Third Circuit Rejects Buyer’s Remorse as a Cognizable Injury Under Article III

In In Re: Johnson & Johnson Talcum Powder Products Marketing, Sales Practices and Products Liability Litigation, the United States Court of Appeals for the Third Circuit held that buyer’s remorse, without more, does not constitute an economic injury sufficient to establish standing under Article III of the United States Constitution.

Plaintiff brought a putative class action against defendant Johnson & Johnson, alleging that perineal use of defendant’s baby powder by women could lead to an increased risk of ovarian cancer. Plaintiff did not allege that she had developed or was at an increased risk of developing ovarian cancer. Nor did she allege that the product was defective in performing the functions for which it was advertised. Furthermore, Plaintiff had used all the product and, thus, was not seeking reimbursement for a product she cannot use. Rather, Plaintiff alleged that she would not have bought the baby powder had she known that it could lead to an increased risk of cancer. The District Court of New Jersey dismissed her complaint for lack of Article III standing.

The Third Circuit affirmed. It relied on its analyses in Finkelman v. Nat’l Football League and Cottrell v. Alcon Laboratories to determine that Plaintiff’s allegations were too conjectural to establish standing. It explained that, although a plaintiff need not allege the exact value of her economic injury, the plaintiff must plead sufficient allegations that, if proven, would permit a factfinder to determine that she suffered at least some economic injury. The Third Circuit construed Plaintiff’s complaint under the “benefit of the bargain theory” and held that a plaintiff does not have Article III standing when she fails to allege that a product provided her with an economic benefit worth less than the economic benefit for which she bargained.

Although Judge Fuentes, in his dissent, considered the safety of the product to be a key part of the bargain, the Third Circuit rejected for two reasons the presumption that Plaintiff would pay less for allegedly unsafe powder: (1) Plaintiff did not plead she would pay less for unsafe powder, and, in fact, expressed a desire to continue to purchase the baby powder; and (2) the baby powder that Plaintiff purchased was indeed safe as to her, as Plaintiff did not allege that she developed or is at risk of developing ovarian cancer. The court concluded that Plaintiff had not suffered an economic injury warranting money damages from purchasing a functional product that was consumed as expected and without incident simply because she claimed she would not have purchased the product had she known more about it. Because Plaintiff failed to allege that defendant sold more baby powder than it otherwise would have, or that Plaintiff was likely to suffer future economic injury, the court further concluded Plaintiff did not have standing to seek restitution or injunctive relief.

As the Third Circuit acknowledged, notwithstanding Judge Fuentes’s dissent, its holding should have been obvious. Nevertheless, it should serve as a reminder for consumers that simply regretting a purchase does not provide a basis for a claim.