Case 3:22-cv-04465-CRB Document 36 Filed 01/17/23 Page 1 of 17
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF CALIFORNIA
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`KRYSTAL LOPEZ,
`Plaintiff,
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`Case No. 22-cv-04465-CRB
`
`
`ORDER GRANTING IN PART AND
`DENYING IN PART MOTION TO
`DISMISS
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`
`
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`v.
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`ZARBEE’S, INC.,
`Defendant.
`Plaintiff Krystal Lopez brings this putative class action against Defendant Zarbee’s,
`Inc. in connection with Zarbee’s melatonin supplements.1 Lopez alleges that Zarbee’s
`products include significantly more melatonin than the label asserts, and therefore violate
`state consumer protection laws. Zarbee’s moves to dismiss, arguing that all of the claims
`are completely preempted, and that Lopez lacks standing as to some claims. See MTD
`(dkt. 26). The Court found this matter suitable for resolution without oral argument, and
`therefore vacated the motion hearing. See Civil Local R. 7-1(b). Because Zarbee’s
`arguments largely fail at this stage, the Court grants in part and denies in part the motion.
`I.
`BACKGROUND2
`A.
`The Parties
`Zarbee’s, a Delaware corporation, sells melatonin supplements nationwide at
`retailers like Walmart and Target. FAC (dkt. 24) ¶¶ 3, 8. Lopez lives in California, and
`purchased a Zarbee’s melatonin product in California. Id. ¶ 6.
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`1 This is one of several melatonin suits brought by this law firm. Murphy v. Olly Public
`Benefit Corp., 22-cv-3760-CRB, is also before this Court.
`2 These background facts are drawn from the complaint and accepted as true for the
`purposes of this motion.
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`Case 3:22-cv-04465-CRB Document 36 Filed 01/17/23 Page 2 of 17
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`B.
`FDA Regulations for Dietary Supplements
`Melatonin is a neurohormone that regulates sleep. Id. ¶ 1. Millions of consumers
`take over-the-counter melatonin supplements to help them sleep. Id. ¶ 14. Federal law
`imposes a comprehensive regulatory scheme for dietary supplements, including melatonin
`supplements. See generally FDCA, 21 U.S.C. § 301 et seq.; 21 C.F.R. Part 100 et seq.
`Under applicable FDA regulations, melatonin qualifies as an “other dietary ingredient,”
`meaning that the quantity of melatonin in a supplement must be listed on the product label.
`21 C.F.R. § 101.36(b)(3)(i). The declared quantity of melatonin must be established by a
`specific FDA-mandated test “consisting of 12 subsamples (consumer units), taken 1 from
`each of 12 different randomly chosen shipping cases, to be representative of a lot.” See 21
`C.F.R. § 101.9(g)(2); 21 C.F.R. § 101.36(f)(1) (applying this testing method to “other
`dietary ingredients”).
`The FDA forbids supplement labels that overstate quantities. FDA regulations
`require that the quantity of melatonin “be at least equal to the value . . . declared on the
`label” for the product’s full shelf life. See 21 C.F.R. § 101.9(g)(4)(i). A product that has
`less melatonin than is listed on the label is “misbranded.” See 62 Fed. Reg. 49826-01 at
`49839 (Sept. 23, 1997).
`The FDA treats supplement labels that understate quantities differently. The FDA
`recognizes that some supplements, like melatonin, degrade over time, “such that a product
`that contains a certain amount of a supplement when it gets put on the shelves might have
`less of that supplement at expiration.” FAC ¶ 22. The FDA further recognizes that some
`manufacturers formulate their supplements with overages to ensure “that the finished
`product can meet the label declaration for that dietary ingredient throughout the product’s
`shelf life.” 68 Fed. Reg. 12158, 12203 (Mar. 13, 2003). Accordingly, there is a safe
`harbor: “[r]easonable excesses over labeled amounts are acceptable within current good
`manufacturing practice.” 21 C.F.R. § 101.36(f)(1). Current good manufacturing practice
`requires manufacturers to keep track of “any intentional overage amount of a dietary
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`Case 3:22-cv-04465-CRB Document 36 Filed 01/17/23 Page 3 of 17
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`ingredient.” 21 C.F.R. § 111.210(e).3
`Although the FDA allows for overages, it does not intend “to allow a manufacturer
`to add excess dietary ingredients in unspecified amounts that would be in excess of the
`amount actually needed to meet the label declaration.” 68 Fed. Reg. 12158, 12203; see
`also 72 Fed. Reg. at 34884 (“the amount of overage should be limited to the amount
`needed to meet the amounts listed in accordance with final § 111.210(d).”). The FDA has
`declined to adopt a specific cap on overages. See, e.g., 60 Fed. Reg. 67194-01 at 67207
`(Dec. 28, 1995) (declining proposed 20% overage cap).
`C.
`This Litigation
`In June of 2022, Lopez purchased a bottle of Zarbee’s Children’s Sleep with
`Melatonin Gummies from a Walmart store in Salinas, California. FAC ¶ 50. The
`gummies were for her 8-year-old child. Id. Lopez “relied on the fact that Zarbee’s
`dosages were well-controlled” and “read and relied on the accuracy of the melatonin
`content on the label.” Id. She chose the 1mg dose per gummy “because she did not want
`to give her child more melatonin, due to increased concerns about side effects and safety.”
`Id. She gave him the gummies and noticed that they sometimes “would have a very strong
`tranquilizing effect that concerned her, and then the next day he would be unusually
`subdued.” Id.
`Lopez did a liquid chromatograph-mass spectrometry analysis on three gummies
`from each of two bottles of gummies, including the bottle she purchased. Id. ¶ 36. The
`gummy from Lopez’s bottle had more than twice the amount of melatonin than what
`Zarbee’s stated on the label (2.16mg instead of 1mg). Id. A gummy from a bottle that was
`one month away from expiring still had 222% of the claimed melatonin content (2.23mg
`instead of 1mg). Id.
`Lopez initially brought suit in August of 2022, arguing that the product “was not
`accurately dosed or labeled.” See Compl. (dkt. 1) ¶ 33. Zarbee’s moved to dismiss the
`
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`3 Manufacturers need not report those overages on their labels. 62 Fed. Reg. at 49831.
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`Case 3:22-cv-04465-CRB Document 36 Filed 01/17/23 Page 4 of 17
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`original complaint, arguing that the FDA allows for overages and that Lopez’s testing
`methodology was inadequate. See First MTD (dkt. 21) at 7–11. Lopez amended. FAC.
`The FAC now alleges that “[b]ecause the excess is materially more than reasonably
`necessary to ensure that the melatonin meets the amount specified on the product label
`throughout the product’s shelf life, Zarbee’s Melatonin is unreasonably overdosed.” Id. ¶
`38. It includes claims for violation of: (1) California, Connecticut, Illinois, Maryland,
`Missouri, and New York consumer protection acts; (2) California’s Unfair Competition
`Law (UCL); (3) California’s False Advertising Law (FAL); (4) California’s Consumers
`Legal Remedies Act (CLRA); as well as: (5) breach of express warranty; and (6) unjust
`enrichment/quasi-contract. Id. ¶¶ 67–110. Zarbee’s again moves to dismiss. See MTD.
`II.
`LEGAL STANDARD
`Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court may dismiss
`a complaint for failure to state a claim upon which relief may be granted. The Court may
`base dismissal on either “the lack of a cognizable legal theory or the absence of sufficient
`facts alleged under a cognizable legal theory.” Godecke v. Kinetic Concepts, Inc., 937
`F.3d 1201, 1208 (9th Cir. 2019) (cleaned up).
`A complaint must plead “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 (2009) (cleaned
`up). A claim is plausible “when the plaintiff pleads factual content that allows the court to
`draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
`“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
`statements, do not suffice” to survive a 12(b)(6) motion. Id. (citing Bell Atlantic v.
`Twombly, 550 U.S. 544, 555 (2007)). When evaluating a motion to dismiss, the Court
`“must presume all factual allegations of the complaint to be true and draw all reasonable
`inferences in favor of the nonmoving party.” Usher v. City of Los Angeles, 828 F.2d 556,
`561 (9th Cir. 1987). “Courts must consider the complaint in its entirety, as well as other
`sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in
`particular, documents incorporated into the complaint by reference, and matters of which a
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`court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S.
`308, 322 (2007).
`If a court dismisses a complaint for failure to state a claim, it should “freely give
`leave” to amend “when justice so requires.” Fed. R. Civ. P. 15(a)(2). A court may deny
`leave to amend due to “undue delay, bad faith or dilatory motive on the part of the movant,
`repeated failure to cure deficiencies by amendment previously allowed, undue prejudice to
`the opposing party by virtue of allowance of the amendment, [and] futility of amendment.”
`Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 532 (9th Cir. 2008).
`III. DISCUSSION
`Zarbee’s argues that the FAC should be dismissed with prejudice because (A) all of
`the claims are completely preempted by the FDA, and (B) Lopez lacks standing.
`A.
`Express Preemption
`The FDA expressly preempts state law claims that seek to impose manufacturing
`and labeling requirements for dietary supplements that are “not identical to” federal
`requirements of the same type. 21 U.S.C. § 343-1(a)(1); see also 21 C.F.R. § 100.1(c)(4)
`(“not identical to” means “that the State requirement directly or indirectly imposes
`obligations . . . concerning the composition or labeling of food” that are “not imposed by
`or contained in the applicable [federal statute or regulation]” or “[d]iffer from those
`specifically imposed by or contained in the applicable [federal statute or regulation]”); 21
`U.S.C. § 321(ff) (dietary supplements are “a food” within the meaning of the FDCA).
`Zarbee’s argues that the FDA expressly preempts Lopez’s claims because (1) she is
`complaining about FDA-permitted overages; and (2) the testing method Lopez uses to
`support her claims deviates from the FDA-mandated testing method. MTD at 8–14.
`“Preemption is an affirmative defense,” so the burden is on Zarbee’s to prove it. See
`Cohen v. ConAgra Brands, Inc., 16 F.4th 1283, 1289 (9th Cir. 2021).
`1.
`Overages
`Stressing that the FDA allows manufacturers to include overages in nutritional
`supplements, Zarbee’s contends that Lopez’s claims, all based on overages in Zarbee’s
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`melatonin products, are preempted. MTD at 9–12. Zarbee’s cites to Ochoa v Church &
`Dwight Co., Inc., No. 5:17-cv-2019-ODW (SP), 2018 WL 4998293 (C.D. Cal. Jan. 30,
`2018), as an example of courts “dismiss[ing] as preempted state-law claims that a
`supplement is mislabled because it includes more than the declared amount of a dietary
`ingredient.” Id. at 10. But Ochoa does not help Zarbee’s.
`In Ochoa, the plaintiff alleged based on independent laboratory testing that the
`defendant understated the amount of folic acid in its prenatal gummies. 2018 WL
`4998293, at *1. She alleged that the label on defendant’s gummies denotes 800 mcg of
`folic acid per serving, but that the lab found amounts of 1,100 mcg and 2,047 mcg in the
`tested gummies, and that the upper tolerable intake limit for folic acid is 1,000 mcg. Id.
`The court discussed the same authority cited herein about overages, and then turned to the
`defendant’s argument that the plaintiff “seeks to impose a labeling requirement that is not
`‘identical’ to the FDA supplement label regulations.’” Id. at *4. The court concluded that
`the plaintiff’s claims were preempted because “she has not pled that the excess (or
`overage) is unreasonable and not consistent with good manufacturing practices for insuring
`that the folate level does not fall below the label amount during the product’s shelf life.”
`Id. at *5 (emphasis added). Instead, she had alleged that the gummies had “‘a materially
`significant amount in excess’ that ‘significantly exceeds the tolerable upper limit for folic
`acid.’” Id. Because the regulations did not include those standards, the plaintiff was
`“seek[ing] to impose requirements that plainly are not in the regulations.” Id.4 However,
`the court concluded that the plaintiff could amend her complaint to correct this deficiency,
`and granted her leave to amend. Id.
`Zarbee’s argues that “likewise, Plaintiff fails to plausibly allege that the amount of
`excess melatonin present in her Gummies was unreasonable and inconsistent with good
`manufacturing practices.” MTD at 10. That may have been the problem with the original
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`4 The court also held that the plaintiff failed to allege that she had used the FDA’s testing
`methods. Id. The Court addresses that issue next but notes that Ochoa (filed 1/30/18) pre-
`dates Durnford v. MusclePharm Corp., 907 F.3d 595 (9th Cir. 2018) (filed 10/12/18).
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`complaint. But in the FAC, Lopez’s allegation is precisely what was missing in Ochoa.
`See FAC ¶ 38 (Zarbee’s dosage is “materially more than reasonably necessary to ensure
`that the melatonin meets the amount specified on the product label throughout the
`product’s shelf life”).
`Zarbee’s focuses on the FAC’s reference to a 10–15% overage as reasonable,
`arguing that Lopez has “invent[ed] an overage threshold from thin air that she unilaterally
`deems ‘reasonable.’” MTD at 10. But Lopez’s point about the 10–15% overage is that
`“other U.S. manufacturers” who sell melatonin supplements put their products on the shelf
`with a 10–15% overage, which is “reasonable because, by the time the shelf life ends, the
`product has approximately the amount of melatonin that is declared on the label.” FAC ¶
`25. Lopez does not argue that only a 10–15% overage would be reasonable, but that
`Zarbee’s overages are so excessive by comparison that they could not possibly be
`necessary to ensure “that the [melatonin] level does not fall below the label amount during
`the product’s shelf life.” See Ochoa, 2018 WL 4998293, at *5. This might or might not be
`true: discovery can show how long it takes melatonin to degrade during a given product’s
`shelf life. In the meantime, Lopez has pointed to the correct standard. She has not alleged
`that Zarbee’s did something wrong by doing something “specifically approved by the
`FDA.” See Carter v. Novartis Consumer Health, Inc., 582 F. Supp. 2d 1271, 1285 (C.D.
`Cal. 2008). She has not alleged that there is too much of something based on the “upper
`tolerable intake limit” or some other metric. Instead, she alleges that there is more than
`what is required to “meet the label declaration for that dietary ingredient throughout the
`product’s shelf life.” See 68 Fed. Reg. 12158, 12203; see also 68 Fed. Reg. 12158, 12203
`(not intended to allow “excess dietary ingredients in unspecified amounts that would be in
`excess of the amount actually needed to meet the label declaration.”).5
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`5 Zarbee’s also argues that Lopez’s arguments in support of this standard are “speculative
`and conclusory”—that based on her inadequate testing methods, she suspects that the
`gummies would have an unreasonable amount of melatonin in them after they expire. See
`MTD at 10–11. This argument, which overlaps somewhat with the next section, is not
`persuasive. The FAC describes laboratory testing that supports its claim of an
`unreasonable overage. See FAC ¶¶ 34–39.
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`Because Lopez’s claims would not impose requirements on manufacturers that are
`different from what the FDA requires, they are not preempted. See Chavez v. Church &
`Dwight Co., Inc., No. 17 C 1948, 2018 WL 2238191, at *5, 6 (N.D. Ill. May 16, 2018) (no
`preemption where plaintiff alleged that “Church added more folic acid to Vitafusion than
`was necessary to ensure that the level of folic acid meets the labeled amount over the
`course of the supplement’s shelf life” because that “plausibly alleges that Vitafusion is
`misbranded within the confines of the FDCA”).
`2.
`Testing Method
`Zarbee’s next argues that Lopez’s claims are preempted because the FDA requires a
`specific testing method, and the FAC admits that Lopez did not follow it. See MTD at 12–
`14; see also FAC ¶¶ 34–38 (describing a testing method that is indisputably not the FDA
`method). Zarbee’s continues: “[f]orcing manufacturers to ensure that they meet not only
`FDA’s rigorous testing requirements, but also Plaintiff’s bespoke approach, would impose
`obligations on manufacturers that differ from those imposed by federal law.” Id. at 12.
`Zarbee’s position—that a complaint must allege compliance with the FDA testing
`method—was the law at one point. See, e.g., Mee v. I A Nutrition, Inc., No. C-14-5006
`MMC, 2015 WL 2251303, at *4 (N.D. Cal. May 13, 2015) (“As each district court to have
`considered the matter has found, where, as here, an FDA regulation provides that the
`question of compliance must be determined using the method specified therein, a state law
`claim that seeks to establish a violation of such regulation by a different methodology is
`preempted.”).
`But Durnford v. MusclePharm Corp., 907 F.3d 595 (2018), might represent a
`change in the law. In Durnford, the plaintiff brought a misbranding claim about the
`composition of protein in a particular supplement. 907 F.3d at 603. Although the issue of
`“whether or not there was compliance with the FDA’s 12-sample testing protocol [did] not
`matter” in that case, the court took the opportunity to comment:
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`We need not address whether plaintiffs are ever required to
`allege, at the pleading stage, that there are tests contradicting
`the nutrition panel that comply with the FDA’s testing
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`Case 3:22-cv-04465-CRB Document 36 Filed 01/17/23 Page 9 of 17
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`protocols. We note, however, that plaintiffs are generally not
`expected to provide evidence in support of their claims at the
`pleading stage . . . nor are they required to plead the
`‘probability’ of their entitlement to relief[.] In addition, 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).’
`Id. at 603 n.8.
`Some district court cases have taken note of this dicta from Durnford and departed
`from the long-held practice noted in Mee. Thus, in Amavizca v. Nutra Manufacturing,
`LLC, No. 08-cv-1324-RGK-MAA, 2020 WL 8837145, at *5 (C.D. Cal. Oct. 20, 2020), the
`court held that, where the plaintiff had not alleged that he followed the FDA 12-sample
`testing method but instead tested three bottles, none of which contained glucosamine
`sulfate, such allegations were “sufficient to survive Defendants’ assertion of federal
`preemption.” The court noted that to require the plaintiff “to specifically allege testing in
`conformance with [the FDA method] would be tantamount to requiring [p]laintiff ‘to
`provide evidence in support of [his] claims at the pleading stage.’” Id. (citing Durnford,
`907 F.3d at 603 n.8 and Diamos v. Walmart Inc., No. 2:19-cv-5526-SVW (GJS), 2020 WL
`1942322, at *3 (C.D. Cal. Jan. 9, 2020) (holding, where plaintiff alleged a complete
`absence of an advertised supplement, supported by allegations of independent testing, that
`plaintiff stated a claim for relief that was not preempted)); see also Carrol v. S.C. Johnsons
`& Son, Inc., No. 17-cv-5828, 2018 WL 1695421, at *3 (N.D. Ill. March 29, 2018) (“Courts
`in this district have held that plaintiffs can sufficiently allege mislabeling claims based on
`preliminary testing that was not completed in compliance with FDA standards.”).
`Lozano v. Bowmar Nutrition LLC, No. 2:21-cv-4296-MCS-KS, 2021 WL 4459660
`(C.D. Cal. Aug. 19, 2021) is somewhat different and represents a line of cases the Court
`must acknowledge. In Lozano, the court cited Durnford in holding that “[f]ederal pleading
`standards do not require Plaintiff to affirmatively allege that her laboratory testing
`comports with the FDA sampling regulation.” 2021 WL 4459660, at *6 (citing Durnford,
`907 F.3d at 603 n.8). The court noted that preemption would not be an issue if the plaintiff
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`had “stood solely on allegations that the products contain less protein than Defendant
`represented.” Id. However, Lozano also stated that “the reports [that the plaintiff relied
`upon] do not admit noncompliance with FDA sampling methodology” and so it was not as
`if the plaintiff had pleaded itself out of court. Id.; see also Rubio v. Orgain, Inc., No.
`EDCV 18-2237-MWF (SHKx), 2019 WL 1578379, at *3–4 (C.D. Cal. March 5, 2019)
`(finding claim preempted where plaintiff attached testing that was not FDA-compliant);
`Forouzesh v. CVS Pharmacy, Inc., No. 2:18-cv-4090-ODW (AFMx), 2019 WL 652887, at
`*5 (C.D. Cal. Feb. 15, 2019) (holding that “requiring at least some facts to support a
`plausible inference of FDA-compliant testing is proper” and stating that “[e]ven courts that
`do not require factual support for FDA-compliant testing agree that a claim seeking to use
`a methodology other than that required by the FDA would be preempted.”).
`Here, unlike in Lozano, the FAC does make clear that Lopez did not test 12 samples
`according to the FDA’s method. See FAC ¶¶ 34–48 (Lopez tested three samples, and three
`gummies from each sample). However, this Court does not agree with the authority that
`would therefore conclude that Lopez had pleaded herself out of court. Pleading that one
`has conducted independent, non-FDA compliant testing that suggests an unreasonable
`overage does not suggest that one could not support allegations of unreasonable overage
`with FDA-compliant testing. It is a reasonable inference at this stage that “[i]f less-
`exhaustive test results indicate that a supplement is overdosed, it is plausible . . . that the
`supplement is in fact overdosed.” Opp’n (dkt. 31) at 8; see also Warren v. Whole Foods
`Market California, Inc., No. 21-cv-4577-EMC, 2022 WL 2644103, at *6 (N.D. Cal. July 8,
`2022) (“The alleged inadequacies in methodology or interpretation of scientific testing do
`not warrant dismissal under Rule 12(b)(6) so long as the court can still reasonably infer
`from the testing result and other alleged facts, taken as true, that the defendant is liable for
`the misconduct alleged.”). Requiring plaintiffs to allege that they complied with the FDA
`testing method would be requiring them to “provide evidence in support of [their] claims at
`the pleading stage.’” See Durnford, 907 F.3d at 603 n.8. That is not required in notice
`pleading, see Iqbal, 556 U.S. at 678 (requiring sufficient factual matter, accepted as true, to
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`‘state a claim to relief that is plausible on its face,”), and might be difficult to do, see Muir
`v. NBTY, Inc., No. 15 C 9835, 2016 WL 5234596, at *5 (N.D. Ill. Sept. 22, 2016) (“the
`court is uncertain how a plaintiff, prior to discovery, would have access to ‘randomly
`chosen shipping cases’ from which he could have selected 12 consumer samples that he
`could be sure had come ‘from a single lot.’”); see also Opp’n at 9–10 (arguing that facts
`about overages are peculiarly within Zarbee’s knowledge); FAC ¶ 39 (FDA requires
`Zarbee’s to retain internal testing re overages so “it is reasonable to infer that Zarbee’s
`own testing (using FDA protocols) will confirm that the products are substantially (and
`unreasonably) overdosed.”).
`Like the plaintiff in Amavizca who tested just three samples, 2020 WL 8837145, at
`*5, Lopez has alleged enough to plausibly claim that Zarbee’s violates the FDA standard
`for overages. Put another way, Zarbee’s has not met its burden to establish that Lopez
`pleaded herself out of court by pleading facts that establish Zarbee’s compliance with FDA
`regulations.
`Lopez will eventually have to prove that Zarbee’s failed to comply with the FDA
`overage regulations. See Chavez, 2018 WL 2238191, at *5 (“To be sure, it remains to be
`seen whether the predicate for Chavez’s argument bears up under scrutiny. But his claim
`that including harmful levels of folic acid falls outside the bounds of reasonableness . . . is
`by no means implausible.”); Clay v. Cytosport, Inc., No. 15-cv-165 L(DHB), 2015 WL
`5007884, at *4 (S.D. Cal. Aug. 19, 2015) (“Of course, in order to ultimately prevail on
`these claims, Plaintiffs will have to prove that Defendant did not comply with the FDCA
`provisions listed above. However, to state a claim, Plaintiffs only need to allege a
`plausible violation of the FDCA.”). In addition, Zarbee’s may re-raise the issue of
`preemption at a later point if appropriate. See Lozano, 2021 WL 4459660, at *7 (“the
`Court declines to dismiss the claims on this motion because the SAC does not squarely
`present a preemption problem, but Defendant may renew its preemption challenge if
`Plaintiff’s claims prove inconsistent with the FDCA.”).
`The Court does not dismiss the FAC based on express preemption.
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`B.
`Standing
`Zarbee’s argues that Lopez lacks standing to bring claims based on (1) products she
`did not purchase, (2) the Zarbee’s website, which she did not visit, and (3) other states’
`laws. MTD at 14–17.
`1.
`Unpurchased Products
`A plaintiff may bring claims for products she did not purchase, so long as her injury
`from a product is “‘substantially similar’ to the injuries suffered by [the other] class
`members.” McKinney v. Corsair Gaming, Inc., No. 22-CV-00312-CRB, 2022 WL
`2820097, at *13 (N.D. Cal. July 19, 2022) (quoting Garnica v. HomeTeam Pest Def., Inc.,
`14-cv-5243, 2015 WL 13066140, at *1–2 (N.D. Cal. Dec. 21, 2015)). Products are
`“substantially similar” if “the resolution of the asserted claims will be identical between
`the purchased and unpurchased products.” Ang v. Bimbo Bakeries USA, Inc., No. 13-cv-
`01196-WHO, 2014 WL 1024182, at *8 (N.D. Cal. Mar. 13, 2014). Thus, in the labelling
`context, if each label is “false in the same way,” then the “unpurchased products . . . do
`‘not implicate a significantly different set of concerns than’ those purchased by the named
`plaintiffs” and thus, “[b]y establishing that any of the labels were misleading, the
`[p]laintiffs would necessarily establish that they all were.” McKinney, 2022 WL 2820097,
`at *13 (quoting Garrison v. Whole Foods Market Group, Inc., No. 13-cv-5222-VC, 2014
`WL 2451290, at *4 (N.D. Cal. June 2, 2014)).
`
`Lopez alleges that she bought and tested only one Zarbee’s product—the children’s
`gummies—but she brings claims concerning other Zarbee’s melatonin products that she
`neither bought nor tested, including an oral suspension and tablets. See FAC ¶ 29 & Ex. 1.
`Lopez alleges that Zarbee’s dosing claims “are substantially similar for all accused
`Zarbee’s Melatonin products.” Id. ¶ 31. She alleges that the samples of the Zarbee’s
`children’s gummies that she tested were overdosed, and so “it is reasonable to infer that
`Zarbee’s own testing (using FDA protocols) will confirm that [all] the products are
`substantially (and unreasonably) overdosed.” Id. ¶ 39; see also id. ¶ 40 (“the dosing is
`unreasonably excessive. . . . For all accused Zarbee’s Melatonin, the label is false in the
`
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`same way.”).
`Lopez has not plausibly alleged that the non-purchased, non-tested Zarbee’s
`melatonin products are overdosed. Her allegations on that point are speculative and
`conclusory. See Iqbal, 556 U.S. at 678 (conclusory statements insufficient); see also
`Forouzesh, 2019 WL 652887, at *5 (dismissing complaint where plaintiff’s “vague
`allegations broadly encompass the entire CVS Sport 100+ product line without identifying
`any factual similarities across those products beyond the SPF value.”); Opp’n at 11 (“To
`be sure, there are differences among the products”). It is not a reasonable inference that
`the gummies, tablets, and liquid products at issue all “come from the same, systematic
`manufacturing practice, with similar overages.” See id. at 12.
`That products all contain the same key ingredient can sometimes satisfy the
`pleading standard. See, e.g., Lanovaz v. Twinings N. Am., Inc., No. C-12-2646-RMW,
`2013 WL 2285221, at *3 (N.D. Cal. May 23, 2013) (where plaintiff claimed that plant
`ingredient was not a “natural source of antioxidants” and 51 products were made from that
`same plant ingredient, there was a substantial similarity between the products). But here,
`the issue is not the presence of a particular ingredient, it is the quantity of that ingredient.
`See Ang, 2014 WL 1024182, at *8 (“where the actual composition or appearance of the
`product is legally significant to the claim at issue, the consumer may only be allowed to
`pursue claims for products with identical product composition and/or appearance.”).
`Showing that melatonin was overdosed in the children’s gummies does not “necessarily
`establish” that it was overdosed in the other challenged products. See McKinney, 2022
`WL 2820097, at *13 (quoting Garrison, 2014 WL 2451290, at *4).
`Accordingly, Lopez has not adequately alleged that melatonin products are
`“substantially similar” such that “the resolution of the asserted claims will be identical
`between the purchased and unpurchased products.” See Ang, 2014 WL 1024182, at *8.
`Her claims based on unpurchased products are dismissed, with leave to amend.
`2. Website
`Claims based on websites that plaintiffs fail to allege having actually “viewed and
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`relied on” are subject to dismissal. See Rugg v. Johnson & Johnson, No. 17-cv-5010-BLF,
`2018 WL 3023493, at *7 (N.D. Cal