Smith v. Glaxosmithkline Consumer Healthcare Holdings (US) LLC

660 F.Supp.3d 863

Jasmine SMITH, et al., Plaintiffs, v. GLAXOSMITHKLINE CONSUMER HEALTHCARE HOLDINGS (US) LLC, Defendant.

Case No. 21-cv-09390-JST

United States District Court, N.D. California

Signed March 9, 2023

L. Timothy Fisher, Bursor & Fisher, P.A., Walnut Creek, CA, Sean L. Litteral, Bursor & Fisher, P.A., Oakland, CA, for Plaintiff Jasmine Smith.

L. Timothy Fisher, Stefan Bogdanovich, Bursor & Fisher, P.A., Walnut Creek, CA, for Plaintiff Tawneya Houser.

Jessica Davidson, Pro Hac Vice, Thomas E. Fox, Pro Hac Vice, Skadden, Arps, Slate, Meagher & Flom LLP, New York, NY, Jordan M. Schwartz, Pro Hac Vice, Skadden, Arps, Slate, Meagher & Flom LLP, Washington, DC, Michael Clemens Minahan, Skadden, Arps, Slate, Meagher & Flom LLP, Palo Alto, CA, for Defendant.

ORDER GRANTING MOTION TO DISMISS

Re: ECF No. 35

JON S. TIGAR, United States District Judge

Before the Court is Defendant GlaxoSmithKline Consumer Healthcare Holdings (US) LLC's ("GSK") motion to dismiss. ECF No. 35. The Court will grant the motion.

I. BACKGROUND

For purposes of the instant motion, the Court accepts the following facts as true. Caused by the herpes simplex virus ("HSV"), cold sores generally persist for two to four weeks before the body heals them on its own. First Amended Class Action Complaint ("FACAC") ¶¶ 10-11, ECF No. 25. There is no known cure for HSV, but a variety of prescriptions and over-the-counter medications exist to treat HSV by relieving discomfort, shortening healing time, or reducing transmission. Id. ¶ 12. Abreva is one such over-the-counter medication. Id. ¶ 13. Abreva is a topical cream that contains 10% of the active ingredient docosanol, which is the only ingredient available without a prescription approved by the FDA to shorten the healing time of cold sores. Id. ¶ 13. Avanir Pharmaceuticals developed Abreva in the late 1990s, and the U.S. Food and Drug Administration ("FDA") approved Avanir's new drug application for Abreva in 2000.¹ Id. ¶ 14. In approving Abreva, the FDA "cautioned" Avanir "not to promote the product as an antiviral or as providing symptomatic relief of cold sores." Id. ¶ 18. The FDA further instructed Avanir that "[p]romotion of symptomatic benefit should be limited to the information provided in the labeling, that the product shortens healing time and duration of symptoms." Id. Today, GSK manufactures, markets, and sells Abreva. Id. ¶ 1.

Plaintiffs Jasmine Smith and Tawneya Houser purchased Abreva in or around February 2021 and spring 2020, respectively. Id. ¶¶ 3, 4. In making their purchases, Plaintiffs relied on various advertisements. Id. ¶¶ 20-32. One advertisement image claimed, "YOU CAN GET RID OF YOUR COLD SORES IN 2½ DAYS*," and three other advertisements contained identical or substantially similar language followed by an asterisk. Id. ¶¶ 22-25. The asterisk corresponding to each statement was defined in smaller font at the bottom of the images and read, "*When used at first sign. Median healing time 4.1 days. 25% of users healed by 2.5 days." Id. One of these advertisements further stated that Abreva "[p]enetrates deep beneath the skin, to the source of the spreading virus*," and "[h]elps block the virus and helps protect healthy skin cells**." Id. ¶ 25. The double asterisk was defined as the preceding disclaimer, while the single asterisk read, "*Based on laboratory studies." Id. Another advertisement claimed that Abreva is "PROVEN TO HEAL COLD SORES & SHORTEN THE DURATION OF" pain, burning itching, and tingling. Id. ¶ 27.

Plaintiffs further relied on a webpage that featured substantially similar language and the same disclaimer. Id. ¶ 26. The webpage also stated, "Nothing heals a cold sore faster.**" Id. (emphasis in original). The webpage defined the double asterisk as "Median healing time 4.1 days. 25% of users healed within 2½ days." Id. Plaintiffs additionally relied on three video advertisements that featured the following statements: "Just because there isn't a cure for cold sores, doesn't mean you have to suffer patiently until it clears up on its own"; "When used at the first sign, you could knock out your cold sore in 2.5 days"; and "PENETRATES DEEP INTO THE SKIN AND STARTS TO WORK IMMEDIATELY TO BLOCK THE VIRUS." Id. ¶¶ 28-29, 31-32.

Plaintiffs allege that Abreva did not heal their cold sores either within 2.5 days, as advertised, or within the time period set forth in the advertisements' disclaimers and clarifying language. Id. ¶¶ 3-4. Plaintiffs further allege that Abreva is ineffective, cannot cure a cold sore within 2.5 days, and does not provide symptomatic and anti-viral relief, such that GSK's advertisements amount to material misrepresentations and omissions in violation of California law. Id. ¶¶ 3-4, 34, 36-53. Plaintiffs bring claims for (1) violations of California's Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code §§ 17200 et seq.; (2) violation of California's Consumers Legal Remedies Act ("CLRA"), Cal. Civ. Code §§ 1750 et seq.; (3) violation of California's Song-Beverly Consumer Warranty Act ("Song-Beverly Act"), Cal. Civ. Code §§ 1792 et seq.; (4) violation California's False Advertising Law ("FAL"), Cal. Bus. & Prof Code §§ 17500 et seq.; (5) breach of express warranty; (6) breach of implied warranty of merchantability; (7) fraudulent misrepresentation; (8) negligent misrepresentation; (9) fraud by omission; and (10) unjust enrichment. Id. ¶¶ 134-232. Plaintiffs seek to represent a nationwide class comprising:

All individual residents of the United States who purchased [Abreva] through the date of class certification. Excluded from the Class are: (1) Defendants and all directors, officers, employees, partners, principals, shareholders and agents of Defendants; (2) Any currently sitting United States District Court Judge or Justice, and the current spouse and all other persons within the third-degree of consanguinity to such judge/justice; and (3) Class Counsel.

Id. ¶ 126. Plaintiffs also seek to represent an analogous California subclass. Id.

Plaintiffs filed their original complaint on December 3, 2021. ECF No. 1. GSK moved to dismiss the complaint, ECF No. 18, and Plaintiffs filed the operative amended complaint in response to the motion on February 25, 2022, ECF No. 25. GSK subsequently filed the instant motion to dismiss on March 25, 2022. ECF No. 35. Following several extensions of the briefing schedule, ECF Nos. 38 & 45, the Court took the motion under submission without a hearing on October 11, 2022, ECF No. 49.

II. JURISDICTION

The Court has jurisdiction under 28 U.S.C. § 1332(d).

III. LEGAL STANDARD

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Dismissal "is appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory." Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). "[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 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, 556 U.S. at 678, 129 S.Ct. 1937. While this standard is not "akin to a 'probability requirement' . . . it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955). "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.' " Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). In determining whether a plaintiff has met the plausibility requirement, a court must "accept all factual allegations in the complaint as true and construe the pleadings in the light most favorable" to the plaintiff. Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005).

IV. DISCUSSION

The parties dispute whether (1) Plaintiffs' claims are preempted by the Federal Food, Drug, and Cosmetic Act ("FDCA"), 21 U.S.C. §§ 301 et seq.; (2) the complaint fails to plead Plaintiffs' fraud claims with the particularity required by Federal Rule of Civil Procedure 9(b); and (3) the complaint fails to plausibly allege a misrepresentation or breach of any promise. The Court takes each dispute in turn.

A. Preemption

GSK argues that all of Plaintiffs' claims are preempted by 21 U.S.C. § 379r. ECF No. 35 at 25-28. Plaintiffs argue that preemption does not apply to claims for breach of express warranty and that Section 379r applies only to claims pertaining to medication labeling, whereas Plaintiffs' claims pertain to advertising. ECF No. 43 at 19-25.

1. Section 379r Preemption

"Preemption of state law, by operation of the Supremacy Clause, can occur in one of several ways: express, field, or conflict preemption." Cohen v. Apple Inc., 46 F.4th 1012, 1027 (9th Cir. 2022) (quoting Beaver v. Tarsadia Hotels, 816 F.3d 1170, 1178 (9th Cir. 2016)). "Absent express congressional preemption," field preemption occurs " 'when the scope of a [federal] statute indicates that Congress intended federal law to occupy a field exclusively,' " and conflict preemption occurs "where 'the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.' " Id. (alteration in original) (first quoting Kurns v. R.R. Friction Prods. Corp., 565 U.S. 625, 630, 132 S.Ct. 1261, 182 L.Ed.2d 116 (2012); and then quoting Beaver, 816 F.3d at 1179). "[P]reemption analysis is driven by the presumption that 'the historic police powers of the States were not to...