Gisvold

ORDER GRANTING MOTION TO DISMISS

Pending before the Court in this putative consumer class action is Defendants’ Merck & Co., Inc., MSD Consumer Care Inc., and Merck Sharp & Dohme Corp.’s (collectively “Merck Defendants” or “Merck”) motion to dismiss the First Amended Complaint (“FAC”). Plaintiff Danika Gisvold filed an opposition and Defendants replied. The motion came on for hearing on November 4, 2014. James Patterson appeared on Plaintiffs behalf; David Stanley appeared on behalf of Defendants. Upon consideration of the briefing and oral argument, and for the reasons set forth below, Defendants’ motion to dismiss is granted.

Plaintiff alleges the Merck Defendants are manufacturers, distributors and marketers of Coppertone over-the-counter (“OTC”) sunscreen products, including products labeled with Sun Protection Factor (“SPF”) 50 and above. (FAC ¶1.) Plaintiff claims she purchased Coppertone SPORT SPF 100+ sunscreen lotion at Wal-Mart for a premium price ($1.00 or more than the same size SPF 50 product) after “reading [Merck’s] Coppertone SPORT SPF 100+ Sunscreen Lotion label.” (FAC ¶ 12.)

Plaintiff alleges that consumers have learned to associate higher SPF values with…