Eckler v. Neutrogena Corp.

• Decision Date: 09 June 2015
• Docket Number: B253691,B253899
• Citation: 238 Cal.App.4th 433,189 Cal.Rptr.3d 339
• Parties: Kay ECKLER, Plaintiff and Appellant, v. NEUTROGENA CORPORATION, Defendant and Respondent. Steve Engel, Plaintiff and Appellant, v. Neutrogena Corporation et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

238 Cal.App.4th 433

189 Cal.Rptr.3d 339

Kay ECKLER, Plaintiff and Appellant

v.NEUTROGENA CORPORATION, Defendant and Respondent.

Steve Engel, Plaintiff and Appellant

v.Neutrogena Corporation et al., Defendants and Respondents.

B253691

B253899

Court of Appeal, Second District, Division 7, California.

Filed June 9, 2015

Review Denied October 21, 2015

Bonnett, Fairbourn, Friedman & Balint (Arizona) and Patricia N. Syverson ; Bonnett, Fairbourn, Friedman & Balint (California) and Manfred P. Meucke, for Plaintiff and Appellant Kay Eckler.

Abraham, Fruchter & Twersky (California), Ian D. Berg and Takeo A. Kellar ; Abraham, Fruchter & Twersky (New York), Mitchell M.Z. Twersky (pro hac vice) and Lawrence D. Levit (pro hac vice), for Plaintiff and Appellant Steve Engel.

O'Melveny & Myers (Los Angeles), Richard B. Goetz and Cynthia A. Merrill ; O'Melveny & Myers (Newport Beach) and Amy J. Laurendeau, for Defendants and Respondents Neutrogena Corporation and Johnson & Johnson, Inc.

Opinion

IWASAKI, J.^*

This case concerns congressional intent with respect to label information on sunscreen products: is it to be determined solely by the federal agency Congress charged with ensuring uniform labeling for those products, or, in addition, by each state through private civil suits? Appellants Kay Eckler and Steve Engel filed separate actions against respondent Neutrogena Corporation alleging that its sunscreen products were misleadingly labeled and marketed in violation of California consumer protection statutes. Appellants alleged that Neutrogena misleadingly labeled its products with the descriptions “sunblock,” “waterproof,” and “sweatproof” (Labeling Terms), terms that the federal Food and Drug Administration (FDA) prohibited in a regulation published on June 17, 2011, with a compliance date of December 17, 2012. Engel contends that Neutrogena is liable for marketing products that bore the Labeling Terms before the December 17, 2012 compliance date. The Eckler matter raises an additional product labeling issue with respect to sunscreen with a sun protection factor (SPF) value greater than 50 (SPF 50+). Although Eckler does not contend that the SPF values on Neutrogena's products were inaccurate, she believes that consumers will be misled about their benefits and seeks an order that Neutrogena modify its labels and alter its advertising. The superior court sustained Neutrogena's demurrer to Eckler's complaint without leave to amend, and granted its motion for judgment on the pleadings as to Engel's complaint. The court concluded that their claims were preempted by the Federal Food, Drug, and Cosmetic Act (FDCA) ( 21 U.S.C. § 379r ) and implementing FDA regulations. We agree and affirm.

Factual and Procedural Background

Appellant Engel filed suit against Johnson & Johnson and Neutrogena in December 2003, and an amended complaint in June 2003.¹ Although those pleadings focused on purported misrepresentations concerning the ability of sunscreen products to protect users from longer wavelength ultraviolet rays, the amended complaint did allege that Neutrogena's product was not truly water or sweat “proof,” or a true “sunblock.” Engel's action was eventually added to a coordination proceeding involving other parties raising claims against sunscreen manufacturers. A corrected amended master complaint dated April 2006 is the operative pleading. In that complaint Engel alleged that he purchased Neutrogena Oil Free Healthy Defense Sunblock lotion “and was damaged thereby.” The suit alleged that respondents used the Labeling Terms on its packaging and marketing, which were deceptive advertising and unlawful business practices under California's unfair competition law (Bus. & Prof. Code, § 17200 ), False Advertising Law (Bus. & Prof.Code, § 17500 ), and Consumers Legal Remedies Act (Civ.Code, § 1750 et seq. ). According to Engel, the gravamen of his allegations is that Neutrogena's products were falsely labeled “by claiming that they: (1) were a ‘sunblock’ when in fact they did not block all of the sun's harmful rays and did not in fact block, but rather absorbed, the sun's rays; (2) provided ‘waterproof’ protection, which has been defined by the FDA to mean ‘impenetrable to or unaffected by water’ and ‘completely resistant to water regardless of time of immersion’ when the products were not impenetrable to, or unaffected by, or resisted over time to water; and (3) provided ‘sweatproof’ protection, which implies that they were impenetrable to or unaffected by sweat and completely resistant to sweat regardless of time of immersion or exposure, when they were not impenetrable to, unaffected by, or resistant over time to sweat.” He sought injunctive, restitutionary, and other relief.

In June 2011 the FDA issued a final rule that among other things, prohibited sunscreen product labels from stating that they were “sunblock,” “sweatproof,” and “waterproof.” (21 C.F.R. § 201.327(g) ; 76 Fed.Reg. 35620 at 35661 (June 17, 2011) (Final Rule).) Ultimately the compliance date for the regulation was set for 18 months later, on December 17, 2012. Engel contends that this regulation codified a previous alleged ban on these descriptions; Neutrogena contends that it represented the first time the agency prohibited the Labeling Terms. Neutrogena moved for judgment on the pleadings, arguing, among other things, that Engel's claims were preempted by federal law. The superior court concluded that Engel's claims were entirely preempted, and that the 18 months between publication of the Final Rule and its effective date represented a “safe harbor” reflecting the FDA's cost-benefit analysis: a delay fashioned to “minimize transactions costs based on a global analysis of social welfare. That's what a cost-benefit analysis is.” Engel's appeal challenges the trial court's dismissal of claims arising from purchase of products bearing the Labeling Terms with respect to three time periods: (1) before June 17, 2011 when the Final Rule was published, (2) after the Final Rule's publication but before the compliance date, and (3) after the December 17, 2012 compliance date.

Appellant Eckler also filed suit against Neutrogena under California's unfair competition law and Consumers Legal Remedies Act alleging that its sunscreen product labels were misleading. Eckler complained of the same Labeling Terms as Engel did; she also contended that the package labeling on SPF 50+ products was false and misleading. Eckler did not allege that the SPF values on Neutrogena's labels were inaccurate. Rather, she asserted that labels for SPF 50+ products omitted what she claims is a material fact, that they provide no added clinical benefit compared to products rated at SPF 50.

Eckler did not claim that Neutrogena affirmatively represented that SPF 50+ products conferred enhanced clinical benefits, but she avers that consumers would naturally believe so, and thus Neutrogena misled consumers by charging more for such products and not disclaiming any benefits. Eckler alleged that she purchased two of Neutrogena's sunscreen products in May 2012 after reading the labels. Her complaint further asserted that consumers read the labels before deciding to purchase the products and are deceived by Neutrogena's allegedly false representations and failures to disclose material facts on the labels and packaging of its products. Eckler “seeks an order requiring Neutrogena to disclose on its Product labels and associated advertising that the higher SPF values in the SPF 55-100+ collection do not provide proportionately greater, or any added clinical sun protection benefit.” She also requested class-wide restitution and other relief.

Neutrogena demurred to Eckler's complaint on several grounds, including express and implied preemption. The court concluded that Eckler's action was preempted by federal law, sustained the demurrer without leave to amend and dismissed the action. Eckler and Engel filed timely appeals.

Applicable Law

1. Standard of Review for Demurrer and Motion for Judgment on the Pleadings

We apply a de novo standard of review to a trial court's order of dismissal following an order sustaining a demurrer. (Los Altos El Granada Investors v. City of Capitola (2006) 139 Cal.App.4th 629, 650, 43 Cal.Rptr.3d 434.) In other words, we exercise our “independent judgment about whether the complaint states a cause of action as a matter of law.” (Ibid. ) “In reviewing a judgment of dismissal after a demurrer is sustained without leave to amend, we must assume the truth of all facts properly pleaded by the plaintiffs, as well as those that are judicially noticeable.” (Howard Jarvis Taxpayers Assn. v. City of La Habra (2001) 25 Cal.4th 809, 814, 107 Cal.Rptr.2d 369, 23 P.3d 601.)

When a demurrer “is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.) Such a showing can be made for the first time before the reviewing court. (Smith v. State Farm Mutual Automobile Ins. Co. (2001) 93 Cal.App.4th 700, 711, 113 Cal.Rptr.2d 399.) “The burden of proving such reasonable possibility is squarely on the plaintiff.” (Blank, supra, 39 Cal.3d at p. 318, 216 Cal.Rptr. 718, 703 P.2d 58.)

A demurrer may be sustained without leave to amend where, “ ‘the facts are not in dispute, and the nature of the plaintiff's claim is clear, but, under the substantive law, no liability exists ....’ [Citation.]” (Seidler v. Municipal Court (1993) 12 Cal.App.4th 1229, 1233, 16 Cal.Rptr.2d 90.) “A judgment of dismissal after a demurrer has been sustained without leave to amend will be affirmed if proper on any grounds stated in the demurrer, whether or not the court acted on that ground.” (Carman v. Alvord (1982) 31 Cal.3d 318, 324, 182 Cal.Rptr. 506, 644 P.2d 192.)

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