Burchfield v. Prestige Consumer Healthcare, Inc.

• Decision Date: 16 April 2021
• Docket Number: CV 20-10717 DSF (RAOx)
• Citation: 534 F.Supp.3d 1192
• Parties: Robert BURCHFIELD, et al., Plaintiffs, v. PRESTIGE CONSUMER HEALTHCARE, INC., Defendant.
• Court: U.S. District Court — Central District of California

534 F.Supp.3d 1192

Robert BURCHFIELD, et al., Plaintiffs,

v.PRESTIGE CONSUMER HEALTHCARE, INC., Defendant.

CV 20-10717 DSF (RAOx)

United States District Court, C.D. California.

Signed April 16, 2021

Scott Edelsberg, Edelsberg Law PA, Gillian L. Wade, Marc Alexander Castaneda, Sara D. Avila, Milstein Jackson Fairchild and Wade LLP, Los Angeles, CA, Benjamin Ernest Shiftan, Pearson, Simon & Warshaw, LLP, San Francisco, CA, David F. Slade, Pro Hac Vice, Joseph Henry Bates, III, Carney Bates and Pulliam PLLC, Little Rock, AR, Joseph C. Bourne, Lockridge Grindal Nauen PLLP, Melissa S. Weiner, Pro Hac Vice, Pearson Simon and Warshaw LLP, Minneapolis, MN, Joshua E. Moyer, Shamis and Gentile PA, San Diego, CA, Mariam Grigorian, Pro Hac Vice, Shamis and Gentile PA, Miami, FL, Matthew A. Pearson, Pearson Simon and Warshaw LLP, Sherman Oaks, CA, Rachel N. Dapeer, Pro Hac Vice, Dapeer Law PA, Aventura, FL, for Plaintiff Robert Burchfield.

Anthony J. Anscombe, Steptoe and Johnson LLP, San Francisco, CA, Mary E. Buckley, Pro Hac Vice, Steptoe and Johnson LLP, Chicago, IL, Melanie Atswei Ayerh, Steptoe and Johnson LLP, Los Angeles, CA, for Defendant.

Order DENYING Defendant Prestige Consumer Healthcare, Inc.’s Motion to Dismiss (Dkt. 30)

Dale S. Fischer, United States District Judge

This case arises out of Defendant Prestige Consumer Healthcare, Inc.’s alleged misrepresentation that an acetaminophen product is specifically formulated for infants. Prestige moves to dismiss Plaintiffs Robert Burchfield and Jeannine Beaty's First Amended Complaint (FAC). Dkt. 30 (Mot.). Plaintiffs oppose. Dkt. 32 (Opp'n). The Court deems this matter appropriate for decision without oral argument. See Fed. R. Civ. P. 78 ; Local Rule 7-15. For the reasons stated below, the motion to dismiss is DENIED.

I. BACKGROUND

Prestige is a healthcare product platform that focuses on over-the-counter medications. Dkt. 29 (FAC) ¶¶ 1-2. In 2004, Prestige "acquired the Little Remedies® brand of pediatric products, which included nasal products, digestive health products, and cough

and cold remedies." Id. ¶ 3. Prestige markets this line to " ‘[t]he Little Remedies mom,’ who ‘wants products without any artificial ingredients, flavors or colors. She wants her kids to have only what they need and nothing they don't.’ " Id.

The Little Remedies line contains over-the-counter pain reliever and fever reducers, including Little Remedies Infant Fever + Pain Reliever (Infants’ Product or the Product). Id. ¶ 4. "The Product is sold alongside Infants’ Tylenol

® and other pediatric acetaminophen products marketed for use by infants." Id. Acetaminophen can be dangerous and even fatal to children if they take too much. Id. ¶ 6. The Infants’ Product contains 160 mg per 5mL of acetaminophen, which is the same amount as the Little Remedies Children's Fever + Pain Reliever (Children's Product). Id. ¶ 7. This is the packaging for the Infants’ and Children's Products:

Id. ¶¶ 31, 33.

Both Plaintiffs have bought the Infants’ Product. Id. ¶¶ 43, 47. They claim they "purchased the Infants’ Product because, based on the label's representations, they believed that the Infants’ Product was specifically formulated for – or otherwise to be used exclusively for – infants based on the marketing and labeling of the Infants’ Product." Id. ¶ 50. Plaintiffs claim because of the drawing of the infant and the use of the word "INFANTS" in two separate locations on the front of the box, Prestige "mislead[s] a parent into thinking that the Infants’ Product is specially-formulated, or otherwise possesses some unique medicinal quality, to make it specifically appropriate for infants as opposed to older children." Id. ¶¶ 6, 31.

Plaintiffs bring claims for violations of (1) California's False Advertising Law (FAL), Cal. & Prof. Code §§ 17500, et seq.; (2) California's Consumer Legal Remedies Act (CLRA), Cal. Civ. Code §§ 1750, et seq. ; (3) the unfair and fraudulent prongs of California's Unfair Competition Law (UCL), Cal. Bus. & Prof. Code §§ 17200, et seq. ; (4) the unlawful prong of the UCL; (5) Illinois Consumer Fraud Act, 815 Ill. Comp. Stat. Ann. 505/1, et seq. ; and (6) Illinois Consumer Fraud Act, 815 Ill. Comp. Stat. Ann. 505/2, et seq.

II. LEGAL STANDARD

A. Rule 12(b)(1) – Lack of Standing

A defendant may raise either a facial or a factual challenge to this Court's jurisdiction on the ground that a plaintiff lacks Article III standing. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). "In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction. By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction." Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In a facial jurisdictional attack, such as the one here, the Court "presume[s] the truthfulness of the plaintiff's allegations" and determines whether the allegations give a plaintiff standing to pursue injunctive relief. See id. at 1039.

B. Rule 12(b)(2) – Lack of Personal Jurisdiction

Under Federal Rule of Civil Procedure 12(b)(2), a defendant may seek dismissal of an action due to lack of personal jurisdiction. Fed. R. Civ. P. 12(b)(2). "When a defendant moves to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of demonstrating that the court has jurisdiction." In re W. States Wholesale Nat. Gas Antitrust Litig., 715 F.3d 716, 741 (9th Cir. 2013), aff'd sub nom. Oneok, Inc. v. Learjet, Inc., 575 U.S. 373, 135 S.Ct. 1591, 191 L.Ed.2d 511 (2015). "When a district court acts on a defendant's motion to dismiss under Rule 12(b)(2) without holding an evidentiary hearing, the plaintiff need only make a prima facie showing of jurisdictional facts to withstand the motion to dismiss." Ballard v. Savage, 65 F.3d 1495, 1498 (9th Cir. 1995). "Because there is no statutory method for resolving [personal jurisdiction], the mode of its determination is left to the trial court." Data Disc, Inc. v. Sys. Tech. Assocs., Inc., 557 F.2d 1280, 1285 (9th Cir. 1977).

C. Rule 12(b)(6) – Failure to State a Claim

Rule 12(b)(6) allows an attack on the pleadings for failure to state a claim on which relief can be granted. "[W]hen ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam). However, a court is "not bound to accept as true a legal conclusion couched as a factual allegation." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ " Id. (alteration in original) (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955 ). A complaint must "state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S.Ct. 1955. This means that the complaint must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. There must be "sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively ... and factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation." Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).

Ruling on a motion to dismiss will be "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged – but it has not ‘show[n]’ – ‘that the pleader is entitled to relief.’ " Iqbal, 556 U.S. at 679, 129 S.Ct. 1937 (alteration in original) (citation omitted) (quoting Fed. R. Civ. P. 8(a)(2) ).

III. DISCUSSION

Prestige claims Plaintiffs’ FAC should be dismissed because (1) no reasonable consumer would be deceived by thinking the Infants’ Product is specially formulated for babies; (2) Plaintiffs’ claims "improperly challenge Prestige's pricing decisions," which are non-justiciable issues; (3) Plaintiffs’ claims are preempted by the Federal Food, Drug, and Cosmetic Act (FDCA), 21 U.S.C. § 301, et seq. ; and (4) Plaintiffs’ nationwide and Illinois classes fail. Mot. at 1-3.

A. Whether a Reasonable Consumer Would Be Deceived

To state a claim under the CLRA, FAL, or UCL, Plaintiffs must plausibly allege facts showing that the advertisement in question would mislead a reasonable consumer. Williams v. Gerber Prod. Co., 552 F.3d 934, 938 (9th Cir. 2008). Because each of these statutes is governed by the "reasonable consumer" test, courts tend to analyze the three statutes together. See Hadley v. Kellogg Sales Co., 243 F. Supp. 3d 1074, 1089 (N.D. Cal. 2017) ; Fitzhenry-Russell v. Coca-Cola Co., No. 5:17-CV-00603-EJD, 2017 WL 4680073, at *3 (N.D. Cal. Oct. 18, 2017). The reasonable consumer standard "requires a probability ‘that a significant portion of the general consuming public ... could be misled.’ " Ebner v. Fresh, Inc., 838 F.3d 958, 965 (9th Cir. 2016) (citing Lavie v. Procter & Gamble Co., 105 Cal. App. 4th 496, 129 Cal.Rptr.2d 486 (2003) ).

False advertising laws "prohibit not only advertising which is false, but also advertising which, although true, is either actually misleading or which has a capacity, likelihood or tendency to deceive or confuse the public." Williams, 552 F.3d at 938 (internal punctuation omitted) (quoting Kasky v. Nike, Inc., 27 Cal. 4th 939, 951, 119 Cal.Rptr.2d 296, 45 P.3d 243 (2002) ). "A perfectly true statement...