NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 25 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANN KENNEY, individually and on behalf No. 23-55583 of all others similarly situated, D.C. No. Plaintiff-Appellant, 3:21-cv-01016-JO-MSB

v.

MEMORANDUM*

FRUIT OF THE EARTH, INC.; CVS

PHARMACY, INC.,

Defendants-Appellees.

Appeal from the United States District Court for the Southern District of California Jinsook Ohta, District Judge, Presiding

Argued and Submitted October 9, 2024 Pasadena, California

Before: NGUYEN and HURWITZ, Circuit Judges, and EZRA,** District Judge.

Ann Kenney appeals the district court’s order granting summary judgment

on her equitable claims in favor of defendants Fruit of the Earth, Inc. and CVS

Pharmacy, Inc. (collectively the “defendants”). We have jurisdiction under 28

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable David A. Ezra, United States District Judge for the District of Hawaii, sitting by designation. U.S.C. § 1291, and we affirm.

Kenney, a consumer who seeks to purchase sunscreen that contains only

mineral-active ingredients such as zinc oxide, sued under California’s False

Advertising Law, Unfair Competition Law, and Consumer Legal Remedies Act,

alleging that she was misled by the defendants’ labeling of their sunscreen

products. The products’ front label displayed the words “CLEAR ZINC.”

Without reading the back, which listed two active ingredients including one

chemical active ingredient, Kenney purchased the sunscreen believing that it only

contained zinc oxide.

Although Kenney originally sought damages and class certification, she has

abandoned those claims and now seeks only equitable relief. The only issue on

appeal is whether the district erred in finding that Kenney lacked standing to

pursue such relief.

1. Kenney argues that she has standing to seek a preliminary injunction

because she established “a sufficient likelihood that [she] will again be wronged in

a similar way.” Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 967 (9th Cir.

2018) (cleaned up). We held in Davidson, reviewing a motion to dismiss, that “a

previously deceived consumer may have standing to seek an injunction against

false advertising or labeling,” if they “suffer an ‘actual and imminent, not

conjectural or hypothetical’ threat of future harm.” Id. at 969 (quoting Summers v.

2 Earth Island Inst., 555 U.S. 488, 493 (2009)). “Knowledge that [an] advertisement

or label was false in the past does not equate to knowledge that it will remain false

in the future.” Id. Thus, a “consumer’s inability to rely on a representation made

on a package . . . is an ongoing injury that may justify an order barring the false

advertising.” Id. at 961.

In Davidson, we concluded that the plaintiff plausibly alleged that she will

be unable to rely on the defendant’s labeling of the wipes as “flushable” in the

future, because she had “no way of determining whether the representation

‘flushable’ is in fact true,” without again purchasing them and attempting to flush

them. Id. at 970-71. Because she could only test the validity of the label by

purchasing the wipes, we held that Davidson had plausibly pleaded Article III

standing to sue for injunctive relief.

In contrast, the record in this case makes plain that Kenney need not

purchase the defendants’ sunscreen anew to determine whether it contains non-zinc

active ingredients. Kenney is aware that the sunscreen’s back label states that it

contains octocrylene, a chemical active ingredient. As such, in contrast to

Davidson, it is plain that Kenney need not purchase the sunscreen again to

determine whether it has non-zinc active ingredients.

2. The district court also did not err in dismissing Kenney’s remaining

claims for equitable relief. “[T]he traditional principles governing equitable

3 remedies in federal courts, including the requisite inadequacy of legal remedies,

apply when a party requests” equitable remedies under state law. Sonner v.

Premier Nutrition Corp., 971 F.3d 834, 844 (9th Cir. 2020). Here, Kenney had an

adequate legal remedy for the past injury she allegedly suffered: monetary

damages for the $4.00 sunscreen.

AFFIRMED.

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