It's not bedtime yet for J&J in false advertising lawsuit over baby products

Johnson & Johnson ($JNJ) could lose some shut-eye after the latest decision in a marketing suit over the company's Bedtime Products for babies. A federal judge tossed out the company's request to dismiss the case, which says J&J intentionally misled consumers by falsely advertising that the products could help infants sleep better.

Judge Elaine Bucklo in the U.S. District Court for the Northern District of Illinois said the company's arguments did not justify throwing out the case. Plaintiff Stephanie Leiner had accused J&J of deceptive marketing, saying that she and others bought the company's Bedtime Products, including its Bedtime Bath and Bedtime Lotion, at a premium price after seeing ads that the products were "clinically proven" to help babies sleep better.

Leiner, an Illinois resident, used the products in 2014 as part of J&J's recommended three-step nightly routine for babies, but found that they did not help her infant sleep more. J&J did not run enough clinical testing on the products, Leiner's lawsuit argued, even though its ads made claims about the products' effectiveness.

J&J struck back, saying that Leiner "lacks standing" to stop the company from selling the products because she's unlikely to buy them again. Plus, J&J's Bedtime Products are "clinically proven," the company argued in its motion to dismiss. And Leiner did not give many specifics about which products failed to help her baby, the company said, which could potentially undermine her claims.

But Bucklo did not see things in quite the same light. The judge found that Leiner still has grounds for a case, even though she stopped using the products once she determined that they didn't work. And J&J tested the products as part of a "routine," making its claims that they were clinically effective misleading or deceptive, Bucklo said.

Bucklo also said that Leiner ponied up enough details about the products in question, contrary to J&J's claims. Leiner supplied product labels, showed where and when she saw them, and gave details about the premium pricing, the judge said in her opinion.

Leiner could become the lead plaintiff in a class action lawsuit against the company over false marketing claims for the Bedtime Products. But Bucklo wants to sleep on that decision, saying that there needs to be more information and proceedings before making a final call.

- read the judge's opinion (PDF)
- here's J&J's motion to dismiss (PDF)

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