1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 TAWNEYA HOUSER, Case No. 21-cv-09390-JST

8 Plaintiff,

ORDER GRANTING MOTION TO

9 v. DISMISS

10 GLAXOSMITHKLINE CONSUMER Re: ECF No. 58

HEALTHCARE HOLDINGS (US) LLC,

11 Defendant.

12 13 Before the Court is Defendant GlaxoSmithKline Consumer Healthcare Holdings (US) 14 LLC’s (“GSK”) motion to dismiss. ECF No. 58. The Court will grant the motion. 15 I. BACKGROUND 16 The factual and procedural background to this case is set forth in greater detail in this prior 17 order granting GSK’s motion to dismiss. See ECF No. 53. In short, Plaintiff Tawneya Houser 18 alleges that GSK’s advertisements for Abreva, an over-the-counter medication that treats the 19 herpes simplex virus, are intentionally misleading. ECF No. 57 ¶ 1. Specifically, Houser alleges 20 that GSK’s representation that Abreva “can get rid of [a] cold sore in 2½ days,” id. ¶ 24 (internal 21 quotation marks omitted), led reasonable consumers to “mistakenly believe believe that Abreva 22 would typically heal cold sores in 2½ days,” id. ¶ 20 (emphasis in original). She brings claims for 23 (1) violations of California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code § 17200 24 et seq.; (2) violation of California’s Consumers Legal Remedies Act (“CLRA”), Cal. Civ. Code 25 § 1750 et seq.; (3) violation of California’s Song-Beverly Consumer Warranty Act (“Song- 26 Beverly Act”), Cal. Civ. Code § 1792 et seq.; (4) violation California’s False Advertising Law 27 (“FAL”), Cal. Bus. & Prof Code § 17500 et seq.; (5) breach of express warranty; and (6) unjust 1 similarly situated individuals. Id. ¶ 137. 2 The prior complaint asserted additional claims against GSK and predicated all claims on 3 additional representations made by GSK in other advertisements. See generally ECF No. 25. The 4 Court dismissed that complaint on March 9, 2023 on the grounds that claims predicated on all but 5 one of those additional representations were preempted by federal law and that the complaint 6 otherwise failed to comply with Federal Rule of Civil Procedure 9(b). See generally ECF No. 53. 7 Houser filed the operative complaint on March 30, 2023, ECF No. 57, and GSK filed the instant 8 motion on April 13, 2023, ECF No. 58. The Court took the motion under submission without a 9 hearing on June 23, 2023. ECF No. 64. 10 II. JURISDICTION 11 The Court has jurisdiction under 28 U.S.C. § 1332(d). 12 III. LEGAL STANDARD 13 To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a 14 complaint must contain “a short and plain statement of the claim showing that the pleader is 15 entitled to relief.” Fed. R. Civ. P. 8(a)(2). Dismissal “is appropriate only where the complaint 16 lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.” 17 Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). “[A] complaint 18 must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible 19 on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 20 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual 21 content that allows the court to draw the reasonable inference that the defendant is liable for the 22 misconduct alleged.” Iqbal, 556 U.S. at 678. While this standard is not “akin to a ‘probability 23 requirement’ . . . it asks for more than a sheer possibility that a defendant has acted unlawfully.” 24 Id. (quoting Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely 25 consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and 26 plausibility of entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557). In determining 27 whether a plaintiff has met the plausibility requirement, a court must “accept all factual allegations 1 Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). 2 IV. DISCUSSION 3 GSK moves to dismiss Houser’s claims to the extent that she alleges that Abreva 4 categorically cannot heal a cold sore in as few as 2.5 days and to the extent that she alleges that 5 Abreva typically cannot heal a cold sore in 2.5 days. ECF No. 58 at 14–20. Houser contends that 6 she “never alleges the 2 ½ days claim is literally false; she alleges that the 2 ½ days claim is 7 misleading.” ECF No. 61 at 8. In connection with several of her claims, however, Houser 8 expressly alleges that the 2.5-days claim is literally false. See ECF No. 56 ¶¶ 186, 195. The Court 9 therefore construes Houser’s contention as non-opposition to the dismissal of her claims to the 10 extent that they are based on her allegations that Abreva categorically cannot heal a cold sore in as 11 few as 2.5 days. 12 1. UCL, FAL, CLRA 13 The sufficiency of false advertising claims under the CLRA, FAL, and fraudulent and 14 unfair prongs of the UCL are governed by the “reasonable consumer” test. Williams v. Gerber 15 Prods. Co., 552 F.3d 934, 938 (9th Cir. 2008) (quoting Freeman v. Time, Inc., 68 F.3d 285, 289 16 (9th Cir. 1995)); see Friedman v. AARP, Inc., 855 F.3d 1047, 1055 (9th Cir. 2017). Under this 17 test, Houser must plead facts sufficient to “show that ‘members of the public are likely to be 18 deceived.’” Id. (quoting Freeman, 68 F.3d at 289). The test “requires more than a mere 19 possibility that [a representation] ‘might conceivably be misunderstood by some few customers 20 viewing it in an unreasonable manner.’” Ebner v. Fresh, Inc., 838 F.3d 958, 965 (9th Cir. 2016) 21 (quoting Lavie v. Proctor & Gamble Co., 105 Cal. App. 4th 496, 508 (2003)). “Rather, the 22 reasonable consumer standard requires a probability ‘that a significant portion of the general 23 consuming public or of targeted consumers, acting reasonably in the circumstances, could be 24 misled.’” Id. (quoting Lavie, 105 Cal. App. 4th at 508). In conducting this inquiry, the Court 25 considers that reasonable consumers should not “be expected to look beyond misleading 26 representations on the front of the [packaging] to discover the truth . . . on the side of the 27 [packaging].” Williams, 552 F.3d at 939. “[W]hether a business practice is deceptive will usually 1 The principal advertisement that Houser identifies in her complaint reads, “YOU CAN 2 GET RID OF YOUR COLD SORE IN 2 ½ DAYS*.” ECF No. 57 ¶ 24. The asterisk 3 corresponding to the statement is defined immediately below the statement and reads, “*When 4 used at first sign. Median healing time 4.1 days. 25% of users healed by 2.5 days.” Id. Every 5 advertisement that Houser identifies in the complaint contains a materially identical representation 6 and corresponding disclaimer. See id. ¶¶ 24–40. 7 The Court disagrees that this representation is likely to mislead a reasonable consumer, for 8 two reasons. First, the representation itself, standing alone, does not insinuate that Abreva 9 typically heals a cold sore in as few as 2.5 days. A reasonable consumer is not likely to be misled 10 by a representation when a plaintiff’s interpretation of that representation is inconsistent with its 11 plain language. See, e.g., Souter v. Edgewell Personal Care Co., 542 F. Supp. 3d 1083, 1094 12 (S.D. Cal. 2021) (“No reasonable consumer would read ‘hypoallergenic’ and ‘gentle’ to mean that 13 [the product] is completely free of ingredients that can cause an allergic reaction.”); Rugg v. 14 Johnson & Johnson, No. 17-cv-05010-BLF, 2018 3023493, at *1 (N.D. Cal. June 18, 2018) 15 (“Given these definitions, the Court finds it completely implausible that a reasonable consumer 16 would understand the use of the term ‘hypoallergenic’ on a product’s label to mean that the 17 product does not contain any ingredients, in any concentration, which could ‘sensitize’ the skin, 18 cause cancer, or have any other negative effect, regardless of whether effect constitutes an allergic 19 reaction.” (emphases in original)); Punian v. Gillette Company, No. 14-cv-05028-LHK, 2016 WL 20 1029607, at *5, 8 (N.D. Cal. Mar. 15, 2016) (relying on definition of the term “guaranteed” to 21 conclude that “Guaranteed for 10 Years in storage” is “not likely to deceive a reasonable 22 consumer into believing that Duralock Batteries have no potential to leak for ten years in storage.” 23 (internal quotation marks omitted)). 24 In its ordinary use, the term “can” denotes possibility, not probability. See Can, Merriam- 25 Webster Online Dictionary (2023) (noting that the term is “used to indicate possibility” and 26 defining the term as “be physically or mentally able to”); cf. Lyft, Inc. v. Quartz Auto Techs. LLC, 27 No. 21-cv-01871-JST, 2022 WL 19975246, at *11 (N.D. Cal. Nov. 3, 2022) (finding that 1 ‘can’ rather than restrictive ‘must’ or ‘shall’”). The plain language of the representation thus 2 indicates that Abreva is capable of healing a cold sore within 2.5 days but does not imply that the 3 product typically or always achieves that result. For a consumer to interpret this statement in the 4 manner advocated by Houser would therefore be unreasonable. See Becerra v. Dr Pepper/Seven 5 Up, Inc., 945 F.3d 1225, 1230 (9th Cir. 2019) (concluding that, where there is a “prevalent 6 understanding of [a] term,” “[j]ust because some consumers may unreasonably interpret the term 7 differently does not render the use of [the term] . . . false or deceptive”). 8 Second, even if the representation were misleading, the corresponding disclaimer 9 eliminates any doubt as to its meaning. An alleged misrepresentation is not misleading where 10 “[q]ualifying language in the challenged advertising mak[es] the meaning of the alleged 11 misrepresentation clear.” Moreno v. Vi-Jon, Inc., No. 20-cv-1446 JM(BGS), 2021 WL 807683, at 12 *5 (S.D. Cal. Mar. 3, 2021) (collecting cases); see Freeman v. Time, Inc., 68 F.3d 285, 289 (9th 13 Cir. 1995) (holding that a reasonable consumer would not likely be deceived because “[n]one of 14 the qualifying language is hidden or unreadably small” and “the qualifying language appears 15 immediately next to the representations it qualifies and no reasonable reader could be ignore it.”). 16 The disclaimer language is located directly beneath the representation, is plainly legible, and 17 reads, “When used at first sign. Median healing time 4.1 days. 25% of users healed by 2.5 days.” 18 ECF No. 57 ¶ 24. The disclaimer thus indicates that Abreva can only heal a cold sore in 2.5 days 19 if used at the first sign as a cold sore, that approximately half of Abreva users are healed in fewer 20 than 4.1 days, that approximately half of users are healed in more than 4.1 days, and that only a 21 quarter of users are healed in 2.5 days. This language is entirely consistent with the premise that 22 Abreva has the capacity to heal a cold sore in 2.5 days but does not indicate that this outcome 23 occurs so frequently as to be characterizable as typical. 24 For each of the foregoing reasons, the Court concludes that this is the “rare situation” 25 where the Court “may determine, as a matter of law, that the alleged violations of the UCL, FAL, 26 and CLRA are simply not plausible.” Ham v. Hain Celestial Grp., 70 F. Supp. 3d 1188, 1193 27 (N.D. Cal. 2014). Accordingly, the Court will dismiss these claims. 1 cv-02636-EMC, 2019 WL 109446 (N.D. Cal. Jan. 4, 2019), which is readily distinguishable. 2 There, Pharmative’s labeling for its biotin supplements represented that the supplements “may 3 help support healthy hair, skin, and nails.” Id. at *1. The language was accompanied by an 4 asterisk, which was defined on the back of the label as follows: “Biotin may help support healthy 5 hair, skin, and nails in those that are biotin deficient.” Id. In denying Pharmative’s motion to 6 dismiss, the court concluded that the term “may” in the representation was misleading because the 7 plaintiffs had plausibly alleged that “99.9962 percent of people have no possibility of benefitting 8 from the Biotin Products,” and “[a] reasonable consumer could understand ‘may’ to mean a 9 reasonable possibility or reasonable probability, rather than a vanishing small possibility on the 10 order of 0.00138 percent.” Id. at *4. Additionally, the disclaimer was located on the back of the 11 label, and disclaimer language itself was insufficient “to disabuse the consumer of any 12 misconceptions engendered by the health benefit representations.” Id. 13 Here, Houser does not allege that there is a negligible possibility that Abreva performs as 14 advertised, i.e., that Abreva functionally cannot achieve a healing time of 2.5 days, but rather 15 alleges that Abreva does not achieve that result with the frequency advertised. And unlike the 16 disclaimers on Pharmative’s supplement labels, the disclaimers in the Abreva advertisements are 17 located directly beneath the representation and contain language that eliminates any ambiguity in 18 the representation. 19 2. Breach of Express Warranty and Unjust Enrichment 20 Dismissal of breach of express warranty and unjust enrichment claims is appropriate where 21 those claims “rely on deception that, as a matter of law, does not exist.” Hawyuan Yu v. Dr. 22 Pepper Snapple Grp., Inc., No. 18-cv-06664-BLF, 2020 WL 5910071, at *7 (N.D. Cal. Oct. 6, 23 2020). Houser does not dispute this point. ECF No. 61 at 8–9. Accordingly, the Court will 24 dismiss these claims. 25 3. Song-Beverly Act 26 Under the Song-Beverly Act, “consumer goods sold in California carry an implied 27 warranty of merchantability, meaning . . . that they must be ‘fit for the ordinary purposes of which 1 2021) (quoting Cal. Civ. Code § 1791.1(a)(2)). This warranty “does not ‘impose a general 2 requirement that the goods precisely fulfill the expectation of the buyer. Instead, it provides for a 3 minimum level of quality.’” Id. (quoting Am. Suzuki Motor Corp. v. Superior Ct., 37 Cal. App. 4 4th 1291, 1296 (1995)). Therefore, a plaintiff must allege that “the product lacks even the most 5 basic degree of fitness for ordinary use.” Birdsong v. Apple, Inc., 590 F.3d 955, 958 (9th Cir. 6 2009) (quoting Mocek v. Alfa Leisure, Inc., 114 Cal. App. 4th 402, 406 (2003)). Houser claims 7 that GSK breached the implied warranty of merchantability, but she does not allege that the 8 product is unfit for ordinary use. Instead, she alleges that “Abreva does not work as advertised,” 9 ECF No. 57 ¶ 42 and concedes that GSK’s 2.5-days claim is not false, ECF No. 61 at 8. Houser 10 thus fails to state a claim, and the Court will dismiss these claims. Even if Houser had predicated 11 her this claim on breach of express warranty, the claim would still fail for the reasons above. 12 4. UCL Unlawful Prong 13 Houser’s remaining claim arises under the UCL’s unlawful prong. “An action under the 14 UCL’s unlawful prong ‘borrows violations of other laws and treats them as unlawful practices that 15 the unfair competition law makes independently actionable.’” Wilson v. Hewlett-Packard Co., 16 668 F.3d 1136, 1145 (9th Cir. 2012) (quoting Cal-Tech Commc’ns, Inc. v. Los Angeles Cellular 17 Tel., 20 Cal. 4th 163, 180 (1999)). Because Houser has failed to state a claim for any other 18 violation of law, she has failed to state a claim under the UCL’s unlawful prong. See Davis v. 19 HSBC Bank Nev., N.A., 691 F.3d 1152, 1168 (9th Cir. 2012)). The Court will dismiss this claim. 20 CONCLUSION 21 For the foregoing reasons, GSK’s motion is granted. Because the 2.5-days representation 22 is not misleading as a matter of law, Houser’s complaint cannot be cured by the allegation of 23 additional facts. Accordingly, amendment would be futile, and Houser’s claims are dismissed 24 / / / 25 / / / 26 / / / 27 / / / 1 with prejudice. Lipton v. Pathogenesis Corp., 284 F.3d 1027, 1039 (9th Cir. 2002); Perez v. 2 || Mortg. Electronic Reg. Sys., Inc., 959 F.3d 334, 341 (9th Cir. 2020). The Clerk shall enter 3 || judgment and close the file. 4 IT IS SO ORDERED. 5 Dated: November 3, 2023 . 6 JON S. TIGAR 7 nited States District Judge 8 9 10 11 12

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