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., 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.”

Ultimately the court said that it did not need to “reconcile any tension that may exist in the cases” because it determined that the challenged products at issue were “sufficiently similar under any test…the different flavors of Defendant’s nutrition bars are more or less fungible when viewed from the perspective of a consumer considering buying one or the other; any preference for one flavor versus another could rest only on personal idiosyncrasies of taste, diet, or allergy.”

Courts finding products dissimilar have done so when the products are inherently different from one another, have different target customers, and have substantial labeling differences.

However, there are no hard and fast rules. For example, in Koh v. S.C. Johnson & Son, Inc., the plaintiff purchased Windex brand glass cleaner that bore a “Greenlist” label suggesting the product was environmentally-friendly. The plaintiff also sought to challenge the defendant’s use of the identical label on Shout brand stain remover that he had not purchased. Despite the difference in products (glass cleaner versus stain remover), because the labels were identical, the court denied defendant’s motion to dismiss for lack of standing and deferred ruling on the standing question until class certification.

Despite the Colucci court’s analysis and justification of prior decisions, the lower courts seem all over the place when it comes to this issue. Whether or not a court allows plaintiffs to proceed on unpurchased products appears to be a coin flip at this juncture. Until the Ninth Circuit resolves this issue, lawyers defending against these cases should be ready to stress the differences between the purchased and unpurchased products.