1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ALEXANDRA MANDEL, Case No. 22-cv-00071-JD

8 Plaintiff,

ORDER RE MOTION TO DISMISS

v. 9

10 GRANDE COSMETICS, LLC, Defendant. 11

12 13 Plaintiff Alexandra Mandel alleges that defendant Grande Cosmetics did not adequately 14 disclose to consumers that its GrandeLASH-MD, GrandeBROW, and GrandeHAIR products 15 contain the active ingredient isopropyl cloprostenate (“IC”), which is a prostaglandin analog said 16 to be associated with serious side effects. See Dkt. No. 1 ¶¶ 1-2, 13-14. Grande Cosmetics has 17 asked to dismiss the complaint under Federal Rules of Civil Procedure 12(b)(6) and 12(b)(1) on 18 preemption and other grounds. Dkt. No. 17. Its main contention is that the Federal Drug and 19 Cosmetics Act (FDCA) pre-empts the claim under the California Sherman Food, Drug, and 20 Cosmetics Law, Cal. Health & Safety Code § 111550, and the dependent UCL and false 21 advertising claims. The parties’ familiarity with the record is assumed, and the motion is denied. 22 There is a presumption against preemption, see Stengel v. Medtronic, Inc., 704 F.3d 1224, 23 1227 (9th Cir. 2013), and Grande Cosmetics has not overcome it. As the parties acknowledge, the 24 starting point is the Federal Circuit’s decision in Allergan, Inc. v. Athena Cosmetics, Inc., 738 F.3d 25 1350 (Fed. Cir. 2013). The case is quite similar to this one in that the plaintiff alleged that the 26 defendant violated California’s Sherman Law and UCL by selling products that contained IC and 27 other prostaglandin analogs without regulatory approval. See id. at 1353. The circuit court 1 the Sherman Law, which “contains provisions that parallel the FDCA, such that the statutes have 2 consistent goals.” Id. at 1355-56. 3 The Allergan district court’s decisions underscore the application of this conclusion here. 4 The district court considered the pricing, marketing, and function of the IC-containing products 5 and found that they were objectively intended to be sold as drugs within the meaning of state and 6 federal law, and consequently sold in violation of the Sherman Law. See Allergan, Inc. v. Athena 7 Cosmetics, Inc., Nos. SACV 07-1316 JVS (RNBx), SACV 08-427 JVS (RNBx), SACV 09-328 8 JVS (RNBx), 2012 WL 1289622, at *4, *8 (C.D. Cal. July 19, 2012) (prior version of RevitaLash 9 contains IC and was sold as a drug); Allergan, Inc. v. Athena Cosmetics, Inc., No. SACV 07-1316 10 JVS (RNBx), 2012 WL 12896228, at *8 (C.D. Cal. Dec. 20, 2012) (RapidLash and NeuLash were 11 sold as drugs); Dkt. No. 1, Ex. 1 (RapidLash and NeuLash products contain IC). 12 Grande Cosmetics has not identified a good reason for the Court to decide otherwise here. 13 The FDA’s silence on the drug status of IC is of no moment because state laws may impose an 14 additional layer of protection to that provided by federal law. See Wyeth v. Levine, 555 U.S. 555, 15 578 (2009). As in Allergan, Mandel’s claims are based on “state-law duties that parallel duties 16 under federal law” and consequently are not preempted. Collette v. Wyeth Pharms., Inc., No. 16- 17 cv-01034-JD, 2018 WL 1258105, at *2 (N.D. Cal. Mar. 12, 2018); see also McLellan v. I-Flow 18 Corp., 776 F.3d 1035, 1040-41 (9th Cir. 2015). And as the Federal Circuit noted, the Supreme 19 Court has acknowledged “‘the historic primacy of state regulation of matters of health and safety,’ 20 which is precisely the California Health Code’s subject matter.” Allergan, 738 F.3d at 1355 21 (quoting Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 348 (2001)). 22 Grande Cosmetics says that Allergan was wrongly decided, but the analysis is well- 23 reasoned and persuasive. That Allergan involved a claim brought by a competitor rather than a 24 consumer is a distinction without a difference because Mandel, like the plaintiff in Allergan, is 25 suing under state law “for conduct that violates the FDCA” but not “because the conduct violates 26 the FDCA.” Perez v. Nidek Co., Ltd., 711 F.3d 1109, 1120 (9th Cir. 2013) (emphasis in original); 27 Dkt. No. 1 ¶¶ 13-20. 1 Grande Cosmetics’ other grounds for dismissal are equally unavailing. It says Mandel did 2 || not adequately allege reliance, but the complaint plausibly states that she examined the 3 “packaging, labeling, and other marketing materials” of the products and that she would not have 4 || purchased GrandeLASH-MD had defendant properly disclosed the true facts regarding the product 5 or had she known that the product contained drug ingredients with potentially serious side effects. 6 || Dkt. No. 1 95. These allegations satisfy Rule 8 and Rule 9(b) of the Federal Rules of Civil 7 || Procedure, and establish reliance sufficient for standing under Mandel’s California consumer 8 protection law claims. See Swearingen v. Pac. Foods of Or., Inc., No. 13-cv-04157-JD, 2014 WL 9 || 3767052, at *2 (N.D. Cal. July 31, 2014). 10 The suggestion that Mandel lacks standing to sue for similar products is also misdirected. 11 A plaintiff has standing to allege claims for products she did not purchase when those products are 12 similar to the ones purchased. Machlan vy. Procter & Gamble Co., 77 F.Supp.3d 954, 962 (N.D. 13 Cal. 2015). The complaint plausibly alleges that IC is present in each of the accused products, 14 || which the Court accepts as true for present Rule 12(b)(6) purposes. If the record developed during 3 15 discovery warrants, Grande Cosmetics may renew the standing challenge in subsequent a 16 || proceedings.

IT IS SO ORDERED.

|| Datea: July 18, 2022 19 20

JAMESMONATO

21 United tates District Judge 22 23 24 25 26 27 28