Norton Rose Fulbright: Purchase One Product, Sue For Them All?

By Julie Glazer

An emerging trend in consumer product class actions is for a class representative to bring claims for entire lines of products, despite only purchasing one of the products.

Although traditional principles of standing seem to dictate the death of this argument, more and more courts allow standing for unpurchased products that are “substantially similar” to purchased products. Note: standing is defined as when a plaintiff must have personally suffered an injury in order to bring a suit. At present, there exists a distinct split between those courts that require purchase to confer standing, and those that do not.

This issue comes up frequently in California, a hotbed for consumer class actions. The courts which have taken the position that a plaintiff has not suffered an injury for unpurchased products, and therefore does not have Article III standing as to those products, have largely followed the same reasoning: as a matter of law, a plaintiff cannot suffer an injury in fact for products that he or she did not purchase.

For example, in Contreras v. Johnson & Johnson Consumer Co (C.D. Cal.), the plaintiff brought one of four sunscreens, yet brought suit on all of them. The court found there was no standing for the unpurchased products because there was no injury with respect to the unpurchased products. The Northern District of CA came to the same conclusion in Larsen v. Trader Joe’s Co.

Those courts taking the contrary position and assessing whether the products are “substantially similar,” compare purchased products to unpurchased products. This comparison includes looking at various features of the products, including, type of food or item, packaging, labeling, shape, and size. Based on these factors, if the court finds the products sufficiently similar, standing will be conferred.

In Colucci v. ZonePerfect Nutrition Co. [enhanced opinion available to lexis subscribers], the court held that plaintiff who purchased only one flavor of ZonePerfect bars had standing to challenge the labeling on 19 other varieties because the challenged products were all of a single kind, shared a uniform size and shape and, “[o]n casual inspection, the only obvious difference between the bars is their flavor.”  The Colucci court, however, acknowledged the split in authority, and in a footnote stated that “[i]t is difficult to identify with certainty how much similarity is required.”

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