Slaten v. Christian Dior, Inc.

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ALEXIS SLATEN, Plaintiff, v. CHRISTIAN DIOR, INC., Defendant.

No. 23-cv-00409-JSC

United States District Court, N.D. California

May 12, 2023

ORDER RE: MOTION TO DISMISS RE: DKT. NO. 23

JACQUELINE SCOTT CORLEY UNITED STATES DISTRICT JUDGE.

Plaintiff alleges Defendant misleadingly advertises the sun protection factor (“SPF”) benefits of its cosmetic products. (Dkt. No. 1.)^[1] Before the Court is Defendant's motion to dismiss. (Dkt. No. 23.) After carefully considering the briefing, and with the benefit of oral argument on May 11, 2023, the Court GRANTS the motion in part and DENIES it in part.

COMPLAINT ALLEGATIONS

Plaintiff a California resident, has purchased Defendant's Dior Forever Foundation from a Macy's retail store in Daly City, California for several years. (Dkt. No. 1 ¶ 51.) She read and relied on the front of the Dior Forever Foundation box, which states:

TRANSFER-PROOF - 24H FOUNDATION HIGH PERFECTION CONCENTRATED FLORAL SKINCARE WITH SUNSCREEN BROAD SPECTRUM SPF 15

(Id. ¶ 21.) She believed the product would provide both cosmetic coverage and SPF protection for 24 hours. (Id. ¶¶ 22, 52.) The back of the product bottle (inside the box) also states:

24H WEAR HIGH PERFECTION SKIN-CARING FOUNDATION WITH SUNSCREEN

LASTING COMFORT AND CARE

BROAD SPECTRUM SPF 35

(Id. ¶ 37.) It is not clear whether the product is offered in multiple SPF options, given that the complaint quotes both SPF 15 and 35. (See Id. ¶¶ 22 52.)

However the product's SPF protection lasts for two hours at most. (Id. ¶ 23.) The drug facts panel on the back of the product box directs consumers to “reapply at least every 2 hours.” (Id. ¶ 37.) Plaintiff would not have purchased, or would have paid less for, the product had she known Defendant's labeling was deceptive and misleading. (Id. ¶¶ 54-55.) Plaintiff asserts if “the Products were reformulated and/or relabeled without the misleading 24 hour SPF claims, [she] would likely purchase the Products again in the future.” (Id. ¶ 56.) Plaintiff also challenges the labels on the Dior Forever Skin Glow Foundation product and any other on which Defendant “make[s] an SPF claim and a claim that the Products will last longer than two hours.” (Id. ¶ 20.)

Plaintiff asserts the product labels are misleading because a reasonable consumer will think they mean the products provide all benefits-including cosmetic coverage and SPF protection- for 24 hours without the need to reapply. (Id. ¶ 22.) On behalf of a putative nationwide class and California subclass who bought the products, Plaintiff brings claims for: (1) violation of California's Consumer Legal Remedies Act (“CLRA”); (2) violation of California's False Advertising Law (“FAL”) (3) fraud, deceit, and/or misrepresentation; (4) violation of all three prongs (unlawful, unfair, and fraudulent) of California's Unfair Competition Law (“UCL”); and (5) unjust enrichment. (Id. ¶¶ 57, 66-111.) Plaintiff disclaims any causes of action under the Federal Food, Drug, and Cosmetic Act (“FDCA”) and regulations promulgated by the Food and Drug Administration (“FDA”). (Id. ¶ 65.) Accordingly, she relies on the FDCA and FDA regulations only to the extent they are also enacted under California state law or regulation, or provide a predicate for liability under state law. (See id.)

DISCUSSION

I. EXPRESS PREEMPTION

Defendant argues the FDCA expressly preempts Plaintiff's state claims. “FDCA preemption, like all federal preemption, is an affirmative defense. Only when the plaintiff pleads itself out of court-that is, admits all the ingredients of an impenetrable defense-may a complaint that otherwise states a claim be dismissed under Rule 12(b)(6).” Durnford v. MusclePharm Corp., 907 F.3d 595, 603 n.8 (9th Cir. 2018) (cleaned up). In analyzing express preemption,

our focus is on the plain meaning of [the statute]. That's because the plain wording of the clause necessarily contains the best evidence of Congress' preemptive intent. In discerning its meaning, we look to [the statute's] text, structure, and context. And we apply this textual analysis without any presumptive thumb on the scale for or against preemption.

Cal. Rest. Ass'n v. City of Berkeley, 65 F.4th 1045, 1050 (9th Cir. 2023) (cleaned up).

The FDCA's preemption clause says,

[N]o State or political subdivision of a State may establish or continue in effect any requirement-

(1) that relates to the regulation of a drug that is not subject to the requirements of section 353(b)(1) [related to prescription drugs] ¶ 353(f)(1)(A) [related to veterinary prescription drugs] of this title; and

(2) that is different from or in addition to, or that is otherwise not identical with, a requirement under this chapter ....

21 U.S.C. § 379r(a). The statute regulates sunscreen as a drug. Among other requirements, sunscreen products must include a drug facts label stating, “reapply at least every 2 hours.” 21 C.F.R. § 201.327(e)(4). Sunscreen products and other drugs “shall be deemed to be misbranded” if their “labeling is false or misleading in any particular.” 21 U.S.C. § 352(a)(1). In particular,

There are claims that would be false and/or misleading on sunscreen products. These claims include but are not limited to the following: “Sunblock,” “sweatproof,” and “waterproof.” These or similar claims will cause the product to be misbranded under [21 U.S.C. § 352].

21 C.F.R. § 201.327(g).

There are two alternative reasons the FDCA does not preempt Plaintiff's claims. First, Plaintiff's claims do not implicate any FDCA “requirement” for a sunscreen product. 21 U.S.C. § 379r(a)(2).

The FDCA does not require the front of Defendant's sunscreen package, also known as the “principal display panel,” 21 C.F.R. § 201.60, to say “24H” or anything else about how long it lasts. There is no FDCA requirement “on point,” so no preemption. Hollins v. Walmart Inc., No. 21-56031, 2023 WL 3364616, at *8 (9th Cir. May 11, 2023). For example, in Durnford, 907 F.3d at 603, the label misleadingly suggested the product's protein came from certain ingredients. That claim was not preempted because FDA regulations set out a protocol to test protein content, but not protein composition. Id. at 603-05; see Hollins, 2023 WL 3364616, at *8. And in Astiana v. Hain Celestial Grp., Inc., the products were labeled “All Natural” or “Pure Natural,” which was not required by FDA regulations. 783 F.3d 753, 758 (9th Cir. 2015). A claim requiring the defendant “to remove these allegedly misleading advertising statements” did not “run afoul of the FDCA” because it would not “modify or enhance any aspect of [the] cosmetics labels that are required by federal law.” Id.; see Meza, 2023 WL 3082346, at *5 (“Put another way, a claim will not be expressly preempted under the FDCA if defendant's labeling duties would remain the same if plaintiffs prevailed.”). Similarly here, FDA regulations require sunscreen labels to include several pieces of information, but none on point. See Meza, 2023 WL 3082346, at *6 (“Plaintiff alleges . . . the ‘24/25 HR' claims misleadingly suggest the Products will provide sun protection for that amount of time when in fact they only provide two hours of protection. As in Astiana, FDA regulations do not mandate that sunscreen manufacturers include claims pertaining to the product's durational capability. Instead, the regulations state that non-water-resistant products include ‘reapply at least every 2 hours.' As such, Plaintiff's claims that the durational statements violate state law would not lead to any additional or different requirements to the existing regulations.” (cleaned up)).

Alternatively, to the extent Plaintiff's claims impose a requirement on a sunscreen product, it is “identical to” the FDCA's requirement that sunscreen labels not be false or misleading. 21 U.S.C. § 379r(a)(2); see Id. § 352(a)(1). As the Ninth Circuit explained in Ebner v. Fresh, Inc.:

[B]oth the federal FDCA and California's Sherman Law prohibit the false or misleading labeling of a cosmetic. Viewed in this light, Plaintiff is not asking Fresh to modify or enhance any aspect of its cosmetics labels that are required by federal law. Rather, the statelaw duty that Plaintiff seeks to enforce under the Sherman Law is identical to Fresh's federal duty under the FDCA: the duty to avoid false or misleading labeling.

838 F.3d 958, 965 (9th Cir. 2016) (cleaned up). Because the FDCA prohibits false or misleading labeling, it does not preempt California's laws allowing consumers to sue manufacturers who violate the federal prohibition on false or misleading labeling. “Simply put, the availability of state law damages for violations of federal law does not amount to an additional or different requirement.” Astiana, 783 F.3d at 757 (cleaned up). Defendant has not identified any part of the FDCA suggesting “24H” is not false or misleading as a matter of law. Cf. Roffman v. Perfect Bar, LLC, No. 22-CV-02479-JSC, 2022 WL 4021714, at *8 (N.D. Cal. Sept. 2, 2022) (“FDA regulations allow the nitrogen method for front-label protein claims .... That the regulations simultaneously prohibit ‘misleading' labeling, shows that nitrogen-method protein claims are not inherently misleading under the FDA regulations.” (cleaned up)).

Defendant insists the FDA considered regulating cosmetic duration claims in products with sunscreen but decided not to, and therefore Plaintiff's claims are preempted. (Dkt. No. 33 at 1516.) Not so. Defendant's characterization of what the FDA considered is wrong. Several commenters on FDA-proposed sunscreen regulations argued that different drug facts labeling (what is on the back of the product) should apply to cosmetics with sunscreen. The FDA concluded cosmetics with sunscreen should have the same drug facts as non-cosmetic sunscreen. It then...