Case 3:21-cv-07669-RS Document 56 Filed 08/02/22 Page 1 of 10
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`MICHELLE MORAN,
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`Plaintiff,
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`v.
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`EDGEWELL PERSONAL CARE, LLC, et
`al.,
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`Defendants.
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`Case No. 21-cv-07669-RS
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`ORDER GRANTING IN PART AND
`DENYING IN PART MOTION TO
`DISMISS
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`I. Introduction
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`Plaintiff Michelle Moran brings this putative class action on behalf of consumers
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`nationwide who purchased Defendant Edgewell Personal Care’s (“EPC”) Banana Boat branded
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`sunscreen products. Moran avers that statements on Banana Boat products indicating that the
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`sunscreen is “Reef Friendly” are false as the products contain ingredients harmful to coral reefs,
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`and that she would not have purchased a Banana Boat sunscreen with that claim had she known
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`the statement was false. She asserts various common law claims on behalf of a proposed
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`nationwide class, and various violations of California law on behalf of a proposed California
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`subclass. EPC brings this motion to dismiss pursuant to Federal Rules of Civil Procedure 8, 9(b),
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`12(b)(1), 12(b)(2), 12(b)(6), and 12(f). The motion to dismiss is granted as to advertisements other
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`than the “Reef Friendly – No Oxybenzone or Octinoxate” claim on the sunscreen labels, and as to
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`the claim for breach of implied warranty. The motion to dismiss is denied in all other respects.
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`Case 3:21-cv-07669-RS Document 56 Filed 08/02/22 Page 2 of 10
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`II. Factual Background
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`EPC sells sunscreen products under the brand Banana Boat. These products, of which over
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`ten are at issue in this lawsuit, contain a claim on the label stating “Reef Friendly – No
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`Oxybenzone or Octinoxate.” On behalf of a proposed nationwide class and a subclass of
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`California consumers, Moran brings breach of warranty and unjust enrichment/restitution claims.
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`Moran also brings three additional claims on behalf of the proposed California subclass: violation
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`of the California Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code §§ 17200, et seq.;
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`California False Advertising Law (“FAL”), Cal. Bus. & Prof. Code §§ 17500, et seq.; and the
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`California Consumers Legal Remedies Act (“CLRA”), Cal. Civ. Code §§ 1750, et seq.
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`III. Failure to State a Claim Under Rule 12(b)(6)
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`Defendant raises multiple arguments under Federal Rule of Civil Procedure 12(b)(6): (1)
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`Plaintiff’s CLRA, UCL, and FAL claims should be dismissed because Plaintiff fails to meet the
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`reasonable consumer standard, and (2) the breach of warranty claim should also be dismissed
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`because Defendant did not make an express or implied warranty and because the implied warranty
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`claim fails for lack of privity.1 For the reasons explained below, these arguments are granted in
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`part and denied in part.
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`A. Legal Standard
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`Rule 12(b)(6) governs motions to dismiss for failure to state a claim. A complaint must
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`contain a short and plain statement of the claim showing the pleader is entitled to relief. Fed. R.
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`Civ. P. 8(a). While “detailed factual allegations” are not required, a complaint must have sufficient
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`factual allegations to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556
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`U.S. 662, 678 (2009) (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007)). A Rule
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`12(b)(6) motion tests the legal sufficiency of the claims alleged in the complaint. See Parks Sch. of
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`Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). When evaluating such a motion,
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`1 Defendant also contends that Plaintiff fails to allege facts sufficient to establish she is entitled to
`restitution. This argument, while a Rule 12(b)(6) argument, is addressed in the discussion of
`Plaintiff’s equitable claims.
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`ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS
`CASE NO. 21-cv-07669-RS
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`Case 3:21-cv-07669-RS Document 56 Filed 08/02/22 Page 3 of 10
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`courts generally “accept all factual allegations in the complaint as true and construe the pleadings
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`in the light most favorable to the nonmoving party.” Knievel v. ESPN, 393 F.3d 1068, 1072 (9th
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`Cir. 2005).
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`B. Discussion
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`1. Reasonable Consumer Standard
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`The UCL, FAL, and CLRA all utilize the reasonable consumer standard, Shaeffer v.
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`Califia Farms, LLC, 44 Cal. App. 5th 1125, 1136 (2020), “which requires a plaintiff to show
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`potential deception of consumers acting reasonably in the circumstances-not just any consumers.”
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`Hill v. Roll Internat. Corp., 195 Cal. App. 4th 1295, 1304 (2011). “[W]hether a business practice
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`is deceptive will usually be a question of fact not appropriate for decision” on a motion to dismiss.
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`Williams v. Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir. 2008). Defendant argues that the
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`inclusion of “No Oxybenzone or Octinoxate” below the statement “Reef Friendly” on the label
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`means that no reasonable consumer would be misled, because a reasonable consumer would only
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`interpret the label to mean that there was no oxybenzone or octinoxate in the product. This inquiry
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`is “fact-intensive and not well-suited for resolution at the pleading stage.” White v. Kroger Co.,
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`No. 21-CV-08004-RS, 2022 WL 888657, at *2 (N.D. Cal. Mar. 25, 2022). Plaintiffs aver—with
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`support from some scientific studies and regulators—that some of the chemicals in the challenged
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`products damage coral reefs. It is inappropriate to conclude at the pleadings stage that a reasonable
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`consumer would have interpreted the label to mean that the product was only free from
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`oxybenzone or octinoxate, regardless of possible harms from other chemicals. The questions of
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`whether the other chemicals in the products are harmful to reefs, and how a reasonable consumer
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`would have interpreted the claim on the label, can only be resolved after the development of
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`evidence in this case. The motion to dismiss is therefore denied as to Defendant’s theory that the
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`reasonable consumer standard cannot be met as a matter of law.
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`2. Breach of Warranty Claim
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`Defendant argues that Plaintiff has failed to state a claim for breach of an express or
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`implied warranty. “To prevail on a breach of express warranty claim, Plaintiffs must prove: (1)
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`ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS
`CASE NO. 21-cv-07669-RS
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`Case 3:21-cv-07669-RS Document 56 Filed 08/02/22 Page 4 of 10
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`‘the seller’s statements constitute an affirmation of fact or promise or a description of the goods;
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`(2) the statement was part of the basis of the bargain; and (3) the warranty was breached.’” Brown
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`v. Hain Celestial Grp., Inc., 913 F. Supp. 2d 881, 899-900 (N.D. Cal. 2012) (quoting Weinstat v.
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`Dentsply Int’l, Inc., 180 Cal. App. 4th 1213, 1227 (2010)). Defendant’s arguments concerning the
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`breach of express warranty claim are repetitive of the arguments discussed above; courts have held
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`that when a plaintiff adequately pleads falsity of an advertising claim under California consumer
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`protection statutes, the plaintiff also has adequately pled a breach of express warranty based on
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`those claims. See, e.g., In re S.C. Johnson & Son, Inc. Windex Non-Toxic Litigation, Case No. 20-
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`cv-03184-HSG, 2021 WL 3191733, at *9 (N.D. Cal. July 28, 2021). Here, Plaintiffs have
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`adequately pled that the “Reef Friendly” label indicated more than just the absence of oxybenzone
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`and octinoxate, and thus Plaintiff has pled a claim for breach of express warranty. The motion is
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`therefore denied as to the breach of express warranty claim.
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`Defendant next argues that the breach of implied warranty claim fails because plaintiff
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`cannot show privity. The privity requirement has an exception for “when the plaintiff relies on
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`written labels or advertisements of a manufacturer[,]” Clemens v. DaimlerChrysler Corp., 534
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`F.3d 1017, 1023 (9th Cir. 2008), but Defendant argues this exception “is applicable only to
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`express warranties.” Burr v. Sherwin Williams Co., 42 Cal. 2d 682, 696 (1954). Plaintiff argues
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`that courts have “relaxed” this requirement “when the plaintiff relies on written labels or
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`advertisements of a manufacturer[.]” Roper v. Big Heart Pet Brands, Inc., 510 F. Supp. 3d 903,
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`924 (E.D. Cal. 2020) (quoting Van Mourik v. Big Heart Pet Brands, Inc., No. 3:17-CV-03889-JD,
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`2018 WL 1116715, at *5 (N.D. Cal. Mar. 1, 2018)). As this Court has previously noted, however,
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`the holding from the California Supreme Court in Burr v. Sherwin Williams that the privity
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`exception only applies to express warranties has never been overruled. See In re Sony PS3 Other
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`OS Litig., No. C-10-1811-RS, 2011 WL 672637 (N.D. Cal. Feb. 17, 2011) (explaining that a case
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`which said the privity requirement could be “relaxed” was “not consistent with clear California
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`precedent that privity remains a requirement in implied warranty claims even though it has been
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`eliminated in express warranty claims”). The motion to dismiss is thus granted as to the breach of
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`ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS
`CASE NO. 21-cv-07669-RS
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`Case 3:21-cv-07669-RS Document 56 Filed 08/02/22 Page 5 of 10
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`implied warranty claim.
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`IV. Failure to Meet the Pleading Requirements of Rule 9(b)
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`Defendant contends that Plaintiff has not met the heightened pleading standard of Federal
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`Rule of Civil Procedure 9(b). When a claim is “grounded in fraud” a pleading “must satisfy the
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`particularity requirement of Rule 9(b)[,]” Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th
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`Cir. 2009), which requires the party to “state with particularity the circumstances constituting
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`fraud or mistake.” Fed. R. Civ. P. 9(b). Defendant argues that “[i]t is facially impossible for
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`Plaintiff to explain what is false about the ‘Reef Friendly – No Oxybenzone or Octinoxate’ claim
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`and why it is false[.]” Motion to Dismiss, p.10. Plaintiff has set out in her Complaint “what
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`representation is allegedly misleading, where and how defendants make the representation, and
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`why plaintiff contend[s] it is misleading.” White v. Kroger, 2022 WL 888657, at *3. The motion to
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`dismiss for failure to plead with particularity is therefore denied.
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`Defendant also argues that Plaintiff makes vague references to “advertising” and
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`“marketing” without any further explanation, and that to “the extent Plaintiff’s claims rely on any
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`marketing or advertising aside from the ‘Reef Friendly – No Oxybenzone or Octinoxate’ claim,
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`they must be dismissed.” Motion to Dismiss, p.10. Plaintiff does not identify any other marketing
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`claims or forms of advertisements in her Complaint. To the extent Plaintiff’s claims are predicated
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`on anything other than the “Reef Friendly – No Oxybenzone or Octinoxate” claim, the motion to
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`dismiss is granted.
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`A. Legal Standard
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`V. Article III and Statutory Standing
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`Standing is a requirement for federal court jurisdiction. See Spokeo, Inc. v. Robins, 578
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`U.S. 330, 337-38 (2016). To establish standing, “[t]he plaintiff must have (1) suffered an injury in
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`fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to
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`be redressed by a favorable judicial decision.” Id. at 338. The party asserting federal subject matter
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`jurisdiction has the burden of proving the existence of jurisdiction. Chandler v. State Farm Mut.
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`Auto Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010).
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`ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS
`CASE NO. 21-cv-07669-RS
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`Case 3:21-cv-07669-RS Document 56 Filed 08/02/22 Page 6 of 10
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`B. Discussion
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`Defendant raises a variety of arguments concerning standing. Defendant first argues that
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`Plaintiff has not sustained an injury-in-fact because she did not use the product near any coral reef
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`or in the ocean. That is not Plaintiff’s theory of injury; instead, she argues that she has suffered an
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`injury-in-fact due to purchasing a product at a higher price than she would have, had she known
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`that the reef-friendly claim was false as she alleges. “A quintessential injury-in-fact” is alleged
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`when plaintiffs aver they “spent money that, absent defendants’ actions, they would not have
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`spent.” Maya v. Centex Corp., 658 F.3d 1060, 1069 (9th Cir. 2011) (concluding plaintiffs
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`adequately pled an injury-in-fact when they alleged “they paid more for their homes than the
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`homes were worth at the time of sale”). As for the challenge to Plaintiff’s standing to bring
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`nationwide claims and the inclusion of products she did not purchase, as the Court stated in a
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`similar class action brought by the same attorneys, “challenges to plaintiff's standing with respect
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`to specific sunscreen products he did not purchase and to his ability to represent a nationwide class
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`both represent matters that are better addressed at the class certification stage[.]” White v. Kroger,
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`2022 WL 888657, at *3.
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`Defendant further challenges Plaintiff’s statutory standing. Statutory standing concerns the
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`elements of a claim and “whether a plaintiff states a claim for relief[,]” which “relates to the merits
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`of a case, not to the dispute’s justiciability,” and thus this argument falls more appropriately under
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`the realm of Rule 12(b)(6) rather than Rule 12(b)(1). See Jewel v. Nat’l Sec. Agency, 673 F.3d
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`902, 907 n.4 (9th Cir. 2011) (“Statutory ‘standing, unlike constitutional standing, is not
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`jurisdictional.’” (quoting Noel v. Hall, 568 F.3d 743, 748 (9th Cir. 2009)). Defendant argues that
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`Plaintiff does not meet the injury requirement of the California statutes. The California statutes she
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`pleads, however, “demand[] no more than the corresponding requirement under Article III of the
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`U.S. Constitution.” Reid v. Johnson & Johnson, 780 F.3d 952, 958 (9th Cir. 2015). Thus, Plaintiff
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`has satisfied the injury requirement of statutory standing.
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`Plaintiff has also adequately alleged reliance on the “Reef Friendly” claim. Reliance under
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`the FAL, CLRA, and UCL “requires that a plaintiff allege she saw and read deceptive statements.”
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`ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS
`CASE NO. 21-cv-07669-RS
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`Case 3:21-cv-07669-RS Document 56 Filed 08/02/22 Page 7 of 10
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`Cohen v. E. W. Tea Co., LLC, No. 17-CV-2339-JLS (BLM), 2018 WL 3656112, at *4 (S.D. Cal.
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`Aug. 2, 2018). Plaintiff here alleges that she saw and read the allegedly deceptive statements on
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`the label, and thus has adequately alleged reliance.2
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`VI. Equitable Relief
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`Citing Sonner v. Premier Nutrition, 971 F.3d 834, 844 (9th Cir. 2020) for the proposition
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`that a plaintiff “must establish that she lacks an adequate remedy at law before securing equitable
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`restitution for past harm under the UCL and CLRA[,]” Defendant argues that the equitable claims
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`should be dismissed because Plaintiff has failed to establish she lacks an adequate remedy at law.
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`Plaintiff points out that Defendant’s argument only addresses her claim for restitution, not her
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`forward-facing claim for injunctive relief. Further, she argues that at the pleading stage, she may
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`plead claims in the alternative, and need not allege that she does not have an adequate remedy at
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`law. Notably, Defendant does not respond in its reply to Plaintiff’s arguments concerning whether
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`she has an adequate remedy at law.
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`“[T]he import of Sonner at the pleading stage is an unsettled question of law and has given
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`rise to an intra-circuit split.” Yeomans v. World Fin. Grp. Ins. Agency, Inc., No. 19-CV-00792-
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`EMC, 2022 WL 844152, at *7 (N.D. Cal. Mar. 22, 2022) (collecting cases). As a number of other
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`courts in this district have concluded, “Sonner does not preclude a plaintiff from pleading
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`equitable remedies in the alternative.” Id.; see also Nacarino v. Chobani, LLC, No. 20-CV-07437-
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`EMC, 2022 WL 344966, at *9 (N.D. Cal. Feb. 4, 2022) (“Sonner teaches that a plaintiff, on the
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`eve of trial, cannot create an inadequacy of a legal remedy by eliminating its availability by taking
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`volitional action.”); Jeong v. Nexo Fin. LLC, No. 21-CV-02392-BLF, 2022 WL 174236, at *27
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`(N.D. Cal. Jan. 19, 2022) (“The Court finds that Sonner has limited applicability to the pleading
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`stage because it pertained to circumstances in which a plaintiff dropped all damages claims on the
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`eve of trial.”). The motion to dismiss the claims for equitable relief due to the availability of
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`2 To the extent Plaintiff alleges reliance on advertisements or marketing other than the label, the
`motion is granted, as also addressed in the discussion of the Rule 9(b) arguments. Plaintiff has not
`alleged that she relied on any statements other than those on the product label.
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`ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS
`CASE NO. 21-cv-07669-RS
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`Case 3:21-cv-07669-RS Document 56 Filed 08/02/22 Page 8 of 10
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`remedies at law is therefore denied. “The issue of Plaintiff's entitlement to seek the equitable
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`remedy of restitution may be revisited at a later stage.” Nacarino, 2022 WL 344966, at *10.
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`Additionally, Defendant argues that Plaintiff has failed to allege facts to establish she is
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`entitled to restitution, contending that “Plaintiff fails to allege any facts indicating that the Product
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`she allegedly purchased was worth any less than what she paid or, indeed, that she did not receive
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`the benefit of her bargain because she did not or could not use the product for its intended purpose
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`to protect her from harmful rays of the sun.” Motion to Dismiss, p.25. This argument essentially
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`repeats the same arguments Defendant makes concerning the lack of an injury-in-fact, and is
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`rejected for the same reason. Plaintiff has adequately pled that she paid more for a “Reef Friendly”
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`product than a product that did not contain those advertised qualities. She has therefore adequately
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`pled facts that she is entitled to restitution.
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`VII. Preemption and Primary Jurisdiction
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`Defendant next argues that dismissal is warranted because the state law claims are
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`preempted by federal law, and because the primary jurisdiction doctrine permits this Court to stay
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`or dismiss claims which fall within the jurisdiction of a federal agency. As explained, dismissal is
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`not warranted under either doctrine.
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`“Federal preemption occurs when: (1) Congress enacts a statute that explicitly pre-empts
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`state law; (2) state law actually conflicts with federal law; or (3) federal law occupies a legislative
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`field to such an extent that it is reasonable to conclude that Congress left no room for state
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`regulation in that field.” Chae v. SLM Corp., 593 F.3d 936, 941 (9th Cir. 2010) (internal quotation
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`marks and citation omitted). Federal preemption may be express or implied. Atay v. Cnty of Maui,
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`842 F.3d 688, 699 (9th Cir. 2016). Neither express nor implied preemption applies here.
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`Defendant argues that Plaintiff’s claims are expressly preempted because Plaintiff’s claims
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`would impose labelling requirements different than those implied by the Federal Food, Drug, and
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`Cosmetic Act (“FDCA”), and contends that Plaintiff’s claims are impliedly preempted because of
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`the “extensive and exclusive regulation of the Products” by the Food and Drug Administration
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`(“FDA”). Motion to Dismiss, p.16. Defendant, however, cites no authority to establish that the
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`ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS
`CASE NO. 21-cv-07669-RS
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`FDCA or the FDA regulates environmental claims such as “Reef Friendly.” Defendant thus has
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`failed to demonstrate that the claims are expressly or impliedly preempted.
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`The primary jurisdiction doctrine applies when there is: “(1) [a] need to resolve an issue
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`that (2) has been placed by Congress within the jurisdiction of an administrative body having
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`regulatory authority (3) pursuant to a statute that subjects an industry or activity to a
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`comprehensive regulatory authority that (4) requires expertise or uniformity in administration.”
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`Clark v. Time Warner, 523 F.3d 1110, 1115 (9th Cir. 2008). “In practice, this means that the court
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`either stays proceedings or dismisses the case without prejudice, so that the parties may seek an
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`administrative ruling.” Id. at 1115. The doctrine of primary jurisdiction may only be properly
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`invoked “in a limited set of circumstances”; it “is not designed to ‘secure expert advice’ from
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`agencies every time a court is presented with an issue conceivably within the agency's ambit.” Id.
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`at 1114 (internal quotations omitted). “It is to be used only if a claim requires resolution of an
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`issue of first impression, or of a particularly complicated issue that Congress has committed to a
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`regulatory agency.” Id. (internal quotations omitted).
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`Defendant argues that the primary jurisdiction doctrine applies because the “FDA is in the
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`process of promulgating new OTC sunscreen regulations that cover all of the ingredients relevant
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`to Plaintiff’s claim” and states “[t]his Court should defer to the FDA’s expertise[.]” Motion to
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`Dismiss, p.16. District courts must “consider whether invoking primary jurisdiction would
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`needlessly delay the resolution of claims.” Astiana v. Hain Celestial Grp., Inc., 783 F.3d 753, 760
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`(9th Cir. 2015). “Under [Ninth Circuit] precedent, ‘efficiency’ is the ‘deciding factor’ in whether
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`to invoke primary jurisdiction.” Id. Here, the possibility that FDA regulations will change in a way
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`that will materially impact the outcome of this litigation “is too remote at this juncture to warrant a
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`stay or dismissal[.]” Kroger, 2022 WL 888657, at *2. The primary jurisdiction doctrine therefore
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`does not apply.
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`VIII. Conclusion
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`The motion to dismiss is granted as to Plaintiff’s ability to pursue liability for
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`advertisements other than the “Reef Friendly – No Oxybenzone or Octinoxate” claim on the
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`ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS
`CASE NO. 21-cv-07669-RS
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`9
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`Northern District of California
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`United States District Court
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`Case 3:21-cv-07669-RS Document 56 Filed 08/02/22 Page 10 of 10
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`sunscreen labels, and as to the claim for breach of implied warranty. The motion to dismiss is
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`denied in all other respects. Although it appears unlikely the defects in the Complaint can be
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`cured, Plaintiff is granted leave to amend. 3 Any amended complaint must be filed by 21 days from
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`the date of this Order.4
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`IT IS SO ORDERED.
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`Dated: August 2, 2022
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`______________________________________
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`RICHARD SEEBORG
`Chief United States District Judge
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`3 Plaintiff also filed a motion for leave to file a Second Amended Complaint, to make a factual
`correction to her complaint. The motion is denied as moot, because leave to amend the complaint
`has been granted.
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`4 Defendant’s motion for leave to file a statement of recent decision is denied.
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`ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS
`CASE NO. 21-cv-07669-RS
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