1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ALEXIS SLATEN, Case No. 23-cv-00409-JSC

8 Plaintiff,

ORDER GRANTING DEFENDANT’S

9 v. MOTION TO DISMISS PLAINTIFF’S

SECOND AMENDED COMPLAINT

10 CHRISTIAN DIOR PERFUMES, LLC., Re: Dkt. No. 76 Defendant. 11

12 13 Plaintiff brings this putative class action against Defendant Christian Dior Perfumes (Dior) 14 alleging Dior deceptively labels and advertises the sun protection factor (SPF or sunscreen) 15 benefits of certain cosmetic products. (Dkt. No 73.1) Defendant moves to dismiss Plaintiff’s 16 Second Amended Complaint for failure to state a claim. (Dkt. No. 76.) After carefully 17 considering the parties’ written submissions, and having had the benefit of oral argument on 18 March 14, 2024, the Court GRANTS the motion to dismiss. Plaintiff’s Second Amended 19 Complaint fails to plausibly plead Dior’s Products’ labels are false or misleading to reasonable 20 consumers. 21 SECOND AMENDED COMPLAINT ALLEGATIONS 22 Plaintiff, a California resident, bought Dior Forever Foundation from a Macy’s store in 23 Daly City, California for several years. (Dkt. No. 73 ¶ 63.) Plaintiff purchased Dior’s Forever 24 Foundation based on the Product’s labeling. (Id. ¶ 64.) Based on the front label, Plaintiff believed 25 the Product would provide cosmetic coverage for 24 hours and SPF 15 sun protection “for longer 26 than two hours.” (Id. ¶ 64.) However, the SPF protection “will last, at most, only two hours.” 27 1 (Id. § 24.) The Products’ back label directs users to “[r]eapply at least every 2 hours” but does not 2 || “clarify for reasonable consumers the duration of the sun protection.” (/d. {J 25, 26.) 3 Plaintiff also challenges the sun protection claims on Dior’s Forever Skin Glow 4 || Foundation product packaging, which Plaintiff alleges is substantially and stylistically similar to 5 those made on the Forever Foundation packaging. (Jd. ff] 20-22.) The Products’ front labels look 6 || like this: 7 Bia var _— 1a) ~— 8 = * @ iD 5 ° CO) ae, ite) 10 / 11 q 12

15

16 («17

. > ia □ eee XO) UND: 20) 19 NGM OL 20 agli aso 0,8 a Pela meh eal Poe ey ees Rel Mo on hltchicp Sbinire esha 21 Oil oe srs Terres ere ren eysa □□ nese) ie: stele 22 se a Sato) B= eggs esl aaa 23 Pi ee 24 ei0m in ga Be 25 (Id. ¥ 21.) 26 we ee Plaintiff posits “[e]ven after viewing the back label, reasonable consumers are confused, 27 deceived, and/or misled into believing that the sun protection will last longer than two hours.” (Jd. 28

1 ¶ 26.) Plaintiff alleges “[r]easonable consumers interpret the claims on these labels collectively to 2 mean that the sunscreen benefits in the products will last longer than two hours without the need to 3 reapply.” (Id. ¶ 23.) Had Plaintiff known the Product would not provide 24-hour sun protection, 4 she would not have purchased the Product or, at least, would have paid less for the Product. (Id. 5 ¶¶ 65-68.) 6 Plaintiff conducted three surveys “to determine how reasonable consumers interpret” the 7 Product labels. (Id. ¶ 27.) Each survey included over 300 participants “who had purchased 8 cosmetics within the last twelve months.” (Id. ¶ 27.) The surveys displayed the Product labels 9 and asked participants “whether, based on the product packaging, they would expect the sunscreen 10 benefits in the product to last two hours or less, or more than two hours.” (Id. ¶ 27.) 11 Sixty-nine percent of Survey 1 participants indicated the Products provided sunscreen 12 benefits for more than two hours based solely on the front label. (Id. ¶ 28.) The front label is 13 therefore “unambiguously deceptive.” (Id. ¶ 28.) Survey 2 gave participants the “option to click a 14 link to view the back label.” (Id. ¶ 30.) One third clicked the link, so Plaintiff alleges “two-thirds 15 of reasonable consumers who shop for the Products do not look at product back labels when 16 making purchasing decisions.” (Id. ¶ 30.) Plaintiff posits Survey 2 confirms “a substantial 17 majority of consumers (57%) were still confused, deceived, and/or misled into believing” the 18 Product provided more than two hours of protection. (Id. ¶ 31.) 19 Survey 3 “forced” participants to view both labels and asked, “how long they expected the 20 sunscreen benefits in the products to last.” (Id. ¶ 32.) Half the participants believed the sunscreen 21 would last for more than two hours. (Id. ¶ 32.) According to Plaintiff, these results demonstrate 22 even if the “front label was ambiguous, the back label does not clarify the ambiguity and the front 23 label claims remain misleading.” (Id. ¶ 33.) 24 Three online consumer product reviews suggest “consumers believe the Product will 25 provide sunscreen benefits for more than two hours” even when viewing the back label. (Id. ¶¶ 26 35-37.) One reviewer notes the SPF 15 “adds an extra layer of protection for all day wear.” (Id. ¶ 27 35.) The second reviewer indicates they love “this foundation” and it “lasts all day”; then, in a 1 that burn in 5 min in the sun.” Ud. 935.) The third review states “if you look on the back of the 2 || box, it says apply every 2 hrs and on the front it says 24h foundation... I’m confused lol.” Ud. □ 3 36.) Ud. 35-36.) The consumer reviews read as follows: 4 5 kakkk I'm in lovel! ee 2022 2W Warm - light skin with warm tones 6 ~“ Recommended = 2 : □ When it comes to foundations, | like my coverage and this foundation met all of my expectations when it came to it. It’s also super hydrating and stayed on nicely all day which doesn’t usually happen with other foundations I’ve 7 tried. | also love that it has SPF 15, which just adds an extra layer of protection for all day wear, I'm so excited to keep using this foundation as I've found my new staple. 8 9 kkk Light and all day #7 Jan 2022 ON Neutral - fair skin with neutral tones 10 ve Recommnendtee | love this foundation it looks so natural and feels so lite and had a little perfume smell. And it lasts all day as well as does not smudge onto clothes. And bonus it's spf 15 so no need to add sunscreen for all of us with fair skin 1 1 that burn in 5 min in the sun. | just love it.

13 kkk css Honest ae 14 24 Jan R Rosy - fair skin wit ndertones y - fair sk yu ’ 3 15 tried this on the back on my hand. It's definitely medium to full coverage but if you look on the back of the box, it says apply every 2 hrs and on the front it says 24h foundation... I'm confused lol. Was excited to receive anything 5 16 "Dior" complementary but you can get just as good if not better foundation without breaking the bank for a lable Not heavily scented but has a faint floral smell. Not sure if it's my shade. Maybe because | don't need full coverage, pretty close though. | do love that there are so many shades available fipmn (1 Sa ' O

Z 18

19 || Ud. 99 35-36.) 20 PROCEDURAL HISTORY 21 The Court granted Defendant’s motion to dismiss with leave to amend the original 22 || complaint. (Dkt. No. 43.) Plaintiff then filed a First Amended Complaint, which Defendant again 23 || moved to dismiss. (Dkt. Nos. 46, 54.) This Court granted Defendant’s motion to dismiss the First 24 || Amended Complaint with leave to amend in light of the Ninth Circuit’s decision in McGinity v. 25 || Procter & Gamble Co., 69 F.4th 1093 (9th Cir. 2023). (Dkt. No. 69.) Plaintiff then filed a Second 26 || Amended Complaint. (Dkt. No. 73.) Now pending before the Court is Defendant’s motion to 27 dismiss the Second Amended Complaint. (Dkt. No. 76.) 28

1 LEGAL STANDARD 2 A complaint should be dismissed under Rule 12(b)(6) if it lacks sufficient facts to “state a 3 claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation 4 marks and citations omitted). A claim is facially plausible when it “pleads factual content that 5 allows the court to draw the reasonable inference that the defendant is liable for the misconduct 6 alleged.” Id. In considering a motion to dismiss, the Court “accept[s] factual allegations in the 7 complaint as true and construe[s] the pleadings in the light most favorable to the nonmoving 8 party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). 9 However, the court is not required to accept as true “allegations that are merely conclusory, 10 unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 11 F.3d 1049, 1055 (9th Cir. 2008). Dismissal under Rule 12(b)(6) is proper when the complaint 12 “lacks a cognizable legal theory” or “fails to allege sufficient facts to support a cognizable legal 13 theory.” Somers v. Apple, Inc., 729 F.3d 953, 959 (9th Cir. 2013). If dismissal is proper, it will be 14 granted with leave to amend unless the complaint could not possibly be cured by the allegation of 15 other facts. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). 16 A plaintiff bringing false labeling claims under California consumer protection laws must 17 adequately allege “members of the public are likely to be deceived.” Ebner v. Fresh, Inc., 838 18 F.3d 958, 965 (9th Cir. 2016). This “reasonable consumer standard requires a probability that a 19 significant portion of the general consuming public or of targeted consumers, acting reasonably in 20 the circumstances, could be misled.” Id. (cleaned up). “The touchstone under the ‘reasonable 21 consumer’ test is whether the product labeling and ads promoting the products have a meaningful 22 capacity to deceive consumers.” McGinity, 69 F.4th at 1097. “A plaintiff’s unreasonable 23 assumptions about a product’s label will not suffice.” Moore v. Trader Joe’s Co., 4 F.4th 874, 882 24 (9th Cir. 2021). 25 In McGinity, the Ninth Circuit held a front label’s ambiguity can be resolved on a motion 26 to dismiss by reference to the back label. McGinity, 69 F.4th at 1099. “[T]he front label must be 27 unambiguously deceptive for a defendant to be precluded from insisting that the back label be 1 ambiguous, a court can consider the product’s entire label, including the side and the back, to 2 determine whether a reasonable consumer would be deceived. Id. at 1099. 3 DISCUSSION 4 A. The Products’ Front Label Is Ambiguous 5 The Court previously held “Dior’s Forever Foundation’s front label is ambiguous as to 6 whether the ‘24H’ representation applies to the cosmetic, that is, the foundation alone, or also to 7 the product’s sun protection benefits.” (Dkt. No. 69 at 4.) “‘24H’ might mean both the cosmetic 8 and sun protection benefits last 24 hours. But it could also plausibly mean only the cosmetic 9 benefits last 24 hours.” (Dkt. No. 69 at 4); see Zimmerman v. Loreal USA, Inc., 2023 WL 10 4564552 at *5 (N.D. Cal. July 17, 2023) (concluding similar representation on front label—“24H 11 Breathable Texture”—was ambiguous as to whether “24H” applies to product’s sun protection). 12 The question now is whether Plaintiff’s newly alleged Survey 1 results plausibly establish the 13 front label is unambiguously deceptive. 14 On a motion to dismiss, courts “must accept the allegations surrounding the survey as 15 true.” Becerra v. Dr Pepper/Seven Up, Inc., 945 F.3d 1225, 1231 (9th Cir. 2019). Plaintiff 16 alleges Survey 1 showed the survey participants the Products’ front label and then asked the 17 participants “whether, based on the product packaging, they would expect the sunscreen benefits 18 in the product to last two hours or less, or more than two hours.” (Dkt. No. 73 ¶ 27.) Drawing 19 inferences in Plaintiff’s favor, sixty-nine percent of Survey 1 participants answered the Products 20 would provide sunscreen benefits for more than two hours. (Id. ¶ 28.) These results do not 21 establish the front label is unambiguously deceptive; instead, they show 31% of Survey 1 22 participants answered that the Products’ sunscreen benefits last two hours or less and therefore the 23 participants were not deceived. So, Survey 1 is consistent with the Court’s conclusion the front 24 label is at best ambiguous. See McGinity, 69 F.4th at 1099 (“[r]ather than demonstrating that the 25 phrase ‘Nature Fusion’ is misleading, the survey results confirm that it is ambiguous” when 26 “survey respondents were split nearly 50/50”). 27 In McGinity, for example, the plaintiff alleged the defendant’s hair product front label was 1 and synthetic ingredients, harsh and potentially harmful ingredients and are substantially 2 unnatural.” 69 F.4th at 1096. Notwithstanding the allegations of survey results showing 69.2% of 3 survey respondents thought “Nature Fusion” “meant that the product contained both natural and 4 synthetic ingredients”, the Ninth Circuit held the front label was ambiguous. Id. So, too, here as 5 one-third of Plaintiff’s survey participants did not agree with Plaintiff’s interpretation of the label. 6 Plaintiff’s insistence that because two-thirds of survey respondents were (according to Plaintiff) 7 deceived by the front label the front-label is unambiguously deceptive makes no sense. A two- 8 third/one-third split highlights the ambiguity. 9 * * * 10 Plaintiff’s newly-alleged facts fail to disrupt the Court’s prior conclusion the Products’ 11 front label is ambiguous as to whether the “24H” representation applies to the Products’ claimed 12 sun protection benefits or only the cosmetic benefits. (Dkt. No. 69 at 4.) 13 B. The Back Label Resolves the Front Label’s Ambiguity 14 When a front label is ambiguous, courts “must consider what additional information other 15 than the front label was available to consumers.” McGinity, 69 F.4th at 1098. A front label’s 16 ambiguity can be resolved by reference to the back label. Id. at 1099; see also id. at 1098 (“the 17 front label must be unambiguously deceptive for a defendant to be precluded from insisting that 18 the back label be considered together with the front label”). Because the Products’ front label is 19 ambiguous as to whether the 24H refers to the sunscreen protection, the question is whether a 20 reasonable consumer could interpret the “24H” representation as applying to the Products’ sun 21 protection benefits after referencing the Products’ back label. A review of the back label shows 22 that a reasonable consumer could not. The Products’ back label looks like this: 23 24 25 26 27 Wey eles Ye ile [eel Cd TL OL 2 Ooi 3 3 Pye). ck AAs re

4 Ut Ma(cilesw eles ules tlel te 5 Black kaellere UReUrmeste Lp o)ee) cre eM etre Ch MLC le (ed 6 TOs GO) Ste Lela mecc 208) USO 7

ETE

8 UAL □□ 9 ATLA *(22¢ MOM LK), CHA RSLCLLE Hise liom e)cerelt am Clem e)tT 10 OM SM LU elm CHLOE em cteie [eRe gree) at eco] gS ee merce 12 HESWEM (oy TctoRte(auilelle- mala kelmee lalla SOMmee iene calla UENe RP Bas ea llacll MENU (cet 5 5 Boone Beara ice 16 BESS el Sues rl ale 17 ee Mt CMesse 1108 [I10 UMM Mer ON MIS a0) Z 18 be mn eke ctclsi HOTA tS □□ CTO UU As 19 TEES nee Om Remi 20 SJiglimeit O)c0) (018) OMAN lst: sts Talelit Ce Tale ps TUTTE □□□ □□ r-|(m □□□ 21 WE aa AMO) ee cle\ omit 8s INT ATs hs 22 nee 23 | O)aligteme) ie ky as 24 □□ 25 i tor 26 :

57 || (kt. No. 73 25.) 28

1 The back label is titled “Drug Facts” and then identifies the “Purpose” of the drug as 2 sunscreen; thus telling the consumer it is discussing the Product’s sunscreen attributes. Then 3 under Drug “Uses” it says, “Helps prevent sunburn” and “If used as directed with other sun 4 protection measures (see Directions) decreases the risk of skin cancer and early skin aging caused 5 by the sun.” And, under the “Directions” for the sun protection measures, the label explicitly 6 instructs consumers to “[r]eapply at least every 2 hours.” So, upon reading the back label, it 7 would be clear to a reasonable consumer the Products’ “24H foundation” representation on the 8 front label does not apply to the Products’ sun protection. 9 The Second Amended Complaint’s allegations as to Survey 2 and Survey 3 do not save 10 Plaintiff’s claims. Plaintiff insists Survey 2 supports an inference two-thirds of consumers will not 11 look at the back label, even if the front is ambiguous, and therefore the back label cannot be used 12 to resolve any front label ambiguity. As support she contends Survey 2 respondents were “given 13 the option to click a link to view the back label” and two-thirds of respondents did not click the 14 link. (Dkt. No. 73 ¶¶ 30, 34.) This allegation is insufficient for two reasons. First, Plaintiff does 15 not allege exactly what consumers were asked. How was the “option” worded? Were they asked 16 to look at the back if they were unsure about whether the 24H representation applied to sunscreen? 17 See McGinity, 69 F.4th at 1099-1100 (advising litigants to “draft their questions for consumers 18 surveys with utmost care”). 19 Second, and most importantly, Plaintiff’s argument asks the Court to ignore McGinity’s central 20 mandate: if a front label is ambiguous, the court “must consider what additional information other 21 than the front label was available to consumers.” 69 F.4th at 1098 (emphasis added). McGinity 22 holds “the front label must be unambiguously deceptive for a defendant to be precluded from 23 insisting that the back label be considered together with the front label.” Id. Since the front label 24 is ambiguous, the Court must consider the back label regardless of whether survey participants 25 chose to click to see the back label when given the opportunity. See Robles v. GOJO Indus., Inc., 26 No. 22-55627, 2023 WL 4946601, at *2 (9th Cir. Aug. 3, 2023) (reasserting that on a motion to 27 dismiss, when the “front label is ambiguous” courts look to the back label and the “context 1 Care Co., No. 22-55898, 2023 WL 5011747, at *1 (9th Cir. Aug. 7, 2023) (maintaining courts 2 may look at back labels to clarify front label ambiguities). 3 Plaintiff next urges that Survey 3—which “forced consumers to view the front and back 4 label side-by-side and asked how long they expected the sunscreen benefits in the products to 5 last”—shows half the respondents believed the sunscreen products would last for more than two 6 hours. (Dkt. No. 73 ¶ 32.) But this allegation does not support an inference the back label does 7 not resolve any ambiguity because the survey did not ask consumers about the representation 8 Plaintiff claims causes the deception—the 24H representation. By failing to ask respondents their 9 impression of the key term “24H” or its relationship with the back label’s instruction to “reapply 10 at least every 2 hours,” Survey 3 leaves open the equally plausible inference consumers were 11 misled by other packaging details. Specifically, in failing to test consumer interpretation of 12 “24H”, and instead basing its survey on the front label as a whole, the survey does not clarify 13 whether participant confusion stems from the pertinent phrase “24H” or other packaging areas like 14 the SPF 15 labelling. The U.S. Food and Drug Administration (“FDA”) acknowledges “a popular 15 misconception” that SPF relates to “time of solar exposure” rather than “amount of solar 16 exposure,” such that “many consumers believe [. . .] SPF 15 sunscreen allows them to stay in the 17 sun 15 hours (i.e., 15 times longer) without getting sunburn.” Sun Protection Factor (SPF), U.S. 18 FOOD & DRUG ADMINISTRATION, https://www.fda.gov/about-fda/center-drug-evaluation-and- 19 research-cder/sun-protection-factor-spf (last visited March 27, 2024). Defendant cannot be held 20 liable for misimpressions arising from the SPF 15 representation as the FDA mandates Defendant 21 include SPF information on the front label. 21 C.F.R § 201.327(a)(1). So, Survey 3 does not 22 plausibly support an inference that consumers are deceived by the “24H foundation” 23 representation and to the extent there is confusion, that the back label does not clarify what it 24 means. See Twombly, 550 U.S. at 557 (holding when two inferences are equally plausible, and 25 one inference does not support liability, the plaintiff does not state a claim); see also McGinity, 69 26 F.4th at 1099-1100 (advising litigants to “draft their questions for consumers surveys with utmost 27 care”). 1 loss or management. 945 F.3d at 1227. The Ninth Circuit disagreed. Id. It held that in context, 2 the use of “diet” in a soft drink’s brand name is understood as a relative claim about the calorie 3 content of that soft drink compared to the same brand’s “regular” (full-caloric) option. Id. at 1229. 4 The plaintiff argued dismissal was still improper because she alleged survey results supporting her 5 deception allegation. Id. at 1227. The Ninth Circuit was unpersuaded.

6 Although we must accept the allegations surrounding the survey as true at this stage of the litigation, a reasonable consumer would still 7 understand “diet” in this context to be a relative claim about the calorie or sugar content of the product. The survey does not address 8 this understanding or the equally reasonable understanding that consuming low-calorie products will impact one’s weight only to the 9 extent that weight loss relies on consuming fewer calories overall. At bottom, the survey does not shift the prevailing reasonable 10 understanding of what reasonable consumers understand the word “diet” to mean or make plausible the allegation that reasonable 11 consumers are misled by the term “diet.” 12 Id. at 1231. Plaintiff’s survey here similarly does not address whether consumers interpret “24H 13 foundation” to mean the cosmetic lasts 24 hours or, if there is ambiguity as to what it refers, the 14 back label which exclusively discusses the Products’ “Uses” clarifies the sunscreen must be 15 reapplied every two hours. So, Survey 3 does not save Plaintiff’s claims. 16 Plaintiff’s reliance on Caldwell v. Nordic Nats., Inc., No. 23-CV-02818-EMC, 2024 WL 17 24325, at *4 (N.D. Cal. Jan. 2, 2024) is misplaced. First, Caldwell held that when “the label of a 18 product is ambiguous, meaning a reasonable consumer would realize the label could have more 19 than one meaning, the court should consider other information available to the consumer aside 20 from the label to determine if a reasonable consumer would be misled.” Id. at *4. Second, the 21 Caldwell court held the front label was affirmatively misleading, and not ambiguous. Id. And, 22 third, any ambiguities were not clarified by the back label, but could only be clarified by 23 reviewing an entirely different product. Id. at *6. 24 * * * 25 Neither Survey 2 nor Survey 3 make plausible the allegation the Products’ back label does 26 not resolve the front labels’ ambiguity. As previously decided, the back label resolves the front 27 labels’ “ambiguity by directing consumers using the product as sunscreen to reapply the product at 1 C. Consumer Reviews Do Not Salvage Plaintiff’s Complaint 2 The “reasonable consumer standard requires a probability that a significant portion of the 3 general consuming public or of targeted consumers, acting reasonably in the circumstances, could 4 be misled.” Ebner, 838 F.3d at 965 (emphasis added). “[T]he fact that a small proportion of 5 consumers were confused does not prove that such confusion was reasonable.” Thomas v. Costco 6 Wholesale Corp., No. 21-55335, 2022 WL 636637, at *2 (9th Cir. Mar. 4, 2022). Here, Plaintiff’s 7 three reviews represent a very small portion of targeted consumers. As Defendant notes, Plaintiff 8 “had the entire Internet at her disposal” and still “Plaintiff has located only two other people who 9 allegedly share some sort of confusion consistent with her own.” (Dkt. No. 76 at 29.) 10 Further, none of the reviews necessarily suggest confusion about the Products’ sun 11 protection duration. In one of the reviews, titled “Honestly”, the reviewer writes, “if you look on 12 the back of the box, it says apply every 2 hrs and on the front it says 24h foundation… I’m 13 confused lol.” (Dkt. No. 73 ¶ 36.) The review makes no mention of sunscreen protection and so 14 instead may be expressing confusion about the foundation; indeed, applying foundation every two 15 hours makes no sense. Plaintiff suggests the other two reviews indicate “consumers believe the 16 Product will provide sunscreen benefits more than two hours.” (Dkt. No. 73 ¶ 35.) But it is 17 similarly unclear whether the comments “lasts all day” and “all day wear” refer to the foundation 18 or the sun protection. (Dkt. No. 73 ¶ 35.) The review titled “Light and all day” mentions the “spf 19 15” as a bonus, separately from the reference to the foundation lasting “all day.” The review titled 20 “I’m in love!!” states the “SPF 15 [. . .] adds an extra layer of all day wear,” but this comment 21 does not mean the reviewer thought the sun protection lasts all day. For all these reasons, the 22 three reviews are not sufficient to save Plaintiff’s claims. 23 D. Standing on Claims for Unpurchased Items 24 Defendant contests Plaintiff’s standing to pursue claims for Dior Forever Skin Glow 25 products she did not purchase. (Dkt. Nos. 76 at 30-31.) The Court previously found the Plaintiff 26 had standing “to assert class claims based on both products” as the “products are substantially 27 similar” and no “material distinction [exists] between the labeling of the two products.” (Dkt. No. 1 accused products because no material distinction exists between the labeling of the two 2 || products. So, Plaintiff has standing to pursue claims for both accused products. 3 CONCLUSION 4 For the reasons stated above, the Court GRANTS Defendant’s motion to dismiss. Plaintiff 5 fails to plausibly plead Dior’s Products’ labels are false or misleading to reasonable consumers 6 || because, after referencing the Products’ back labels, no reasonable consumer could interpret the 7 || front labels’ “24H” representation as applying to the Products’ sunscreen. Plaintiffs additional 8 survey and consumer review allegations fail to compel a different result. As no further 9 amendment could save the claims, the dismissal is without leave to amend. 10 Finally, Plaintiff contends this Court cannot “determine as a matter of law that [the] front ll label is either not deceptive, or, at a minimum, that it is ambiguous and the back label cures all” 12 || because consumer confusion is “still a question of fact.” (Dkt. No. 79 at 7.) Plaintiff is incorrect. 13 || Plausibility remains a legal question for the Court. Plaintiffs contention would effectively mean 14 || courts could never grant motions to dismiss in such cases. See Steinberg v. Icelandic Provisions, 3 15 Inc., No. 22-15287, 2023 WL 3918257, at *1 (9th Cir. June 9, 2023) (affirming dismissal of a 16 || plaintiffs claims where the product’s back label resolved the front label’s ambiguity); see also 3 17 Kim v. Bluetriton Brands, Inc., No. 22-56063, 2024 WL 243343, at *1 (9th Cir. Jan. 23, 2024) S 18 || (affirming dismissal of plaintiff's claims where the product’s back label clarified the allegedly 19 misleading front label). 20 This Order disposes of Dkt. No. 76. 21 IT IS SO ORDERED. 22 || Dated: April 1, 2024 Jepuats Seo 24

JACQUELINE SCOTT CORLEY

25 United States District Judge 26 27 28