Reckitt Benckiser sells Lysol brand Laundry Sanitizer. The label on the front of the packaging says, "Kills 99.9% of bacteria." Does this claim communicate to consumers that the product kills bacteria better than just washing your clothes regularly? That was the issue in a recent case in federal court in New York.

A plaintiff sued under New York law, alleging that the "Kills 99.9% of bacteria" claim is misleading because the product doesn't provide any meaningful benefit beyond the standard laundering process. First, the plaintiff pointed to the fact that, according to the CDC, there's virtually no risk to transmitting disease through clothing. The plaintiff also argued that consumers can achieve the same bacteria-killing effect by just washing their clothes in hot water and then putting them through a drying cycle. (Apparently, washing in cold water, even when using Lysol Laundry Sanitizer, doesn't kill all bacteria.)

New York, like many states, applies the "reasonable consumer" test in order to determine whether advertising is misleading. In other words, is the claim "likely to mislead a reasonable consumer acting reasonably under the circumstances."

Reckitt moved to dismiss the action, and the court granted the motion. The court simply didn't think that the plaintiff alleged a plausible claim that the product's label is misleading. The court explained, "Plaintiff's argument relies on an assumption that a label stating that the Product kills 99.9% of bacteria must mean that the Product provides a meaningful benefit as compared to standard laundering. But the Product's labels make no such comparison between the Product's efficacy in killing bacteria and that of the standard laundering process."

Vaglica v. Reckitt Benckiser, 22-CV-05730 (E.D.N.Y. October 19, 2023).

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