Case 4:22-cv-00035-JST Document 43 Filed 08/01/22 Page 1 of 11
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`MELISSA CHAPPELL, et al.,
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`Plaintiffs,
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`v.
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`BOIRON, INC.,
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`Case No. 22-cv-00035-JST
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`ORDER DENYING MOTION TO
`DISMISS
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`Re: ECF No. 26
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`Defendant.
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`Before the Court is Defendant Boiron, Inc’s motion to dismiss. ECF No. 26. The Court
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`will deny the motion.
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`I.
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`BACKGROUND
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`In this putative class action, Plaintiffs Melissa Chappell and Kylie Putney allege that the
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`labels on the arnica products Defendant Boiron, Inc. markets and sells under its Arnicare brand
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`falsely state that the products provide pain relief. Plaintiffs allege that the pain relief labels on the
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`Arnicare products are false because “(1) the active ingredient [in them], arnica montana, does not
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`provide pain relief; and (2), even if it could [do so] under some circumstances, the dosage is far
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`too low to provide any physiological benefit.” ECF No. 25 at 2. Plaintiffs bring six claims:
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`(1) breach of express warranty, (2) breach of implied warranty of merchantability, (3) fraud,
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`(4) violation of California’s Consumers Legal Remedies Act, California Civil Code § 1750, et
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`seq., (5) violation of California’s false advertising law, California Business & Professions Code
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`§ 17500 et seq., and (6) unlawful business practices in violation of California’s Unfair
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`Competition Law (“UCL”), Business & Professions Code §§ 17200 et seq.
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`Boiron moves to dismiss the complaint in its entirety under Rule 12(b)(6), Rule 12(b)(1),
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`and on grounds of preemption and primary jurisdiction. Boiron raises four arguments under Rule
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`Case 4:22-cv-00035-JST Document 43 Filed 08/01/22 Page 2 of 11
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`12(b)(6). First, Boiron argues that Plaintiffs’ breach of warranty claims should be dismissed
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`because Plaintiffs “are unable to demonstrate that the [Arnicare] products generally did not or will
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`not provide any pain relief.” ECF No. 26 at 24. Second, Boiron argues that Plaintiffs’ fraud-
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`based claims, i.e., their common law fraud, CLRA, FAL, and UCL claims, should be dismissed
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`because they do not meet the particularity requirements of Rule 9. Third, Boiron argues that
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`Plaintiffs’ CLRA, FAL, and UCL claims should be dismissed because they rest on a lack-of-
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`substantiation theory, which is not actionable under California law. Fourth, Boiron argues that
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`Plaintiffs’ FAL claim fails because Plaintiffs have not shown that Boiron made claims that are
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`false or misleading. Boiron makes two arguments under Rule 12(b)(1). First, it argues that
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`Plaintiffs lack standing to assert claims for products they did not buy. Second, it contends that
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`Plaintiffs lack standing to sue for injunctive relief.1 Finally, Boiron argues that Plaintiffs’ claims
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`fail under the doctrines of preemption and primary jurisdiction.
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`II.
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`JURISDICTION
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`This Court has subject matter jurisdiction under the Class Action Fairness Act, 28 U.S.C.
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`§ 1332(d)(2)(A), because: (i) the aggregate amount in controversy exceeds $5,000,000, exclusive
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`of interest and costs, (ii) there are 100 or more putative class members, and (iii) the parties are
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`minimally diverse. This Court has supplemental jurisdiction over any state-law claims under 28
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`U.S.C. § 1367.
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`III. LEGAL STANDARDS
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`A.
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`Rule 12(b)(6)
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`A complaint must contain “a short and plain statement of the claim showing that the
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`pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Dismissal under Rule 12(b)(6) of the Federal
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`Rules of Civil Procedure “is appropriate only where the complaint lacks a cognizable legal theory
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`or sufficient facts to support a cognizable legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr.,
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`521 F.3d 1097, 1104 (9th Cir. 2008). A complaint need not contain detailed factual allegations,
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`but facts pleaded by a plaintiff must be “enough to raise a right to relief above the speculative
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`1 After Boiron filed its motion to dismiss, Plaintiffs abandoned their claim for injunctive relief.
`ECF No. 30 at 28 n.9. The Court dismisses that claim.
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`level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To survive a Rule 12(b)(6) motion
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`to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim
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`to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
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`Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual
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`content that allows the court to draw the reasonable inference that the defendant is liable for the
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`misconduct alleged.” Id. While this standard is not a probability requirement, “[w]here a
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`complaint pleads facts that are merely consistent with a defendant’s liability, it stops short of the
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`line between possibility and plausibility of entitlement to relief.” Id. (quotation marks and citation
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`omitted). In determining whether a plaintiff has met this plausibility standard, a court must
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`“accept all factual allegations in the complaint as true and construe the pleadings in the light most
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`favorable” to the plaintiff. Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005).
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`Fraud claims are governed by the heightened pleading standard of Rule 9(b), which
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`requires that “a party . . . state with particularity the circumstances constituting fraud or mistake”
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`but allows that “[m]alice, intent, knowledge, and other conditions of a person’s mind . . . be
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`alleged generally.” Fed. R. Civ. P. 9(b). Allegations of fraud must “be specific enough to give
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`defendants notice of the particular misconduct so that they can defend against the charge and not
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`just deny that they have done anything wrong. Averments of fraud must be accompanied by the
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`who, what, when, where, and how of the misconduct charged.” Vess v. Ciba-Geigy Corp. USA,
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`317 F.3d 1097, 1106 (9th Cir. 2003) (simplified).
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`B.
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`Rule 12(b)(1)
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`A plaintiff has standing to sue in federal court only if she has (1) suffered an injury in fact,
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`(2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be
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`redressed by a favorable judicial decision. Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016). “A
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`suit brought by a plaintiff without Article III standing is not a ‘case or controversy,’ and an Article
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`III federal court therefore lacks subject matter jurisdiction over the suit.” Cetacean Cmty. v. Bush,
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`386 F.3d 1169, 1174 (9th Cir. 2004). “In that event, the suit should be dismissed under Rule
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`12(b)(1) [of the Federal Rules of Civil Procedure].” Id. “A Rule 12(b)(1) jurisdictional attack
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`may be facial or factual. In a facial attack, the challenger asserts that the allegations contained in a
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`Case 4:22-cv-00035-JST Document 43 Filed 08/01/22 Page 4 of 11
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`complaint are insufficient on their face to invoke federal jurisdiction. By contrast, in a factual
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`attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise
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`invoke federal jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004)
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`(citation omitted).
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`IV. DISCUSSION
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`A.
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`Rule 12(b)(6)
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`1.
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`Breach of Warranty
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`“Under California law, to state a claim for breach of express warranty, Plaintiff must allege
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`that the seller: (1) made an affirmation of fact or promise or provided a description of its goods;
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`(2) the promise or description formed the basis of the bargain; (3) the express warranty was
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`breached; and (4) the breach caused injury to the plaintiff.” Jovel v. Boiron Inc., No. 2:11-CV-
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`10803-SVW-SH, 2013 WL 12164622, at *7 (C.D. Cal. Aug. 16, 2013) (cleaned up). “Statements
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`made by a manufacturer through its advertising efforts can be construed as warranty statements.”
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`Id. (cleaned up). To state a claim for breach of implied warranty under California law, Plaintiffs
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`must allege that the product (1) is not “fit for the ordinary purposes for which such good [is]
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`used,” or (2) does not “[c]onform to the promises or affirmations of fact made on the container or
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`label if any.” Hadley v. Kellogg Sales Co., 243 F. Supp. 3d 1074, 1106 (N.D. Cal. 2017) (citations
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`omitted).
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`Boiron contends that Plaintiffs fail to state a claim of breach of warranty because Plaintiffs
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`have not “produce[d] evidence showing that Defendant’s representations are false.” ECF No. 26-1
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`at 24. Boiron acknowledges that “Plaintiffs allege that they ‘did not experience any pain relief,’”
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`but contends that “the FAC is devoid of any facts to support this conclusory statement.” Id.
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`(internal citation omitted). As for the studies Plaintiffs cite in the complaint, Boiron argues that
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`they “tested arnica montana for very specific ailments that were not alleged by Plaintiffs or within
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`the scope of Plaintiffs’ claims on Boiron’s products.” Id.
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`The Court rejects Boiron’s arguments. As an initial matter, Plaintiffs need not produce any
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`evidence at the pleading stage. Locklin v. StriVectin Operating Co., Inc., No. 21-CV-07967-VC,
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`2022 WL 867248, at *4 (N.D. Cal. Mar. 23, 2022) (“at the motion to dismiss stage, complaints
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`need not ‘show’ or ‘establish’ anything”). On the merits, Plaintiffs allegations properly state
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`breach of warranty claims. Plaintiffs allege that they experienced no pain relief after taking
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`Boiron’s arnica products, and they cite studies which suggest that arnica provides no pain-relief
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`benefits. Those allegations support the plausible inference that Boiron promises its Arnicare
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`products provide pain relief when they in fact provide none. Moreover, Plaintiffs’ allegations
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`track the allegations other courts have found sufficient to make out plausible warranty claims.
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`See, e.g., Forcellati v. Hyland’s, Inc., 876 F. Supp. 2d 1155, 1162-63 (C.D. Cal. 2012) (denying
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`motion to dismiss claim for breach of express warranty when plaintiff alleged that cold and flu
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`products failed to deliver the benefits promised on the packaging). The Court therefore denies
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`Boiron’s motion to dismiss Plaintiffs’ warranty claims.
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`2.
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`Fraud Claims
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`Boiron first argues that Plaintiffs’ fraud-based claims – their common law fraud, CLRA,
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`FAL, and UCL claims – should be dismissed because they do not meet the who-what-when-
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`where-how particularity requirements of Rule 9. Boiron next argues that Plaintiffs’ fraud claims
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`should be dismissed because “because Plaintiffs are unable to establish that Boiron made a
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`misrepresentation regarding Arnicare Cream or Arnicare Tablets, knew it was a false
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`representation, or had an intent to defraud Plaintiffs.” ECF No. 26-1 at 18.
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`Boiron’s arguments are unpersuasive. First, Plaintiffs’ complaint satisfies Rule 9’s
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`requirements because it states that Boiron (the ‘who’) labeled Arnicare products with a label
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`promising pain relief (the ‘what’) during at least the four years before the complaint was filed (the
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`‘when’) and submitted examples of the labels of several Arnicare products (the ‘where’) and why
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`they were deceived by the label (the ‘how’). See Von Koenig v. Snapple Bev. Corp., 713 F. Supp.
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`2d 1066 (E.D. Cal. 2010). By arguing that Plaintiffs do not meet Rule 9’s requirements because
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`they “do not identify the pain they were experiencing, the reasons for the purchase of the specific
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`product at issue, how they used it, and for how long, and whether they continue to experience the
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`pain symptoms after using the product,” Boiron impermissibly expands Rule 9’s requirements.
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`ECF No. 26-1 at 18. Rule 9 does not require “absolute particularity,” “a recital of the evidence,”
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`or “anticipat[ing] and attempt[ing] to plead around all potential defenses.” United States v. United
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`Healthcare Ins. Co., 848 F.3d 1161, 1180 (9th Cir. 2016) (cleaned up); F.D.I.C. v. Varrasso, 2012
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`WL 219046 at *7 (E.D. Cal. Jan. 23, 2012) (cleaned up). In short, Plaintiffs’ allegations
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`adequately put Boiron on notice about their fraud claims.
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`Second, Plaintiffs have properly pleaded the elements of a fraud claim – misrepresentation,
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`knowledge of falsity, intent to defraud, justifiable reliance, and resulting damage. Robinson
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`Helicopter Co. v. Dana Corp., 102 P.3d 268, 274 (Cal. 2004) (citation omitted). As the Court
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`already explained, Plaintiffs have plausibly alleged that Arnicare products promise pain relief but
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`provide none. Plaintiffs have also plausibly alleged fraudulent intent. See ECF No. 25 ¶ 28
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`(“Defendant intends that consumers will read and rely on the Pain Relief Claims made in
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`Defendant’s advertising and labeling, and Plaintiffs and putative class members did read and rely
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`on those claims to their detriment.”).
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`Nor has Boiron established that its homeopathic disclaimer and money-back guarantee
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`“rebut any allegation of fraudulent intent on the part of Boiron.” ECF No. 26-1 at 19. For one, a
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`disclaimer cannot save a misleading label. Williams v. Gerber Prods. Co., 552 F.3d 934, 939-40
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`(9th Cir. 2008) (“We disagree with the district court that reasonable consumers should be expected
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`to look beyond misleading representations on the front of the box to discover the truth from the
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`ingredient list in small print on the side of the box.”). As for Boiron’s money-back guarantee, it
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`offers no support in law or logic for the argument that such a guarantee “rebut[s] any allegation of
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`fraudulent intent on the part of Boiron.” ECF No. 26-1 at 19. To the contrary, the Ninth Circuit
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`has held in a case under the false advertising provisions of the Federal Trade Commission Act that
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`“allowing a seller to rely on a money-back guarantee as a defense to [a false advertising claim]
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`‘would make the false advertising prohibitions of the Act a nullity.’” F.T.C. v. Pantron I Corp.,
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`33 F.3d 1088, 1103 (9th Cir. 1994) (quoting Montgomery Ward & Co. v. F.T.C., 379 F.2d 666,
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`671 (7th Cir. 1967); see also Adkins v. Apple Inc., 147 F. Supp. 3d 913, 919 (N.D. Cal. 2014)
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`(citing Pantron). Finally, Plaintiffs allege both justifiable reliance and resulting damage.
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`Plaintiffs have therefore stated a valid fraud claim.
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`3.
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`Substantiation
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`Boiron argues that Plaintiffs’ CLRA, FAL, and UCL claims should be dismissed because
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`they hinge on a substantiation theory, which California courts have held is not actionable. See
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`Nat’l Council Against Health Fraud, Inc. v. King Bio Pharms., Inc., 107 Cal. App. 4th 1336, 1345
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`(2003) (“The Legislature has expressly permitted prosecuting authorities, but not private plaintiffs,
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`to require substantiation of advertising claims.”)
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`Boiron misreads the complaint. “Courts have been careful to distinguish between
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`allegations that a defendant's advertising claims are actually false and allegations that such claims
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`lack substantiation.” In re Clorox Consumer Litig., 894 F. Supp. 2d 1224, 1232 (N.D. Cal. 2012).
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`And the complaint is clear that Plaintiffs’ claims rest on allegations of falsity, not lack of
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`substantiation. See, e.g., ECF No. 25 ¶ 53 (“Although Defendant lacks scientifically valid
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`substantiation for its claims that Arnica Products provide pain relief or other medicinal benefits,
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`that is not the basis for the claims alleged here. Instead, the crux of this case is that – irrespective
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`of Defendant’s lack of substantiation – Arnica Products do not provide pain relief or other
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`medicinal benefits, which is directly contrary to the product labeling and marketing.”). California
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`law’s prohibition on private plaintiffs bringing substantiation claims is therefore irrelevant.
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`4.
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`False Advertising
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`Boiron argues that Plaintiffs’ false advertising claim should be dismissed because
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`“Plaintiffs failed to meet” the “burden to plead . . . facts that show the claims Defendant made in
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`connection with [the Arnicare] product are false or misleading.” ECF No. 26-1 at 22 (cleaned up).
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`The Court rejects this argument for the same reasons it rejected Boiron’s other arguments
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`contending that Plaintiffs have not adequately alleged the Arnicare product labels are misleading:
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`the complaint plausibly alleges that Arnicare products promise pain relief but provide none.
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`B.
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`Rule 12(b)(1)
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`Boiron argues that Plaintiffs lack standing to assert claims for products they did not buy.
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`In Melendres v. Arpaio, 784 F.3d 1254, 1262 (9th Cir. 2015), the Ninth Circuit rejected that
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`argument, holding that “any issues regarding the relationship between the class representative and
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`the passive class members—such as dissimilarity in injuries suffered—are relevant only to class
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`certification, not to standing.” Id. at 1262 (quoting William B. Rubenstein, Newberg on Class
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`Actions § 2:6 (5th ed.)). And this Court has repeatedly declined to dismiss on standing grounds
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`claims brought by plaintiffs seeking to represent a class of people who purchased different
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`products from the lead plaintiffs but who nonetheless suffered the same injury. The Court has
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`explained that whether a plaintiff may represent those who purchased different products from her
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`is a question reserved for class certification, not the pleadings. See, e.g., Clancy v. The Bromley
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`Tea Co., 308 F.R.D. 564, 571 (N.D. Cal. 2013); Peacock v. 21st Amend. Brewery Cafe, LLC, No.
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`17-CV-01918-JST, 2018 WL 452153, at *10 (N.D. Cal. Jan. 17, 2018). The Court here reaffirms
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`its view that the pleadings stage in a putative class action is not the right juncture to address the
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`standing of named class members to bring claims regarding products other than those they
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`purchased themselves.2
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`C.
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`Preemption and Primary Jurisdiction
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`Boiron also contends that Plaintiffs’ complaint should be dismissed under the doctrines of
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`preemption and primary jurisdiction.
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`1.
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`Preemption
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`Boiron first contends that the National Uniformity for Nonprescription Drugs (“NUND”)
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`provision of the Food and Drug Administration Modernization Act, 21 U. S.C. § 379r, expressly
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`preempts Plaintiffs’ state-law claims. Under that provision, no state may “establish or continue in
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`effect any requirement” that concerns “the regulation” of an over-the-counter drug when such
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`requirement is “in addition to” or “not identical to” FDA regulations. Id. Boiron contends that
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`provision expressly preempts Plaintiffs’ requested relief because for Plaintiffs’ claims “that Boiron
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`engaged in fraudulent and misleading conduct by stating ‘pain relief’ in the labeling of its
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`homeopathic drugs” to be true, “the California statutes would have to require labeling that is
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`different from, and in addition to, the extensive federal regulatory scheme from the FDA and the
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`FTC . . . .” ECF No. 26-1 at 29.
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`Boiron next contends that federal law impliedly preempts Plaintiffs’ state-law claims.
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`2 This Court previously held in Lilly v. Jamba Juice Co., No. 13-CV-02998-JST, 2013 WL
`6070503 (N.D. Cal. Nov. 18, 2013), that “Plaintiffs do not have standing to assert claims related to
`products they did not buy.” Id. at *2. That holding no longer reflects the Court’s views on this
`subject.
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`Boiron argues that “Congress provided for homeopathic drugs to be made legally available to
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`consumers,” and “[b]oth the FDA and the FTC have upheld Congress’ mandate with the CPG, the
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`FDA Draft Guidance, and the FTC Enforcement Policy that allow for the promotion of
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`homeopathic drugs.” ECF No. 26-1 at 30 (citing 21 U.S.C. §§ 321(g)(1), 351 which includes
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`homeopathic drugs within the definition of “drug” that is within those agencies’ authority). As a
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`result, Boiron contends that its marketing of “homeopathic drugs is not fraudulent, false, or
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`misleading.” ECF No. 26-1 at 30.
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`Neither of Boiron’s preemption arguments is persuasive. “Federal law preempts a lawsuit
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`based on state law claims when (1) Congress enacts a statute that explicitly preempts state law; (2)
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`federal law occupies a legislative field to such an extent that it is reasonable to conclude that
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`Congress left no room for state regulation in that field; or (3) state law actually conflicts with
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`federal law.” Allen v. ConAgra Foods, Inc., 2013 WL 4737421, at *3 (N.D. Cal. Sept. 3, 2013).
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`“In all pre-emption cases, and particularly in those in which Congress has ‘legislated . . . in a field
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`which the States have traditionally occupied,’ . . . we ‘start with the assumption that the historic
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`police powers of the States were not to be superseded by the Federal Act unless that was the clear
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`and manifest purpose of Congress.’” Wyeth v. Levine, 555 U.S. 555, 565 (2009) (quoting
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`Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)).
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`To support its preemption argument, Boiron “alludes generally to 21 U.S.C. § 379r(a),
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`which preempts state-law claims that impose a requirement on any drug that ‘is different from or
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`in addition to, or that is otherwise not identical with’ a requirement under the FDCA, the Poison
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`Prevention Act of 1970, or the Fair Packaging and Labeling Act.” Slowinski v. Forces of Nature,
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`Inc., No. 20 CV 2381, 2021 WL 1165099, at *3 (N.D. Ill. Mar. 26, 2021). But Boiron does not
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`identify any way in which Plaintiffs’ state-law claims impose such requirements. As the court in
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`Delarosa v. Boiron, Inc., 818 F. Supp. 2d 1177, 1189 (C.D. Cal. 2011) explained, the use of a
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`false or misleading label on over-the-counter drugs violates federal law. See 21 U.S.C. § 352(a)
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`(deeming a drug misbranded when “its labeling is false or misleading in any particular”). And
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`Plaintiffs’ claims here – as in Delarosa – “would simply require [Boiron] to truthfully state its
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`efficacy or not sell its products.” Id. at 1189-90. Thus, Plaintiffs’ requested relief is neither
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`“different from, [n]or additional to, the requirements of the FDCA. Id. at 1189. See also
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`Slowinski, 2021 WL 1165099, at *3 (“To the contrary, the FDCA prohibits misbranding of drugs,
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`which occurs if the drug's label is ‘false or misleading in any particular,’ 21 U.S.C. § 352, and
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`Plaintiffs[’] state-law claims would also require Defendant to refrain from falsely or misleadingly
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`label their products.”).
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`For similar reasons, the Court also rejects Boiron’s implied-preemption arguments.
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`“[G]iven that Plaintiff’s state law claims merely seek to impose requirements that are identical to
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`what federal law already requires, to wit, truthful indications of use [Boiron’s] label, it is difficult
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`to imagine under these circumstances how the state law conflicts with, or poses an obstacle to,
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`federal law,” as implied preemption requires. Jovel, 2013 WL 12164622, at *12.
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`2.
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`Primary Jurisdiction
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`Boiron’s final argument is that the Court should abstain from adjudicating this dispute
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`because “the FDA and the FTC have primary jurisdiction” over Plaintiffs’ claims and those “are
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`the appropriate forums to determine the appropriate regulations for homeopathic drugs.” ECF No.
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`26-1 at 30.
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`The Court is not persuaded. The primary jurisdiction doctrine “allows a federal court to
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`refer a matter extending beyond the conventional experiences of judges or falling within the realm
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`of administrative discretion to an administrative agency with more specialized experience,
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`expertise, and insight.” Nat’l Commc’ns Ass’n, Inc. v. Am. Tel. & Tel. Co., 46 F.3d 220, 222-223
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`(2d Cir. 1995) (citation omitted). It does not, however, “require that all claims within an agency’s
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`purview be decided by the agency. Nor is it intended to secure expert advice for the courts from
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`regulatory agencies every time a court is presented with an issue conceivably within the agency’s
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`ambit.” Brown v. MCI WorldCom Network Servs., Inc., 277 F.3d 1166, 1172 (9th Cir. 2002).
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`Rather, the primary jurisdiction doctrine applies when a claim “requires resolution of an issue of
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`first impression, or of a particularly complicated issue that Congress has committed to a regulatory
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`agency.” Id. The crux of the issue in this case is whether the labels advertising Arnicare products
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`as providing “pain relief” mislead consumers. That “determination does not require the particular
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`expertise of the FDA [or the FTC].” Musgrave v. ICC/Marie Callender's Gourmet Prod. Div.,
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`Case 4:22-cv-00035-JST Document 43 Filed 08/01/22 Page 11 of 11
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`2015 WL 510919, at *6 (N.D. Cal. Feb. 5, 2015). The primary jurisdiction doctrine thus does not
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`apply here.
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`For the foregoing reasons, the Court denies Boiron’s motion to dismiss.
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`CONCLUSION
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`IT IS SO ORDERED.
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`Dated: August 1, 2022
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`______________________________________
`JON S. TIGAR
`United States District Judge
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