Schneider v. Colgate-Palmolive Co.

677 F.Supp.3d 91

Amy SCHNEIDER and Erika Opgenorth, on behalf of themselvesand all others similarly situated, Plaintiffs, v. COLGATE-PALMOLIVE COMPANY and CP Skin Health Group, Inc., Defendants.

5:22-cv-1294

United States District Court, N.D. New York

Signed June 15, 2023

BENJAMIN HEIKALI, ESQ., TREEHOUSE LAW, LLP, Attorneys for Plaintiffs, 10250 Constellation Blvd., Suite 100, Los Angeles, CA 90067.

ROBERT ABIRI, ESQ., CUSTODIO & DUBEY LLP, Attorneys for Plaintiffs, 445 S. Figueroa St. Suite 2520, Los Angeles, CA 90071.

KEITH E. SMITH, ESQ., NILDA M. ISIDRO, ESQ., GREENBERG TRAURIG, LLP, Attorneys for Defendants, 1717 Arch Street, Suite 400, Philadelphia, PA 19103.

DECISION and ORDER

DAVID N. HURD, United States District Judge

I. INTRODUCTION

On December 2, 2022, Amy Schneider ("Schneider") and Erika Opgenorth ("Opgenorth") (collectively "plaintiffs") filed this putative class action against Colgate-Palmolive Company ("Colgate") and CP Skin Health Group, Inc. ("CP Skin") (collectively "defendants"). Dkt. No. 1. Plaintiffs' eight-count complaint asserts that defendants engaged in false and deceptive practices in the marketing, distribution, and sale of EltaMD sunscreens. Id.

On January 26, 2023, defendants moved to dismiss the complaint pursuant to Federal Rules of Civil Procedure ("Rule") 12(b)(1), 12(b)(6), and 9(b). Dkt. No. 16. The motion has been fully briefed and will be considered on the basis of the submissions without oral argument.

II. INTRODUCTION

EltaMD is a professional skincare brand. Compl. ¶ 13. Defendant Colgate owns EltaMD and oversees the formulation, manufacturing, labeling, advertising, distribution, and sale of EltaMD products. Id. ¶¶ 11, 13. Defendant CP Skin is a Colgate corporation responsible for the EltaMD brand. Id. ¶ 12.

EltaMD offers a variety of premium skin and sun care products. Compl. ¶ 14. The products at issue in this action include nine of EltaMD's sunscreen products (the "products"). Id. ¶ 15. The front label of each of the products represents that the products contain "Transparent Zinc Oxide," a mineral sunscreen ingredient, while failing to disclose the presence of any other active sunscreen ingredients, and the Amazon.com pages for some of the products describe the products as being "Mineral-Based." Id. ¶¶ 17-20.

Based on the products' labeling and advertisements, plaintiffs assert that reasonable consumers are led to believe that the only active sunscreen ingredient in the products is zinc oxide. Compl. ¶ 19. However, contrary to the products' representations, nearly half of each products' active sunscreen ingredients are chemical sunscreen ingredients, such as octinoxate, octisalate, and octocrylene. Id. ¶ 21.

Plaintiffs maintain that the reasonable belief that the products contain only zinc oxide as the active sunscreen ingredient is material to consumers' purchasing decisions because customers have increasingly turned to mineral sunscreen ingredients due to the negative health and environmental consequences associated with chemical sunscreen ingredients. Compl. ¶¶ 30-33. Plaintiffs assert that defendants deceptively labeled and advertised the products "in order to capitalize on demand for premium mineral sunscreens made solely with zinc oxide." Id. ¶ 34.

III. LEGAL STANDARD

To survive a Rule 12(b)(6) motion to dismiss, the complaint's factual allegations must be enough to elevate the plaintiff's right to relief above the level of speculation. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). So while legal conclusions can provide a framework for the complaint, they must be supported with meaningful allegations of fact. Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). In short, a complaint must contain "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S.Ct. 1955.

To assess this plausibility requirement, the court must accept as true all of the factual allegations contained in the complaint and draw all reasonable inferences in the non-movant's favor. Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). In doing so, the court generally confines itself to the facts alleged in the pleading, any documents attached to the complaint or incorporated into it by reference, and matters of which judicial notice may be taken. Goel v. Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016) (quoting Concord Assocs., L.P. v. Ent. Props. Tr., 817 F.3d 46, 51 n.2 (2d Cir. 2016)).

IV. DISCUSSION

Plaintiffs bring this action on behalf of four putative classes. Compl. ¶ 37. First, a nationwide class defined as all residents of the U.S. who purchased any of the products within the applicable statute of limitation. Id. Second, a California class defined as all residents of California who purchased any of the products within the applicable statute of limitation. Id. Third, a "California Consumer Subclass" defined as all residents of California who purchased any of the products for personal, family, or household purposes, within the applicable statute of limitations period. Id. Lastly, a New York class defined as all residents of New York who purchased any of the products within the applicable statute of limitation. Id.

Plaintiffs assert claims for these classes under New York and California state laws. See Compl. ¶¶ 46-108. Plaintiffs assert the following claims: (1) violation of New York General Business Law § 349 ("Section 349"); (2) violation of New York General Business Law § 350 ("Section 350"); (3) violation of California's Consumer Legal Remedies Act ("CLRA"); (4) violation of California's False Advertising Law ("FAL"); (5) violation of California's Unfair Competition Law ("UCL"); (6) breach of express warranty under New York and California law; (7) breach of implied warranty under California law; and (8) "Quasi Contract/Unjust Enrichment/Restitution." Id.

A. Consumer Protection Claims (Counts I, II, III, VI & V)

Defendants first seek dismissal of plaintiffs' consumer protection claims under New York and California law. See Defs.' Mem., Dkt. No. 16-3 at 16-22, 31-32.¹

1. New York Statutory Claims

Plaintiffs' first and second causes of action are brought under New York General Business Law Sections 349 and 350. Compl. ¶¶ 46-63.

Section 349 "prohibits deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state." Chery v. Conduent Educ. Servs., LLC, 581 F. Supp. 3d 436, 449 (N.D.N.Y. 2022) (cleaned up). Section 350 "prohibits false advertising in the conduct of any business, trade or commerce or in the furnishing of any service in this state." Orlander v. Staples, Inc., 802 F.3d 289, 300 (2d Cir. 2015) (cleaned up).

"To successfully assert a claim under either section of the statute, 'a plaintiff must allege that a defendant has engaged in (1) consumer-oriented conduct that is (2) materially misleading and that (3) plaintiff suffered injury as a result of the allegedly deceptive act or practice.' " Campbell v. Whole Foods Mkt. Grp., Inc., 516 F. Supp. 3d 370, 381 (S.D.N.Y. 2021) (quoting Orlander, 802 F.3d at 300). Claims under Sections 349 and 350 are not required to meet the heightened pleading standard of Rule 9(b). Duran v. Henkel of Am., Inc., 450 F. Supp. 3d 337, 346 (S.D.N.Y. 2020) (citing Lugones v. Pete & Gerry's Organic, LLC, 440 F. Supp. 3d 226, 239-40 (S.D.N.Y. 2020)).

2. California Statutory Claims

Plaintiffs' third, fourth, and fifth causes of action are brought under California's CLRA, FAL, and UCL. Compl. ¶¶ 64-85.

The CLRA "prohibits certain unfair methods of competition and unfair or deceptive acts or practices in a transaction, including representing that goods or services have characteristics that they do not have and advertising goods or services with intent not to sell them as advertised." Morrell v. WW Int'l, Inc., 551 F. Supp. 3d 173, 182 (S.D.N.Y. 2021) (cleaned up). The FAL "makes it unlawful for any person to engage knowingly in unfair or misleading advertising, and provides a private cause of action for any person who has suffered injury in fact and has lost money or property as a result of a violation of the FAL." Id. at 183 (cleaned up). The UCL "prohibits 'any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising.' " Id. (citation omitted).

Courts often analyze the CLRA, UCL, and FAL together because they share similar attributes. Quintanilla v. WW Int'l, Inc., 541 F. Supp. 3d 331, 344 (S.D.N.Y. 2021) (citing In re Sony Gaming Networks & Customer Data Sec. Breach Litig., 996 F. Supp. 2d 942, 985 (S.D. Cal. 2014)). In particular, all three laws require plaintiffs to meet the pleading standards of Rule 9(b) and demonstrate that members of the public are likely to be deceived by the alleged misrepresentations. Id. (citations omitted).

3. Reasonable Consumer

First, defendants argue for dismissal of plaintiffs' consumer protection claims on the basis that plaintiffs have not plausibly alleged that any reasonable consumer would be deceived by the products' labels and advertisements. Defs.' Mem. at 19-20.

"To state a claim for false advertising or deceptive business practices under New York or California law, a plaintiff must plausibly allege that the deceptive conduct was 'likely to mislead a reasonable consumer acting reasonably under the circumstances.' " Mantikas v. Kellogg Co., 910 F.3d 633, 636 (2d Cir. 2018) (quoting Fink v. Time Warner Cable, 714 F.3d 739, 741 (2d Cir. 2013)). A plaintiff "must do more than 'plausibly allege that a label might conceivably be misunderstood by some few consumers.' " Mogull v. Pete & Gerry's Organics, LLC, 588 F. Supp. 3d 448, 453 (S.D.N.Y. 2022) (quoting Jessani v. Monini N. Am., Inc., 744 F. App'x 18, 19 (2d Cir. 2018)). "Rather, the operative question is whether a 'significant portion of the general consuming public or of targeted consumers, acting reasonably in the...