Tamara Moore v. Mars Petcare US, Inc.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TAMARA MOORE; GRETA L. ERVIN; No. 18-15026

RAFF ARANDO; NICHOLS SMITH;

RENEE EDGREN; CYNTHIA WELTON, D.C. No.

on behalf of themselves and all 3:16-cv-07001-

others similarly situated, MMC

Plaintiffs-Appellants,

v. OPINION

MARS PETCARE US, INC.; NESTLE

PURINA PETCARE COMPANY; HILL’S

PET NUTRITION, INC.; PETSMART,

INC.; MEDICAL MANAGEMENT

INTERNATIONAL, INC., DBA Banfield

Pet Hospital; BLUEPEARL VET, LLC;

ROYAL CANIN USA INC.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of California

Maxine M. Chesney, District Judge, Presiding

Argued and Submitted July 19, 2019

San Francisco, California

Filed July 28, 2020

2 MOORE V. MARS PETCARE US

Before: Michael R. Murphy, * Richard A. Paez, and

Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Paez;

Dissent by Judge Rawlinson

SUMMARY **

Consumer Protection Law

The panel reversed the district court’s dismissal of

claims that defendants’ marketing of so-called prescription

pet food violated California’s consumer protection laws and

remanded for further proceedings.

In their putative class action lawsuit, plaintiffs alleged

that the prescription requirement and advertising of pet food

led reasonable consumers falsely to believe that such food

had been subject to government inspection and oversight and

had medicinal and drug properties, causing consumers to pay

more or purchase the product when they otherwise would not

have.

The panel held that the district court erred in dismissing

claims under California’s Unfair Competition Law, False

Advertising Law, and Consumer Legal Remedies Act for

*

The Honorable Michael R. Murphy, United States Circuit Judge

for the U.S. Court of Appeals for the Tenth Circuit, sitting by

designation.

**

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

MOORE V. MARS PETCARE US 3

failure to state a claim. The panel concluded that under the

reasonable consumer test, plaintiffs sufficiently alleged that

the sale of the prescription pet food exclusively through vets

or with veterinarian approval was a deceptive practice. In

addition, plaintiffs satisfied the heightened pleading

standard for fraud because they alleged sufficient facts to

show that prescription pet food and other pet food were not

materially different. Further, plaintiffs adequately alleged

reliance because they sufficiently alleged that the use of the

word “prescription” or “Rx” symbol caused their claimed

loss.

In a separately filed memorandum disposition, the panel

affirmed the district court’s dismissal of a federal antitrust

claim.

Dissenting, Judge Rawlinson wrote that plaintiffs did not

state a plausible claim for relief under the California statutes.

She concluded that the majority relied incorrectly on

defendants’ lack of compliance with a Draft Compliance

Policy Guide issued by the United States Food and Drug

Administration, and plaintiffs failed sufficiently to elucidate

the basis for the “reasonable assumption” that the pet food

had been vetted and approved by the FDA. Judge Rawlinson

also wrote that plaintiffs’ claim under California’s CLRA

was preempted by the federal Food, Drug and Cosmetic Act.

COUNSEL

Michael von Loewenfeldt (argued), Kerr & Wagstaffe LLP,

San Francisco, California; Daniel R. Shulman, Gray Plant

Mooty Mooty & Bennett P.A., Minneapolis, Minnesota;

Michael A. Kelly and Matthew D. Davis, Walkup Melodia

Kelly & Schoenberger, San Francisco, California; Michael

4 MOORE V. MARS PETCARE US

L. McGlamry and Wade H. Tomlinson III, Pope McGlamry

P.C., Atlanta, Georgia; Edward J. Coyne III, Ward and

Smith P.A., Wilmington, North Carolina; for Plaintiffs-

Appellants.

Jonathan D. Hacker (argued), Richard B. Goetz, Michael

Tubach, and Hannah Y. Chanoine, O’Melveny & Myers

LLP, Los Angeles, California; John E. Schmidtlein (argued),

Benjamin M. Greenblum, and Xiao Wang, Williams &

Connolly LLP, Washington, D.C.; Jeffrey E. Faucette,

Skaggs Faucette LLP, San Francisco, California; Bryan A.

Merryman and Christopher M. Curran, White & Case LLP,

Los Angeles, California; for Defendants-Appellees.

OPINION

PAEZ, Circuit Judge:

This appeal arises out of a challenge by Tamara Moore

and five other California residents (collectively “Plaintiffs”)

to the marketing of so-called prescription pet food under

California’s consumer protection laws and federal antitrust

law. 1 Plaintiffs brought a putative class action lawsuit

against four pet food manufacturers, two veterinary clinic

chains, and one pet goods retailer (collectively

“Defendants”). Plaintiffs allege that the prescription

requirement and advertising lead reasonable consumers

falsely to believe that such food has been subject to

government inspection and oversight, and has medicinal and

1

Defendants use other terms like “therapeutic pet food” and

“veterinarian recommended” to describe this kind of food, but for

consistency with Plaintiffs’ second amended complaint, we use the term

“prescription pet food.”

MOORE V. MARS PETCARE US 5

drug properties, causing consumers to pay more or purchase

the product when they otherwise would not have. The

district court granted Defendants’ motions to dismiss

Plaintiffs’ Second Amended Complaint. We have

jurisdiction under 28 U.S.C. § 1291, and we reverse. 2

I.

A.

The following facts are taken from Plaintiffs’ allegations

in the Second Amended Complaint, the operative complaint,

“[b]ecause the district court dismissed the complaint on the

pleadings.” Reid v. Johnson & Johnson, 780 F.3d 952, 956

n.1 (9th Cir. 2015) (citation omitted).

Defendants

Defendants consist of pet food manufacturers, Mars

Petcare US, Inc. and Royal Canin U.S.A., Inc. (collectively

“Mars”), 3 Nestle Purina Petcare Company (“Purina”), and

Hill’s Pet Nutrition, Inc. (“Hill’s”); veterinary clinic chains,

Medical Management International, Inc. d/b/a Banfield Pet

Hospital (“Banfield”) and BluePearl Vet, LLC (“Blue

Pearl”); and pet goods retailer, PetSmart, Inc. (“PetSmart”).

Hill’s manufactures and markets its prescription pet food in

2

In a separately filed memorandum disposition, we affirm the

district court’s dismissal of Plaintiffs’ claim that Defendants violated

Section 1 of the Sherman Act, 15 U.S.C. § 1.

3

We use “Mars” to describe Mars and Royal Canin collectively

because Royal Canin is a subsidiary affiliate of Mars, and Plaintiffs

allege that “[s]ome combination of Royal Canin and Mars

manufacturers, produces, [and] markets . . . Royal Canin ‘Veterinary

Diet,’” one of the products at issue.

6 MOORE V. MARS PETCARE US

packaging labeled “Prescription Diet.” Purina manufactures

and markets its prescription pet food under the label “Pro

Plan Veterinary Diets.” Mars manufactured and sold

prescription pet food under the “Iams” label prior to January

1, 2017 and switched to “Royal Canin Veterinary Diet”

starting in 2017.

The market for prescription pet food had a slow roll-out.

Hill’s began selling its “Prescription Diet” pet food in the

1960s through vets and, in the late 1980s, began supplying

vets with prescription pads as part of its marketing effort. In

2004, when Hill’s became a significant player in the

prescription pet food market, Mars introduced its own line

of prescription pet food. At an unspecified time prior to

2012, Purina entered the prescription pet food market. Mars,

Purina and Hill’s (collectively “Defendant Manufacturers”)

have over 90 percent share of the U.S. prescription pet food

market.

Three small companies attempt to compete with

Defendant Manufacturers: Blue Buffalo Company,

Diamond Pet Foods, and Darwin’s Natural Pet Products.

Mars—which has 100 percent ownership over Banfield and

90 percent over Blue Pearl—has a strategic partnership with

PetSmart that involves hosting Banfield hospitals in

PetSmart store locations throughout the United States.

Banfield and PetSmart sell prescription pet food made by

Defendant Manufacturers, but not any other competitors.

PetSmart sells Defendant Manufacturers’ prescription

pet food online and in its brick-and-mortar stores, requiring

proof of a prescription from the pet’s vet. At PetSmart

stores, a consumer must first obtain an Rx card from

Banfield, either by visiting a Banfield veterinarian

(hereinafter, “vet”) on site or presenting a prescription from

another vet to Banfield. Consumers may also purchase

MOORE V. MARS PETCARE US 7

Defendant Manufacturers’ prescription pet food directly

from Banfield or Blue Pearl. PetSmart, Bluefield and Blue

Pearl are not the exclusive sources of Defendant

Manufacturers’ prescription pet food, but there is no dispute

that all Defendants require a vet prescription as a condition

for the purchase of prescription pet food.

In September 2012, the U.S. Food & Drug

Administration (“FDA”) published for comment a Draft

Compliance Policy Guide (“Draft CPG”). In the Draft CPG,

the FDA noted that there has been an increase in the number

of pet food products labeled as intended for use in the

diagnosis, cure, mitigation, treatment or prevention of

disease, as well as a shift in marketing toward pet owners

directly. The agency expressed concerns that animal health

may suffer from consumption of these products because they

“affect physiological processes to extents that may not be

tolerated by all animals and/or may not achieve effective

treatment.” The FDA was, however, “less concerned when

such dog and cat food products are marketed only through

and used under the direction of a licensed veterinarian

because the agency presume[d] the veterinarian will provide

direction to the pet owner.” The FDA then proposed a set of

nine factors it would consider in determining whether to

initiate enforcement action against pet food products.

At that time, in late-2012, Defendant Manufacturers’

products violated three of the factors in the Draft CPG. First,

their prescription pet food included indications of disease

claims on the labels. Second, the distribution of promotional

materials with disease claims were not limited to veterinary

professionals. Third, they electronically disseminated

promotional materials with disease claims to consumers on

the internet. The FDA adopted a final Compliance Policy

8 MOORE V. MARS PETCARE US

Guide 4 (“Final CPG”) in April 2016, in substantially the

same form as the Draft CPG, although it added two more

conditions that could lead to enforcement action. Defendant

Manufacturers did not change their behavior despite

violating the same three conditions of the Final CPG. The

FDA has not, however, taken any enforcement action against

Defendant Manufacturers.

Plaintiffs

Plaintiffs are six California residents who purchased

prescription pet food for their sick pets after consulting with

their vets.

For instance, Plaintiff Moore alleges she purchased

“Hill’s Prescription Diet u/d dog food” after her dog,

Pugalicious, underwent surgery to remove kidney stones.

Pugalicious’s vet informed Moore that a prescription was

required to purchase the dog food, and he issued her one.

Moore initially tried to purchase the product from an animal

hospital but was refused because she failed to present a

prescription. She subsequently was able to purchase the

prescription pet food at a PetSmart using a prescription. The

product is marketed to provide for “Urinary Care,” and

claims that it “[p]romotes desirable urine pH,” is “especially

formulated to help support your dog’s bladder health . . .

[and] [e]nriched with taurine, L-carnitine & antioxidants,”

and has “[c]ontrolled levels of high quality, highly digestible

protein.” The product costs $3.44 per pound while urinary

care non-prescription dog foods from other manufacturers

cost $2.73 and $2.45 per pound. The non-prescription dog

food was also marketed to “[p]romote[] balanced urinary

pH” and “a healthier immune system [and] urinary tract,”

4

The Final CPG is published at 81 Fed.Reg. 26,236–01.

MOORE V. MARS PETCARE US 9

and had “a number of overlapping ingredients in common”

with Hill’s prescription dog food, while the “non-

overlapping ingredients are not drugs and are not sufficient

to justify one product being sold by prescription for a

significantly higher price.”

The other five plaintiffs made similar allegations.

Plaintiff Greta Ervin’s dog, Teddy, became ill from giardia,

after which she received a prescription from Teddy’s vet for

Royal Canin Veterinary Diet Gastrointestinal Puppy dog

food, as well as a prescription from a specialty vet for Royal

Canin Veterinary Diet Selected Protein Adult PV dog food.

Ervin “understood a prescription requirement to indicate that

the foods contained medicine and were subject to the

controls associated with prescription drugs.” The

ingredients of the prescription dog food overlapped

significantly with the ingredients of non-prescription dog

food that was also marketed for digestive health and

sensitive digestion, although the price of the prescription pet

food was two to three times that of the non-prescription

counterparts; none of the non-overlapping ingredients

consisted of drugs.

Plaintiff Nicols Smith had two cats, Mimi and Neichi,

who became overweight, and he received a prescription for

Hill’s “Prescription Diet Glucose/Weight Management m/d

cat food” from their vet. When the vet told Smith that a

prescription was required, Smith “assumed and understood

that there was something medicinal in the food, a medically

controlled substance containing a drug.” Because the

product was substantially more expensive than the non-

prescription cat food he had been buying, Smith first

attempted to purchase the Hill’s prescription cat food at a

Petco without a prescription. He was turned away and

advised he could not buy the product without presenting a

10 MOORE V. MARS PETCARE US

prescription from a vet. Hill’s prescription cat food was

marketed to help support a cat’s glucose and weight

management, and its ingredients overlapped over 65 percent

of those of Hill’s non-prescription diet cat food. Again, the

non-overlapping ingredients did not include drugs and did

not justify tripling the cost of the prescription cat food.

Plaintiffs assumed from the prescription requirement

that this pet food was “(a) a substance medically necessary

to health; (b) a drug, medicine, or other controlled

ingredient; (c) a substance that has been evaluated by the . . .

[FDA] as a drug; (d) a substance to which the manufacturers’

representations regarding intended uses and effects have

been evaluated by the FDA; and (e) a substance legally

required to be sold by prescription.” As a result, Plaintiffs

paid more for the prescription pet food than they would have

in the absence of the prescription requirement, had they

purchased it at all.

B.

Plaintiffs filed their Second Amended Complaint in

August 2017 after the district court granted, with leave to

amend, Defendants’ initial motions to dismiss Plaintiffs’

First Amended Complaint.

Plaintiffs alleged, among other matters, claims for relief

that Mars and Hill’s violated three California state consumer

protection laws: 5 California’s Unfair Competition Law

(“UCL”), Cal. Bus. & Prof. Code § 17200, et seq.;

California’s False Advertising Law (“FAL”), Cal. Bus. &

5

Four of the six Plaintiffs purchased Hill’s prescription pet food

while the other two purchased Mars prescription pet food. Thus, Purina

is not named as a defendant on these California state law counts.

MOORE V. MARS PETCARE US 11

Prof. Code § 17500, et seq.; and California’s Consumer

Legal Remedies Act (“CLRA”), Cal. Civ. Code § 1750, et

seq. Plaintiffs also sought class certification, injunctive

relief, and damages.

Defendants filed motions to dismiss the Second

Amended Complaint for failure to state a claim for relief

under the California consumer protection laws, failure to

plead those claims with sufficient particularity under Federal

Rule of Civil Procedure 9(b), and for lack of standing. 6 The

district court granted the motions with leave to amend the

California state law claims to specify how the term

prescription or Rx symbol affected each plaintiff’s decision

to purchase such pet food. Plaintiffs elected to rest on the

allegations in the Second Amended Complaint, and the

district court dismissed the case with prejudice. Plaintiffs

timely appealed.

II.

We review de novo the district court’s dismissal of a

complaint under Rules 9(b) and 12(b)(6). Vess v. Ciba-

Geigy Corp. USA, 317 F.3d 1097, 1102 (9th Cir. 2003). All

allegations of material fact in the complaint are taken as true

and construed in the light most favorable to Plaintiffs.

Williams v. Gerber Prods. Co., 552 F.3d 934, 937 (9th Cir.

2008). “To survive a motion to dismiss, a complaint must

contain sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face.’” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)).

6

As noted above, Defendants also moved to dismiss the Sherman

Act antitrust claim, which the court granted. See note 1, supra.

12 MOORE V. MARS PETCARE US

“As a federal court sitting in diversity [over Plaintiffs’

California state law claims], we must apply the substantive

law of California, as interpreted by the California Supreme

Court.” Hinojos v. Kohl’s Corp., 718 F.3d 1098, 1103 (9th

Cir. 2013) (quotations omitted).

III.

Plaintiffs argue that the district court erred by dismissing

their California state law consumer protection claims against

Defendants Mars and Hill’s. As discussed below, we agree

that the district court erred in dismissing the California

claims.

California’s UCL prohibits any “unlawful, unfair or

fraudulent business act or practice.” Cal. Bus. & Prof. Code

§ 17200. California’s FAL prohibits any “unfair, deceptive,

untrue or misleading advertising.” Williams, 552 F.3d at 938

(quoting Cal. Bus. & Prof. Code § 17500). “‘Any violation

of the [FAL] . . . necessarily violates’ the [UCL].” Id.

(original alterations omitted) (quoting Kasky v. Nike, Inc.,

45 P.3d 243, 250 (Cal. 2002)). Last, California’s CLRA

prohibits “unfair methods of competition and unfair or

deceptive acts or practices.” Cal. Civ. Code § 1770. Among

the twenty-four activities deemed unlawful within the

CLRA, two are relevant to this case: “[m]isrepresenting the

source, sponsorship, approval, or certification of goods or

services” and “[r]epresenting that goods . . . have . . .

approval, characteristics, ingredients, uses, benefits, or

quantities that they do not have.” Id. §§ 1770(a)(2), (5).

The gravamen of Plaintiffs’ claim is that Hill’s and Mars

violated the UCL, FAL, and CLRA through their false and

MOORE V. MARS PETCARE US 13

misleading advertising of prescription pet food.7

Specifically, through the prescription requirement, their

advertising and marketing statements, and failure to include

an adequate disclaimer, Mars and Hill’s allegedly

misrepresented that the prescription pet food: (1) qualified

as some sort of drug or medicine; (2) met a medical

requirement for the pet; (3) had been evaluated by the FDA

as a drug; (4) had been evaluated by the FDA regarding its

intended uses and effects; (5) required a prescription per

federal or state law; and (6) warranted a particular premium

price.

The district court dismissed Plaintiffs’ California state

law claims on three separate grounds: first, the court

concluded that the sale of the prescription pet food

exclusively through vets or with veterinarian approval was

not itself a deceptive or otherwise misleading practice;

second, the court concluded that plaintiffs failed to plead

enough facts to show that prescription pet food and other pet

food are not materially different; third, the court determined

that Plaintiffs failed adequately to allege that the use of the

word “prescription” or “Rx” symbol to have caused any of

their claimed loss. We disagree with all three grounds.

A. Deceptive or Misleading Practice

Whether a business practice is deceptive or misleading

“under these California statutes [is] governed by the

‘reasonable consumer’ test.” Williams, 552 F.3d at 938

(quoting Freeman v. Time, Inc., 68 F.3d 285, 289 (9th Cir.

7

Because the cause of action under each California state law is

premised on the same allegedly misleading acts in this case—i.e.,

misrepresentation of the certification of and ingredients in prescription

pet food—we evaluate the UCL, FAL, and CLRA claims collectively, as

did the district court and all parties.

14 MOORE V. MARS PETCARE US

1995)). Plaintiffs “must show that members of the public are

likely to be deceived.” Id. (quotations omitted). This

“requires more than a mere possibility that [Defendants’]

label ‘might conceivably be misunderstood by some few

consumers viewing it in an unreasonable manner.’” Ebner

v. Fresh, Inc., 838 F.3d 958, 965 (9th Cir. 2016) (quoting

Lavie v. Proctor & Gamble Co., 129 Cal. Rptr. 2d 486, 495

(Ct. App. 2003)). “Rather, the reasonable consumer

standard requires a probability ‘that a significant portion of

the general consuming public or of targeted consumers,

acting reasonably in the circumstances, could be misled.’”

Id. (quoting Lavie, 129 Cal. Rptr. 2d at 495).

California laws “prohibit ‘not only advertising which is

false, but also advertising which[,] although true, is either

actually misleading or which has a capacity, likelihood or

tendency to deceive or confuse the public.’” Williams,

552 F.3d at 938 (emphasis added) (quoting Kasky, 45 P.3d

at 951). “[W]hether a practice is deceptive will usually be a

question of fact not appropriate for decision on demurrer” or

motions to dismiss. Id. (citing Linear Tech. Corp. v. Applied

Materials, Inc., 61 Cal. Rptr. 3d 221, 236–37 (Ct. App.

2007)). Several themes emerge from cases evaluating the

potential to mislead under the reasonable consumer test.

First, “[l]iteral truth can sometimes protect a product

manufacturer from a misleading claim, but it is no

guarantee,” whereas “there is no protection for literal

falseness.” Brady v. Bayer Corp., 237 Cal. Rptr. 3d 683,

691–92 (Ct. App. 2018). For instance, in Kwikset Corp. v.

Super. Ct., the California Supreme Court reversed dismissal

of a UCL claim challenging defendants’ practice of selling

locks with “Made in U.S.A.” labels when some screws and

pins in the assembly were made in Taiwan. 246 P.3d 877,

882, 890–91 (Cal. 2011).

MOORE V. MARS PETCARE US 15

Second, qualifiers in packaging, usually on the back of a

label or in ingredient lists, “can ameliorate any tendency of

the label to mislead.” Brady, 237 Cal. Rptr. 3d at 692. If,

however, “a back label ingredients list . . . conflict[s] with,

rather than confirm[s], a front label claim,” the plaintiff’s

claim is not defeated. Id. at 693. For instance, in Williams,

we held that a reasonable consumer would be misled where

packaging on defendant’s snacks stated “fruit juice” next to

images of fruit when in fact fruit juice was not a listed

ingredient. 552 F.3d at 939–40. Conversely, in Ebner, we

held that a reasonable consumer would not be misled about

the amount of lip balm in a tube because it was undisputed

that the label disclosed the correct weight of included lip

product. 838 F.3d at 965–66; see also Freeman, 68 F.3d

at 289–90 (holding that promotional mailers for sweepstakes

were not likely to deceive reasonable consumers because the

mailers themselves contained qualifying language).

Third, “brand names by themselves can be misleading in

the context of the product being marketed.” Brady, 237 Cal.

Rptr. 3d at 694. Descriptive brand names require of the

consumer “little thought,” which can make consumers

susceptible to purchasing because “they won’t have the time

or interest to read about [the product] on [the] website or

the back of the box.” Id. (quoting the California Attorney

General’s amicus brief). Thus, a product called “One a Day”

gummy vitamins, which required two gummies a day for a

full dosage, is explicitly misleading. Id. at 696–97.

Conversely, if common sense would not lead anyone to be

misled, then the claim may be disposed of at a motion to

dismiss stage. Id. at 690–91.

Under these guidelines, the labeling of “prescription pet

food” does appear deceptive and misleading. Common

sense dictates that a product that requires a prescription may

16 MOORE V. MARS PETCARE US

be considered a medicine that involves a drug or controlled

substance. See, e.g., Prescription, Merriam-Webster,

https://www.merriam-webster.com/dictionary/prescription

(last accessed August 2, 2019) (defining “prescription” as,

among other things, “a prescribed medicine”). This

conforms to general understandings of prescription drugs for

humans and pets. Moreover, the brand name of

“prescription pet food” itself could be misleading. A

reasonable consumer being told about “prescription pet

food” may be surprised to learn that there are no drugs or

controlled ingredient in the pet food by nature of brand

names like “Prescription Diet” or an “Rx” symbol on the

food packaging. See Williams, 552 F.3d at 939 (“The

product is called ‘fruit juice snacks’ and the packaging

pictures a number of different fruits, potentially suggesting

(falsely) that those fruits or their juices are contained in the

product.”).

The district court seems to have discounted the potential

to mislead in part because vets play a role in the referral

process. This reasoning, however, is misguided. The

reasonable consumer test requires looking at “the general

consuming public or targeted consumers.” 8 Ebner, 838 F.3d

at 965 (quoting Lavie, 129 Cal. Rptr. at 495). Plaintiffs

allege, and Defendants do not seem to deny, that Defendant

Manufacturers’ prescription pet food is marketed to

consumers, in addition to vets. In fact, all parties agree that

there has been a historic shift from this kind of pet food being

8

Defendants’ argument—that the individual Plaintiffs lacked

exposure to the term “prescription pet food” prior to receiving a written

prescription from their vets—impacts the standing analysis, but not the

reasonable consumer analysis. See Reid, 780 F.3d at 958 (“[T]he

reasonable consumer standard, unlike the individual reliance

requirement[,] . . . is not a standing requirement.”). We analyze standing

separately. See infra at 20–23.

MOORE V. MARS PETCARE US 17

distributed only through vets to being sold directly to

consumers. Thus, to whatever extent that the district court

assumed that vets could tell the difference between food and

medicine, that reasoning is insufficient under the reasonable

consumer test.

Moreover, even though the FDA, in the 2016 CPG,

explicitly sanctions the role of vets in supervising

consumption of this type of pet food, that does not

automatically defeat Plaintiffs’ claim. The Seventh Circuit

recently addressed the marketing of prescription cat food by

Hill’s and PetSmart and held that the plaintiffs’ complaint

adequately pled a deceptive-practices claim under an Illinois

consumer protection statute. 9 See Vanzant v. Hill’s Pet

Nutrition, Inc., 934 F.3d 730, 739 (7th Cir. 2019). In

analyzing the same CPG, the Seventh Circuit concluded that

it “doesn’t signal [the FDA’s] authorization” and “doesn’t

specifically authorize the [defendant]’s prescription

requirement, prescription label, and related marketing

representations.” Id. at 738. We agree with the Seventh

Circuit’s reading of the 2016 CPG.

We also find it persuasive that the FDA warns in the

CPG that the labeling on such pet food “may lack sufficient

information, particularly for pet owners.” Plaintiffs allege

that Defendant Manufacturers violate three of the conditions

listed in the CPG, which make it more likely that the FDA

would consider enforcement action. Even assuming the

FDA does not expressly prohibit the “prescription”

9

The Illinois law “protect[s] consumers . . . against fraud, unfair

methods of competition, and other unfair and deceptive practices.”

Vanzant, 934 F.3d at 736 (quotations omitted). The California UCL

targets deceptive, unfair and unlawful business practices, see Cal. Bus.

& Prof. Code § 17200, so it is broader but also encompasses acts targeted

by the Illinois statute.

18 MOORE V. MARS PETCARE US

requirement as directed to consumers, an advertising

practice can be deceptive without directly violating FDA

regulations. 10 See Reid, 780 F.3d at 957, 967; see also

Vanzant, 934 F.3d at 738–39. Thus, we conclude that

Plaintiffs have sufficiently alleged a deceptive practice

under the reasonable consumer test.

B. Rule 9(b) Misrepresentation

Plaintiffs’ state law claims are based in part on a theory

of fraud: that prescription pet food is not materially different

from non-prescription pet food and therefore does not justify

the higher cost. “In alleging fraud . . . a party must state with

particularity the circumstances constituting fraud . . . .” Fed.

R. Civ. P. 9(b). In other words, “a pleading must identify

the who, what, when, where, and how of the misconduct

charged, as well as what is false or misleading about the

purportedly fraudulent statement, and why it is false.”

Davidson v. Kimberly–Clark Corp., 889 F.3d 956, 964 (9th

Cir. 2018) (quotations omitted). 11

10

Although “[c]ompliance with FDA regulations may be relevant to

a preemption argument,” Williams, 552 F.3d at 940 n.4, Defendants do

not make such an argument here.

11

Rule 9(b) requirements may not even be necessary, given that a

defendant can violate the UCL, FAL, and CLRA by acting with mere

negligence. See Williams, 552 F.3d at 938 (applying a “reasonable

consumer” test to UCL, FAL, and CLRA claims); Chamberlan v. Ford

Motor Co., 369 F. Supp. 2d 1138, 1144 (N.D. Cal. 2005) (rejecting

arguments that plaintiffs must show intent to deceive for CLRA and UCL

claims); Khan v. Med. Bd., 16 Cal. Rptr. 2d 385, 392 (Ct. App. 1993)

(holding that FAL “can be violated through negligence”). Thus, because

“fraud is not a required element, Rule 9(b)’s heightened pleading

standard [may] not apply.” See Vanzant, 934 F.3d at 739; Belville v.

Ford Motor Co., 60 F. Supp. 3d 690, 698 (S.D. W. Va. 2014) (agreeing

MOORE V. MARS PETCARE US 19

Here, Plaintiffs’ complaint satisfies the Rule 9(b)

heightened pleading standard in alleging the basic premise

of “what is false or misleading about a statement, and why it

is false.” Vess, 317 F.3d at 1106 (quotations omitted).

Plaintiffs described the six kinds of prescription pet food that

they purchased from Mars and Hill’s and how they overlap

with a substantial portion of ingredients in non-prescription

pet foods that were marketed to treat similar health issues.

More importantly, Plaintiffs allege that all non-overlapping

ingredients are not drugs and are not sufficient to justify one

product being sold by prescription for a significantly higher

price.

We therefore conclude that Plaintiffs have pleaded

sufficient detail to put Defendants on notice as to the fraud

claim. Compare Davidson, 889 F.3d at 964–65 (reversing

dismissal under Rule 9(b) where plaintiff alleged that

defendant’s marketing of its wipes as “flushable” were

false), with Kearns v. Ford Motor Co., 567 F.3d 1120, 1126–

27 (9th Cir. 2009) (affirming dismissal where plaintiff failed

to allege what misleading advertisement or sales material led

him to purchase defendant’s vehicle). If this case had

proceeded in the district court, Defendants could have

submitted evidence about why the difference in ingredients

mattered between those specific prescription and non-

prescription pet foods to justify the price differentials. Cf.

Concha v. London, 62 F.3d 1493, 1503 (9th Cir. 1995)

that because “most state consumer protection laws do not require the

same elements of proof as common-law fraud, . . . . a state-by-state

analysis” is necessary to determine whether Rule 9(b) applies); see also

Wright & Miller, 5A Fed. Prac. & Proc. Civ. § 1297 (4th ed.) (“Some

federal or state statutes may define fraud in a manner that eliminates one

or more of the[] [traditional] elements of a fraud claim . . . .”).

Nonetheless, Plaintiffs did not raise this argument in their briefing, so we

do not decide this issue at this stage.

20 MOORE V. MARS PETCARE US

(“Even in cases where fraud is alleged, we relax pleading

requirements where the relevant facts are known only to the

defendants.”). The fact that Plaintiffs placed Defendants on

sufficient notice to respond to the alleged fraud reflects how

their allegations meet Rule 9(b).

C. Reliance and Standing

Last, the district court faulted Plaintiffs for not providing

more detail as to how each Plaintiff relied on the

“prescription” label or requirement to purchase the food.

Since the passage of Proposition 64,12 a plaintiff must allege

actual reliance in order to have standing to pursue UCL and

FAL claims. See Hinojos, 718 F.3d at 1103–04; see also

Cal. Bus. & Prof. Code §§ 17204, 17535. “[A]ny plaintiff

who has standing under the UCL’s and FAL’s ‘lost money

or property’ requirement will, a fortiori, have suffered ‘any

damage’ for purposes of establishing CLRA standing.”

Hinojos, 718 F.3d at 1108 (citations omitted).

The test for reliance in cases premised on false

advertising and misrepresentations to consumers derives

from the California Supreme Court decision in In re Tobacco

II Cases, 207 P.3d 20, 40–41 (Cal. 2009), and was

reaffirmed as follows:

[A] plaintiff “proceeding on a claim of

misrepresentation . . . must demonstrate

actual reliance on the allegedly deceptive or

misleading statements, in accordance with

well-settled principles regarding the element

12

California voters passed Proposition 64 in 2004, “which restricts

standing for individuals alleging UCL and FAL claims to persons who

‘have suffered injury in fact . . . .’” Hinojos, 718 F.3d at 1103 (citing

Cal. Bus. & Prof. Code §§ 17204, 17535) (brackets removed).

MOORE V. MARS PETCARE US 21

of reliance in ordinary fraud actions.”

Consequently, “a plaintiff must show that the

misrepresentation was an immediate cause of

the injury-producing conduct.” However, a

“plaintiff is not required to allege that the

challenged misrepresentations were the sole

or even the decisive cause of the injury-

producing conduct.”

Kwikset, 246 P.3d at 888 (emphases added) (original

alterations, internal citations, and footnote omitted). “A

consumer who relies on a product label and challenges a

misrepresentation contained therein can satisfy the standing

requirement of [the UCL] by alleging . . . that he or she

would not have bought the product but for the

misrepresentation.” Id. at 890; see also Davidson, 889 F.3d

at 962, 966.

Plaintiffs do not provide much detail in their individual

allegations, but they collectively allege that “[a]s a result of

the false and fraudulent prescription requirement, each

Plaintiff paid more for Prescription Pet Food than each

Plaintiff would have paid in the absence of the requirement,

or would never have purchased Prescription Pet Food.” This

is sufficient under Kwikset to survive a motion to dismiss.

See Hinojos, 718 F.3d at 1105; Williams, 552 F.3d at 939–

40. The fact that vets had prescribed each Plaintiff the pet

food—rather than each discovering the pet food on their

own—does not negate the allegation of actual reliance

because the prescription requirement and advertising need

not be the sole or even the decisive cause of the purchase.

See Kwikset, 246 P.3d at 888.

Moreover, at the motion to dismiss stage, “actual

reliance . . . is inferred from the misrepresentation of a

22 MOORE V. MARS PETCARE US

material fact.” Friedman v. AARP, Inc., 855 F.3d 1047,

1055 (9th Cir. 2017) (quoting Chapman v. Skype Inc.,

162 Cal. Rptr. 3d 864, 874 (Ct. App. 2013)). Whether a

misrepresentation is sufficiently material to allow for an

inference of reliance is generally a question of fact that

cannot be decided at the motion to dismiss stage. See

Chapman, 162 Cal. Rptr. 3d at 874. To allege reliance, a

plaintiff “only need[] establish it to be plausible that a

‘reasonable man would attach importance to [the] existence

or nonexistence [of the misrepresentation] in determining his

choice of action in the transaction in question.” Friedman,

855 F.3d at 1056 (quoting In re Tobacco II Cases, 207 P.3d

at 39). Thus, in Friedman, we reversed dismissal of a

complaint because the plaintiff alleged that a

misrepresentation concerning an undisclosed fee in his

insurance purchase was a material fact that allowed for an

inference of actual reliance. Id. at 1056–57. We noted that

“it is not, as a matter of law, an ‘obviously unimportant’

consideration for a reasonable purchaser of insurance to

know [about] an undisclosed fee.” Id. at 1056 (quoting In re

Tobacco II Cases, 207 P.3d at 39).

Similarly, it certainly seems plausible that a reasonable

consumer would at least partially rely on the prescription

labeling to pay more money for a certain type of pet food

over others. Cf. Vanzant, 934 F.3d at 739. As the California

Supreme Court has emphasized, “labels matter.” Kwikset,

246 P.3d at 889. These California laws exist to protect

consumer interests in accurate label representations

“because consumers rely on the accuracy of those

representations in making their buying decisions.” Id. The

misrepresentation of prescription pet food as medicine or

FDA-controlled can be a material fact for a reasonable

consumer—particularly for a pet owner who is dealing with

possibly a sick or unhealthy pet. In other words, it is

MOORE V. MARS PETCARE US 23

reasonable for a consumer to rely on the prescription

requirement and labeling in her purchasing decision for an

ailing pet. Pets can, after all, be as cherished and cared for

as family members, and a reasonable person in Plaintiffs’

shoes would rationally gravitate toward a “prescription”

product if that family member’s health is at risk.

We therefore reverse the district court’s dismissal of

Plaintiffs’ California state claims. 13

13

We also reject Defendants’ additional arguments about the relief

that Plaintiffs seek. First, Defendants’ assertion that Plaintiffs have no

standing for injunctive relief is foreclosed under our recent case,

Davidson, in which we held that “a previously deceived consumer may

have standing to seek an injunction against false advertising or labeling,

even though the consumer now knows or suspects that the advertising

was false at the time of the original purchase.” 889 F.3d at 969. There

is sufficient cognizable injury where Plaintiffs allege that they cannot

rely on Defendants’ labeling of a product when deciding whether to

purchase it in the future. Id. at 970–71. Second, Defendants’ argument

that Plaintiffs cannot seek equitable relief under the UCL or FAL, given

an adequate legal remedy under the CLRA, is foreclosed by statute. The

UCL, FAL and CLRA explicitly provide that remedies under each act

are cumulative to each other. See Cal. Bus. & Prof. Code §§ 17205,

17534.5; Cal. Civ. Code § 1752. Last, Defendants argue that Plaintiffs

do not have standing to enjoin all of Defendant Manufacturers’

prescription pet food products because Plaintiffs have not purchased

every single type of prescription pet food available from Hill’s or Mars.

This does not constitute a basis for dismissal because Plaintiffs’

challenge to prescription pet foods is to the common scheme of the

prescription requirement and prescription-based advertising. Cf. In re

Tobacco II Cases, 207 P.3d at 40–41 (holding class representatives had

standing to challenge common marketing of cigarettes despite

differences in the advertisements or statements on which class members

relied).

24 MOORE V. MARS PETCARE US

IV.

For the reasons above, we reverse the district court’s

dismissal of the California state law claims and remand for

further proceedings on those claims consistent with this

opinion.

The parties shall bear their own costs on appeal.

REVERSED and REMANDED.

RAWLINSON, Circuit Judge, dissenting:

I respectfully dissent from the majority’s conclusion that

the district court judge erred in dismissing the putative class

action complaint for failure to state a claim.

Plaintiffs’ complaint asserted that Defendants violated

California’s Unfair Competition Law, False Advertising

Law and Consumer Legal Remedies Act. Plaintiffs

specifically alleged that:

By requiring a prescription from a

veterinarian as a pre-condition to the

purchase of their Prescription Pet Food,

Defendants misrepresent Prescription Pet

Food to be: (a) a substance medically

necessary to health; (b) a drug, medicine, or

other controlled ingredient; (c) a substance

that has been evaluated by the FDA as a drug;

(d) a substance as to which the

manufacturer’s representations regarding

intended uses and effects have been

MOORE V. MARS PETCARE US 25

evaluated by the FDA; and (e) a substance

legally required to be sold by prescription.

After extensive briefing and arguments from the parties,

the district court ultimately concluded that these allegations

did not state a plausible claim for relief under the California

statutes. The district court was not persuaded that Plaintiffs

sufficiently pled that use of the word “prescription” caused

any of Plaintiffs’ claimed losses.

My colleagues in the majority are persuaded that

Plaintiffs have pled a plausible claim for relief. They rely

heavily on the Defendants’ “violations” of a Draft

Compliance Policy Guide published by the United States

Food and Drug Administration (FDA). 1

As an initial matter, it is of note that the Draft Policy

Guide clarified from the outset that it was intended to serve

only as “non-binding recommendations” for the “labeling

and marketing of nutritional products intended to diagnose,

cure, mitigate, treat, or prevent diseases in dogs and cats.”

The Draft Policy Guide explicitly provides with black-box

emphasis:

This Draft Compliance Policy Guide, when

finalized, will represent the Food and Drug

Administration’s (FDA’s) current thinking

on this topic. It does not create or confer any

rights for or on any person and does not

1

Use of the term “violations” is not really accurate because, as the

majority acknowledges, the FDA has never initiated any enforcement

action against Defendants.

26 MOORE V. MARS PETCARE US

operate to bind FDA or the public. . . .

(Emphasis added).

Notwithstanding the non-binding nature of the Draft

Policy Guide, the majority opinion rests its conclusion that

Plaintiffs stated a plausible claim for relief on the

Defendants’ “violation” of the following FDA

recommendations:

5. The product does not include indications for a

disease claim (e.g. obesity, renal failure) on the label.

6. Distribution of labeling and promotional materials

with any disease claims for the product is not limited

to veterinarians.

7. Electronic resources for the dissemination of

labeling information and promotional materials are

not secured so that they are available only to

veterinarians.

It is helpful to juxtapose the provisions in the guide to

the pleading requirements of the California statutes upon

which Plaintiffs’ claims are predicated.

California’s Unfair Competition Law prohibits use of

“any unlawful, unfair or fraudulent business act or practice

and unfair, deceptive, untrue or misleading advertising.”

Cal. Bus. & Prof. Code § 17200.

California’s False Advertising Law prohibits the

dissemination of “untrue or misleading” statements in

advertising. Cal. Bus. & Prof. Code § 17500.

California’s Consumer Legal Remedies Act prohibits a

delineated number of “unfair methods of competition and

MOORE V. MARS PETCARE US 27

unfair or deceptive acts or practices” in connection with

consumer transactions. Cal. Civ. Code § 1770.

As discussed, Plaintiffs and the majority hinge their

assertion of a plausible claim on the requirement of a

veterinarian’s prescription to purchase Prescription Pet Food

and on Defendants’ “violation” of the Policy Guide.

However, assertion of plausible claims on these bases is

problematic, as recognized by the district court.

The sum and substance of Plaintiffs’ allegation regarding

the prescription requirement is that an individual seeing the

word “prescription” in connection with pet food would

reasonably assume that the pet food has been vetted and

approved by the FDA. However, Plaintiffs did not elucidate

the basis for the “reasonable assumption” that the pet food

has been vetted and approved by the FDA. Indeed the

FDA’s own Policy Guide expressly noted that “[f]or more

than fifty years, dog and cat food manufacturers have

marketed products identified on their labels or in labeling as

being intended for use to diagnose, cure, mitigate, treat or

prevent diseases” without FDA approval.

This statement seriously undercuts the reasonableness of

Plaintiffs’ asserted assumption, particularly where the

assumption is not supported by any underlying factual

assertions. See Ibarra v. Manheim Investments, Inc.,

775 F.3d 1193, 1199 (9th Cir. 2015) (clarifying that when a

“chain of reasoning includes assumptions . . . [,] those

assumptions cannot be pulled from thin air but need some

reasonable ground underlying them”). In Ibarra, we

concluded that neither the party advancing the assumption

nor the party contesting the assumption proceeded from a

position “grounded in real evidence.” Id. This approach is

consistent with the well-established pleading standard set

forth in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)

28 MOORE V. MARS PETCARE US

and Ashcroft v. Iqbal, 556 U.S. 662 (2009) requiring

pleading of facts to state a plausible claim. See Twombly,

550 U.S. at 555 (mandating sufficient “[f]actual allegations

. . . to raise a right to relief above the speculative level”)

(citation omitted); see also Iqbal, 556 U.S. at 680 (clarifying

that a complaint does not “suffice if it tenders naked

assertions devoid of further factual enhancement”) (citation,

alteration and internal quotation marks omitted).

As described in greater detail below, the majority’s

reliance on “violations” of the Draft Policy Guide does not

cure the defect in Plaintiffs’ allegations because the Draft

Policy Guide sets forth non-binding recommendations rather

than actual regulations that could be violated. In addition,

the Draft Policy Guide encourages veterinarian oversight in

the selection and use of prescription pet food rather than

discouraging such involvement. Finally, our precedent and

precedent from one of our sister circuits foreclose the claim

made by Plaintiffs based on use of the term “prescription.”

It is informative to examine in some detail the provisions

of each of the California statutes upon which the Plaintiffs’

complaint is based. Such examination further exposes the

deficiencies in Plaintiffs’ pleading.

1. California’s Unfair Competition Law

Interpreting California’s Unfair Compensation Law

(UCL), and applying California precedent, we have

recognized a claim under the “unlawful prong” of the UCL

predicated on violation of “virtually any state, federal, or

local law.” Freidman v. AARP, 855 F.3d 1047, 1052 (9th

Cir. 2017). However, there must be an actual law involved.

See id. As noted earlier, Plaintiffs did not rely on “any state,

federal, or local law” in the allegations of their complaint.

Id. (citation omitted). Rather, they referenced “violations”

MOORE V. MARS PETCARE US 29

of a non-binding Policy Guide. Under our interpretation of

the “unlawful prong” of the statute, id., these allegations did

not suffice to state a plausible claim for relief. See Iqbal,

556 U.S. at 678 (explaining that the Rule 8 pleading standard

“demands more than an unadorned, the-defendant-

unlawfully-harmed-me accusation”) (citation omitted) 2, 3

2. California’s False Advertising Law

To state a claim under California’s False Advertising

Law, the Plaintiffs must allege that they relied on a

misrepresentation on a product label and, as a result of that

reliance, they “paid more for a product than they otherwise

would have paid, or bought it when they otherwise would

not have done so.” Reid v. Johnson & Johnson, 780 F.3d

952, 958 (9th Cir. 2015) (citations omitted). Plaintiffs

cannot state a plausible claim because they did not read the

product labels prior to purchasing the products. Rather, they

admittedly relied on the advice of their respective

veterinarians to purchase the prescription pet foods.

The majority opinion references “promotional materials

with disease claims.” Majority Opinion, p. 7. However, the

majority does not, and cannot, point to any allegation that

any of the Plaintiffs relied on these “promotional materials”

to purchase prescription pet food. The majority cannot make

this assertion because the Plaintiffs made no such assertion.

Rather, the Plaintiffs consistently asserted that their

2

Plaintiffs made no specific allegations of “unfair” or “fraudulent”

business practices in their complaint.

3

The advertising provisions of California’s Unfair Competition Law

overlap with the False Advertising Law.

30 MOORE V. MARS PETCARE US

purchases were prompted by referrals from their

veterinarians.

Because the Plaintiffs failed to plead reliance on any

product labels to induce their purchases of prescription pet

food, the district court committed no error in dismissing their

claim under California’s False Advertising Law. See Reid,

780 F.3d at 958.

3. California’s Consumer Legal Remedies Act

To state a claim under California’s Consumer Legal

Remedies Act, a plaintiff must allege that defendants

engaged in one or more of the following unlawful practices,

as potentially relevant to this case:

(1) Passing off goods or services as those of another.

(2) Misrepresenting the source, sponsorship, approval,

or certification of goods or services.

(3) Misrepresenting the affiliation, connection, or

association with, or certification by, another.

(4) Using deceptive representations or designations of

geographic origin in connection with goods or

services.

(5) Representing that goods or services have

sponsorship, approval, characteristics, ingredients,

uses, benefits, or quantities that they do not have or

that a person has a sponsorship, approval, status,

affiliation, or connection that he or she does not have.

MOORE V. MARS PETCARE US 31

(6) Representing that goods are original or new if they

have deteriorated unreasonably or are altered,

reconditioned, reclaimed, used, or secondhand.

(7) Representing that goods or services are of a

particular standard, quality, or grade, or that goods

are of a particular style or model, if they are of

another.

(8) Disparaging the goods, services, or business of

another by false or misleading representation of fact.

(9) Advertising goods or services with intent not to sell

them as advertised.

...

Cal. Civil. Code § 1770.

As discussed below, California’s Consumer Legal

Remedies Act is preempted in this context because the FDA

has exclusive enforcement authority over the claims made

by Plaintiffs predicated on alleged misrepresentations

through use of the term “prescription pet food,” and the

healing properties of that food. Nevertheless, for purposes

of our discussion, the only provisions of California’s

Consumer Legal Remedies Act that potentially apply based

on the allegations of the complaint are:

(2) Misrepresenting the source, sponsorship, approval,

or certification of goods or services.

(3) Misrepresenting the affiliation, connection, or

association with, or certification by, another.

32 MOORE V. MARS PETCARE US

(5) Representing that goods or services have

sponsorship, approval, characteristics, ingredients,

uses, benefits or quantities which they do not have or

that a person has a sponsorship, approval, status,

affiliation, or connection which he or she does not

have.

(7) Representing that goods or services are of a

particular standard, quality, or grade, or that goods

are of a particular style or model, if they are of

another.

I am persuaded that these provisions of California’s

Consumer Legal Remedies Act are preempted by the federal

Food, Drug and Cosmetic Act (FDCA). A similar issue was

raised in Perez v. Nidek Co., Ltd., 711 F.3d 1109 (9th Cir.

2013). In Perez, the plaintiffs underwent LASIK surgery for

farsightedness with a laser system that had not yet been

approved by the FDA for that use. See id. at 1112.

Consequently, use of the laser system was considered an

“off-label” use. Id. at 1111. Plaintiffs alleged that had they

known the device was unapproved, they would not have

undergone the surgeries. See id. at 1112.

Because the laser system was “a Class III medical device

under the FDCA, as amended by the Medical Device

Amendments of 1976,” the laser system was subject to

premarket approval before being utilized. Id. (citation

omitted). Although the defendant who developed the laser

system had received premarket approval to use the laser

system to correct nearsightedness, the system had not yet

been approved to correct farsightedness. See id. Plaintiffs

alleged that the physician defendants impermissibly

modified the approved laser system “to correct

farsightedness before [the laser system] was approved for

that purpose.” Id. The plaintiffs also alleged that the laser

MOORE V. MARS PETCARE US 33

developer was aware of the illegal modifications and that the

developer and physicians “conspired [with] and aided and

abetted each other in their unlawful conduct.” Id.

The FDA was aware of claims that the laser system was

being used “off-label” and responded to the claims,

including sending warning letters to the laser developer and

to “certain physicians” who were using the laser system to

correct farsightedness. Id. at 1113. The FDA specifically

warned that because there was no premarket approval of the

laser system for use to correct farsightedness, the laser

system was “adulterated within the meaning of the Act.” 4 Id.

Plaintiffs alleged that despite the FDA’s actions, the

defendants continued to use to laser system to correct

farsightedness. See id.

The plaintiffs asserted a “fraud by omission” claim

against the defendants on the theory that defendants engaged

in misleading behavior by failing to disclose that the laser

system was not FDA-approved for LASIK procedures to

correct farsightedness. The plaintiffs alleged that the

defendants “knew or should have known” that the proposed

class members believed the laser was FDA approved for

such surgeries. Id. at 1117.

We held that the “fraud by omission” claim was

“impliedly preempted because it conflict[ed] with the

FDCA’s enforcement scheme.” Id. at 1119. We explained

that it is the responsibility of the FDA to investigate potential

violations of the FDCA. Because the Act provides the FDA

“with a range of enforcement mechanisms,” we concluded

that “private enforcement of the statute is barred.” Id.

4

This was the same language used by the FDA in the Policy Guide

upon which Plaintiffs rely in their complaint.

34 MOORE V. MARS PETCARE US

(citations omitted). We concluded that the plaintiffs’ “fraud

by omission claim exists solely by virtue of the FDCA

requirements.” Id. (citation, alterations, and internal

quotation marks omitted). We clarified that the plaintiffs

were barred from bringing any “claim that rests solely on the

non-disclosure to patients of facts tied to the scope of [FDA]

approval.” 5 Id. We noted that the plaintiffs failed to cite

even one case “where a court has allowed a plaintiff to bring

suit solely for failure to disclose lack of FDA approval.” Id.

at 1120 (footnote reference omitted).

We discussed that the FDA was aware of the allegations

that the laser system was being used for unapproved

procedures. Although the FDA addressed the allegations

with warning letters and an alert, the FDA “did not take final

action against the defendants.” 6 Id. In affirming dismissal

of the plaintiffs’ claim for “fraud by omission,” we observed

that the claim was preempted because matters of

“adulterat[ion] . . . rest within the enforcement authority of

the FDA, not this Court.” Id.

As noted, the parallels between the facts in Perez and the

facts of this case are inescapable. In both cases, the plaintiffs

alleged that they were misled by the failure of Defendants to

offer a product that had been approved by the FDA. In both

cases, the FDA was made aware of the allegations that the

defendants were providing “adulterated” products, that is

products that were unapproved by the FDA. In both cases,

the FDA addressed the allegations of adulteration—in Perez

5

This claim is remarkably similar to Plaintiffs’ claims predicated on

use of the term “prescription.”

6

In our case, the FDA addressed the allegations against the

Defendants in the Policy Guide, but also took no action against the

Defendants in response to the allegations.

MOORE V. MARS PETCARE US 35

through warning letters and an alert and in this case through

the issuance of the Draft Compliance Policy Guide. In both

cases, no compliance action was taken against the

defendants by the FDA. Under these circumstances, we

concluded in Perez that the plaintiffs’ claim of “fraud by

omission” was preempted.

The same result is appropriate in this case. See id.; see

also Mylan Laboratories, Inc. v. Matkari, 7 F.3d 1130, 1139

(4th Cir. 1993) (holding that the plaintiff’s “claims that the

defendants falsely represented that their drugs had been

‘properly approved by the FDA’ must fail”) (punctuation

omitted).

In Mylan Labs, the Fourth Circuit employed the same

reasoning that we adopted in Perez. See 711 F.3d at 1120,

n.6 (citing Mylan Labs). In Mylan Labs, the Fourth Circuit

addressed a Lanham Act claim brought by Mylan Labs

asserting claims for false advertising under the Lanham Act.

See 7 F.3d at 1131–32. The Fourth Circuit first noted that

the plaintiff in the complaint failed to “point[] to any

statement or representation in the defendants’ advertising

which declared ‘proper FDA approval.’” Id. at 1139. The

Fourth Circuit then added that this deficiency could not be

cured “by contentions that the very act of placing a drug on

the market, with standard package inserts . . . somehow

implies (falsely) that the drug had been properly approved

by the FDA.” Id. (internal quotation marks omitted). The

Fourth Circuit reasoned that this theory, like the theory

advanced by the plaintiffs in this case that use of the term

“prescription” implied FDA approval, “is, quite simply, too

great a stretch.” Id.

In sum, our precedent and precedent from the Fourth

Circuit foreclose a viable statutory claim predicated on

implied FDA approval. Consequently, Plaintiffs’ claim

36 MOORE V. MARS PETCARE US

predicated on the provisions of California’s Consumer Legal

Remedies Act was properly dismissed as preempted by the

FDCA. In addition, as with its other claims, Plaintiffs failed

to adequately plead reliance. See Chapman v. Skype, Inc.,

220 Cal. App. 4th 217, 230–32 (2013) (requiring allegation

of actual reliance to sustain a claim under the Consumer

Legal Remedies Act).

In conclusion, I am of the view that Plaintiffs failed to

state a plausible claim for relief under California’s Unfair

Competition Law, False Advertising Law or Consumer

Legal Remedies Act.

I would affirm the judgment of the district court.