Tobin v. Procter & Gamble Co.

• Jurisdiction: United States,Federal,California
• Court: U.S. District Court — Northern District of California
• Writing for the Court: JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE
• Docket Number: 23-cv-05061-JSW
• Decision Date: 09 April 2024
• Citation: Tobin v. Procter & Gamble Co., 23-cv-05061-JSW (N.D. Cal. Apr 09, 2024)
• Parties: MARK TOBIN, Plaintiff, v. PROCTER & GAMBLE COMPANY, Defendant.
• topic: Advertising Law,Intellectual Property,Contracts law,Consumer Law

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MARK TOBIN, Plaintiff, v. PROCTER & GAMBLE COMPANY, Defendant.

No. 23-cv-05061-JSW

United States District Court, N.D. California

April 9, 2024

ORDER GRANTING, IN PART, AND DENYING, IN PART DEFENDANT'S MOTION TO DISMISS; SETTING CASE MANAGEMENT CONFERENCE

Re: Dkt. No. 29

JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE

Now before the Court for consideration is the motion to dismiss filed by Defendant Procter & Gamble Company (“Defendant”). The Court has considered the parties' papers, relevant legal authority, and the record in this case, and it finds the matter suitable for disposition without oral argument. See Civ. L.R 7-1(b). The Court hereby GRANTS, IN PART, and DENIES, IN PART, Defendant's motion.

BACKGROUND

On November 29, 2022, Plaintiff Mark Tobin purchased a bottle of Defendant's NyQuil Severe Honey Cold & Flu liquid medicine (the “Product”). (First Amended Complaint (“FAC”) ¶ 39.) The Product's label included representations that it “Coats & Soothes” and was “Made with Real Honey” and included the word “Honey” on the front label (the “Representations”). (Id. ¶ 27.) In addition to the text, the Product's cap also looked like dripping honey and the front label had an image of a “honey dipper dripping honey over a honeycomb.” (Id. ¶¶ 2, 27, 39-43.)

(Image Omitted)

Plaintiff alleges he purchased the Product because he “reasonably believed [it was] made with sufficient honey such that honey flavors the product, coats and soothes, and is a beneficial ingredient in the Product[].” (Id. ¶ 50.) Plaintiff also alleges that had he known the Product was “made with such an insignificant amount of honey that the honey does not: flavor the products, coat and soothe, or provide the benefits of real honey,” he would not have purchased or would have paid less for the Product. (Id. ¶¶ 4, 13, 53.) Plaintiff does not allege whether he would purchase the Product again.

Based on these and other allegations the Court will address in its analysis, Plaintiff brings the following claims on behalf of himself and a putative class who purchased the Product or other products bearing allegedly similar labels^[1]: (1) violations of California's Unfair Competition Law, Business and Professions Code sections 17200, et seq. (“UCL claim”); (2) violations of California's False Advertising Law, Business and Professions Code sections 17500, et seq. (“FACL claim”); (3) violations of California's Consumer Legal Remedies Act, Civil Code sections 1750, et seq. (“CLRA claim”); (4) breach of express warranty; and (5) quasi contract.

ANALYSIS

A. Applicable Legal Standards.

A lack of Article III standing requires dismissal for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). “A Rule 12(b)(1) jurisdictional attack may be facial or factual.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). A “facial” attack accepts the truth of the plaintiff's allegations but asserts that they “are insufficient on their face to invoke federal jurisdiction.” Id. The district court resolves a facial attack as it would a motion to dismiss under Rule 12(b)(6). Pride v. Correa, 719 F.3d 1130, 1133 (9th Cir. 2013).

A court's inquiry under Rule 12(b)(6) “is limited to the allegations in the complaint, which are accepted as true and construed in the light most favorable to the plaintiff.” Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008). Even under the liberal pleading standard of Rule 8(a)(2), “a plaintiff's obligation to provide ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Pursuant to Twombly, a plaintiff cannot merely allege conduct that is conceivable but must instead allege “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).

Claims sounding in fraud or mistake are subject to heightened pleading requirements. Federal Rule of Civil Procedure 9(b) requires plaintiffs to “state with particularity the circumstances regarding fraud or mistake.” Fed. R. Civ. Proc. 9(b). Thus, “[a]verments of fraud must be accompanied by ‘the who, what, when, where, and how' of the misconduct charged.” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1107 (9th Cir. 2003) (quoting Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir. 1997)).

If the allegations in a complaint are insufficient to state a claim, a court should grant leave to amend unless amendment would be futile. Reddy v. Litton Indus. Inc., 912 F.3d 291, 296 (9th Cir. 1990).

B. The Court Does Not Consider the Parties' Exhibits in Resolving the Motion.

Defendant submits competing images of the Product and its labels to counter the FAC. (See Dkt. Nos. 29, 31.) Defendant contends the images are incorporated by reference into the FAC. The label in Defendant's exhibit lists “flavor (with honey)” as an “inactive ingredient,” whereas Plaintiff's lists simply “flavor.” (See id.) Plaintiff's exhibit matches the excerpt in paragraph 31 of the FAC, whereas Defendant's does not. In light of this discrepancy, the Court finds that the images are not incorporated by reference, and it does not consider the exhibits in resolving the Motion. See Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (holding courts may not consider extrinsic evidence for factual challenges to well-pleaded facts on motions to dismiss under Rule 12(b)(6)); see also Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 1003 (9th Cir. 2018) (noting “it is improper to assume the truth of an incorporated document if such assumptions only serve to dispute facts stated in a well-pleaded complaint”).

C. Plaintiff's State Law Claims Are Not Preempted.

Defendant argues that Plaintiff's UCL, FAL, and CLRA claims are expressly preempted by the Food, Drug, and Cosmetic Act (“FDCA”), 21 U.S.C. sections 301, et seq. Plaintiff argues that the FDCA does not his preempt state law claims because the labels are “optional, advertising messages that have nothing to do with any FDA requirement.” (Opp. at 6.)

The Supremacy Clause of the United States Constitution provides that federal statutes take precedence over state law. See U.S. Const., art. VI, cl. 2. Thus, “state law that conflicts with federal law is without effect.” Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 516 (1992) (internal quotations omitted). Additionally, federal law may expressly preempt state law to the extent that Congress evinces a clear intent to do so. Astiana v. Hain Celestial Grp., Inc., 783 F.3d 753, 757 (9th Cir. 2015). Defendant bears the burden of proving that state law claims are preempted. Pardini v. Unilever United States, Inc., 65 F.4th 1081, 1084 (9th Cir. 2023).

“In analyzing express preemption, we ‘start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.'” Astiana, 783 F.3d at 757 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)). The Court thus looks to the plain text of the preemption provision to determine Congress's purpose.

Here, the FDCA contains an express preemption provision, which provides that “no State ... may establish or continue in effect any requirement ... that is different from or in addition to, or that is otherwise not identical with a requirement under the [FDCA].” 21 U.S.C. § 379r(a)(2). Accordingly, Congress's clear purpose was to preempt any state law that differs from or adds to the FDCA's requirements, but not to preempt state law requirements that are identical to the FDCA's requirements. When considering whether state law is “identical” to the FDCA, the Court “bear[s] in mind the concept of equivalence,” and it will find any state law requirement to be identical if it is the “genuine[] equivalent” of the federal requirement. Bates v. Dow Agrosciences LLC, 544 U.S. 431, 454 (2005). State law claims that are “fully consistent with federal requirements” are not preempted. Id. at 452.

The FDCA and regulations promulgated thereunder provide a largely comprehensive set of requirements for cough and cold medications. Under this regime, a medication is “misbranded. . . [i]f its labeling is false or misleading in any particular.” 21 U.S.C. § 352. “An over-the-counter cold [or] cough. . . drug product in a form suitable for oral. . . administration . . . is not misbranded if it meets each of the conditions in [21 C.F.R. Part 341] and each of the general conditions established in § 330.1.” 21 C.F.R. § 341.1. Part 341 provides a non-exclusive list of statements that may be used to describe cough and cold medications. 21 C.F.C. § 341.74(b). “Other truthful and nonmisleading statements, describing only the indications for use that have been established and listed in [§ 341.74(b)], may also be used, . . . subject to the provisions of section 502 of the act relating to misbranding and the prohibition in section 301(d) of the act against the introduction or delivery for introduction into interstate commerce of unapproved new drugs in violation of section 505(a) of the act.” Id.

The FDA provides additional requirements “[f]or purposes of classifying over-the-counter (OTC) drugs as drugs generally recognized among qualified experts as safe and effective for use and as not misbranded drugs” via “drug monographs.” 21 C.F.R. § 330.10. The FDA ...