Ebner v. Frech, Inc., No. 13-56644 (9th Cir. 2016)Annotate this Case
Plaintiff filed a putative consumer class action against Fresh, alleging that Fresh’s label, tube design, and packaging are deceptive and misleading. Plaintiff alleged that the tube design for Fresh's Sugar Lip Treatment product line uses a screw mechanism that allows only 75% of the product to advance up the tube. Each Sugar tube contains a weighted metallic bottom and is wrapped in oversized packaging. The district court granted Fresh's Rule 12(b)(6) motion to dismiss. Although the court concluded that neither the safe harbor doctrine nor the Food, Drug, and Cosmetic Act (FDCA), 21 U.S.C. 301 et seq., preemption bars plaintiff’s supplemental statement claim, this label claim ultimately fails on the merits because plaintiff cannot plausibly allege that the omission of supplemental disclosures about product weight rendered Sugar’s label “false or misleading” to the reasonable consumer. The court also concluded that the district court did not err in dismissing plaintiff's package-based claims under various California consumer laws because plaintiff cannot plausibly allege that Sugar’s design and packaging is deceptive. When viewed in the proper context of the high-end cosmetics market, Sugar’s elaborate packaging and the weighty feel of the tube is commonplace and even expected by a significant portion of Fresh’s “targeted consumers.” Finally, the district court correctly concluded that the First Amended Complaint fails to allege a violation of California Fair Packaging and Labeling Act, Cal. Bus. & Prof. Code 12606(b). Any further amendment to the complaint would be futile. The court affirmed the judgment.
The court issued a subsequent related opinion or order on September 27, 2016.