Moran v. Bondi Sands (USA) Inc.

• Court: District Court, N.D. California
• Decided: April 29, 2022
• Docket: 4:21-cv-07961
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MICHELLE MORAN, Case No. 21-cv-07961-JSW

8 Plaintiff, ORDER GRANTING, IN PART, AND DENYING, IN PART, MOTION TO 9 v. DISMISS AND SETTING INITIAL CASE MANAGEMENT CONFERENCE 10 BONDI SANDS (USA) INC., et al., Re: Dkt. No. 29 Defendants. 11

12 13 This matter comes before the Court upon consideration of the motion to dismiss filed by 14 Defendant Bondi Sands (USA), Inc. (“Bondi Sands”).1 The Court has considered the parties’ 15 papers, relevant legal authority, and the record in this case. The Court also has granted the parties’ 16 stipulation allowing Plaintiff, Michelle Moran (“Moran”), to file a second amended complaint. 17 For the reasons that follow, the Court HEREBY GRANTS, IN PART, AND DENIES, IN PART, 18 Bondi Sands’ motion. 19 BACKGROUND 20 In the summer of 2021, Moran purchased can of Bondi Sands’ aerosol fragrance-free 21 sunscreen (“Purchased Product” or the “Product”). (First Amended Class Action Complaint 22 (“FACC”), ¶ 8, Ex. 1-5.) The front label of the Purchased Product includes the phrase “Reef 23 Friendly.” (Id., Ex. 1-5.) Moran alleges that the term Reef Friendly “led her to believe that the 24 [Purchased] Product’s ingredients were all reef-safe and otherwise could not harm reefs, including 25 the coral reefs and marine life that inhabits and depends on them.” (Id. ¶ 8.) 26

27 1 This case is one of seven cases Plaintiff’s counsel has filed that challenge the terms “Reef Friendly” or “Reef Safe” on sunscreen products, including another case filed on Moran’s behalf. 1 According to Moran, the Purchased Product, and other similar products containing the 2 Reef Friendly statement (collectively “Bondi Sands’ Products”), actually contain chemical 3 ingredients, such as avobenzone, homoslate, octisalate, and/or octorylene, which “are not safe for 4 reefs because they can harm and/or kill reefs, including the coral reefs and the marine life that 5 inhabits or depends on them.”2 (Id. ¶ 3; see also id. ¶¶ 24-28.) Moran alleges she was not aware 6 of that fact when she purchased the Product, and would not have purchased the Product, or would 7 have paid substantially less for it, had she known the truth. (Id. ¶¶ 8, 72). Moran also alleges that 8 she continues to see Bondi Sands’ Products that use Reef Friendly on the labels. She would like to 9 purchase them in the future, if that representation was true, but because she does not “possess any 10 specialized knowledge, skill, experience, or education in sun care products,” she has no way to 11 determine the truth. (Id.; see also id. ¶ 9.) 12 Based on these and additional allegations that the Court will address in the analysis, Moran 13 seeks relief on behalf of herself and putative classes for violations under each prong of 14 California’s Unfair Competition Law (the “UCL Claim”), for violations of California’s False 15 Advertising Law (the “FAL Claim”), for violations California’s Consumer Legal Remedies Act 16 (the “CLRA Claim”), for breach of warranty, and for unjust enrichment. 17 ANALYSIS 18 A. The Court Denies Bondi Sands’ Motion to Invoke the Primary Jurisdiction Doctrine. 19 Bondi Sands moves to dismiss or stay pursuant to the primary jurisdiction doctrine. “The 20 primary jurisdiction doctrine allows courts to stay proceedings or to dismiss a complaint without 21 prejudice pending the resolution of an issue within the special competence of an administrative 22 agency.” Clark v. Time Warner Cable, 523 F.3d 1110, 1114 (9th Cir. 2008). It is a “prudential” 23 doctrine “under which a court determines that an otherwise cognizable claim implicates technical 24 and policy questions that should be addressed in the first instance by the agency with regulatory 25 authority over the relevant industry rather than by the judicial branch.” Id. It is “not designed to 26 2 Moran included Bondi Sands’ Hydra UV Protect products in the FAC. Bondi Sands 27 moved to dismiss on the basis that those products are sold only in Australia. Based on that 1 secure expert advice from agencies every time a court is presented with an issue conceivably 2 within the agency’s ambit.” Id. 3 The determination of whether an action should be stayed pursuant to the primary 4 jurisdiction doctrine is a matter for the Court’s discretion. Syntek Semiconductor Co., Ltd. v. 5 Microchip Tech. Inc., 307 F.3d 775, 781 (9th Cir. 2002). In considering this issue, courts have 6 “traditionally employed such factors as (1) the need to resolve an issue that (2) has been placed by 7 Congress within the jurisdiction of an administrative body having regulatory authority (3) 8 pursuant to a statute that subjects an industry or activity to a comprehensive regulatory authority 9 that (4) requires expertise or uniformity in administration.” Id. (citing United States v. General 10 Dynamics Corp., 828 F.2d 1356, 1362 (9th Cir. 1987)). 11 The Food and Drug Administration (“FDA”) has promulgated regulations and labelling 12 requirements for over the counter (“OTC”) sunscreens. Bondi Sands also notes Congress is 13 considering legislation that would require the FDA, in consultation with other agencies, to develop 14 labelling requirements for the term “Reef Safe.” The legislation was introduced in July 2021 and, 15 to date, has not been passed. Each version of the proposed bill also provides the FDA with at least 16 two-years from the date the law is enacted to develop those requirements.3 Moran does not 17 seriously dispute that this is an area that would fall within the FDA’s expertise and that it has not 18 yet been addressed. However, “primary jurisdiction is not required when a referral to the agency 19 would significantly postpone a ruling that a court is otherwise competent to make.” Astiana v. 20 Hain Celestial Gp., Inc., 783 F.3d 753, 760-61 (9th Cir. 2015) (internal citations and quotations 21 omitted). “[E]fficiency is the deciding factor in whether to invoke primary jurisdiction.” 22 In one of the other cases that Moran’s counsel has filed in this District, the court 23 considered this issue and determined that, at this juncture, action by the FDA appeared too remote 24 to warrant invocation of the doctrine. White v. The Kroger Co., No. 21-cv-08004-RS, 2022 WL 25 888657, at *2-3 (N.D. Cal. Mar. 25, 2022). The Court concurs and, in light of that uncertainty, 26

27 3 See https://www.congress.gov/bill/117th-congress/house-bill/4800/text 1 concludes invoking the doctrine would not be efficient. 2 Accordingly, the Court DENIES, IN PART, Bondi Sands’ motion on that basis. 3 B. The Court Denies Bondi Sands’ Motion to Dismiss Based on FDCA Preemption. 4 Bondi Sands also argues Moran’s claims are preempted by the Food, Drug, and Cosmetic 5 Act (“FDCA”), 21 U.S.C. sections 301, et seq. The FDCA contains a preemption provision, 6 which provides that “no State ... may establish or continue in effect any requirement ... that is 7 different from or in addition to, or that is otherwise not identical with a requirement under the 8 [FDCA].” 21 U.S.C. § 379r(a)(2). The FDA’s regulations governing OTC sunscreen do not 9 currently address environmental claims. 10 Moran argues she asks only that the Reef Friendly phrase be removed from the label. She 11 alleges, however, that the Court should require “prominent qualifications and/or disclaimers on the 12 [Bondi Sands’ Products’] front label concerning [their] true nature[.]” (FACC ¶ 38.c.) Even if the 13 FDA neither prohibits nor permits the phrase Reef Friendly, Moran fails to meaningfully engage 14 with Bondi Sands’ argument that she asks the Court to ask Bondi Sands to add information not 15 currently required by the FDA to the Products’ labels. For that reason, the Court finds Prescott v. 16 Bayer Health Care, LLC, on which she relies, distinguishable. No. 20-cv-00102-NC, 2020 WL 17 4430958, at *2-3 (N.D. Cal. July 31, 2020). However, it also is evident that Moran’s claim is 18 based on the theory that the phrase Reef Friendly is misleading, and FDCA regulations prohibit 19 “claims that would be false and/or misleading on sunscreen products.” 21 C.F.R. § 201.327(g). 20 Accordingly, the Court concludes Moran’s claims are not preempted in their entirety and 21 DENIES, IN PART, Bondi Sands’ motion on that basis as well. 22 C. The Court Concludes Moran Has Stated Claims for Relief. 23 Bondi Sands also moves to dismiss for failure to state a claim. A motion to dismiss is 24 proper under Federal Rule of Civil Procedure 12(b)(6) where the pleadings fail to state a claim 25 upon which relief can be granted. A court’s “inquiry is limited to the allegations in the complaint, 26 which are accepted as true and construed in the light most favorable to the plaintiff.” Lazy Y 27 Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008). Even under the liberal pleading 1 relief’ requires more than labels and conclusions, and formulaic recitation of the elements of a 2 cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citing 3 Papasan v. Allain, 478 U.S. 265, 286 (1986)). Pursuant to Twombly, a plaintiff cannot merely 4 allege conduct that is conceivable but must instead allege “enough facts to state a claim to relief 5 that is plausible on its face.” Id. at 570. “A claim has facial plausibility when the plaintiff pleads 6 factual content that allows the court to draw the reasonable inference that the defendant is liable 7 for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 8 U.S. at 556). 9 As a general rule, “a district court may not consider any material beyond the pleadings in 10 ruling on Rule 12(b)(6) motion.” Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994), overruled 11 on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002) (citation 12 omitted). However, a court may consider documents that subject to judicial notice on a motion to 13 dismiss without converting the motion to one for summary judgment. See Mack S. Bay Beer 14 Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986), overruled on other grounds by Astoria Fed. Sav. & 15 Loan Ass’n v. Solimino, 501 U.S. 104 (1991). If the allegations are insufficient to state a claim, a 16 court should grant leave to amend unless amendment would be futile. See, e.g., Reddy v. Litton 17 Indus. Inc., 912 F.3d 291, 296 (9th Cir. 1990); Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection 18 Serv., Inc., 911 F.2d 242, 246-47 (9th Cir. 1990). 19 Bondi Sands argues Moran is proceeding on a lack of substantiation theory because she 20 alleges it was “statutorily required to ensure it has adequate substantiation for” the “Reef Friendly” 21 representation. (FACC ¶ 35.) There is no private right of action for a “lack of substantiation” 22 claim. See Kwan v. SanMedica Int’l, LLC, 854 F.3d 1088, 1096 (9th Cir. 2017) (citing Nat’l 23 Council Against Health Fraud v. King Bio Pharms., Ltd., 107 Cal. App. 4th 1336, 1344 (2003) 24 (“King Bio”)). Moran asserts she is not premising her claims on that theory and, instead, asserts 25 the statement is false.4 The Court “must therefore parse” the FACC to ensure Moran alleges 26 actual falsity. Locklin v. Strivectin Op. Co., No. 21-cv-7967-VC, 2022 WL 867248, at *4 (N.D. 27 1 Cal. Mar. 23, 2022). 2 A plaintiff may establish an advertising claim is false through “testing, scientific literature, 3 or anecdotal evidence.” King Bio, 107 Cal. App. 4th at 1348. For example, in Kwan, plaintiff 4 alleged the defendant falsely implied that the product’s health benefits “were clinically proven by 5 credible scientific proof.” Kwan, 854 F.3d at 1096. The court determined that allegation was 6 conclusory and was “simply an allegation that defendant’s marketing claims lack scientific 7 substantiation.” Id. The defendant in Locklin also argued the plaintiff was pursuing a lack of 8 substantiation claim, but the court rejected that argument. 2022 WL 867248, at *4. The court 9 reasoned the plaintiff “does not allege that [defendant] ‘reef safe’ assertion lacks substantiation – 10 that, say, no scientific evidence exists to bolster the company’s advertising.” Id.; see also Cooper 11 v. Curallux, LLC, No. 20-cv-2455-PJH, 2020 WL 4732193, at *4 (N.D. Cal. Aug. 14, 2020) (“A 12 substantiation claim involves an advertising claim that has no evidentiary support one way or the 13 other. … In contrast, a false advertising claim is on in which the claim has actually been 14 disproved… such that the plaintiff can point to evidence that directly conflicts with the claim.”) 15 (internal citations and quotations omitted). 16 The Locklin court also distinguished Aloudi v. Intramedic Research Group5, on which 17 Bondi Sands relies, reasoning that the plaintiff’s allegations were “far more developed and 18 coherent” in contrast to the “plainly irrelevant studies” and reliance “on anecdotal evidence” 19 supporting the plaintiff’s allegations in Aloudi. 2022 WL 867248, at *4 n.3. It held, therefore, 20 “[b]y alleging that the sunscreen contains chemicals that directly threaten coral reefs, the 21 complaint identifies ‘specific facts pointing to actual falsehood’” and denied the motion to 22 dismiss. Id. (quoting Kwan, 854 F.3d at 1097). 23 In Bitton v. Gencor Nutrientes, Inc., the defendant made a nutritional supplement and 24 represented it had conducted a study showing “‘statistically significant results’ showing increases 25 in ‘free testosterone’ in study participants who took” the supplement. 654 Fed. Appx. 358, 360. 26 The plaintiffs alleged that statement was false and included an expert report that concluded the 27 1 trial results were not statistically significant. Id. at 362. The Ninth Circuit concluded the 2 allegations were sufficient to state a claim and rejected the defendants’ argument that the plaintiffs 3 were proceeding on a lack of substantiation theory. Id. 4 Here, Moran does not rely on vague or conclusory allegations and instead cites to 5 materials, which she claims are sufficient to allege the chemicals contained in the Bondi Sands’ 6 Products are harmful to reefs. (FACC ¶¶ 24-28 & nn. 27-32.) She also cites to reports from 7 various organizations, petitions submitted to the FDA, and legislation, which she argues provides 8 further evidence that the phrase Reef Friendly is false or misleading.6 (Id. ¶¶ 13-19 & nn. 8-24.) 9 As in Locklin, Moran does not allege that there is no evidence to support Bondi Sands’ claim; she 10 alleges that there is evidence that directly conflicts with the representation that the Product is Reef 11 Friendly. 12 Bondi Sands argues these materials are not sufficient because, for example, they neither 13 evaluated the Bondi Sands’ Products nor the chemicals at issue in the same formulation as the 14 Bondi Sands Products. Each of the challenged Bondi Sands Products contains octocrylene. 15 (FACC ¶ 24.a-24.f.) According to some materials cited by Moran, octocrylene “can harm marine 16 life” including corals by accumulating in coral tissues, inducing bleaching, damaging coral DNA, 17 and can “even kill.”7 18 The Locklin court considered and rejected similar arguments. 19 The complaint cites scientific studies purporting to document the harmful effects of four chemicals present in the sunscreen and 20 actions by governmental bodies to ban them. It alleges a connection between those chemicals and coral reefs: When sunscreen washes 21 off, it flows into the oceans, where its constituent chemical 22 23 6 Moran’s FACC included allegations that were identical to allegations in Locklin regarding 24 legislation in Hawaii, which suggested that the Hawaii Senate had banned octocrylene. Compare Locklin, 2022 WL 867248, at *2 (quoting complaint) with FACC ¶ 17. The parties have stipulated 25 that Moran shall amend those allegations. Counsel for Moran shall take care to avoid these drafting issues going forward. 26

7 See, e.g., https://oceanservice.noaa.gov/news/sunscreen-corals.html (last visited April 27, 27 2022) (cited at FACC ¶ 14 n.9); see also https://haereticus-lab.org/protect-land-sea-certification-3 1 compounds threaten aquatic life. The complaint further explains that some consumers are misled by the “reef safe” label. Thinking 2 that their use of StriVectin’s product will not pose a threat to coral reefs, these consumers pay an inflated price for a product that falls 3 short of its promises. Taken together and as true, those allegations suggest that StriVectin’s product label misleads reasonable 4 consumers, thereby violating California's consumer protection laws. 5 2022 WL 867248, at *2. 6 Moran’s allegations about the alleged harm caused by chemicals in the Bondi Sands’ 7 Products’ are not materially different from the plaintiff’s allegations in Locklin, and the Court 8 finds that reasoning persuasive. The Court also finds the Locklin court’s conclusion that “even if 9 the chemicals pose only a serious – but ultimately uncertain – threat to coral reefs, that may well 10 be enough to prove that” Bondi Sands’ Reef Friendly claim “is false or misleading to a reasonable 11 consumer who cares about avoiding using products that endanger the reefs.” Id. at *4. As in 12 Locklin, the materials cited by Moran do not directly contradict her theory and, thus, do not plead 13 her out of a claim. Id. Bondi Sands’ argument that Moran fails to show the chemicals at issue are 14 actually dangerous goes to whether Moran ultimately will be able to prove her claims that the 15 statement is false or misleading, rather than whether she has alleged that is the case. Accordingly, 16 the Court DENIES, IN PART, Bondi Sands’ motion to dismiss on this basis. 17 Bondi Sands moved to dismiss the breach of warranty and unjust enrichment claims solely 18 on the basis that they were derivative of Moran’s consumer protection claims. Because the Court 19 concludes the consumer protection claims can proceed, it also denies Bondi Sands’ motion to 20 dismiss these derivative claims. 21 D. The Court Grants, in Part, Bondi Sands’ Motion to Dismiss the Equitable Claims. 22 Bondi Sands moves to dismiss Moran’s claims for equitable relief on the basis that she has 23 an adequate remedy at law. It is well-established that claims for relief under the FAL and the 24 UCL are limited to restitution and injunctive relief. See, e.g., Korea Supply Co. v. Lockheed 25 Martin, 29 Cal. 4th 1134, 1146-49 (2003).8 In contrast, the CLRA provides for equitable relief 26 and for damages. In Sonner v. Premier Nutrition, Inc., the Ninth Circuit held “that the traditional 27 1 principles governing equitable remedies in federal courts, including the requisite inadequacy of 2 legal remedies, apply when a party requests restitution under the UCL and CLRA in a diversity 3 action.” 971 F.3d 834, 843-44 (9th Cir. 2020). There, the plaintiff dropped her claims for 4 damages shortly before trial. Because the plaintiff failed to allege an adequate legal remedy in her 5 complaint and conceded her claim for restitution was the same amount of money she had been 6 seeking in damages, the court determined she failed to state a claim for relief. “Sonner fails to 7 explain how the same amount of money for the exact same harm is inadequate or incomplete[.]” 8 Id. at 844. 9 In addition to seeking restitution, Moran seeks prospective injunctive relief. In Ziegler v. 10 WellPet LLC, the court reasoned that damages for past harm were not an adequate remedy for 11 prospective harm caused by alleged false advertising because damages “would [not] ensure that 12 [the plaintiff] (and other consumers) can rely on WellPet’s representations in the future.” 526 F. 13 Supp. 3d 652, 687 (N.D. Cal. 2021); see also Adams v. Cole Haan, LLC, No. SACV 20-913 JVS 14 (DFMx), 2021 WL 4907248, at *2-*4 (C.D. Cal. Mar. 1, 2021) (finding monetary damages 15 “would not necessarily be sufficient to remedy” harm from alleged false advertising); Brooks v. 16 Thomson Reuters Corp., No. 21-CV-01418-EMC, 2021 WL 3621837, at *11 (N.D. Cal. Aug. 16, 17 2021) (declining to apply Sonner to bar UCL claims for prospective injunctive relief because “the 18 prospect of paying damages is sometimes insufficient to deter a defendant from engaging in an 19 alleged unlawful, unfair, or fraudulent business practice”). Assuming Moran sufficiently alleges 20 she has standing, which the Court addresses in the following section, as in Ziegler, her claims for 21 monetary equitable relief would not necessarily redress prospective harm. 22 In paragraph 38 of the FACC, Moran sets forth allegations about why legal monetary 23 remedies would not be adequate, including the procedural posture of the case. (FACC ¶ 38.f.) 24 The Court continues to find that argument unpersuasive. See, e.g., Gardiner v. WalMart, Inc., No. 25 20-cv-4618-JSW, 2021 WL 4992539, at *7 (N.D. Cal. July 28, 2021). In addition, the Court has 26 previously concluded that “nothing in Sonner suggests that the Court should ignore the allegations 27 in the FAC in favor of Rule 8’s general principles.” Hanscom v. Reynolds Consumer Prods., No. 1 The Court also concludes the allegation that no expert discovery has commenced (FACC ¶ 2 38.f) is insufficient to allege Moran lacks an adequate remedy at law. This allegation does no 3 more than speculate that “restitution and damages could be different[.]” Phan v. Sargento Foods, 4 Inc., No. 20-cv-9251-EMC, 2021 WL 2224260, at *5 (N.D. Cal. June 2, 2021) (noting that 5 “speculation is questionable” given that Section 17200 does not permit nonrestitutionary 6 disgorgement) (quoting Julian v. TTE Tech., Inc., No. 20-cv-22857-EMC, 2020 WL 6743912, at 7 *4-5 (N.D. Cal. Nov. 17, 2020)). Moran also argues that because the UCL encompasses conduct 8 that is broader than some of her other claims, she and putative class members “may be entitled to 9 restitution” but not damages.9 Moran does not suggest that she seeks a different amount in 10 damages than she does in restitution. Moran also argues that the statute of limitations on her UCL 11 claim is one year longer than the statute of limitations on her other claims, which would preclude 12 putative class members from obtaining damages on those claims. 13 The Court concludes “these allegations do not establish that the damages she seeks are 14 necessarily inadequate or incomplete. That is, [Moran’s] ‘inability to obtain damages here [would 15 result] from her CLRA [and common law] claims’ failure on the merits” not that there “there is an 16 inherent limitation of the legal remedy that renders it inadequate.” Hanscom, 2022 WL 591466, at 17 *3 (quoting Nacarino v. Chobani, LLC, No. 20-cv-7437-EMC, 2021 WL 3487117, at *12 (N.D. 18 Cal. Aug. 9, 2021)); see also Alvarado v. Wal-mart Assocs., Inc.. No. 20-cv-1926-DSF (JCx), 19 2020 WL 6526372, at *4 (C.D. Cal. Aug. 7, 2020) (concluding shorter statute of limitations on 20 some claims did not render legal remedies inadequate). In addition as in Alvarado, Moran alleges 21 that she bought her sunscreen in July 2021, “so her damages or restitution would not be affected 22 by whether the statute of limitations is three or four years.” Id. 23 Accordingly, the Court concludes Moran fails to allege she lacks an adequate monetary 24 remedy at law, and the Court GRANTS, IN PART, Bondi Sands’ motion to dismiss on this basis. 25 Because the Court cannot conclude it would be futile, it GRANTS Moran leave to amend. 26 9 Moran seeks relief on behalf of a nationwide class, yet seems to suggest that there are 27 material differences between California law and the laws of other states, at least as to the breach of 1 E. The Court Concludes Moran Alleges She Has Standing. 2 Bondi Sands’ final argument is that Moran fails to allege facts to show she has standing. A 3 lack of Article III standing requires dismissal for lack of subject matter jurisdiction under Federal 4 Rule of Civil Procedure 12(b)(1). “A Rule 12(b)(1) jurisdictional attack may be facial or factual.” 5 Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). A “facial” attack accepts the 6 truth of the plaintiff’s allegations but asserts that they “are insufficient on their face to invoke 7 federal jurisdiction.” Id. The district court resolves a facial attack as it would a motion to dismiss 8 under Rule 12(b)(6). Pride v. Correa, 719 F.3d 1130, 1133 (9th Cir. 2013). 9 Moran alleges she purchased the Product based on the Reef Friendly representation and 10 would not have done so, or would have paid substantially less for it, had she known the truth. 11 Therefore, to the extent Bondi Sands argues that Moran fails to allege injury-in-fact to pursue 12 damages, the Court denies the motion. 13 Bondi Sands also challenges Moran’s standing to seek injunctive relief, which requires her 14 to allege she “has suffered or is threatened with a ‘concrete and particularized’ legal harm, coupled 15 with a ‘sufficient likelihood that [she] will again be wronged in a similar way.’” Bates v. United 16 Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007) (quoting Lujan v. Defenders of Wildlife, 504 17 U.S. 555, 560 (1992) and City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983)). The latter 18 inquiry turns on whether the plaintiff has a “real and immediate threat of repeated injury.” Id. 19 The threat of future injury cannot be “conjectural or hypothetical” but must be “certainly 20 impending” to constitute an injury in fact for injunctive relief purposes. Davidson v. Kimberly- 21 Clark Corp., 889 F.3d 956, 967 (9th Cir. 2018). 22 Moran alleges that she “is not personally familiar with the ingredients in the Products and 23 does not possess any specialized knowledge, skill, experience, or education in sun care products, 24 … and their ingredients or formulations.” (FACC ¶ 8.) Therefore, she claims she has no way to 25 determine if the Reef Friendly representation is true and is unable to rely on the representation in 26 the future. (Id.) Bondi Sands argues Moran can simply review the ingredients list to determine if 27 1 the allegedly harmful chemicals are present.10 “Several courts have rejected similar arguments 2 since Davidson.” Moore v. GlaxoSmithKline Consumer Healthcare Holdings (US) LLC, No. 20- 3 cv-9077-JSW, 2021 WL 3524047, at *5 (N.D. Cal. Aug. 6, 2021) (citing cases); but see Cimoli v. 4 Alacer Corp., 546 F. Supp. 3d 897, 906 (N.D. Cal. 2021) (noting “several district courts relying on 5 Davidson have found a plaintiff lacks standing where the plaintiff could ‘easily discover whether a 6 previous misrepresentation had been cured without first buying the product at issue’”) (quoting 7 Cordes v. Boulder Brands USA, Inc., No. CV 18-6534 PSG, 2018 WL 6714323, at *4 C.D. Cal. 8 Oct. 17, 2018)). 9 In Moore, the plaintiff alleged that she was “‘an average consumer who is not sophisticated 10 in the chemistry, manufacturing, and formulation of cosmetic products,’ [and] would not be able 11 to differentiate between cosmetic ingredients that are natural and those that are synthetic.” Id. 12 This Court followed the reasoning of a line of cases that rejected the argument that a plaintiff 13 could avoid future deception by reviewing an ingredients list. Id. This Court also distinguished 14 Joslin v. Clif Bar & Co., a case in which it determined the plaintiff could discover whether the 15 representation had been cured. No. 18-cv-4941-JSW, 2019 WL 5690632 (N.D. Cal. Aug. 26, 16 2019). In Joslin, the plaintiffs alleged the defendant’s use of the term “white chocolate” on a 17 product label was misleading because the product did not contain white chocolate. Although there 18 were other reasons to conclude the plaintiffs in Joslin lacked standing, in Moore, this Court 19 distinguished Joslin because “[w]hite chocolate is a single ingredient, the presence or absence of 20 which would be easily identifiable on the list.” Moore, 2021 WL 3524047, at *6 (citing Joslin, 21 2019 WL 5690632, at *3). 22 The Court concludes the facts in this case present a closer question than the factual 23 situations presented in Moore or in Joslin. Here, Moran claims that the ingredients at issue 24 actually cause harm, rather than alleging claims about their formulation as in Moore, e.g., whether 25 they are natural or synthetic. As was the case in Joslin, the “presence or absence” of those 26 10 Bondi Sands argues this is “underscored” by Moran’s lawsuit against Edgewell and “raises 27 the question of whether [she] was ever ‘injured’ at all.” (Reply at 13 n.5.) At this stage of the 1 ingredients is identifiable from the list. However, Moran also alleges that she does not possess 2 any specialized knowledge, skill, experience, or education in sun care products, … and their 3 ingredients or formulations.” (FACC ¶ 8.) From those facts the Court concludes it is reasonable - 4 and plausible - to infer she may not be able to determine whether the Bondi Sands Products are 5 reef friendly when confronted with them in the future. 6 The Ninth Circuit has stated “[w]e do not think that the FDA requires an ingredient list so 7 that manufacturers can mislead consumers and then rely on the ingredient list to correct those 8 misinterpretations and provide a shield for liability for the deception. Instead, reasonable 9 consumers expect that the ingredient list contains more detailed information about the product that 10 confirms other representations on the packaging.” Williams v. Gerber Prod. Co., 552 F.3d 934, 11 939-40 (9th Cir. 2008). The Court concludes that, based on the facts in this case, the Court 12 concludes Moran’s allegations are sufficient to plausibly allege she has standing to seek injunctive 13 relief. Cf. Prescott, 2020 WL 4430958, at *7 (“[A]bsent an encyclopedic knowledge of sunscreen 14 active ingredients, Plaintiffs may not be able to truly know whether a sunscreen is truly ‘mineral- 15 based.’”). 16 Accordingly, the Court DENIES Bondi Sands’ motion to dismiss on this basis as well. 17 CONCLUSION 18 For the foregoing reasons, the Court GRANTS, IN PART, AND DENIES, IN PART 19 Bondi Sands’ motion to dismiss. As noted, the parties stipulated that Moran may file a Second 20 Amended Complaint, and the Court has approved that stipulation. The Court shall not require 21 Moran to file the proposed Second Amended Complaint until she determines whether she intends 22 to amend her allegations regarding the claims for monetary injunctive relief. Accordingly, the 23 Court GRANTS Moran until May 20, 2022, to file a second amended complaint, that shall include 24 the amendments addressed in the stipulation and which may amend the allegations regarding 25 equitable relief. Bondi Sands shall answer or otherwise respond by June 3, 2022, although the 26 parties may stipulate to extend that deadline. 27 It is FURTHER ORDERED that the parties shall appear for a case management conference 1 |) 2022. 2 IT IS SO ORDERED.

3. || Dated: April 29, 2022 / | ( } JEEFREY S /WHIT 5 United sft Distrigt Judge 6 ff j J

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