1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 LYNN ZIMMERMAN, Case No. 22-cv-07609-HSG

8 Plaintiff, ORDER GRANTING IN PART AND

DENYING IN PART MOTION TO

9 v. DISMISS

10 L’ORÉAL USA, INC., Re: Dkt. No. 26 11 Defendant.

12 13 Pending before the Court is Defendant L’Oréal USA, Inc.’s motion to dismiss. Dkt. No. 14 26 (“Mot.”). The Court finds this matter appropriate for disposition without oral argument and the 15 matter is deemed submitted. See Civil L.R. 7-1(b). For the reasons detailed below, the Court 16 GRANTS IN PART and DENIES IN PART the motion. 17 I. BACKGROUND 18 Plaintiff Lynn Zimmerman filed this putative class action alleging that Defendant 19 misleadingly advertises the sunscreen benefits of some of its cosmetic products. Dkt. No. 9 20 (“Compl.”). Plaintiff alleges that she purchased L’Oréal Infallible Fresh Wear 24HR Foundation 21 on multiple occasions from local retailers. Id. ¶¶ 55–56. Plaintiff further alleges that the 22 foundation’s front label statements claiming it provides “Up to 24HR Breathable Texture,” “Up to 23 24H Fresh Wear,” and “Sunscreen Broad Spectrum SPF 25” led her to believe that the foundation 24 provided 24 hours of sunscreen protection.1 Id. ¶ 56. However, as alleged, the product’s Sun 25 Protection Factor (“SPF”) lasts only two hours. Id. ¶¶ 3, 23, 32. The drug facts panel, located 26

27 1 Plaintiff’s opposition makes clear that she is challenging both the “Up to 24HR Breathable 1 underneath a peel-back sticker on the back label, directs users to “reapply at least every 2 hours” 2 for sunscreen use. Id. ¶ 38. Plaintiff contends that she would not have purchased, or would have 3 paid less for, the foundation had she known that it would not provide 24 hours of sunscreen 4 protection. Id. ¶¶ 58–59. 5 Plaintiff also challenges the labels of products she did not purchase, including all 6 cosmetics sold by Defendant whose front labels contain a 24-hour durational statement alongside 7 an SPF statement. Id. ¶¶ 20–21. Plaintiff specifically identifies L’Oréal Infallible Pro-Glow 8 Foundation, which advertises “Up to 24HR Foundation,” and Lancôme Teint Idôle Ultra 24H 9 Long Wear Matte Foundation, which advertises “Up to 24H Color Wear & Comfort.”2 Id. 10 ¶¶ 20–22. 11 Based on these allegations, Plaintiff brings causes of action for violations of California’s 12 Unfair Competition Law, False Advertising Law, and Consumer Legal Remedies Act, as well as 13 for unjust enrichment and common law fraud, deceit, and/or misrepresentation. Id. ¶¶ 71–116. 14 Defendant now moves to dismiss the complaint. 15 II. LEGAL STANDARD 16 Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a short and plain 17 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A 18 defendant may move to dismiss a complaint for failing to state a claim upon which relief can be 19 granted under Rule 12(b)(6). “Dismissal under Rule 12(b)(6) is appropriate only where the 20 complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.” 21 Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). To survive a Rule 22 12(b)(6) motion, a plaintiff need only plead “enough facts to state a claim to relief that is plausible 23 on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible 24 2 The Court GRANTS Defendant’s request for judicial notice of the product labels. See Dkt. No. 25 26-10. Defendant only requests notice of the full product labels for those foundations specifically referenced and pictured in Plaintiff’s own complaint. See Dkt. Nos. 26-2, 26-3, 26-4. These 26 labels are central to Plaintiff’s claim and their authenticity is not in question. See Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005). The Court DENIES Defendant’s request for judicial 27 notice of FDA web pages and an administrative order, as well as the dictionary definition of 1 when a plaintiff pleads “factual content that allows the court to draw the reasonable inference that 2 the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 3 Rule 9(b) imposes a heightened pleading standard where fraud is an essential element of a 4 claim. See Fed. R. Civ. P. 9(b) (“In alleging fraud or mistake, a party must state with particularity 5 the circumstances constituting fraud or mistake.”); see also Vess v. Ciba–Geigy Corp. USA, 317 6 F.3d 1097, 1107 (9th Cir. 2003). A plaintiff must identify “the who, what, when, where, and how” 7 of the alleged conduct, so as to provide defendants with sufficient information to defend against 8 the charge. Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir. 1997). However, “[m]alice, intent, 9 knowledge, and other conditions of a person’s mind may be alleged generally.” Fed. R. Civ. P. 10 9(b). 11 In reviewing the plausibility of a complaint, courts “accept factual allegations in the 12 complaint as true and construe the pleadings in the light most favorable to the nonmoving party.” 13 Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). Nevertheless, 14 courts do not “accept as true allegations that are merely conclusory, unwarranted deductions of 15 fact, or unreasonable inferences.” In re Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th Cir. 16 2008) (quoting Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)). 17 A defendant may also move for dismissal on grounds that the court lacks subject matter 18 jurisdiction over the action. Fed. R. Civ. P. 12(b)(1). It is the plaintiff’s burden to establish 19 subject matter jurisdiction. See Ass’n of Am. Med. Colls. v. U.S., 217 F.3d 770, 778–79 (9th Cir. 20 2000); Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 376–78 (1994). 21 III. DISCUSSION 22 A. Standing 23 Defendant first contends that Plaintiff lacks standing for products she did not purchase and 24 to seek injunctive relief.3 Mot. at 21–25. To have standing under Article III of the Constitution, 25

26 3 Defendant also contends that Plaintiff lacks standing to pursue claims regarding statements on Defendant’s website. Mot. at 25. However, while Plaintiff references Defendant’s website “to 27 support the plausibility of her allegations,” there is no indication that she seeks to state a separate 1 “[t]he plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged 2 conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” 3 Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016) (citing Lujan v. Defenders of Wildlife, 504 U.S. 4 555, 560 (1992)). 5 i. Unpurchased Products 6 In the Ninth Circuit, “[t]here is no controlling authority on whether [p]laintiffs have 7 standing for products they did not purchase.” Miller v. Ghirardelli Chocolate Co., 912 F. Supp. 8 2d 861, 868 (N.D. Cal. 2012). Although some district courts reserve the issue until a motion for 9 class certification, “[t]he majority of the courts that have carefully analyzed the question hold that 10 a plaintiff may have standing to assert claims for unnamed class members based on products he or 11 she did not purchase so long as the products and alleged misrepresentations are substantially 12 similar.” Id. at 869; see also Papasan v. Dometic Corp., No. 16-CV-02117-HSG, 2017 WL 13 4865602, at *8 (N.D. Cal 2017); Werdebaugh v. Blue Diamond Growers, No. 12-CV-02724-LHK, 14 2013 WL 5487236, at *12-13 (N.D. Cal. Oct. 2, 2013). If the products are sufficiently similar, 15 “any concerns regarding material differences in the products can be addressed at the class 16 certification stage.” Anderson v. Jamba Juice Co., 888 F. Supp. 2d 1000, 1006 (N.D. Cal. 2012). 17 However, “[w]here the alleged misrepresentations or accused products are dissimilar, courts tend 18 to dismiss claims to the extent they are based on products not purchased.” Miller, 912 F. Supp. 2d 19 at 870. 20 Courts have found substantial similarity for purposes of standing where (1) the products 21 are physically similar; (2) the differences between the products are immaterial because the legal 22 claim and injury to the customer is the same; and (3) both the products and the legal claims and 23 injury are similar. See Ang v. Bimbo Bakeries USA, Inc., No. 13-CV-01196-WHO, 2014 WL 24 1024182, at *4–8 (N.D. Cal. Mar. 13, 2014). The Court agrees with Judge Orrick of this district 25 that “the best approach is one which focuses on whether the type of claim and consumer injury is 26 substantially similar as between the purchased and unpurchased products.” Id. at *8. “That 27 determination necessarily focuses on whether the resolution of the asserted claims will be identical 1 that a product’s label would mislead a reasonable consumer “require a context-specific analysis of 2 the appearance of the label, the misrepresentation’s placement on the label, and other information 3 contained on the label,” the plaintiff “may only be allowed to pursue those claims for products 4 with identical labels.” Id. 5 The Court finds that the two identified, unpurchased products—L’Oréal Pro-Glow 6 Foundation and Lancôme Foundation—are not substantially similar to L’Oréal Infallible 7 Foundation, the product Plaintiff purchased, because the allegedly misleading statements are 8 different.4 While L’Oréal Infallible Foundation advertises “Up to 24H Fresh Wear” and “Up to 9 24HR Breathable Texture,” L’Oréal Pro-Glow Foundation advertises “Up to 24HR Foundation,” 10 and Lancôme Foundation advertises “Up to 24H Color Wear & Comfort.” Compl. ¶ 21. Unlike a 11 case where the statements are identical across products that vary in ways immaterial to the 12 analysis, these differences are material to Plaintiff’s claims. In re S.C. Johnson & Son, Inc. 13 Windex Non-Toxic Litig., No. 20-CV-03184-HSG, 2021 WL 3191733, at *3 (N.D. Cal. July 28, 14 2021) (finding substantial similarity where four products contained same “non-toxic formula” 15 statement in the same location). For instance, a reasonable consumer could interpret the more 16 general “Up to 24HR Foundation” differently than “Up to 24H Color Wear & Comfort,” which 17 appears to make a representation about a particular cosmetic benefit. Determining whether the 18 labels would mislead reasonable consumers requires a “context-specific analysis” of each of these 19 statements. See Ang, 2014 WL 1024182, at *4. Accordingly, resolution of Plaintiff’s claims will 20 not be identical across the purchased and unpurchased products. See id. 21 The Courts likewise finds that Plaintiff has failed to establish standing for any unidentified 22 unpurchased products. The Court cannot assess substantial similarity absent images or detailed 23 descriptions of the products’ labels. See Meza v. Coty, Inc., No. 22-CV-05291-NC, 2023 WL 24 25

26 4 Plaintiff appears to suggest that some of Defendant’s products contain standalone “Up to 24HR” statements. See Compl. ¶¶ 4, 22, 56, 57. However, none of the identified products contain a 27 standalone “24HR” statement. See id. ¶ 21. Rather, “Up to 24HR” is always coupled with a 1 3082346, at *4 (N.D. Cal. Apr. 24, 2023); Slaten v. Christian Dior, Inc., No. 23-CV-00409-JSC, 2 2023 WL 3437827, at *5 (N.D. Cal. May 12, 2023). 3 Accordingly, the Court GRANTS Defendant’s motion to dismiss Plaintiff’s claims 4 regarding L’Oréal Pro-Glow Foundation and Lancôme Foundation without leave to amend. The 5 Court further GRANTS Defendant’s motion to dismiss Plaintiff’s claims regarding unidentified 6 products with leave to amend. 7 ii. Injunctive Relief 8 Defendant next argues that Plaintiff lacks standing to seek injunctive relief. Mot. at 23–25. 9 Specifically, Defendant urges that Plaintiff cannot plausibly allege a likelihood of future harm 10 because she is now aware that sunscreen must be reapplied every two hours. Id. at 24. 11 To have standing to seek injunctive relief under Article III, a plaintiff must “demonstrate a 12 real and immediate threat of repeated injury in the future.” Chapman v. Pier 1 Imports (U.S.) Inc., 13 631 F.3d 939, 946 (9th Cir. 2011) (quotation omitted). Therefore, once a plaintiff has been 14 wronged, she is entitled to injunctive relief only if she can show that she faces a “real or 15 immediate threat that [she] will again be wronged in a similar way.” Mayfield v. United States, 16 599 F.3d 964, 970 (9th Cir. 2010) (quotation omitted). In the context of false advertising cases, 17 the Ninth Circuit has confirmed “that a previously deceived consumer may have standing to seek 18 an injunction against false advertising or labeling, even though the consumer now knows or 19 suspects that the advertising was false at the time of the original purchase.” Davidson v. 20 Kimberly-Clark Corp., 889 F.3d 956, 969 (9th Cir. 2018). A plaintiff may establish the risk of 21 future harm in two ways: (1) “the consumer’s plausible allegations that she will be unable to rely 22 on the product’s advertising or labeling in the future, and so will not purchase the product 23 although she would like to”; or (2) “the consumer’s plausible allegations that she might purchase 24 the product in the future, despite the fact it was once marred by false advertising or labeling, as she 25 may reasonably, but incorrectly, assume the product was improved.” Id. at 969–70. 26 Here, Plaintiff alleges that she “continues to desire to purchase cosmetic products, 27 including those marketed and sold by Defendant,” and that she “would likely purchase the 1 24 hour SPF claims.” Compl. ¶ 61. Drawing all inferences in Plaintiff’s favor—as is appropriate 2 at this stage—the Court finds that these allegations are sufficient to establish a risk of future harm. 3 See Davidson, 889 F.3d at 971. Plaintiff might not be able to tell if the labels are accurate if 4 Defendant changes the SPF protection duration, or if Defendant alters the front label to state that 5 the SPF only lasts two hours and lowers the price, Plaintiff might be willing to pay. See Slaten, 6 2023 WL 3437827, at *6. 7 Because this is sufficient under Davidson, Defendant’s motion to dismiss on this basis is 8 DENIED. 9 B. Express Preemption 10 Defendant next contends that Plaintiff’s state law claims are expressly preempted by the 11 Federal Food, Drug, and Cosmetic Act (“FDCA”), which mandates that “no State . . . may 12 establish or continue in effect any requirement . . . that is different from or in addition to, or that is 13 otherwise not identical with, a requirement under this chapter.” Mot. at 16–21; 21 U.S.C. 14 § 379r(a)(2). The Court finds that the FDCA does not preempt Plaintiff’s claims. 15 Under the FDCA, cosmetic products that include the term “sunscreen” on their labeling or 16 otherwise represent that they are “intended to prevent, cure, treat, or mitigate disease or to affect a 17 structure or function of the body” are regulated as drugs. 21 C.F.R. § 700.35. Sunscreen products 18 must, on their front labels, identify themselves as “sunscreens” and provide their SPF values. Id. 19 §§ 201.327(a)–(b). Non-water-resistant sunscreen products must also include drug facts panels 20 (typically on the back labels) directing users to “reapply at least every 2 hours,” with the optional 21 clarifying addition: “[f]or sunscreen use.” Id. § 201.327(e). The FDCA also prohibits any 22 labeling statements that are “false or misleading in any particular.” 21 U.S.C. § 352(a)(1). 23 Two courts in this district have addressed preemption in nearly identical circumstances 24 involving challenges to durational claims on SPF-containing cosmetics and concluded that the 25 FDCA did not preempt the claims. See Meza, 2023 WL 3082346, at *5–6; Slaten, 2023 WL 26 3437827, at *2–3. The Court agrees with the reasoning and holding of these cases. Crucially, the 27 FDCA does not require manufacturers to include any sort of durational statement on the front 1 front label statements would not impose requirements that are additional to or different from 2 existing federal regulations. To the extent that removing the allegedly misleading statements 3 imposes a requirement on Defendant, this requirement is identical to requirements already 4 imposed by the FDCA, which, like the California laws under which Plaintiff sues, prohibits “false 5 or misleading” drug labeling. See 21 U.S.C. § 352(a)(1). 6 Accordingly, Plaintiff’s claims are not preempted. The Court DENIES Defendant’s 7 motion to dismiss on this basis. 8 C. Reasonable Consumer Test 9 Lastly, Defendant argues that Plaintiff fails to plausibly allege that a reasonable consumer 10 is likely to be deceived. Mot. at 12–16. Specifically, Defendant urges that the 24-hour statements 11 clearly refer only to cosmetic benefits, and that a reasonable consumer would refer to the back 12 label, which clarifies that the SPF lasts only two hours.5 Id. at 13–14. Plaintiff responds that a 13 reasonable consumer could believe the statements also include SPF protection and would not see 14 the reapplication instructions at the time of purchase because they are buried underneath a sticker. 15 Opp. at 3, 5–9. The Court agrees with Plaintiff. 16 The parties agree that all of Plaintiff’s claims are governed by the “reasonable consumer” 17 test. See Williams v. Gerber Prod. Co., 552 F.3d 934, 938 (9th Cir. 2008). “Under the reasonable 18 consumer test, [Plaintiff] must show that members of the public are likely to be deceived.” Id. 19 (quotations omitted). “‘Likely to deceive’ implies more than a mere possibility that the 20 advertisement might conceivably be misunderstood by some few consumers viewing it in an 21 unreasonable manner.” Lavie v. Procter & Gamble Co., 105 Cal. App. 4th 496, 508 (2003). 22 Rather, the test is whether “it is probable that a significant portion of the general consuming public 23 or of targeted consumers, acting reasonably in the circumstances, could be misled.” Id. 24 In a recent product labeling case, the Ninth Circuit held that where “a front label is 25 ambiguous, the ambiguity can be resolved by reference to the back label.” McGinity v. Procter & 26 Gamble Co., 69 F.4th 1093, 1099 (9th Cir. 2023). In McGinity, the defendant’s shampoo and 27 1 conditioner bottles displayed the phrase “Nature Fusion” next to a picture of an avocado on a leaf. 2 Id. at 1096. The plaintiffs argued that this labeling misrepresented the products as all-natural. Id. 3 The court disagreed. Id. at 1098–99. Because the phrase “Nature Fusion” is ambiguous (i.e., it 4 could mean either a mixture of natural ingredients or a mixture of natural and non-natural 5 ingredients), a reasonable consumer would consider all of the information available at the time of 6 purchase, including the back labels. Id. The products’ drug facts panels, plainly visible on the 7 back labels, listed synthetic ingredients. Id.; see also Moore v. Trader Joe’s Co., 4 F.4th 874, 8 881–85 (9th Cir. 2021) (affirming “the general principle that deceptive advertising claims should 9 take into account all the information available to consumers and the context in which that 10 information is provided and used”) (quotation omitted).6 11 Here, like in McGinity, the front label statements are ambiguous. While Defendant urges 12 that “24H Fresh Wear” and “24HR Breathable Texture” should be interpreted to refer only to the 13 product’s cosmetic benefits, Plaintiff argues that these phrases could be interpreted to include 14 sunscreen protection. See Mot. at 13–14; Opp. at 5–6. As Plaintiff acknowledges, the “24H Fresh 15 Wear” statement puts at issue “what does ‘wears freshly’ mean,” and whether “fresh wear” 16 includes SPF protection. Opp. at 5. However, unlike in McGinity, it isn’t clear that this ambiguity 17 “can be resolved by reference to the back label.” See 69 F.4th at 1099. Here, the back label 18 instructions to “reapply at least every 2 hours” for sunscreen use are printed underneath a peel- 19 back sticker, not immediately visible to consumers at the time of purchase. See Compl. ¶¶ 38–39. 20 The Court cannot conclude as a matter of law that a reasonable consumer would peel back the 21 label in the store, before purchasing the product, to find and read these instructions. See 22 Broomfield v. Craft Brew All., Inc., No. 17-CV-01027-BLF, 2017 WL 3838453, at *7 (N.D. Cal. 23 Sept. 1, 2017), on reconsideration in part, No. 17-CV-01027-BLF, 2017 WL 5665654 (N.D. Cal. 24 25 26 6 Plaintiff argues that Williams precludes ever requiring consumers to read the fine print on the 27 back label. Compl. ¶ 48; Opp. at 7. But the Ninth Circuit clarified in McGinity that “the front 1 Nov. 27, 2017) (concluding that back label disclaimers that are obstructed by packaging at the 2 time of purchase cannot cure front label ambiguity).7 3 Therefore, the Court concludes that Plaintiff has plausibly alleged that the L’Oréal 4 Infallible Foundation label would deceive a reasonable consumer. The Court DENIES 5 Defendant’s motion to dismiss on this basis. 6 // 7 // 8 // 9 // 10 // 11 // 12 // 13 // 14 // 15 // 16 // 17 // 18 // 19 // 20 // 21 // 22 // 23 7 Defendant contends that the fact that the reapplication instructions are printed on a peel-back 24 label should not matter because “that is exactly how FDA has directed manufacturers to label their OTC sunscreens when the full Drug Facts information cannot fit on a small package.” Mot. at 15. 25 However, while the FDA permits manufacturers to use peel-back labels, it does not require them to do so. See Over-The-Counter Human Drugs; Labeling Requirements, 64 Fed. Reg. 13254, 26 13268 (Mar. 17, 1999) (“[E]xtended panels, peel back or fold our labels . . . could be used to accommodate FDA required information.”) (emphasis added). The FDA also directs that peel- 27 back labels should “not render the product misleading.” Id. At the pleading stage, the Court 1 IV. CONCLUSION 2 For the reasons discussed above, the Court GRANTS IN PART and DENIES IN PART 3 || Defendant’s motion to dismiss. Specifically, Plaintiff's claims based on the identified 4 || unpurchased products are DISMISSED without leave to amend, and Plaintiffs claims based on 5 || the unidentified unpurchased products are DISMISSED with leave to amend. Plaintiff may file 6 |} an amended complaint within 21 days of this order. 7 The Court further SETS a case management conference on August 22, 2023, at 2:00 p.m. 8 The parties should be prepared to discuss how to move this case forward efficiently. All counsel 9 shall use the following dial-in information to access the call: 10 Dial-In: 888-808-6929; 11 Passcode: 6064255 12 All attorneys and pro se litigants appearing for a telephonic case management conference are 5 13 || required to dial in at least 15 minutes before the hearing to check in with the courtroom deputy. 14 || For call clarity, parties shall NOT use speaker phone or earpieces for these calls, and where at all 3 15 possible, parties shall use landlines. a 16 The Court further DIRECTS the parties to meet and confer and submit a joint case 3 17 management statement by August 15, 2023.

S 18 IT IS SO ORDERED.

19 Dated: 7/17/2023 20 Alayed 5 Sbl | 1 HAYWOOD S. GILLIAM, JR. United States District Judge 22 23 24 25 26 27 28