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United States District Court for the Central District of California
June 23, 2021, Decided; June 23, 2021, Filed
CV 20-10341 JVS (JRPx)
CIVIL MINUTES - GENERAL
Proceedings: [IN CHAMBERS] Order Regarding Motion to Dismiss
Defendant Thinx Inc. ("Thinx") filed a motion to dismiss and strike portions of the First Amended Complaint ("FAC") filed by Plaintiffs Destini Kanan ("Kanan") and Haley Burgess ("Burgess") (together, "Plaintiffs"). Mot., Dkt. No. 38. Plaintiffs filed an opposition.1 Opp'n., Dkt. No. 40. Thinx filed a reply. Reply, Dkt. No. 41.
For the following reasons, the Court GRANTS in part and DENIES in part the motion to dismiss, DENIES the motion to strike, and GRANTS the request for judicial notice. To the extent that the Court grants the motion to dismiss, the Court grants Plaintiffs leave to amend.
The following facts are alleged in Plaintiffs' FAC. DAC, Dkt. No. 29.
Thinx is a leader in the alternative menstrual product market. Id.¶ 22. Thinx makes washable, reusable underwear designed to replace pads and tampons, or to be worn with tampons and menstrual cups for extra protection. Id. ¶ 23. Every advertisement, marketing campaign, instructional video, and public [*2] statement produced and distributed in relation to Thinx's products encourages customers to use Thinx Underwear the same way as traditional menstrual products and/or underwear. Id. ¶ 24.
Thinx has been widely praised for its innovative approach to women's healthcare, and from its inception it has used a candid, personal approach to connect with its customers by openly discussing menstruation and its surrounding taboos in its advertising and marketing materials. Id. ¶ 25. Because Thinx is aware of growing concerns surrounding traditional single-use menstrual products, especially among younger women, it has always positioned its Thinx Underwear as a safe, effective, and sustainable alternative from an honest and trustworthy brand. Id. ¶ 27. Thinx's website claims that Thinx products are free of harmful chemicals, toxic metals and nanoparticles, use only organic cotton, and undergo rigorous third party testing. Id. ¶¶ 27-30.
Plaintiffs sought independent third-party testing using industry standard methods to determine whether Thinx Underwear contain harmful chemicals. Id. ¶¶ 31-32. This third-party testing "found short-chain PFAS chemicals within Thinx Underwear at material and above trace [*3] amounts." Id. ¶ 33. Polyfluoroalkyl substances ("PFAS") are a category of man-made chemicals often used to enhance the performance of textiles and apparel, typically by making them water repellant and/or stain resistant. Id. ¶¶ 35-36. PFAS are categorized as either "long-chain" or "short-chain" based on the number of carbon atoms they contain; long-chain PFAS contain more than 8 carbon atoms, while any PFAS with fewer than 8 carbon atoms are short-chain. Id. ¶ 33. All PFAS contain carbon-fluorine bonds—one of the strongest in nature—making them highly persistent in the environment and in human bodies. Id. Long-chain PFAS have been phased out of use in the US and Europe due to their known toxicity to humans and the environment. Id. ¶ 39. Long-chain PFAS are "bioaccumulative," meaning they build up in the body over time, and they have been associated with a variety of negative health effects for humans, including cancer. Id. Short-chain PFAS are currently used in the apparel industry as a replacement for the eliminated long-chain PFAS, but there are no long-term studies to indicate whether short-chain PFAS are safer for consumers; in fact, there are studies to suggest that they pose [*4] similar health risks to long-chain PFAS, including bioaccumulation. Id. ¶ 40.
Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.
2021 U.S. Dist. LEXIS 191225 *; 2021 WL 4464200
Destini Kanan and Haley Burgess v. Thinx Inc.
Subsequent History: Later proceeding at Kanan v. Thinx Inc., 2021 U.S. Dist. LEXIS 136339 (C.D. Cal., July 21, 2021)
Dismissed by, Without prejudice Allahverdi v. Thinx, Inc., 2022 U.S. Dist. LEXIS 141080 (C.D. Cal., Aug. 8, 2022)
Underwear, PFAS, products, allegations, organic, menstrual, chemicals, advertising, cotton, short-chain, argues, motion to dismiss, long-chain, testing, warranty, website, warn, express warranty, particular purpose, implied warranty, representations, consumers, silver, seller, judicial notice, merchantability, nanoparticles, marketing, grounds, negligent failure