Bourbia v. S.C. Johnson & Son, Inc.

375 F.Supp.3d 454

Daniel BOURBIA, individually and on behalf of all others similarly situated, Plaintiff,

v.S.C. JOHNSON & SON, INC., Defendant.

18 Civ. 3944 (PAC)

United States District Court, S.D. New York.

Signed March 21, 2019

Alec Mitchell Leslie, Yitzchak Kopel, Bursor & Fisher, P.A., New York, NY, for Plaintiff.

James Daniel Arden, Sidley Austin LLP, New York, NY, for Defendant.

OPINION & ORDER

PAUL A. CROTTY, United States District Judge

This is a class action on behalf of purchasers of Off! Family Care Clean Feel Insect Repellent ("Off! Clean Feel") in the United States. Off! Clean Feel's label states that it provides "Effective protection from mosquitoes," and includes the instructions: "Reapply every 3-4 hours. Frequent reapplication and saturation are unnecessary. Do not apply more than three times per day." Plaintiff claims that these labels are incorrect and misleading because Off! Clean Feel is actually ineffective at repelling or protecting from mosquitoes, and violate the consumer protection and other laws of New York and the Magnuson-Moss Warranty Act.

Defendant moves to dismiss the complaint on the grounds that Plaintiff's claims are preempted by the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. § 136, et seq. , or otherwise fail to meet the pleading standards of Rule 12(b)(6) and Rule 9(b) of the Federal Rules of Civil Procedure. For the following reasons, the Court GRANTS in part and DENIES in part Defendant's motion to dismiss.

BACKGROUND

I. EPA Registration Procedures¹

The Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA") requires manufacturers of pesticides, including insect repellents, to register their products with the Environmental Protection Agency ("EPA"). See 7 U.S.C. § 136, et seq. An applicant for registration must file a statement including "a complete copy of the labeling of the pesticide, a statement of all claims for it, and any directions for use," together with "a full description of the tests made and results thereof upon which the claims are based." 7 U.S.C. §§ 136a(c)(1)(C), (F). FIFRA defines "label" as "the written, printed, or graphic matter on, or attached to, the pesticide or device or any of its containers or wrappers." 7 U.S.C. § 136(p)(1). Draft label texts and the final printed label must be approved by the EPA. 40 CFR § 156.10(6)(i).

The EPA will register the pesticide and approve its label after reviewing the relevant data if it determines, inter alia , that the pesticide's "composition is such as to warrant the proposed claims for it," 7 U.S.C. § 136a(c)(5)(A) ; 40 CFR 152.112(d), and that its label complies with the requirements of FIFRA § 136a(c)(5)(B) and is not misbranded, 40 CFR § 152.112(f). Once a manufacturer registers a pesticide with the EPA, the manufacturer generally may not modify the label without EPA approval. 7 U.S.C. § 136j(2)(A) ; 7 U.S.C. § 136a(f)(1).

II. Registration of Off! Clean Feel

The complaint alleges that Off! Clean Feel is a product that Defendant manufactured and represents to be an "insect repellent" that "repels mosquitoes" and provides "effective protection from mosquitoes." (Dkt. 1 ("Complaint" or "Compl.") ¶ 2.) The product's label instructs consumers to: "Reapply every 3-4 hours. Frequent reapplication and saturation are unnecessary. Do not apply more than three times per day." (Id. ¶¶ 4-5.) Unlike other personal repellents distributed by Defendant, Off! Clean Feel is a deet-free formulation, and instead contains the active ingredient picaridin. (Id. ; Dkt. 19 Ex. A.)

Off! Clean Feel is registered with the EPA and bears EPA Reg. No. 4822-536. (Dkt. 19 Ex. A.) The EPA initially approved the registration and label in 2001. See EPA New Pesticide Fact Sheet, at 1, available at https://www3.epa.gov/pesticides/chem_search/reg_actions/registration/fs_PC-070705_01-May-05.pdf. The label approved by the EPA included the following statements: "Effective protection from mosquitoes, biting flies and fleas"; "Repels insects for up to 3 to 4 hours." (Dkt. 9 Ex. B.)

In Off! Clean Feel's registration, Defendant submitted to the EPA data from field studies of the product regarding its effectiveness at repelling mosquitoes. On April 17, 2000, the EPA entomologist who reviewed the data found it to be acceptable and to support a mosquito repellency claim of 3-4 hours for the label. (Id. Ex. C.) Laboratory studies were also submitted to support and supplement the field studies. (Id. )

Subsequently, Defendant sought an amendment to Off! Clean Feel's label to add a claim of repellency to mosquitoes that may carry the West Nile Virus. (Id. Ex. D.) On January 25, 2006, the same EPA entomologist who had reviewed efficacy data in 2000 concluded: "The existing data and published studies support a WNV [West Nile Virus ] claim." (Id. at 1.)

On February 18, 2016, the EPA approved another amendment to the Off! Clean Feel label to add claims of repellency against mosquitoes that may carry the Dengue virus and the Zika virus. (Id. Ex. E.)

III. Effectiveness of Off! Clean Feel

Plaintiff contends that Off! Clean Feel is a "complete sham" and that contrary to its labeling, does not repel mosquitoes. An independent laboratory testing, commissioned by Plaintiff's counsel in early 2018, revealed that Off! Clean Feel was ineffective in repelling Aedes mosquitoes and Culex mosquitoes—the two most common species of mosquitoes found in the United States. (Compl. ¶¶ 2-6.) Off! Clean Feel failed the independent laboratory testing almost immediately—within half an hour of application, all of the test subjects were bitten by both species of mosquitoes. (Id. ¶¶ 4-5.)

In 2016, Consumer Reports also tested Off! Clean Feel. (Id. ¶ 6.) The subjects were bitten by Aedes and Culex mosquitoes within one hour after application, leading Consumer Reports to conclude that Off! Clean Feel exhibited "poor performance" at repelling mosquitoes. (Id. ¶ 6.)

Plaintiff purchased Off! Clean Feel from a Duane Reade store located in New York City in the summer of 2016 for approximately $ 7. (Id. ¶ 9.) Prior to purchase, Plaintiff carefully read the Off! Clean Feel bottle's labeling, including the representations that it is an "insect repellent," that it "repels mosquitoes," and that it provides "effective protection from mosquitoes." (Id. ) Plaintiff believed these statements to mean that Off! Clean Feel would repel mosquitoes and relied on them—he would not have purchased Off! Clean Feel at all, or would have only been willing to pay a substantially reduced price for Off! Clean Feel, had he known that these representations were false and misleading. (Id. ) Plaintiff used the product as directed, but it did not provide effective production from mosquitoes, as advertised. (Id. )

DISCUSSION

I. Motion to Dismiss Standard

To defeat a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " 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, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A claim is facially plausible if the complaint contains "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ " Id. The court must construe the factual allegations contained in the complaint as true and view the complaint in the light most favorable to the plaintiff. Twombly , 550 U.S. at 572, 127 S.Ct. 1955.

At the motion to dismiss stage, the court "assess[es] the legal feasibility of the complaint," but does not "assay the weight of the evidence which might be offered in support thereof." Lopez v. Jet Blue Airways , 662 F.3d 593, 596 (2d Cir. 2011). "When deciding a motion to dismiss pursuant to Rule 12(b)(6), the Court may consider documents attached to the Complaint as exhibits or incorporated in it by reference." Fraser v. Fiduciary Tr. Co. Int'l , 417 F.Supp.2d 310, 317 (S.D.N.Y. 2006) (Crotty, J.) (citing Brass v. American Film Techs., Inc. , 987 F.2d 142, 150 (2d Cir. 1993) ).

II. Preemption

A. Standard

"Preemption of state law occurs through the ‘direct operation of the Supremacy Clause.’ " Ault v. J.M. Smucker Co. , No. 13 CIV. 3409 PAC, 2014 WL 1998235, at *2 (S.D.N.Y. May 15, 2014) (quoting Kurns v. R.R. Friction Prods. Corp. , 565 U.S. 625, 132 S.Ct. 1261, 1265, 182 L.Ed.2d 116 (2012) ). Nonetheless, "the States are independent sovereigns in our federal system," and courts "have long presumed that Congress does not cavalierly pre-empt state-law causes of action." Bates v. Dow Agrosciences LLC , 544 U.S. 431, 449, 125 S.Ct. 1788, 161 L.Ed.2d 687 (2005) (quoting Medtronic, Inc. v. Lohr , 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996) ). Accordingly, "[i]n areas of traditional state regulation, we assume that a federal statute has not supplanted state law unless Congress has made such an intention ‘clear and manifest.’ " Id. In determining whether a state law is expressly preempted by a federal law, courts examine "the elements of the common-law duty." Mut. Pharm. Co. v. Bartlett , 570 U.S. 472, 492, 133 S.Ct. 2466, 186 L.Ed.2d 607 (2013).

Under FIFRA, a manufacturer must obtain the EPA's approval of a pesticide, such as mosquito repellent, and its label before it can be sold. See 7 U.S.C. § 136 et seq. Still: "In no event shall registration of an article be construed as a defense for the commission of any offense under this subchapter." 7 U.S.C. § 136a(f)(2).

FIFRA also contains an express preemption section. Under 7 U.S.C. 136v(a) : "A State may regulate the sale or use of any federally registered pesticide or device in the State, but only if and to the extent the regulation does not permit any sale or use prohibited by this...