Moran v. Bondi Sands (U.S.) Inc.

MICHELLE MORAN, Plaintiff, v. BONDI SANDS (USA) INC., et al., Defendants.

No. 21-cv-07961-JSW

United States District Court, N.D. California

April 29, 2022

ORDER GRANTING, IN PART, AND DENYING, IN PART, MOTION TO DISMISS AND SETTING INITIAL CASE MANAGEMENT CONFERENCE RE DKT. NO. 29

JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE

This matter comes before the Court upon consideration of the motion to dismiss filed by Defendant Bondi Sands (USA), Inc (“Bondi Sands”).^[1] The Court has considered the parties' papers, relevant legal authority, and the record in this case. The Court also has granted the parties' stipulation allowing Plaintiff, Michelle Moran (“Moran”), to file a second amended complaint. For the reasons that follow, the Court HEREBY GRANTS, IN PART, AND DENIES, IN PART, Bondi Sands' motion.

BACKGROUND

In the summer of 2021, Moran purchased can of Bondi Sands' aerosol fragrance-free sunscreen (“Purchased Product” or the “Product”). (First Amended Class Action Complaint (“FACC”), ¶ 8, Ex 1-5.) The front label of the Purchased Product includes the phrase “Reef Friendly.” (Id., Ex. 1-5.) Moran alleges that the term Reef Friendly “led her to believe that the [Purchased] Product's ingredients were all reef-safe and otherwise could not harm reefs, including the coral reefs and marine life that inhabits and depends on them.” (Id. ¶ 8.)

According to Moran, the Purchased Product, and other similar products containing the Reef Friendly statement (collectively “Bondi Sands' Products”), actually contain chemical ingredients, such as avobenzone, homoslate, octisalate, and/or octorylene, which “are not safe for reefs because they can harm and/or kill reefs, including the coral reefs and the marine life that inhabits or depends on them.”^[2] (Id. ¶ 3; see also id. ¶¶ 24-28.) Moran alleges she was not aware of that fact when she purchased the Product, and would not have purchased the Product, or would have paid substantially less for it, had she known the truth. (Id. ¶¶ 8, 72). Moran also alleges that she continues to see Bondi Sands' Products that use Reef Friendly on the labels. She would like to purchase them in the future, if that representation was true, but because she does not “possess any specialized knowledge, skill, experience, or education in sun care products, ” she has no way to determine the truth. (Id.; see also id. ¶ 9.)

Based on these and additional allegations that the Court will address in the analysis, Moran seeks relief on behalf of herself and putative classes for violations under each prong of California's Unfair Competition Law (the “UCL Claim”), for violations of California's False Advertising Law (the “FAL Claim”), for violations California's Consumer Legal Remedies Act (the “CLRA Claim”), for breach of warranty, and for unjust enrichment.

ANALYSIS

A. The Court Denies Bondi Sands' Motion to Invoke the Primary Jurisdiction Doctrine.

Bondi Sands moves to dismiss or stay pursuant to the primary jurisdiction doctrine. “The primary jurisdiction doctrine allows courts to stay proceedings or to dismiss a complaint without prejudice pending the resolution of an issue within the special competence of an administrative agency.” Clark v. Time Warner Cable, 523 F.3d 1110, 1114 (9th Cir. 2008). It is a “prudential” doctrine “under which a court determines that an otherwise cognizable claim implicates technical and policy questions that should be addressed in the first instance by the agency with regulatory authority over the relevant industry rather than by the judicial branch.” Id. It is “not designed to secure expert advice from agencies every time a court is presented with an issue conceivably within the agency's ambit.” Id.

The determination of whether an action should be stayed pursuant to the primary jurisdiction doctrine is a matter for the Court's discretion. Syntek Semiconductor Co., Ltd. v. Microchip Tech. Inc., 307 F.3d 775, 781 (9th Cir. 2002). In considering this issue, courts have “traditionally employed such factors as (1) the need to resolve an issue that (2) has been placed by Congress within the jurisdiction of an administrative body having regulatory authority (3) pursuant to a statute that subjects an industry or activity to a comprehensive regulatory authority that (4) requires expertise or uniformity in administration.” Id. (citing United States v. General Dynamics Corp., 828 F.2d 1356, 1362 (9th Cir. 1987)).

The Food and Drug Administration (“FDA”) has promulgated regulations and labelling requirements for over the counter (“OTC”) sunscreens. Bondi Sands also notes Congress is considering legislation that would require the FDA, in consultation with other agencies, to develop labelling requirements for the term “Reef Safe.” The legislation was introduced in July 2021 and, to date, has not been passed. Each version of the proposed bill also provides the FDA with at least two-years from the date the law is enacted to develop those requirements.^[3] Moran does not seriously dispute that this is an area that would fall within the FDA's expertise and that it has not yet been addressed. However, “primary jurisdiction is not required when a referral to the agency would significantly postpone a ruling that a court is otherwise competent to make.” Astiana v. Hain Celestial Gp., Inc., 783 F.3d 753, 760-61 (9th Cir. 2015) (internal citations and quotations omitted). “[E]fficiency is the deciding factor in whether to invoke primary jurisdiction.”

In one of the other cases that Moran's counsel has filed in this District, the court considered this issue and determined that, at this juncture, action by the FDA appeared too remote to warrant invocation of the doctrine. White v. The Kroger Co., No. 21-cv-08004-RS, 2022 WL 888657, at *2-3 (N.D. Cal. Mar. 25, 2022). The Court concurs and, in light of that uncertainty, concludes invoking the doctrine would not be efficient.

Accordingly, the Court DENIES, IN PART, Bondi Sands' motion on that basis.

B. The Court Denies Bondi Sands' Motion to Dismiss Based on FDCA Preemption.

Bondi Sands also argues Moran's claims are preempted by the Food, Drug, and Cosmetic Act (“FDCA”), 21 U.S.C. sections 301, et seq. The FDCA contains a 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). The FDA's regulations governing OTC sunscreen do not currently address environmental claims.

Moran argues she asks only that the Reef Friendly phrase be removed from the label. She alleges, however, that the Court should require “prominent qualifications and/or disclaimers on the [Bondi Sands' Products'] front label concerning [their] true nature[.]” (FACC ¶ 38.c.) Even if the FDA neither prohibits nor permits the phrase Reef Friendly, Moran fails to meaningfully engage with Bondi Sands' argument that she asks the Court to ask Bondi Sands to add information not currently required by the FDA to the Products' labels. For that reason, the Court finds Prescott v. Bayer Health Care, LLC, on which she relies, distinguishable. No. 20-cv-00102-NC, 2020 WL 4430958, at *2-3 (N.D. Cal. July 31, 2020). However, it also is evident that Moran's claim is based on the theory that the phrase Reef Friendly is misleading, and FDCA regulations prohibit “claims that would be false and/or misleading on sunscreen products.” 21 C.F.R. § 201.327(g).

Accordingly, the Court concludes Moran's claims are not preempted in their entirety and DENIES, IN PART, Bondi Sands' motion on that basis as well.

C. The Court Concludes Moran Has Stated Claims for Relief.

Bondi Sands also moves to dismiss for failure to state a claim. A motion to dismiss is proper under Federal Rule of Civil Procedure 12(b)(6) where the pleadings fail to state a claim upon which relief can be granted. A court's “inquiry 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).

As a general rule, “a district court may not consider any material beyond the pleadings in ruling on Rule 12(b)(6) motion.” Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994), overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002) (citation omitted). However, a court may consider documents that subject to judicial notice on a motion to dismiss without converting the motion to one for summary judgment. See Mack S. Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986), overruled on other grounds by Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104 (1991). If the allegations are insufficient to state a claim a court should grant leave to amend unless amendment would be futile. See, e.g., Reddy v. Litton Indus. Inc., 912 F.3d 291, 296 (9th Cir. 1990); Cook, Perkiss &...