United Industries Can’t Escape Spectracide False Ad Class Action Lawsuit

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Last week, a California federal judge denied a bid by herbicide maker United Industries Corp. to dismiss a false advertising class action lawsuit after finding it possible that reasonable consumers would be misled by the labeling on its Spectracide herbicide product.

Plaintiff Gregory Arthur filed the United Industries class action lawsuit on Sept. 21, 2017. He accused the company of falsely advertising its Spectracide Weed and Grass Killer Concentrate by including a label indicating each bottle could be diluted to make a specified number of gallons of herbicide. He says the fine print notes that those dilution levels only apply to “newly emerged weeds.”

According to the Spectracide class action lawsuit, a pamphlet taped to the back of the herbicide bottle says: “To kill newly emerged weeds: 3 fl oz (6 Tbsp) per gallon of water treats 300 sq ft. For general weed control: 5 fl oz (10 Tbsp) per gallon of water treats 300 sq ft. For best results: 7 fl oz (14 Tbsp) per gallon of water treats 300 sq ft.”

“Reasonable consumers like plaintiff would expect that the advertised ‘makes up to’ amount would be for the product’s intended purpose, which is ‘general weed control,’” the Spectracide class action lawsuit alleges.

Last Friday, U.S. District Judge Christina Snyder found that the question of whether the herbicide’s labels indicating the product “makes up to” a certain number of gallons is misleading or deceptive involves a finding of fact that cannot be determined in a motion to dismiss.

The judge wrote that “the court cannot conclude as a matter of law that a reasonable consumer would not be misled by the concentrate label’s ‘makes up to’ language.” She notes that the labels, which include three mixing options for “best results,” “general weed control” and “ newly emerged weeds,” and found that these options could cause confusion because consumers either need to calculate the ready-to-use quantities of all of the mixing options or estimate which option will make up the “makes up to” amount indicated on the front of the label.

“Moreover, the Court observes that the rear label of the 32-fluid ounce Concentrate bottle allegedly advertises that it ‘makes up to 20 gallons,’ while its front label allegedly states that it ‘makes up to 10 gallons,’” Judge Snyder wrote in her order. “This contradiction further supports the appropriateness of denying the instant motion to dismiss, as a reasonable consumer could be misled or confused by this contradiction.”

Although Judge Snyder rejected United Industries Corp.’s motion to dismiss Arthur’s claims for violations of California’s False Advertising Law, the Consumer Legal Remedies Act and Unfair Competition Law, she did grant the herbicide maker’s bid to dismiss his claim for injunctive relief. However, she will allow Arthur to file an amended false advertising class action lawsuit by April 16.

Arthur is represented by Ronald Marron and Michael Houchin of Law Offices of Ronald A. Marron APLC and David Elliot of The Elliot Firm.

The Spectracide False Advertising Class Action Lawsuit is Arthur v. United Industries Corporation, Case No. 2:17-cv-06983, in the U.S. District Court for the Central District of California.

UPDATE: November 2019, the Spectracide concentrate herbicide class action settlement is now open. Click here to file a claim.

UPDATE 2: On March 27, 2020, Top Class Actions viewers started receiving payments worth $27.44 from the Spectracide Concentrate class action settlement. Congratulations to everyone who filed a claim and got PAID.