Ebner v. Frech, Inc., No. 13-56644 (9th Cir. 2016)
Annotate this CasePlaintiff 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.
Court Description: California Law. The panel affirmed the district court’s Fed. R. Civ. P. 12(b)(6) dismissal of a plaintiff’s putative consumer class action alleging that cosmetics and skin care products manufacturer Fresh, Inc. deceived consumers about the quantity of lip balm in its Sugar Lip Treatment product line. The panel held that under California law, plaintiff has not alleged, and cannot allege, facts to state a plausible claim that the Sugar label was false, deceptive, or misleading; and thus, the district court did not err in dismissing the label-based claims. The panel also held that because plaintiff cannot plausibly allege that Sugar’s design and packaging was deceptive, the district court did not err in dismissing the packaging-based claims. The panel further held that the district court correctly concluded that the First Amended Complaint failed to allege a violation of the California Fair Packaging and Labeling Act, Cal. Bus. & Prof. Code § 12606(b). The panel held that any further amendment of plaintiff’s complaint would be futile. Finally, the panel held that because the First Amended Complaint failed to state a claim under any of the California statutes – the Unfair Competition Law, the Consumer Legal Remedies Act, the False Advertising Law, and the Fair Packaging and Labeling Act, the unjust enrichment cause of action was mooted. EBNER V. FRESH, INC. 3
The court issued a subsequent related opinion or order on September 27, 2016.
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