024 6 7 ARACELI MARTÍNEZ-OLGUÍN United States District Judge 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12

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