According to reports, on Sept. 6, Kimberly-Clark and affiliates filed a petition for writ of certiorari in Kimberly-Clark, et al. v. Davidson, No. 18-304, following a decision in the Ninth Circuit denying Kimberly-Clark’s motion to dismiss.

Previously, the Ninth Circuit had resolved a circuit split and held that a previously deceived consumer may have standing to seek an injunction against false advertising or labeling if he or she sufficiently alleges intent to repurchase the product in the future. In this case, Plaintiff Jennifer Davidson alleged that Kimberly-Clark’s pre-moistened wipes were misleadingly labeled as “flushable.” Davidson alleged that this “flushable” label was false and misleading and sued K-C for violations of California consumer protection laws. She sought restitution and damages based on the price premium resulting from the label, as well as an injunction requiring the company to discontinue labeling the wipes as “flushable.” K-C moved to dismiss Davidson’s first amended complaint and the district court granted the motion. Davidson appealed.

According to reports, the Ninth Circuit reversed, finding that a previously deceived consumer may have standing to seek an injunction against false advertising or labeling, even though the consumer now knows or suspects that the advertising was false at the time of the original purchase. K-C then petitioned for rehearing on banc. The Ninth Circuit denied the petition and instead amended its opinion, making clear that intent to purchase is a necessary element of injunctive standing.

In K-C’s petition, it asks the Supreme Court to resolve the issue of whether a consumer, who already used a product and determined that a representation concerning that product is allegedly misleading, can plausibly allege a “real and immediate threat” that he or she will be deceived by the same representation in the future so as to establish standing to seek an injunction.

A decision on the petition has not yet been released.