MEZA v. Coty, Inc.

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7 UNITED STATES DISTRICT COURT

8 NORTHERN DISTRICT OF CALIFORNIA

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10 ANTOINETTE MEZA,

Case No. 22-cv-05291-NC

11 Plaintiff,

ORDER GRANTING IN PART AND

12 v. DENYING IN PART DEFENDANT’S

MOTION TO DISMISS

13 COTY, INC.,

Re: ECF 15

14 Defendant.

15

16 Before the Court is Defendant Coty, Inc.’s motion to dismiss Plaintiff Antoinette

17 Meza’s putative class action complaint. Defendant proffers a full spectrum of defenses

18 against Plaintiff’s claims that its sunscreen labels mislead consumers into believing the

19 products provide 24-hour protection against the harmful effects of the sun. While the

20 pleadings display several deficiencies, the crux of Plaintiff’s claims are sound.

21 Accordingly, the Court GRANTS Defendant’s motion to dismiss in part, and DENIES in

22 part.

23 I. BACKGROUND

24 Sunlight travels to Earth as a mixture of both visible and invisible rays, including

25 ultraviolet (“UV”) UVA and UVB rays. ECF 1 (“Compl.”) ¶ 24. Unprotected exposure to

26 these UV rays can lead to a litany of damaging health effects, ranging from premature

27 aging to skin cancer. Id. ¶ 26. Sunscreen was developed to combat the harmful effects of

1 referencing the product’s Sun Protection Factor (“SPF”). Id. ¶ 3. In general, the higher the

2 SPF, the greater the level of protection afforded the consumer. In recent years,

3 manufacturers have combined the protective qualities of sunscreen with cosmetics to

4 create hybrid products. These are not only appealing to consumers looking to reduce the

5 number of products in their cabinet, but also present an opportunity for manufacturers to

6 access a lucrative market. Id. ¶¶ 16-18.

7 However, sunscreen is a heavily regulated product with respect to its physical

8 properties, as well as how it can be marketed. This raises the issue of which regulatory

9 scheme governs combination sunscreen/cosmetic products. “A product that . . . represents

10 or suggests that it is intended to prevent, cure, treat, or mitigate disease or to affect a

11 structure or function of the body comes within the definition of a drug in section 201(g)(1)

12 of the [Food, Drug, and Cosmetics Act].” 21 C.F.R. § 700.35(a). The active ingredients of

13 sunscreen “affect the structure or function of the body by absorbing, reflecting, or

14 scattering the harmful, burning rays of the sun.” Id. One such active ingredient is

15 octinoxate. 21 C.F.R. § 352.10(j). Moreover, the use of sun protection terminology on a

16 product’s label “generally causes the product to be subject to regulation as a drug.” 21

17 C.F.R. § 700.35(a). Therefore, the products involved in this action are subject to

18 regulation as drugs.

19 Plaintiff alleges she purchased Defendant’s CoverGirl Extreme 3-in-1 Foundation

20 (“CoverGirl Product”) several times between 2018-2022. Compl. ¶ 55. Plaintiff includes

21 additional products – the Rimmel Lasting Finish 25HR Foundation (“Rimmel Product”).

22 Id. ¶ 20 n.2.1 The Court collectively refers to these goods as the “Products.” The salient

23 feature of the Products in this case are the durational claims. The CoverGirl Product

24 includes a “24 HR” claim on its front label, whereas the Rimmel Product has a “25 HR”

25 claim (collectively referenced as “24/25 HR claims”). In addition, the labels also contain

26 claims to the SPF level of the Products. As the photographs depict, the durational claims

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15 Plaintiff does not contest the accuracy of the Products’ SPF levels. Instead,

16 || Plaintiff asserts the Products’ labels are misleading because the average consumer will

5 17 || interpret the claims to mean the Product will provide coverage for 24 or 25 hours without

18 || the need to reapply. Id. § 22. Plaintiff allegedly purchased the CoverGirl Product under

19 || the belief that it “would provide her with 24 hours of coverage and SPF 18 sun protection.”

20 || Id. 456. She further alleges that she would not have purchased or would have paid less for

21 || the CoverGirl Product had the product been properly labeled. Id. 459.

22 The Products’ durational capability, however, is refuted by the Products’ drug facts

23 || labels, which state “reapply at least every 2 hours.” Jd. § 38. This directive is “buried

24 || underneath a sticker on the back panel of the Product[s].” The photographs below depict

25 || the drug facts label before and after the pull-back sticker has been removed.

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A 16 Plaintiff alleges five causes of action: (1) violation of California's Unfair

5 17 || Competition Law (“UCL”), Business and Professions Code sections 17200, et seq.; (2)

18 || violation of California's False Advertising Law (“FAL”), Business and Professions Code

19 |} sections 17500, et seq.; (3) violation of California's Consumers Legal Remedies Act

20 || (‘CLRA”), Civil Code sections 1750, et seq.; (4) fraud; and (5) unjust enrichment.

21 || Defendant moves to dismiss Plaintiff's complaint in its entirety. ECF 15 (“Mot.”). All

22 || parties have consented to magistrate judge jurisdiction under 28 U.S.C. § 636(c). ECF 6,

23 || 9.

24 || I. LEGAL STANDARD

25 A. Rule 12(b)(6): Failure to State a Claim

6 A motion to dismiss for failure to state a claim under Rule 12(b)(6) tests the legal

27 || sufficiency of acomplaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “To

2g || survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as

1 true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.

2 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). When

3 reviewing a 12(b)(6) motion, a court “must accept as true all factual allegations in the

4 complaint and draw all reasonable inferences in favor of the non-moving party.” Retail

5 Prop. Trust v. United Bd. of Carpenters & Joiners of Am., 768 F.3d 938, 945 (9th Cir.

6 2014). A court, however, need not accept as true “allegations that are merely conclusory,

7 unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Secs.

8 Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). A claim is facially plausible when it “allows

9 the court to draw the reasonable inference that the defendant is liable for the misconduct

10 alleged.” Id. If a court grants a motion to dismiss, leave to amend should be granted

11 unless the pleading could not possibly be cured by the allegation of other facts. Lopez v.

12 Smith, 203 F.3d 1122, 1127 (9th Cir. 2000).

13 B. Rule 12(b)(1): Lack of Jurisdiction

14 Federal courts are courts of limited jurisdiction and are presumptively without

15 jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).

16 “Article III of the Constitution limits federal court jurisdiction to cases and controversies.”

17 Flint v. Dennison, 488 F.3d 816, 823 (9th Cir. 2007) (cleaned up). Rule 12(b)(1) allows a

18 defendant to move for dismissal for lack of subject-matter jurisdiction. It is the plaintiff's

19 burden to establish the existence of subject matter jurisdiction in response to a 12(b)(1)

20 motion. See Kingman Reef Atoll Inv., LLC v. U.S., 541 F.3d 1189, 1197 (9th Cir. 2008).

21 III. DISCUSSION

22 A. Standing

23 There are three requirements to establish constitutional standing: “the plaintiff must

24 have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of

25 the defendant, and (3) that is likely to be redressed by a favorable judicial decision.”

26 Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016). Defendant asserts two theories as to

27 why Plaintiff lacks standing under the first and third element. The Court addresses each in

1. Future Harm

1

Standing under Article III of the Constitution requires that an injury be concrete,

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particularized, and actual or imminent. Monsanto Co. v. Geertson Seed Farms, 561 U.S.

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139, 149 (2010). To obtain injunctive relief, a plaintiff must demonstrate that “he has

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suffered or is threatened with a concrete and particularized legal harm, coupled with a

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sufficient likelihood that he will again be wronged in a similar way.” Bates v. United

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Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007) (quotation marks and citation

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omitted); see also Clapper v. Amnesty Int’l USA, 568 U.S. 398, 133 S. Ct. 1138, 1141, 185

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L. Ed. 2d 264 (2013) (“allegations of possible future injury are not sufficient”). Past

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wrongs are insufficient by themselves to grant standing for injunctive relief. Davidson v.

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Kimberly-Clark Corp., 889 F.3d 956, 967 (9th Cir. 2018).

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The Ninth Circuit in Davidson outlined two potential avenues to establish risk of

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future harm: (1) the consumer’s plausible allegations that they will be unable to rely on the

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product’s advertising or labeling in the future, and so will not purchase the product

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although they would like to; or (2) “the consumer’s plausible allegations that they might

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purchase the product in the future, despite the fact it was once marred by false labeling

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because they may reasonably, but incorrectly, assume the product was improved.”

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Davidson, 889 F.3d at 969-70.

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Here, Plaintiff alleges she (1) “continues to desire to purchase cosmetic products,

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including those marketed and sold by Defendant,” and (2) would likely purchase the

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Products in the future if they were reformulated and/or relabeled without the misleading

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24-hour SPF claims. Compl. ¶ 60. However, these allegations do not explain how she will

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be harmed again. Plaintiff’s purported desire to purchase Defendant’s Products in the

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future is only half the harm. As noted in Davidson, the “harm is [plaintiff’s] inability to

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rely on the validity of the information” displayed on the products. 889 F.3d at 971.

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Plaintiff’s pleading conveys the opposite. Rather than explaining how she will refrain

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from purchasing Defendant’s Products in the future, Plaintiff merely alleges a plan to

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purchase Defendant’s products if they are properly labeled. Moreover, the cases upon

1 which Plaintiff relies refer to the critical element of reliance. See Milan v. Clif Bar & Co.,

2 489 F. Supp. 3d 1004, 1007 (N.D. Cal. 2020) (noting the plaintiff’s established likelihood

3 of future harm based on allegation that they “ ‘will be unable to trust the representations on

4 the Clif Products’ absent an injunction”); Brown v. Van’s Int’l Foods, Inc., No. 22-cv-

5 00001-WHO, 2022 WL 1471454, at *11 (N.D. Cal. May 10, 2022) (stating plaintiff

6 plausibly pleaded threat of future harm by alleging that she will be “unable to rely on

7 Defendant’s label when shopping for protein products in the future”). Therefore, the Court

8 finds that Plaintiff has failed to allege that she faces a threat of future harm from

9 Defendant’s labeling. The Court GRANTS Defendant’s motion to dismiss as to Plaintiff’s

10 claims for injunctive relief with leave to amend.

11 2. Unpurchased Products

12 Defendant also claims Plaintiff lacks standing to sue over any unpurchased

13 Covergirl, Rimmel, or other Coty product. The complaint references three products: (1)

14 CoverGirl Outlast 3-in-1 foundation, (2) CoverGirl Outlast Active foundation, and (3)

15 Rimmel Lasting Finish 25 HR Foundation. Compl. ¶ 20 n.2.

16 Under California’s UCL and FAL, a private individual has standing only if he “has

17 suffered injury in fact and has lost money or property as a result of the unfair competition.”

18 Cal. Bus. & Prof. Code § 17204; see also Kwikset Corp. v. Superior Court, 51 Cal. 4th

19 310, 322 (2011). Similarly, the CLRA requires that a plaintiff “must not only be exposed

20 to an unlawful practice but also have suffered some kind of damage.” Bower v. AT&T

21 Mobility, LLC, 196 Cal. App. 4th 1545, 1556 (2011) (quotation marks omitted).

22 Although unsettled, the prevailing rule is that a plaintiff has standing to assert

23 claims for unnamed class members based on products the plaintiff did not purchase so long

24 as the products and alleged misrepresentations are substantially similar.” Miller v.

25 Ghirardelli Chocolate Co., 912 F. Supp. 2d 861, 869 (N.D. Cal. 2012); see also Astiana v.

26 Dreyer's Grand Ice Cream, Inc., No. 11-cv-2910 EMC, 2012 WL 2990766, at *11 (N.D.

27 Cal. July 20, 2012). In Dreyer’s, plaintiffs alleged the “All Natural” labels across several

1 noted the fact that the products had different flavors and ingredients was not dispositive.

2 Id. at *13. Instead, the court found plaintiffs had standing because the suit involved the

3 same kind of food products and the same labels for all the products. Id. Moreover, any

4 material differences would be better addressed at the class certification stage, not at the

5 12(b)(6) stage. Id.; see also Koh v. S.C. Johnson & Son, Inc., No. 09-cv-00927 RMW,

6 2010 WL 94265, at *3 (N.D. Cal. Jan. 6, 2010) (deferring ruling on unpurchased products

7 until class certification stage).

8 Here, the Products can all be categorized as foundation makeup. See Compl. ¶¶ 21-

9 22. As in Dreyer’s, despite the different brand names between the Products and (likely)

10 differences in ingredients, the thrust of Plaintiff’s claims is the “24 HR” or “25 HR”

11 labeling on the front of the Products’ packaging. However, Plaintiff does not provide any

12 illustrations or descriptions of the CoverGirl Outlast Active foundation listed in the

13 complaint. See Id. ¶ 21 n.2. Without this information, the Court cannot determine if there

14 is substantial similarity between the Active foundation and the remaining Products.

15 Therefore, the Court GRANTS Defendant’s Rule 12(b)(1) motion to dismiss with respect

16 to the CoverGirl Outlast Active foundation with leave to amend. The Court

17 simultaneously DENIES Defendant’s Rule 12(b)(1) motion to dismiss as to Plaintiff’s state

18 law claims based on the CoverGirl Outlast 3-in-1 foundation and Rimmel Lasting Finish

19 foundation.

20 B. Preemption

21 The Supremacy Clause mandates that the “Constitution, and the Laws of the United

22 States which shall be made in Pursuance thereof . . . shall be the supreme Law of the

23 Land.” U.S. Const. art. VI, cl. 2. The preemption doctrine flows from the Supremacy

24 Clause and operates by invalidating state laws that “interfere with, or are contrary to,”

25 federal law. Hillsborough County, Fla. v. Automated Med. Laboratories, Inc., 471 U.S.

26 707, 712 (1985) (citing Gibbons v. Ogden, 9 Wheat. 1, 211, 6 L.Ed. 23 (1824)). There are

27 three forms of preemption: express, field, and conflict – the latter two categories are

1 Cir. 2013). Defendant asserts Plaintiff’s claims are both expressly and impliedly

2 preempted by federal enactments. See Opp. at 11-14.

3 1. Express Preemption

4 Plaintiff alleges the claims are expressly preempted by virtue of the preemption

5 clause in the Food, Drug, and Cosmetic Act (“FDCA”). The FDCA’s express preemption

6 clause mandates that “no state . . . may establish or continue in effect any requirement that

7 is different from or in addition to, or that is otherwise not identical with, a requirement

8 under this chapter.” 21 U.S.C. § 379r(a)(2).

9 When assessing the effect of a preemption clause “[t]he purpose of Congress is the

10 ultimate touchstone.” Wyeth v. Levine, 555 U.S. 555, 565 (2009) (citing Medtronic, Inc. v.

11 Lohr, 518 U.S. 470, 485 (1996)). In situations where Congress has legislated in a field

12 traditionally occupied by the states, courts assume “that the historic police powers of the

13 States were not to be superseded by the Federal Act unless that was the clear and manifest

14 purpose of Congress.” Wyeth, 555 U.S. at 565.

15 The FDA’s final rule, “Labeling and Effectiveness Testing; Sunscreen Drug

16 Products for Over-the-Counter Human Use” (“Final Rule”), establishes various labeling

17 and testing criteria for OTC sunscreen products. 76 FR 35620-01. The Final Rule

18 “identifies claims that render a product that is subject to this rule misbranded.” Id. The

19 Final Rule is codified in 21 CFR part 201. Under the regulations, claims on sunscreen

20 products that would be false and/or misleading “include but are not limited to the

21 following: ‘Sunblock,’ ‘sweatproof,’ and ‘waterproof.’ These or similar claims will cause

22 the product to be misbranded.” 21 C.F.R. § 201.327(g). The regulation states that for

23 products that are not water resistant “the labeling states ‘[bullet] reapply at least every 2

24 hours.’ ” 21 C.F.R. § 201.327(e)(4).

25 While the precise issue involved in this case has not been litigated in this circuit, the

26 Ninth Circuit has addressed claims arising under similar circumstances. See Astiana v.

27 Hain Celestial Grp., Inc., 783 F.3d 753, 758 (9th Cir. 2015). In Astiana, the plaintiffs

1 natural” despite the fact they contained synthetic and artificial ingredients. Id. at 756. The

2 defendant asserted such claims were expressly preempted as they “would create a novel

3 state labeling requirement. Id. at 758.2 The Ninth Circuit rejected defendant’s claim,

4 reasoning that the “FDA regulations do not require [defendant] to label its products as ‘All

5 Natural.’ ” Id. Thus, plaintiffs’ claims were not preempted because they did not impose

6 requirements that were “different from,” “in addition to,” or “not identical with” federal

7 rules. Id.

8 Put another way, a claim will not be expressly preempted under the FDCA if

9 defendant’s labeling duties would remain the same if plaintiffs prevailed. Compare Corra

10 v. Energizer Holdings, Inc., 962 F. Supp. 2d 1207, 1214 (E.D. Cal. 2013) (plaintiff’s

11 claims seeking to prevent sunscreen manufacturer from combining the use of SPF ratings

12 with price differentials and claims of greater protection were not preempted because

13 defendant’s SPF labeling duties wouldn’t change) with Gisvold v. Merck & Co., 62 F.

14 Supp. 3d 1198, 1202 (S.D. Cal. 2014) (plaintiff’s claims seeking to add a disclaimer that

15 sunscreen with SPF values over 50 don’t provide increase in clinical benefits was

16 preempted).

17 It is useful to clearly delineate Plaintiff’s claims at the outset to determine if they

18 run afoul of the preemption clause. Plaintiff alleges the Products violate California state

19 consumer protection laws because the “24/25 HR” claims misleadingly suggest the

20 Products will provide sun protection for that amount of time when in fact they only

21 provide two hours of protection. Compl. ¶ 40. As in Astiana, FDA regulations do not

22 mandate that sunscreen manufacturers include claims pertaining to the product’s durational

23 capability. Instead, the regulations state that non-water-resistant products include “reapply

24 at least every 2 hours.” 21 C.F.R. § 201.327(e)(4). As such, Plaintiff’s claims that the

25 durational statements violate state law would not lead to any additional or different

26 requirements to the existing regulations. Therefore, if Plaintiffs ultimately succeeded,

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1 Defendant’s labeling duties would remain the same.

2 Nevertheless, Defendant contends removal of this claim amounts to an additional

3 requirement beyond FDA regulations because the back panels of the Products specifically

4 refer to the two-hour durational limitation. ECF 15 at 13. However, Defendant’s addition-

5 by-subtraction theory doesn’t hold water because the back labels also wouldn’t change.

6 Moreover, the Court declines to validate Defendant’s theory that FDA labeling

7 requirements give manufacturers carte blanche to claim whatever they want as long as the

8 back label corrects any misunderstanding. See Williams v. Gerber Prod. Co., 552 F.3d

9 934, 939 (9th Cir. 2008) (“We do not think that the FDA requires an ingredient list so that

10 manufacturers can mislead consumers and then rely on the ingredient list to correct those

11 misinterpretations and provide a shield for liability for the deception.”). Accordingly,

12 Plaintiff’s claims are not expressly preempted under 21 U.S.C. § 379r.

13 2. Implied Preemption

14 Defendant further alleges Plaintiff’s claims are impliedly preempted because they

15 contravene the law prohibiting private enforcement of the FDCA. Mot. at 14. Section

16 337(a) of the FDCA expressly bars private enforcement of the statue, mandating “all such

17 proceedings for the enforcement, or to restrain violations, of this [Act] shall be by and in

18 the name of the United States.” 21 U.S.C. § 337(a). Defendant relies heavily on Buckman

19 Co. v. Plaintiffs’ Legal Comm. for the precept that this section preempts private

20 enforcement of the FDCA, even under state law theories. Mot. at 14. However, Defendant

21 overstates this holding.

22 Unlike the present case, Buckman involved the premarket approval of strictly

23 regulated medical devices, specifically spinal bone screws. Id. at 344. Under that

24 regulatory process, applicants for medical devices could sidestep the lengthy approval

25 process by submitting statements to the FDA that the product was already on the market

26 before the act’s enactment. Id. at 345. The Buckman plaintiffs sought to hold a

27 consultancy company liable for fraudulent representations to the FDA, which led to the

1 The Supreme Court’s analysis refocused the plaintiffs’ claims along federalism

2 grounds, noting the claims dealt less with traditional areas of state regulation, than an

3 attempt at “policing fraud against federal agencies.” Id. By virtue of the comprehensive

4 regulatory scheme underlying the premarket approval process, the FDA was thoroughly

5 vested with the power to punish and deter fraud, as well as balance policy objectives. Id.

6 at 348. As such, the plaintiffs’ “fraud-on-the-FDA” claims conflicted with this federal

7 prerogative and were thus preempted. Put another way, the Buckman claims were

8 preempted because they “exist[ed] solely by virtue of the FDCA disclosure requirements.”

9 Id. at 352-53. The Buckman decision, however, did not foreclose “certain state-law causes

10 of action that parallel federal safety requirements.” Id. at 353. Instead, a “narrow gap”

11 emerges wherein “plaintiff must be suing for conduct that violates the FDCA (or else his

12 claim is expressly preempted by § 360k(a)), but the plaintiff must not be suing because the

13 conduct violates the FDCA.” Perez v. Nidek Co., 711 F.3d 1109, 1120 (9th Cir. 2013).

14 In this case, Plaintiff navigates this narrow gap. As a preliminary matter, the facts

15 of this case are distinguishable from Buckman. Whereas Buckman dealt with a federal

16 regulatory process overseen by the FDA, this case involves matters of health and safety

17 which fall within the traditional purview of the states’ police powers. See Lohr, 518 U.S.

18 at 485. This means the Court begins with a presumption against finding federal

19 preemption that was not present in Buckman. See Buckman, 531 U.S. at 347.

20 Defendant argues that because Plaintiff relies on the FDCA and regulatory

21 guidance, then her claims are based on purported violations of the FDCA, which means

22 they exist solely by virtue of the FDCA. Mot. at 15. However, Plaintiff explicitly

23 repudiates any claims arising under the FDCA. Compl. ¶ 69. Instead, as noted above,

24 Plaintiff’s claims mirror the requirements imposed by the FDCA. Moreover, Plaintiff’s

25 causes of action does not arise because Defendant’s conduct violates the FDCA; rather, she

26 is suing because Defendant’s conduct allegedly violates California state laws. Cf. In re

27 Trader Joe's Tuna Litig., No. 16-cv-01371-ODW, 2017 WL 2408117, at *3 (C.D. Cal.

1 upon FDA standards of measurement that were not represented on the packaging to allege

2 tuna fish cans were misleadingly underfilled). Indeed, Plaintiff’s claims arise under

3 traditional state tort theories that would exist irrespective of the existence of the FDCA.

4 More fundamentally, Defendant’s position would broadly foreclose enforcement of any

5 state consumer protection laws. The Court doubts Congress intended such a sweeping

6 result, particularly in light of the states’ police powers. For these reasons, the Court

7 concludes that Plaintiff’s claims are not subject to implied preemption.

8 C. FRAUD CLAIMS

9 Defendant argues that Plaintiff fails to satisfy the heightened pleading standard

10 under Federal Rule of Civil Procedure 9(b). The rule requires parties alleging fraud or

11 mistake to “state with particularity the circumstances constituting fraud or mistake.” Fed.

12 R. Civ. P. 9. The particularity mandate requires plaintiffs to plead the “who, what, when,

13 where, and how” of the misconduct alleged. Vess v. Ciba-Geigy Corp. USA, 317 F.3d

14 1097, 1106 (9th Cir. 2003). The purpose of this heightened pleading standard is to provide

15 defendants notice of the specific misconduct to defend against the charge. Id. (quoting

16 Bly–Magee v. California, 236 F.3d 1014, 1019 (9th Cir.2001)).

17 The parties do not disagree that Rule 9(b) applies in this case. In any event,

18 Plaintiff satisfies each of the prerequisites. The “who” is clearly Defendant. Compl. ¶ 8.

19 The “what” is the allegedly deceptive marketing statements. Id. ¶¶ 1, 4, 19. The “where”

20 is on Defendant’s Products’ front labels. Id. at 22. The “when” is between 2018-2022. Id.

21 ¶¶ 55, 61. The “how” is using the “24/25 HR” duration claims to deceive consumers into

22 believing the Products provide that level of SPF sun protection when they actually require

23 reapplication every two hours. Id. ¶¶ 19-23.

24 Defendant’s arguments to the contrary are unavailing. First, Plaintiff is not required

25 to plead “specific allegations” for scienter. As stated in Rule 9(b), “[m]alice, intent,

26 knowledge, and other conditions of a person's mind may be alleged generally.” Second,

27 Plaintiff’s allegations regarding unpurchased products are discussed elsewhere in this

1 omission claim is entirely lacking as those excerpts don’t appear to display such a theory.

2 Plaintiff has satisfied the heightened pleading standard under Rule 9(b). The Court

3 DENIES Plaintiff’s motion to dismiss on this basis.

4 D. STATE CONSUMER PROTECTION CLAIMS – REASONABLE

CONSUMER TEST

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Each of Plaintiff’s state consumer protection claims are governed by the

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“reasonable consumer” test. Williams v. Gerber Prod. Co., 552 F.3d 934, 938 (9th Cir.

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2008). Under the reasonable consumer test, Plaintiff must “show that members of the

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public are likely to be deceived.” Id. (internal citations omitted). However, this standard

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requires more than the possibility that the label might be misunderstood by a few

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consumers viewing it in an unreasonable way. Ebner v. Fresh, Inc., 838 F.3d 958, 965

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(9th Cir. 2016). Instead, the reasonable consumer standard requires “a probability that a

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significant portion of the general consuming public or of targeted consumers, acting

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reasonably in the circumstances, could be misled.” Id. (internal citations omitted).

14

As Defendant points out, the assessment that a label is not misleading can be

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determined as a matter of law on a motion to dismiss. See Becerra v. Dr Pepper/Seven Up,

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Inc., 945 F.3d 1225, 1229 (9th Cir. 2019). Because this inquiry is heavily factual,

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dismissal of claims at this stage is only appropriate in “rare situations.” Williams, 552 F.3d

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at 939. For example, if the plaintiff’s claims rely on “unreasonable or fanciful

19

interpretations” of the labels, then dismissal on the pleadings may be appropriate. See

20

Freeman v. Time, Inc., 68 F.3d 285, 289−90 (9th Cir. 1995) (affirming dismissal of

21

challenge to sweepstakes mailer where mailer explicitly said plaintiff would win only if he

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had winning number).

23

California laws not only prohibit patently false advertising, but also proscribe

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“advertising which[,] although true, is either actually misleading or which has a capacity,

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likelihood or tendency to deceive or confuse the public.” Williams, 552 F.3d at 938. For

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these murkier claims that rely on more ambiguous misrepresentations, any qualifying

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statements, usually included on the back of the label, may assist to clarify the misleading

1 claims. Moore v. Mars Petcare US, Inc., 966 F.3d 1007, 1017 (9th Cir. 2020). The extent

2 to which courts incorporate such qualifying language into the evaluation on a motion to

3 dismiss depends on whether the back label information conflicts or clarifies the front label

4 misrepresentation. Id.

5 For example, the Williams case concerned the labeling of defendant’s “fruit juice

6 snacks.” Specifically, the packaging included statements that the product was made with

7 “fruit juice and other all natural ingredients.” Williams, 552 F.3d at 936. These statements

8 were juxtaposed with pictures of various fruits. Id. In contrast to these representations, the

9 product’s main ingredients consisted of corn syrup and sugar, and the only juice contained

10 in the product was white grape juice. Id. The circuit rejected the lower court’s assessment

11 that a “reasonable consumers should be expected to look beyond misleading

12 representations on the front of the box to discover the truth from the ingredient list in small

13 print on the side of the box.” Id. This is because the FDA-mandated ingredient list

14 serves the purpose of clarifying or confirming other representations, not providing a

15 “shield for liability” from misleading statements. Id.; see also Bell v. Publix Super

16 Markets, Inc., 982 F.3d 468, 476 (7th Cir. 2020) (holding that an accurate fine-print list of

17 ingredients does not foreclose as a matter of law a claim that an ambiguous front label

18 deceives reasonable consumers).

19 Conversely, the Ninth Circuit addressed a situation where an alleged

20 misrepresentation is confirmed by reference to qualifying language. Moore v. Trader Joe's

21 Co., 4 F.4th 874, 883 (9th Cir. 2021). In Moore, the plaintiffs alleged defendant’s labeling

22 for its “100% New Zealand Manuka Honey” and “New Zealand Manuka Honey” was

23 misleading because the products only derived 57.3% to 62.6% of the honey from Manuka

24 nectar. Id. at 876-79. However, the circuit determined the front labels were accurate since

25 the honey was chiefly derived from Manuka flower nectar pursuant to FDA regulations.

26 Id. at 881. Nevertheless, the circuit acknowledged the labels could be considered

27 ambiguous with respect to whether the product was “100% Manuka honey, that its

1 from New Zealand.” Id. at 882. Unlike cases where manufacturers retain a “ ‘level of

2 deniability’ by clarifying the front-label claim with back -label disclosures,” the defendant

3 did not insert additional ingredients or intermingle Manuka honey with non-Manuka

4 honey. Id. at 883 (quoting Bell, 982 F.3d at 447). Instead, the labels merely listed one

5 ingredient – Manuka honey. Id. Therefore, the circuit reasoned, the defendant’s labeling

6 did not engender the same type of consumer confusion produced by contradictory labels in

7 Williams and Bell. Id.

8 In sum, the analysis of these claims proceeds along a spectrum. On one end, plainly

9 fanciful or unreasonable interpretations of a product’s labeling are subject to dismissal.

10 See Freeman, 68 F.3d at 290. On the other end, false or ambiguous front-label claims

11 cannot be cured by contradicting back-label statements as a matter of law. See Williams,

12 552 F.3d at 939. Between these poles, ambiguous front-label claims that are consistent

13 with back-label claims permit courts greater latitude to consider the surrounding context of

14 the product and packaging to determine if the claims are misleading. See Moore, 4 F.4th at

15 883.

16 Defendant asserts two mutually reinforcing arguments as to why the product labels

17 are not misleading. First, Defendant contends its labels are not misleading because the

18 “24/25 HR” claims “clearly apply to the wear (CoverGirl) and hydration (Rimmel)

19 qualities” of the dual-purpose Products. Mot. at 9. Second, even if the labels are

20 ambiguous, any confusion is clarified by the reapplication directives in the Drug Facts

21 panel. Id. The Court will address each Product individually.

22 1. Rimmel Product

23 The Court first assesses whether Plaintiff plausibly alleges the Rimmel Product’s

24 label would lead to a significant portion of the consuming public to believe that the SPF

25 coverage lasts for 25 hours. Upon review, the Court determines the Rimmel label is not

26 misleading.

27 Defendant’s reference to a similar case in the Eastern District of New York is

1 EK (PK), 2021 WL 4502439, at *1 (E.D.N.Y. Sept. 30, 2021). In Engram, the plaintiff

2 contended Chapstick labeling was misleading as to the extent of sun protection the product

3 provides. Id. The Chapstick container included a circular “pop-out” illustration that

4 included both durational claims and references to the product’s SPF level. However, the

5 circle was “bisected horizontally” with the upper portion stating “8 HOUR MOISTURE”

6 in white font against a blue background, whereas the bottom half stated “SPF 15” in blue

7 font with a white background. Id. The plaintiff alleged the statements together suggested

8 the product provided eight hours of sun protection. Id. at *5. The court first noted the

9 durational claim clearly pertained to the moisturizing properties because the SPF claim not

10 only had different coloration, but also was separated from the durational claim. Id.

11 Presuming ambiguity, the court nevertheless determined the re-application directions

12 dispelled any potential confusion regarding the product’s sun protection capabilities. Id.

13 Here, the Rimmel Product resembles the Chapstick container in Engram. The “25

14 HR” claim is partitioned in a red box directly above the phrase “HYDRATION BOOST,”

15 ensconced in a blue box with an emblem of a water droplet. Compl. ¶ 21. These

16 statements are located near the top of the Product’s front label. The “SPF 20” claim,

17 however, is separate from these claims, located roughly halfway down the Product’s front

18 label. Notably, it is not surrounded by a colored box like the previous statements.

19 Moreover, it is written in different colored font than the previous statements. Plaintiff does

20 not contend that the Product fails to provide 25 hours of moisture, nor that it’s SPF is not

21 20. Instead, she claims the statements, read in tandem, lead to the misleading impression

22 that the Product will last 25 hours. Id. ¶ 22. However, this is an unreasonable

23 interpretation of the Product’s label because there is no connection either stylistically or

24 proximity-wise to connect the durational statement with the SPF claim. Based on this

25 implausible interpretation, the Plaintiff fails to plead that a significant portion of the

26 consuming public could be mislead by the Rimmel Product’s label. The Court GRANTS

27 Defendant’s motion to dismiss as to Plaintiff’s deceptive labeling claims with respect to

2. CoverGirl Product

1

Plaintiff’s claims concerning the CoverGirl Product labeling follow a similar

2

pattern, except the product misleadingly conveys that it provides 24-hours of sun

3

protection. Although a closer call, Plaintiff has properly alleged a reasonable consumer

4

could be misled by the label.

5

The CoverGirl product is notably different than the Rimmel product because it

6

features a durational claim and SPF claim grouped in close proximity. There are five

7

individual claims that appear in descending order on CoverGirl front-label: “24 HR,” “Full

8

Coverage,” “SPF 18,” “Octinoxate Sunscreen” and “Liquid Foundation.” As Plaintiff

9

alleges, when read in vertical fashion, it is reasonable to interpret that the product provides

10

24 hours of full coverage at SPF 18. Defendant’s allegations that the 24-hour descriptor

11

applies to the Product’s “wear” does not necessarily conflict with this interpretation. Mot.

12

at 9. For one, Defendant doesn’t clarify what it means by the term “wear.” Assuming

13

Defendant is referring to the Product’s cosmetic qualities, this claim is undercut by the fact

14

the Product’s cosmetic qualities (“Liquid Foundation”) appear below the phrase

15

“Octinoxate Sunscreen.” While falling short of an outright falsehood, the CoverGirl front-

16

label is ambiguous with respect to the level of sun protection it provides.

17

The ambiguity of the CoverGirl label compels a result akin to the Williams case.

18

From the perspective of the consumer, the front-label suggests the Product will last 24-

19

hours. However, this impression would be undermined by the reapplication directive on

20

the back-label. The purpose of the back label directions, like the ingredient list in

21

Williams, is to provide clarity on the product’s uses, not grant manufacturers an avenue to

22

correct misinterpretations as a “shield for liability.” Williams, 552 F.3d at 939-40.

23

Compounding this ambiguity is Plaintiff’s claim that the reapplication directive is “buried

24

underneath a sticker on the back panel of the Product.” Compl. ¶ 38. Construing the

25

allegations in a light most favorable to Plaintiff, the Court notes this adds to the label’s

26

ambiguity because the reapplication directives are not immediately visible. Moreover, a

27

consumer may not feel comfortable tampering with the packaging prior to purchasing the

1 Product. Therefore, the Court concludes that Plaintiff has plausibly stated that a

2 reasonable consumer would be deceived by the “24 HR” durational claim on the CoverGirl

3 label. Accordingly, the Court DENIES Defendant’s motion to dismiss as to this particular

4 product.

5 E. MISCELLANEOUS RELIEF

6 1. Equitable Relief

7 Defendant argues that Plaintiff impermissibly seeks equitable relief in conjunction

8 with her request for damages. Specifically, Defendant moves to dismiss Plaintiff’s claims

9 for equitable relief on the ground that they cannot show a lack of an adequate remedy at

10 law. ECF 15 at 21.

11 Defendant primarily relies on Sonner v. Premier Nutrition Corporation. 971 F.3d

12 834, 844 (9th Cir. 2020). As Plaintiff points out in her opposition, however, Sonner was in

13 a far different procedural posture than the case at hand. In Sonner, the plaintiff dropped

14 her CLRA damages claim after four years of litigation, surviving a summary judgment

15 motion, and with only two months before trial. Id. at 837-38. The strategy was to convert

16 the case to a bench trial, as opposed to a jury trial. Id. at 838. However, the plan backfired

17 when the district court dismissed (and the Ninth Circuit upheld) that Plaintiff “must

18 establish that she lacks an adequate remedy at law before securing equitable restitution for

19 past harm.” Id. at 844.

20 As addressed above, the Court has already dismissed Plaintiff’s claims for

21 injunctive relief for lack of standing. However, Defendant’s request to dismiss Plaintiff’s

22 restitution claims is premature at this stage in the proceedings. See Jeong v. Nexo Fin.

23 LLC, No. 21-cv-02392-BLF, 2022 WL 174236, at *27 (N.D. Cal. Jan. 19, 2022) (“Sonner

24 has limited applicability to the pleading stage because it pertained to circumstances in

25 which a plaintiff dropped all damages claims on the eve of trial.”). Moreover, plaintiffs

26 can allege claims in the alternative at the pleading stage. Sinatro v. Barilla Am., Inc., No.

27 22-CV-03460-DMR, 2022 WL 10128276, at *16 (N.D. Cal. Oct. 17, 2022) (quoting

1 || restitution may be revisited at a later stage. For now, Defendant’s motion to dismiss

2 || Plaintiffs claim for restitution is DENIED.

3 2. Unjust Enrichment

4 Lastly, Defendant asserts Plaintiffs unjust enrichment claim should be dismissed

5 || because there is no independent cause of action for unjust enrichment. ECF 15 at 22.

6 || While there is no standalone cause of action for unjust enrichment in California, it is

7 ‘|| synonymous with restitution. Astiana, 783 F.3d at 762. Courts may construe allegations

8 || of unjust enrichment as a quasi-contract claim seeking restitution. Jd.; see also Bruton v.

9 || Gerber Prod. Co., 703 F. App’x 468, 470 (9th Cir. 2017) (reversing district court’s

10 || dismissal of unjust enrichment claim following California Supreme Court decision

11 || permitting unjust enrichment as an independent claim). Plaintiffs are free to seek

12 || restitution in the alternative to their other claims per Federal Rule of Civil Procedure

13 8(d)(2). Astiana, 783 F.3d at 762. Defendant’s motion to dismiss the unjust enrichment

C 14 || claim is DENIED.

3 15 |} IV. CONCLUSION

16 Based on the foregoing, the Court GRANTS, IN PART, AND DENIES, IN PART

5 17 || Defendant’s motion to dismiss. The Court GRANTS Defendant’s motion to dismiss with

5 18 || respect to (1) Plaintiff's claims for injunctive relief, (2) Plaintiff's claims regarding Outlast

19 || Active Foundation, (3) Plaintiff's claims regarding the Rimmel Product. The Court

20 || DENIES Defendant’s motion to dismiss with respect to Plaintiff's claims regarding the

21 || durational claims of the CoverGirl Product. Plaintiff may file an amended complaint on or

22 || before May 19, 2023. The amended complaint may not add any claims or parties without

23 || leave of Court.

24 IT IS SO ORDERED.

25

26 || Dated: April 24, 2023 h@he => _

27 United States Magistrate Judge

28