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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
`
` Case No.: 19-CV-1345 TWR (AGS)
`
`ORDER GRANTING (1)
`DEFENDANT JOHNSON &
`JOHNSON CONSUMER, INC.’S
`MOTION TO DISMISS AND (2)
`DEFENDANT BAUSCH HEALTH US,
`LLC’s MOTION TO DISMISS
`
`(ECF Nos. 51, 53)
`
`LOUISA GUTIERREZ, an individual,
`DEBBIE LUNA, an individual, on behalf
`of themselves and all persons similarly
`situated,
`
`Plaintiffs,
`
`v.
`JOHNSON & JOHNSON CONSUMER
`INC., a New Jersey Corporation,
`BAUSCH HEALTH US, LLC f/k/a
`VALEANT PHARMACEUTICALS
`NORTH AMERICA LLC, a New Jersey
`Limited Liability Company,
`
`Defendants.
`
`
`
`Before the Court are Motions to Dismiss the Plaintiffs’ Fifth Amended Complaint
`filed by Defendants Johnson & Johnson Consumer Inc. (“JJCI”) and Bausch Health US,
`LLC (“Bausch”), respectively. (ECF Nos. 51, 53.) This case comes before the Court
`after Judge Sabraw dismissed Plaintiffs’ Third Amended Complaint (“TAC”). (ECF No.
`41.) The matters have been fully briefed, and for the reasons set forth below, the Court
`GRANTS both Defendants’ motions to dismiss WITH PREJUDICE.
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`I. BACKGROUND
`A. Factual Background
`Plaintiffs bring this putative class action against Defendants JJCI and Bausch for
`allegedly falsely and deceptively advertising the “Baby Powder” and “Shower to
`Shower” (“STS”) products, respectively. Referred to in the FiAC as the “Talcum
`Products,” the Baby Powder and STS products are used to “treat diaper rash, prevent
`odor, and ‘provide a fresh feeling.’” (FiAC ¶ 2.) The STS product is a deodorant and
`antiperspirant. (Id. ¶ 60.)
`Plaintiffs allege that Defendants made misleading representations in advertising
`and marketing the Talcum Products. Plaintiffs state that these misleading representations
`led them to believe that the Talcum Products were safe and pure, when they actually
`contained hazardous substances such as “asbestos, asbestiform fibers, lead, asilica, and
`arsenic.” (Id. ¶¶ 10, 79, 82–84, 91–93, 98, 100, 102, 110.) Defendants allegedly
`described and advertised the Talcum Products using the following statements
`and phrases:
`• “#1 Choice for Hospitals”
`• “#1 Choice for Adults”
`• “Pure”
`• “Most Pure”
`• “For the Most Delicate Days of Life”
`• “Choose Gentle” (Id. ¶¶ 2, 34, 44, 84, 87, 90, 91, 94.)
`Defendants also made the following statements on the labels of the Baby Powder bottles:
`• “For over 125 years Johnson’s formulas have been specially designed for baby’s
`unique and delicate skin.”
`• “Great for kids and adults too!”
`• “Hypoallergenic & tested with dermatologists”
`• “We love babies. Johnson’s Baby Powder leaves skin feeling delicately soft and
`dry while providing soothing relief (Id. ¶¶ 77, 97.)
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`For STS, Plaintiffs allege that Defendants made the following representations:
`• “For nearly 50 years SHOWER TO SHOWER® Absorbent Body Powders have
`delivered long-lasting freshness. (Id. ¶ 101.)
`• “Stay Fresh” (Id. ¶ 104.)
`• “Power of Powder” (Id. ¶101.)
`• “A sprinkle today, keeps the shower away” (Id. ¶ 60, 103.)
`Plaintiffs argue that all of these statements are misleading because they suggest to
`consumers that the Talcum Products are “safe and pure,” when they are not. (Id. ¶¶ 10,
`93–94, 96.) According to Plaintiffs, these products contain contaminants that can cause
`cellular inflammation and oxidative stress. (Id. ¶¶ 7–8, 10, 91, 110.) They also allegedly
`pose inhalation risks. (See id. ¶¶ 91, 93, 110.)
`These alleged misrepresentations—in addition to Defendants’ marketing campaign
`that has been going on “for decades”—led Plaintiffs to purchase the Talcum Products,
`assuming that they were safe and pure. (See id. ¶¶ 1, 9, 113–14, 159–160.) Plaintiffs
`stopped buying the Talcum Products after reading a Reuters article published in
`December 2018 (Id., Ex. C) that revealed that the Talcum Products often contained
`“hazardous substances” such as asbestos, lead, silica, arsenic, and/or asbestiform fibers.
`(Id. ¶¶ 16–17.)
`B. Procedural Background
`On May 20, 2019, Plaintiffs filed this putative class action against JJCI in state
`court. (See ECF No. 1.) After JJCI removed the case to federal court (see id.), Plaintiffs
`amended their complaint to name Bausch as the correct manufacturer of STS. Plaintiffs
`then amended their complaints two more times before having their Third Amended
`Complaint (“TAC”) dismissed. (See ECF No. 41.) In the TAC filed on November 4,
`2019, Plaintiffs alleged that JJCI and Bausch violated the Consumer Legal Remedies Act
`(“CLRA”), Civil Code 1750, et seq., the False Advertising Law (“FAL”), Business &
`Professions Code 17500, et seq., and the Unfair Competition Law (“UCL”), Business &
`Professions Code 17200, et seq. (ECF No. 21.) Plaintiffs argued that Defendants JJCI
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`and Bausch failed to warn about contaminants in their products and misled consumers by
`representing that their products were safe when they were not and contained asbestos,
`asbestiform fibers, lead, silica, and arsenic. (TAC ¶¶ 3, 5, 54, 75–92.) JJCI and Bausch
`respectively filed motions to dismiss. (ECF Nos. 28, 31.)
`On April 27, 2020, the court granted Defendants’ motions to dismiss. (ECF No.
`41.) In doing so, the court made two separate and key findings. First, the court
`dismissed Plaintiffs’ claim that Defendants misled consumers by failing to disclose the
`existence of contaminants in their products. (Id. at 12, 19.) The court found that
`California Proposition 65 governed any duty to disclose the existence of these
`contaminants, and since Plaintiffs did not comply with the pre-filing notice requirement
`under Proposition 65, they could not base their claims on Defendants’ failure to disclose.
`(Id. at 12.)
`Second, the court dismissed Plaintiffs’ claims under the UCL, FAL, and CLRA for
`failing to meet Rule 9(b)’s heightened pleading standard. (See id. at 19.) The court noted
`that Plaintiffs fail to state that they actually viewed or relied on JJCI’s and Bausch’s
`alleged misrepresentations, and that Plaintiffs had “lumped” JJCI and Bausch together in
`a way that runs contrary to Rule 9(b). (See id. at 14–16.) In particular, the court noted
`that Plaintiffs failed to differentiate between JJCI and Bausch, instead referring to them
`collectively as “Defendants” and not identifying which Defendant did what. (Id. at 15–
`16.)
`
`In a similar vein, the court also rejected Plaintiffs’ claim that they did not have to
`plead specific reliance under the California Supreme Court’s decision in In re Tobacco II,
`207 P.3d 20 (2009). (Id. at 14–16.) Plaintiffs argued that because Defendants had
`engaged in an extensive marketing campaign touting the safety of the Talcum Products,
`In re Tobacco II applied and Plaintiffs did not have to identify the specific
`misrepresentation that they relied on in making their purchase. (Id. at 14.) The court
`disagreed. The court found that In re Tobacco II did not apply because Plaintiffs had
`failed to allege exposure to the advertisement campaign. (Id.) In particular, given that
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`the advertisements alleged in the TAC circulated between the 1970s and 1990s, or from a
`“world completely detached from Plaintiff’s,” the court stated that Plaintiffs must
`specifically allege how Defendants’ alleged misrepresentations affected their decision to
`buy the Talcum Products. (Id.) The court granted Defendants’ motions to dismiss
`without prejudice, stating that Plaintiffs must assert their claims under the UCL, FAL,
`and CLRA without relying on a duty to disclose, which Proposition 65 foreclosed. (Id. at
`19.)
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`Since then, Plaintiffs have filed a Fourth and Fifth Amended Complaint. (ECF
`Nos. 42, 50.) The Fourth Amended Complaint had a short life, however, as less than one
`month after its filing, Plaintiffs filed a Motion for Leave to Amend. (ECF No. 45.). The
`court granted Plaintiffs’ request—but not without stating that Defendants had made
`“reasoned arguments about the futility of Plaintiffs’ amended claims.” (ECF No. 49 at
`7.) Four days after the court granted their motion, Plaintiffs filed the currently operative
`FiAC. The FiAC asserts the same causes of action under the UCL, FAL, and CLRA and
`similarly alleges that Defendants engaged in deceptive business practices by making
`misleading representations about the safety and purity of the Talcum Products. Plaintiffs
`include the following new information to bolster their claims: (1) that studies from a
`multi-district litigation in the District of New Jersey found that 69 percent of Talcum
`Products dating back from the past 50 years contained asbestos, and that Talcum Products
`can cause cellular inflammation and oxidative stress; (2) Defendants deceived Plaintiffs
`and the public by representing that their products were “pure,” “the most pure,” and
`“asbestos-free,” when they were not; and (3) Defendants deceived the public by stating
`that their products were great for use on babies and children when the American
`Association of Pediatrics has stated clearly since 1981 that they pose inhalation risks to
`infants and children. (See generally FiAC.) Plaintiffs also highlight the following
`misrepresentations in the FiAC: “#1 Choice for Hospitals,” “#1 Choice for Parents,”
`“pure,” “most pure,” “for the most delicate days of life,” and “choose gentle.” (Id.)
`Lastly, Plaintiffs allege that Defendants’ use of planograms and the placement of their
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`Talcum Products in retail store aisles give a false impression that the Talcum Products are
`safe and pure, when they are not. (FiAC ¶¶ 89, 141.)
`JJCI and Bausch filed motions to dismiss, respectively. (ECF Nos. 51, 53.) Both
`Defendants argue that Plaintiffs’ FiAC does not cure the deficiencies highlighted in the
`previous Order, namely
`that (1) Plaintiffs have not shown
`that
`the alleged
`misrepresentations are in fact misleading and that (2) they have not satisfied Rule 9(b).
`Furthermore, both JJCI and Bausch state that given this is Plaintiffs’ sixth attempt to file
`a claim, this Court should now dismiss with prejudice. For the reasons below, the Court
`GRANTS
`the Defendants’ request and DISMISSES Plaintiffs’ claims WITH
`PREJUDICE.
`
`II. LEGAL STANDARD
`A. Federal Rule of Civil Procedure 12(b)(6)
`Rule 12(b)(6) allows a court to dismiss a complaint for “failure to state a claim
`upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To survive a motion to
`dismiss, the complaint must contain a “short and plain statement showing that the pleader
`is entitled to relief”, backed by sufficient facts that make the claim “plausible on its face.”
`Fed. R. Civ. P. 8(a)(2); Ashcroft v. Iqbal, 556 U.S. 662, 678, (2009) (quoting Bell Atl.
`Corp. v. Twombly, 550 U.S. 544, 547 (2007)). Plausibility requires “more than a sheer
`possibility that a defendant has acted unlawfully.” Iqbal, 566 U.S. at 678. Rather, it
`demands enough factual content for the court to “draw the reasonable inference that the
`defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).
`The court must accept as true “all factual allegations in the complaint” and “construe the
`pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire
`& Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). This presumption does not
`extend to conclusory allegations, “unwarranted deductions of fact, or unreasonable
`inferences.” See In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008).
`/ / /
`/ / /
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`B. Federal Rule of Civil Procedure 9(b)
`For claims based in fraud, Rule 9(b) applies and imposes a heightened pleading
`standard. See Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 964 (9th Cir. 2018).
`Under Rule 9(b), the plaintiff must state with “particularity the circumstances constituting
`the fraud or mistake.” Fed. R. Civ. P. 9(b). This means that the plaintiff must state the
`“who, what, when, where, and how’ of the misconduct charged.” Vess v. Ciba-Geigy
`Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) (citation omitted). The plaintiff must
`also state “what is false or misleading about the purportedly fraudulent statement, and
`why it is false.” Davidson, 889 F.3d at 964 (citations omitted). In cases involving more
`than one defendant, Rule 9(b) does not allow the plaintiff to “lump [the] multiple
`defendants together.” Swartz v. KPMG LLP, 476 F.3d 756, 764–65 (9th Cir. 2007).
`Rather, the plaintiff must “differentiate their allegations” and “inform each defendant
`separately of the allegations surrounding his alleged participation in the fraud.” Id. This
`ensures that each defendant has notice of their particular misconduct so that they can
`“defend against the charge and not just deny that they have done anything wrong.” Bly-
`Magee v. California, 236 F.3d 1014, 1019 (9th Cir. 2001) (internal quotation marks and
`citation omitted).
`C. UCL, FAL, and CLRA and the Reasonable Consumer Test
`Courts often analyze claims under the UCL, FAL, and CLRA together “because
`they share similar attributes.” In re Sony Gaming Networks & Customer Data Sec.
`Breach Litig., 996 F. Supp. 2d 942, 985 (S.D. Cal. 2014). California's UCL prohibits any
`“unlawful, unfair or fraudulent business act or practice.” Cal. Bus. & Prof. Code § 17200.
`California's FAL prohibits any “unfair, deceptive, untrue or misleading advertising.” Cal.
`Bus. & Prof. Code § 17500. Any FAL violation amounts to a UCL violation. See
`Williams v. Gerber Prod. Co., 552 F.3d 934, 938 (9th Cir. 2008) (quoting Kasky v. Nike,
`Inc., 45 P.3d 243, 250 (2002)). California's CLRA prohibits “unfair methods of
`competition and unfair or deceptive acts or practices.” Cal. Civ. Code § 1770. Claims
`under all three of these statutes are subject to the “reasonable consumer test.” Williams,
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`552 F.3d at 938 (9th Cir. 2008) (citing Freeman v. Time, Inc., 68 F.3d 285, 289 (9th Cir.
`1995)). The reasonable consumer test requires a probability that a “significant portion of
`the general consuming public or of targeted consumers, acting reasonably in the
`circumstances, could be misled.” Ebner v. Fresh, Inc., 838 F.3d 958, 965 (9th Cir. 2016)
`(internal quotation marks omitted). Courts have dismissed cases under the reasonable
`consumer test only in select circumstances, particularly where the “alleged violations of
`the UCL, FAL, and CLRA are simply not plausible.” Ham v. Hain Celestial Grp., Inc.,
`70 F. Supp. 3d 1188, 1193 (N.D. Cal. 2014).
`III. ANALYSIS
`Both JJCI and Bausch argue that this Court should dismiss the FiAC for (1) failing
`to show that the alleged misrepresentations are misleading and (2) failing to plead
`particularities and reliance under Rule 9(b). The Court must first analyze whether
`Plaintiffs meet Rule 9(b)’s pleading standard. See Loomis v. Slendertone Distribution,
`Inc., 420 F. Supp. 3d 1046, 1079 (S.D. Cal. 2019) (stating that the court must first ensure
`whether “Plaintiff meets the Rule 9(b) threshold before assessing whether Plaintiff
`alleges sufficient facts to demonstrate a reasonable consumer would be deceived by the
`advertisements.”).
`A. Defendant JJCI
`Since Plaintiffs allege that JJCI made misleading representations about the Talcum
`Products, they effectively base their UCL, FAL, and CLRA claims in fraud. Thus, Rule
`9(b) applies.1 See Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir. 2009). Here,
`Plaintiffs fall short of meeting Rule 9(b)’s standard for two reasons: (1) they do not plead
`“what” they actually viewed and read; and (2) they do not adequately plead reliance.
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`1 In their Oppositions (ECF Nos. 56, 57), Plaintiffs argue that Rule 9(b) does not apply to their claims.
`Plaintiffs base this argument on Moore v. Mars Petcare US, Inc., 966 F.3d 1007 (9th Cir. 2020). But
`this argument is unconvincing. As Defendants point out, the portion of the opinion that Plaintiffs rely
`on is dicta. (See ECF No. 58 at 7.) Further, Moore only contemplates a possibility that Rule 9(b) may
`not apply to certain claims under the UCL, FAL, and CLRA. See Moore, 966 F.3d at 1018, n. 11. Here,
`Plaintiffs have not shown that this possibility applies.
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`1. Plaintiffs Do Not Satisfy Rule 9(b)’s Heightened Pleading Standard
`“In a deceptive advertising case, Rule 9(b) requires that the plaintiff(s) identify
`specific advertisements and promotional materials.” Janney v. Mills, 944 F. Supp. 2d
`806, 818 (N.D. Cal. 2013). Further, the plaintiff must allege what the “advertisements or
`other sales material specifically stated.” Kearns, 567 F.3d at 1126 (9th Cir. 2009).
`Throughout the FiAC, Plaintiffs fall short of this standard. Apart from a few
`exceptions, Plaintiffs do not allege the specific content of the advertisement they viewed.
`(See FiAC ¶¶ 93, 95, 96.) Instead, they only provide their own interpretation of the
`advertisements. For example, Plaintiffs state that they “viewed and relied upon the
`statements and advertisements made by Johnson & Johnson that the Talcum Products
`were pure.” (Id. ¶ 93.) Further, Plaintiffs also state that they “viewed and saw the various
`advertisements by Johnson & Johnson touting the safety of the Talcum Products.” (Id.
`¶ 95.) Neither of these claims—and others like it in the FiAC (see id. ¶¶ 94, 96, 109,
`113–114)—identify which specific advertisement Plaintiffs relied on or what the
`advertisement explicitly said. Merely alleging that the advertisements stated that the
`Talcum Products were “pure,” “safe,” (id. ¶¶ 93, 95) or that they would keep you “fresh”
`and “odor free” (id. ¶¶ 113–114) without identifying the particular advertisement that
`Plaintiffs viewed does not satisfy Rule 9(b). See Tabler v. Panera LLC, No. 19-CV-
`01646-LHK, 2020 WL 3544988, at *7 (N.D. Cal. June 30, 2020) (finding that the
`plaintiff does not satisfy Rule 9(b) because she fails to identify which specific
`advertisements that she “actually saw and relied upon” in making her purchase).
`The same applies to Plaintiffs’ claims that JJCI marketed the Talcum Products as
`the “#1 Choice for Hospitals” and “#1 Choice for Adults.” (See, e.g., FiAC ¶ 87.) The
`FiAC contains only one advertisement that made these statements. (See id., Ex. I.) But
`as JJCI notes, this advertisement does not concern the Talcum Products at all. Thus, with
`respect
`to
`the Talcum Products specifically, Plaintiffs do not
`identify which
`advertisement they viewed that contained the slogans “#1 Choice for Hospitals” and “#1
`/ / /
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`Choice for Adults.” For this reason, Plaintiffs’ claim falls short of satisfying Rule 9(b)’s
`standard.
`2. Reliance
`To the extent Plaintiffs identify specific misrepresentations and advertisements that
`JJCI made, they must also allege that they viewed, read, and relied on them. “Plaintiffs
`alleging claims under the FAL and UCL are required to plead and prove actual reliance
`on the misrepresentations or omissions at issue.” Great Pac. Sec. v. Barclays Capital,
`Inc., 743 F. App'x 780, 783 (9th Cir. 2018) (citing Kwikset Corp. v. Superior Court, 246
`P.3d 877 (2011)). Plaintiffs must also plead actual reliance for fraud-based claims under
`the CLRA. See Ehrlich v. BMW of N. Am., LLC, 801 F. Supp. 2d 908, 919 (C.D. Cal.
`2010).
`Plaintiffs list several specific statements that JJCI made in the relevant time period.
`In particular, Plaintiffs list the following statements placed on the labels of JJCI’s Baby
`Powder bottles:
`• “For over 125 years Johnson’s formulas have been specially designed for baby’s
`unique and delicate skin.”
`• “Great for kids and adults too!”
`• “Hypoallergenic & tested with dermatologists”
`• “We love babies. Johnson’s Baby Powder leaves skin feeling delicately soft and
`dry while providing soothing relief (FiAC ¶ 97.)
`
`Plaintiffs also allege that JJCI represented the Talcum Products as “pure,” “most
`pure,” (id. ¶¶ 84, 94, Ex. T) and used phrases in their marketing such as “choose gentle,”
`and “for the most delicate days of life.”2 (Id. ¶ 90.)
`
`
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`2 Plaintiffs state that JJCI represented its Talcum Products as the “#1 Choice for Hospitals” and the “#1
`Choice for Parents.” But Plaintiffs do not identify which particular advertisement they viewed that
`makes this claim. Apart from citing an advertisement that does not concern the Talcum Products at all
`(see FiAC ¶ 87, Ex. I), Plaintiffs do not point to any other advertisement where JJCI used these slogans
`in marketing the Talcum Products.
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`Here, although Plaintiffs specifically identify the alleged misrepresentation by
`JJCI, Plaintiffs do not allege that they relied on these misrepresentations. (See id. ¶¶ 84,
`90, 97.) The same applies to Plaintiffs’ claims that JJCI made misleading statements
`about the Talcum Products on webpages and social media. (Id. ¶¶ 91–92, 109.) Plaintiffs
`fail to allege that they viewed or relied on these statements at all. See Beecher v. Google
`N. Am. Inc., No. 18-CV-00753-BLF, 2018 WL 4904914, at *2 (N.D. Cal. Oct. 9, 2018)
`(holding that the plaintiff falls short of meeting Rule 9(b)’s standards because he fails to
`allege that he “viewed Google’s alleged misrepresentations, much less that he relied on
`those misstatements.”).
`To the extent Plaintiffs allege reliance, their claims fall short of Rule 9(b) for the
`same reason noted above: they fail to identify which particular advertisement they relied
`on. For example, Plaintiffs state that they relied on JJCI’s representations that the Baby
`Powder was “pure,” “the most pure,” and the #1 Choice for Hospitals.” (FiAC ¶¶ 10, 94–
`95) without specifying which advertisement actually induced their reliance. The same
`applies to the series of advertisements and representations that Plaintiffs provide. (See
`FiAC, Ex. L–X.) Merely supplying a list of advertisements and the misleading
`statements that JJCI made does not show which specific advertisement or statement that
`Plaintiffs actually saw. Thus, these claims fall short of the specificity required by Rule
`9(b).
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`In their Opposition, Plaintiffs argue that they have satisfied the reliance
`requirement because they alleged that they were “convinced that the Talcum Products
`were safe for use based on the affirmative statements made on the bottles of the Baby
`Powder.” (FiAC ¶ 113) (emphasis added). But this does not save their claims. Here, to
`the extent that this statement suggests reliance, Plaintiffs do not identify which
`affirmative misrepresentation on the Baby Powder bottle they relied on. See Tabler v.
`Panera LLC, No. 19-CV-01646-LHK, 2020 WL 3544988, at *8 (N.D. Cal. June 30,
`2020) (stating that, although Plaintiff list a “range of representative advertisements that
`she alleges to be misleading,” she provides “no indication of which statements, if any,
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`Plaintiff herself relied upon before purchasing the unspecified Products.”) (emphasis
`added); see also In re Arris Cable Modem Consumer Litig., No. 17-CV-01834-LHK,
`2018 WL 288085, at *8 (N.D. Cal. Jan. 4, 2018) (stating that plaintiff does not satisfy
`Rule 9(b) when the plaintiff “generally identifies allegedly misleading statements but
`fails to specify which statements the plaintiff actually saw and relied upon.”) (emphasis
`added). Further, all of these representations concern whether the Talcum Products are
`safe to use. And as Defendants argue, Plaintiffs have not carried their burden of showing
`that the Talcum Products are unsafe. First, Plaintiffs have not shown that the Talcum
`Products contain unsafe levels of contaminants, as Judge Sabraw noted in his order.
`Second, in terms of inhalation risks, JJCI posted clear warning labels on their products,
`which as a qualifier, can “ameliorate any tendency . . . to mislead.”3 Moore v. Mars
`Petcare US, Inc., 966 F.3d 1007, 1017 (9th Cir. 2020). And third, as JJCI argues,
`Plaintiffs have not adequately shown how cellular inflammation and oxidative stress are
`harmful. (See ECF No. 58 at 2, 6.) Thus, Plaintiffs fall short of Rule 9(b) on two fronts:
`they fail to allege the particularities that Rule 9(b) requires, and they fail to show how
`these representations are false or misleading.
`Plaintiffs also state that they viewed and relied on television advertisements that
`ran during the Class Period. (FiAC ¶ 96.) Here, Plaintiffs identify the specific
`advertisements at issue and allege that they relied on them. Nonetheless, Plaintiffs fall
`short—not under Rule 9(b), but rather under the reasonable consumer test. As JJCI
`notes, two of the advertisements that Plaintiffs specify— “Your Whole Life” and “Gentle
`is Everything”—do not state anything about Talcum Products. The third advertisement
`was aired by a third party—not by JJCI. Thus, even if Plaintiffs allege that they relied on
`these specific advertisements, their reliance was unreasonable. To be sure, although
`courts typically defer ruling on the reasonable consumer test at the motion to dismiss
`
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`3 All of the cases that Plaintiffs cite are distinguishable because they concern warning labels either
`written in fine print or placed inconspicuously on the product where consumers would not likely check.
`(See ECF No. 56 at 9.)
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`stage, they have dismissed cases when it seems plain that no reasonable consumer would
`view the advertisement and be misled in the manner that plaintiffs allege. For example,
`in Werbel ex rel. v. Pepsico, Inc., 2010 WL 2673860, at *3 (N.D. Cal. July 2, 2010), the
`court held that no reasonable consumer would be misled into believing that the cereal,
`“Cap’n Crunch,” derives any nutritional value from berries. The court noted that there
`were “no representations that the Crunch Berries [were] derived from real fruit nor [were]
`there any depictions of any fruit on the cereal box.” Id. Similarly, the television
`advertisements that Plaintiffs identify here make no representations about the Talcum
`Products at all. Indeed, they do not even feature the Talcum Products. Thus, Plaintiffs’
`claim that they relied on these two television advertisements to make inferences about the
`Talcum Products does not pass the reasonable consumer test.
`3. In re Tobacco II Exception Does Not Apply
`Plaintiffs try to overcome these shortcomings by alleging that the In re Tobacco II
`exception applies. It does not. In In re Tobacco II, the plaintiffs alleged that cigarette
`manufacturers had conducted a “decades-long campaign of deceptive advertising and
`misleading statements about the addictive nature of nicotine and the relationship between
`tobacco use and disease.” 207 P.3d 20, 25 (2009). The California Supreme Court held
`that when a plaintiff alleges “exposure to a long-term advertising campaign,” the plaintiff
`does not have to plead with an “unrealistic degree of specificity that the plaintiff relied on
`particular advertisements or statements.” Id. at 40. In this way, the In re Tobacco II
`exception is narrow. See Kane v. Chobani, Inc., No. 12-CV-02425-LHK, 2013 WL
`5289253, at *9 (N.D. Cal. Sept. 19, 2013); see also Haskins v. Symantec Corp., No. 13-
`CV-01834-JST, 2013 WL 6234610, at *5 (N.D. Cal. Dec. 2, 2013). Plaintiffs can assert
`the In re Tobacco II exception only when “the plaintiff has been exposed to numerous
`advertisements over a period of decades.” Kane, 2013 WL 5289253, at *9 (N.D. Cal.
`Sept. 19, 2013). Plaintiffs who have never been exposed to an alleged misleading
`advertising campaign cannot rely on the In re Tobacco II exception. Id. (citing Pfizer
`Inc. v. Superior Court, 105 Cal. Rptr. 3d 795, 803 (2010)). And although Plaintiffs do
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`not have to allege a specific advertisement that they relied on, they must still allege that
`they viewed and relied on the marketing campaign. See In re Tobacco II Cases, 207 P.3d
`at 40–41 (2009).
`Plaintiffs’ claims do not fall within this narrow exception. First, Plaintiffs fail to
`establish a “long-term marketing campaign” during the relevant class period. Plaintiffs
`allege a combination of advertisements that either (1) predate their purchase by years, (2)
`have nothing to do with the Talcum Products, or (3) were published or aired during the
`relevant period but which Plaintiffs never viewed. In particular, many advertisements
`alleged in the FiAC ran between the 1970s and 1990s. (See FiAC ¶¶ 81–82, 84.) Others,
`as JJCI notes, aired in foreign markets. (Id. ¶ 83.) This stands in contrast to Opperman v.
`Path, Inc., 84 F. Supp. 3d 962, 979 (N.D. Cal. 2015), where the court found that plaintiffs
`had adequately alleged a pervasive and extensive advertising campaign in part because
`they had (1) provided in their complaint examples of the extensive marketing campaign
`during the relevant period that spanned eighteen pages and (2) attached advertisements
`that were representative of the marketing at issue. Here, Plaintiffs attach (1) certain
`“press releases … that an average consumer would be unlikely to read,” Haskins v.
`Symantec Corp., No. 13-CV-01834-JST, 2014 WL 2450996, at *2 (N.D. Cal. June 2,
`2014), (2) news articles, (3) advertisements that do not concern the Talcum Products, and
`(4) online webpages and social media posts that Plaintiffs do not allege that they read,
`viewed, or relied on. (See generally FiAC, Ex. H–K, L–X.)
`Second, Plaintiffs only state in conclusory terms that they actually “viewed,”
`“relied on” and were “exposed” to the marketing campaign. For example, Plaintiffs state,
`“[r]elying upon these representations for the past 50 years . . . Plaintiffs and the Class
`Members purchased the Talcum Products, believing they were safe.” (FiAC ¶ 10.)
`Plaintiffs also state that “[a]f