1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MARK TOBIN, Case No. 23-cv-05061-JSW
8 Plaintiff, ORDER GRANTING, IN PART, AND 9 v. DENYING, IN PART, DEFENDANT’S MOTION TO DISMISS; SETTING 10 PROCTER & GAMBLE COMPANY, CASE MANAGEMENT CONFERENCE Defendant. Re: Dkt. No. 29 11
12 13 Now before the Court for consideration is the motion to dismiss filed by Defendant Procter 14 & Gamble Company (“Defendant”). The Court has considered the parties’ papers, relevant legal 15 authority, and the record in this case, and it finds the matter suitable for disposition without oral 16 argument. See Civ. L.R. 7-1(b). The Court hereby GRANTS, IN PART, and DENIES, IN PART, 17 Defendant’s motion. 18 BACKGROUND 19 On November 29, 2022, Plaintiff Mark Tobin purchased a bottle of Defendant’s NyQuil 20 Severe Honey Cold & Flu liquid medicine (the “Product”). (First Amended Complaint (“FAC”) ¶ 21 39.) The Product’s label included representations that it “Coats & Soothes” and was “Made with 22 Real Honey” and included the word “Honey” on the front label (the “Representations”). (Id. ¶ 23 27.) In addition to the text, the Product’s cap also looked like dripping honey and the front label 24 had an image of a “honey dipper dripping honey over a honeycomb.” (Id. ¶¶ 2, 27, 39-43.) 25 26 27 1 7 . 2 fie yi YAU fies Soames 3 ian [ 3 NS 4 } me = 7 i sail 1am a ——— = a 6 Sans a — a 7 LN ee] SSaeemra—e| Bar a a = om ae , 0 bee ee | Shee 11 qa 12
13 Plaintiff alleges he purchased the Product because he “reasonably believed [it was] made
Y 14 || with sufficient honey such that honey flavors the product, coats and soothes, and is a beneficial
15 ingredient in the Product[].” Ud. 950.) Plaintiff also alleges that had he known the Product was 16 || “made with such an insignificant amount of honey that the honey does not: flavor the products,
17 || coat and soothe, or provide the benefits of real honey,” he would not have purchased or would 6 18 || have paid less for the Product. (Ud. 9§ 4, 13, 53.) Plaintiff does not allege whether he would 19 || purchase the Product again. 20 Based on these and other allegations the Court will address in its analysis, Plaintiff brings 21 the following claims on behalf of himself and a putative class who purchased the Product or other 22 || products bearing allegedly similar labels!: (1) violations of California’s Unfair Competition Law, 23 Business and Professions Code sections 17200, et seg. (“UCL claim”); (2) violations of 24 || California’s False Advertising Law, Business and Professions Code sections 17500, et seq. 25 (“FACL claim”); (3) violations of California’s Consumer Legal Remedies Act, Civil Code 26 27 Plaintiff includes in his definition of “Products” Defendant’s DayQuil Severe Honey Cold 28 & Flu and DayQuil and NyQuil Kids Honey Cold & Cough + Congestion. He also includes labels for the same Products that state the Products are “flavored with real honey.” (FAC at 2 n.1)
1 sections 1750, et seq. (“CLRA claim”); (4) breach of express warranty; and (5) quasi contract. 2 ANALYSIS 3 A. Applicable Legal Standards. 4 A lack of Article III standing requires dismissal for lack of subject matter jurisdiction 5 under Federal Rule of Civil Procedure 12(b)(1). “A Rule 12(b)(1) jurisdictional attack may be 6 facial or factual.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). A 7 “facial” attack accepts the truth of the plaintiff’s allegations but asserts that they “are insufficient 8 on their face to invoke federal jurisdiction.” Id. The district court resolves a facial attack as it 9 would a motion to dismiss under Rule 12(b)(6). Pride v. Correa, 719 F.3d 1130, 1133 (9th Cir. 10 2013). 11 A court’s inquiry under Rule 12(b)(6) “is limited to the allegations in the complaint, which 12 are accepted as true and construed in the light most favorable to the plaintiff.” Lazy Y Ranch Ltd. 13 v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008). Even under the liberal pleading standard of Rule 14 8(a)(2), “a plaintiff’s obligation to provide ‘grounds’ of his ‘entitle[ment] to relief’ requires more 15 than labels and conclusions, and formulaic recitation of the elements of a cause of action will not 16 do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citing Papasan v. Allain, 478 U.S. 17 265, 286 (1986)). Pursuant to Twombly, a plaintiff cannot merely allege conduct that is 18 conceivable but must instead allege “enough facts to state a claim to relief that is plausible on its 19 face.” Id. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that 20 allows the court to draw the reasonable inference that the defendant is liable for the misconduct 21 alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). 22 Claims sounding in fraud or mistake are subject to heightened pleading requirements. 23 Federal Rule of Civil Procedure 9(b) requires plaintiffs to “state with particularity the 24 circumstances regarding fraud or mistake.” Fed. R. Civ. Proc. 9(b). Thus, “[a]verments of fraud 25 must be accompanied by ‘the who, what, when, where, and how’ of the misconduct charged.” 26 Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1107 (9th Cir. 2003) (quoting Cooper v. Pickett, 27 137 F.3d 616, 627 (9th Cir. 1997)). 1 to amend unless amendment would be futile. Reddy v. Litton Indus. Inc., 912 F.3d 291, 296 (9th 2 Cir. 1990). 3 B. The Court Does Not Consider the Parties’ Exhibits in Resolving the Motion. 4 Defendant submits competing images of the Product and its labels to counter the FAC. 5 (See Dkt. Nos. 29, 31.) Defendant contends the images are incorporated by reference into the 6 FAC. The label in Defendant’s exhibit lists “flavor (with honey)” as an “inactive ingredient,” 7 whereas Plaintiff’s lists simply “flavor.” (See id.) Plaintiff’s exhibit matches the excerpt in 8 paragraph 31 of the FAC, whereas Defendant’s does not. In light of this discrepancy, the Court 9 finds that the images are not incorporated by reference, and it does not consider the exhibits in 10 resolving the Motion. See Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (holding 11 courts may not consider extrinsic evidence for factual challenges to well-pleaded facts on motions 12 to dismiss under Rule 12(b)(6)); see also Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 13 1003 (9th Cir. 2018) (noting “it is improper to assume the truth of an incorporated document if 14 such assumptions only serve to dispute facts stated in a well-pleaded complaint”). 15 C. Plaintiff’s State Law Claims Are Not Preempted. 16 Defendant argues that Plaintiff’s UCL, FAL, and CLRA claims are expressly preempted 17 by the Food, Drug, and Cosmetic Act (“FDCA”), 21 U.S.C. sections 301, et seq. Plaintiff argues 18 that the FDCA does not his preempt state law claims because the labels are “optional, advertising 19 messages that have nothing to do with any FDA requirement.” (Opp. at 6.) 20 The Supremacy Clause of the United States Constitution provides that federal statutes take 21 precedence over state law. See U.S. Const., art. VI, cl. 2. Thus, “state law that conflicts with 22 federal law is without effect.” Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 516 (1992) (internal 23 quotations omitted). Additionally, federal law may expressly preempt state law to the extent that 24 Congress evinces a clear intent to do so. Astiana v. Hain Celestial Grp., Inc., 783 F.3d 753, 757 25 (9th Cir. 2015). Defendant bears the burden of proving that state law claims are preempted. 26 Pardini v. Unilever United States, Inc., 65 F.4th 1081, 1084 (9th Cir. 2023). 27 “In analyzing express preemption, we ‘start with the assumption that the historic police 1 manifest purpose of Congress.’” Astiana, 783 F.3d at 757 (quoting Rice v. Santa Fe Elevator 2 Corp., 331 U.S. 218, 230 (1947)). The Court thus looks to the plain text of the preemption 3 provision to determine Congress’s purpose. 4 Here, the FDCA contains an express preemption provision, which provides that “no State 5 ... may establish or continue in effect any requirement ... that is different from or in addition to, or 6 that is otherwise not identical with a requirement under the [FDCA].” 21 U.S.C. § 379r(a)(2). 7 Accordingly, Congress’s clear purpose was to preempt any state law that differs from or adds to 8 the FDCA’s requirements, but not to preempt state law requirements that are identical to the 9 FDCA’s requirements. When considering whether state law is “identical” to the FDCA, the Court 10 “bear[s] in mind the concept of equivalence,” and it will find any state law requirement to be 11 identical if it is the “genuine[] equivalent” of the federal requirement. Bates v. Dow Agrosciences 12 LLC, 544 U.S. 431, 454 (2005). State law claims that are “fully consistent with federal 13 requirements” are not preempted. Id. at 452. 14 The FDCA and regulations promulgated thereunder provide a largely comprehensive set of 15 requirements for cough and cold medications. Under this regime, a medication is “misbranded. . . 16 [i]f its labeling is false or misleading in any particular.” 21 U.S.C. § 352. “An over-the-counter 17 cold [or] cough. . . drug product in a form suitable for oral. . . administration . . . is not misbranded 18 if it meets each of the conditions in [21 C.F.R. Part 341] and each of the general conditions 19 established in § 330.1.” 21 C.F.R. § 341.1. Part 341 provides a non-exclusive list of statements 20 that may be used to describe cough and cold medications. 21 C.F.C. § 341.74(b). “Other truthful 21 and nonmisleading statements, describing only the indications for use that have been established 22 and listed in [§ 341.74(b)], may also be used, . . . subject to the provisions of section 502 of the act 23 relating to misbranding and the prohibition in section 301(d) of the act against the introduction or 24 delivery for introduction into interstate commerce of unapproved new drugs in violation of section 25 505(a) of the act.” Id. 26 The FDA provides additional requirements “[f]or purposes of classifying over-the-counter 27 (OTC) drugs as drugs generally recognized among qualified experts as safe and effective for use 1 promulgated one such monograph relating to “cold, cough, allergy, bronchodilator, and 2 antiasthmatic drug products for over-the-counter human use.” 67 Fed. Reg. 78,158-01. Defendant 3 argues that this monograph requires drugs to contain only the “minimum quantity [of natural 4 substances] needed to produce the intended effect.” Id. at 78,160. Defendant contends that if it 5 complies with the instruction to use the “minimum quantity” of honey, then the labels are not 6 misbranded. 7 Defendant’s arguments miss the mark for several reasons. Chief among these reasons is 8 that Plaintiff does not seek to impose a labeling “requirement” on Defendant that is different from 9 or adds to Defendant’s obligations under the FDCA. Plaintiff does not, for example, seek an 10 injunction requiring Defendant to add language to its labels. (See FAC, Prayer.) Instead, Plaintiff 11 seeks declaratory relief regarding alleged affirmative misrepresentations not specifically covered 12 by the FDCA or FDA regulations. See, e.g., 21 C.F.R. § 341.74(b) (not including words “coats” 13 and “soothes” on list of approved label terms). 14 Further, and contrary to Defendant’s assertion, the cough and cold medicine monograph 15 does not specify the amount of natural substances to be used in over-the-counter medications 16 generally. 67 Fed. Reg. 78,158-01, at 78,160. The monograph specifically addresses menthol, 17 which is both an active ingredient and a potential inactive flavoring ingredient. See id. The 18 monograph borrows logic from a food regulation that specifically addresses synthetic, not natural, 19 flavoring substances. See id. (citing 21 C.F.R. § 172.515). Defendant does not convince the Court 20 that this paragraph should apply to honey, which is a natural substance and not listed as an active 21 ingredient in antitussitive medications. See 21 C.F.R. § 341.14 (identifying menthol, but not 22 honey, among active ingredients). 23 Plaintiff’s state law claims are coterminous with the FDCA’s prohibition on false or 24 misleading labels. Because Plaintiff does not seek to impose an extra requirement on the labels, or 25 to prevent Defendant from using language approved by the FDCA and its implementing 26 regulations, Plaintiff’s claims are not preempted. See Astiana, 783 F.3d at 758 (finding no 27 preemption where plaintiff “is not asking [defendant] to modify or enhance any aspect of its 1 statements that contradicted the true ingredients listed on the FDA-mandated label”). 2 D. The FAC Plausibly Alleges that the Representations Would Mislead a Reasonable Consumer. 3 4 Plaintiff’s FAL, UCL, and CLRA claims each require Plaintiff to allege facts showing that 5 the labels would mislead a reasonable consumer. Jonathan Chuang v. Dr. Pepper Snapple Grp., 6 Inc., No. CV1701875MWFMRWX, 2017 WL 4286577, at *3 (C.D. Cal. Sept. 20, 2017). 7 “[T]hese laws prohibit ‘not only advertising which is false, but also advertising which, although 8 true, is either actually misleading or which has a capacity, likelihood or tendency to deceive or 9 confuse the public.’” Kasky v. Nike, Inc., 27 Cal.4th 939, 951 (2002), as modified (May 22, 2002) 10 (quoting Leoni v. State Bar, 39 Cal.3d 609, 626 (1985)). Even so, “[t]he reasonable consumer 11 standard requires more than a mere possibility that the label ‘might conceivably be misunderstood 12 by some few consumers viewing it in an unreasonable manner.’” McGinity v. Procter & Gamble 13 Co., 69 F.4th 1093, 1097 (9th Cir. 2023) (quoting Ebner v. Fresh, Inc., 838 F.3d 958, 965 (9th Cir. 14 2016)) (internal marks removed). A plaintiff must establish “a probability ‘that a significant 15 portion of the general consuming public or of targeted customers, acting reasonably in the 16 circumstances, could be misled.’” Ebner, 838 F.3d at 965 (quoting Lavie v. Procter & Gamble 17 Co., 105 Cal.App.4th 496, 508 (2003)). 18 Whether a representation is false or misleading to the reasonable consumer is typically a 19 question of fact not suited to a motion to dismiss. Williams v. Gerber Prod. Co., 552 F.3d 934, 20 938 (9th Cir. 2008). However, “in rare situations a court may determine, as a matter of law, that 21 the alleged violations of the UCL, FAL, and CLRA are simply not plausible.” Ham v. Hain 22 Celestial Grp., Inc., 70 F. Supp. 3d 1188, 1193 (N.D. Cal. 2014). The Court considers the 23 Representations in context to determine if Plaintiff’s allegations are plausible. Moore v. Trader 24 Joe's Co., 4 F.4th 874, 882 (9th Cir. 2021). 25 The FAC faults Defendant’s products for creating the false impression that “the amount of 26 real honey in the Products (i) flavors the Products; (ii) coats and soothes; and (iii) provides the 27 benefits of real honey.” (FAC ¶ 28.) Plaintiff identifies the phrases “Made with Real Honey,” 1 and cap design, which prominently feature honey. Plaintiff does not contend that the Products do 2 not contain honey, do not taste like honey, or do not “coat and soothe”; rather, he contends that 3 honey is present in such insignificant amounts so as to not provide the Product’s honey flavor or 4 the coating and soothing effects. 5 Defendant contends that the FAC fails to allege that a reasonable consumer would reach 6 these three conclusions based on the Product label, or that the label is false or misleading. 7 Defendant asserts that the label accurately reflects that the Product contains honey and “coats and 8 soothes,” and so cannot, as a matter of law, be misleading. 9 1. “Made with Real Honey.” 10 The parties agree that some iota of honey is present in the Product, and so the 11 Representation that the Product is “made with real honey” is accurate. However, even if its 12 Representations are technically true, Defendant may be liable under the UCL, FAL, or CLRA if 13 the Representations would confuse or deceive a reasonable consumer regarding the amount of 14 honey in the Product. See Workman v. Plum Inc., 141 F. Supp. 3d 1032, 1035 (N.D. Cal. 2015) 15 (noting California consumer protection laws extend beyond representations that are false). While 16 honey may be present in the Product, prominent representations regarding its presence may be 17 misleading if so little honey is present that it provides no benefit. See Tucker v. Post Consumer 18 Brands, LLC, No. 19-CV-03993-YGR, 2020 WL 1929368, at *5 (N.D. Cal. Apr. 21, 2020) 19 (observing that, “[a]lthough the package does not make any objective representations about the 20 amount of honey in the cereal, a reasonable consumer could see the prominent honey-related 21 words and imagery and be deceived into thinking the cereal contained relatively less refined sugar 22 and more honey.”); see also Sharpe v. A&W Concentrate Co., 481 F. Supp. 3d 94, 104 (E.D.N.Y. 23 2020) (“A chocolate chip cookie may not necessarily be comprised predominantly of chocolate 24 (one can only dream), but it would still likely be misleading to label it as ‘Made With Natural 25 Chocolate’ if the cookie's chocolate's content is 99.999% artificial and synthetic.”). 26 Here, the Product contains numerous, prominent Representations that compound the effect 27 of the “Made with Real Honey” statement. The statement is in capitalized letters on the front and 1 Product is visible through the clear bottle. The front label has a large image of a honey dripper 2 dripping honey onto a honeycomb. The word “Honey” before “Cold & Flu” is gold, with the “O” 3 shaped like a hexagon, further evoking a honeycomb. Honey is the central design feature of the 4 Product label, coloring, and packaging. 5 These prominent representations could plausibly convince a reasonable consumer that the 6 Product is made with a non-negligible amount of honey such that it flavors the Product and coats 7 and soothes. Yet, the amount of honey is so negligible that it is not included on the Product’s 8 ingredients lists. The Court thus cannot say that the “made with” Representation is not misleading 9 as a matter of law. See Sharpe, 481 F. Supp. 3d at 104 (noting label could be misleading if “made 10 with” claim referred to negligible ingredient). 11 2. “Flavored with Real Honey.” 12 Defendant contends that the Representation “Flavored with Real Honey” is literally true 13 given the presence of some honey in the products, and it further contends that it is implausible that 14 a reasonable consumer would seek out DayQuil and NyQuil flavored with natural sweeteners 15 when the active ingredients are synthetic and prominently listed on the labels. 16 Defendant’s inference regarding consumer expectations is just that: an unsupported 17 inference. Plaintiff alleges that he, personally, was led to believe that the “Flavored with Real 18 Honey” Representation meant that real honey was the primary source of the “honey” flavor. (FAC 19 ¶¶ 28, 50.) Plaintiff could only dispel this belief by lifting the peel-back label on the back of the 20 bottles to find the inactive ingredients list. (Id. ¶¶ 35, 44.) It is plausible that a reasonable 21 consumer would take the label to mean what it says: that the medicines are flavored with honey, 22 not other flavoring ingredients with an undetectable amount of honey. See Moore v. Mars Petcare 23 US, Inc., 966 F.3d 1007, 1017 (9th Cir. 2020) (noting “[l]iteral truth can sometimes protect a 24 product manufacturer from a misleading claim, but it is no guarantee”) (quoting Brady v. Bayer 25 Corp., 26 Cal.App.5th 1156, 1166 (2018)); see also Sharpe, 481 F. Supp. 3d at 104. 26 Moreover, Plaintiff plausibly alleges that the benefits of natural ingredients are important 27 to consumers who purchase the Product. (FAC ¶¶ 6, 13.) Although the active ingredients are 1 ingesting for mere flavoring purposes. As the song goes, “a spoonful of sugar helps the medicine 2 go down,” not “a spoonful of flavor, glycerin, saccharin sodium, sorbitol, and sucralose helps the 3 medicine go down.” See id. ¶ 32; MARY POPPINS (Walt Disney 1964). 4 3. “Coats and Soothes.” 5 Defendant likewise does not convince the Court that prominent representations regarding 6 the Product’s “coating and soothing” qualities could not be misleading because the other, active 7 ingredients in the Product work to “coat and soothe.” The Representation “Coats and Soothes” 8 appears on the cap, which is designed to look like honey dripping off a honeycomb. The font in 9 which “Coats and Soothes” is written is bubbled and dark gold to look like honey. Given the 10 Representation, considered in context of the label design, coloring, font, placement, and graphics, 11 it is plausible that a reasonable consumer could expect that honey, rather than other, artificial 12 ingredients, is the source of the Product’s coating and soothing effect. 13 In summation, the Court rejects Defendant’s arguments that no reasonable consumer could 14 plausibly find the Representations misleading. The Court denies the motion, in part, on this basis. 15 E. The Court Dismisses the Claims for Equitable Relief, With Leave to Amend. 16 Defendant moves to dismiss Plaintiff’s FAL and UCL claims for equitable relief on the 17 basis that Plaintiff fails to allege he lacks an inadequate remedy at law. It is well-established that 18 claims for relief under the FAL and the UCL are limited to restitution and injunctive relief. See, 19 e.g., Korea Supply Co. v. Lockheed Martin Corp, 29 Cal. 4th 1134, 1146-49 (2003). In contrast, 20 the CLRA provides for equitable relief and for damages. “[T]he traditional principles governing 21 equitable remedies in federal courts, including the requisite inadequacy of legal remedies, apply 22 when a party requests restitution under the UCL and CLRA in a diversity action.” Sonner v. 23 Premier Nutrition Corp., 971 F.3d 834, 843-44 (9th Cir. 2020). 24 Plaintiff does not include any allegations, factual or otherwise, that he lacks an inadequate 25 remedy at law. Accordingly, the Court grants, in part, Defendant’s motion to dismiss on this 26 basis. See Hanscom v. Reynolds Consumer Prods., No. 21-cv-3434-JSW, 2022 WL 591466, at *3 27 (N.D. Cal. Jan. 21, 2022). Because the Court cannot say it would be futile, it will grant Plaintiff 1 F. The Court Dismisses the Express Warranty Claim, With Leave to Amend. 2 Defendant argues that the express warranty claim must be dismissed because Plaintiff fails 3 to allege (i) the exact terms of the warranty, or (ii) the damages he suffered by breach of the 4 warranty. The Court finds that Plaintiff pleads the warranty’s terms, but not damages. 5 “To prevail on a breach of express warranty claim, a plaintiff must prove that the seller (1) 6 made an affirmation of fact or promise or provided a description of its goods; (2) the promise or 7 description formed part of the basis of the bargain; (3) the express warranty was breached; and (4) 8 the breach caused injury to the plaintiff.” Viggiano v. Hansen Natural Corp., 944 F. Supp. 2d 9 877, 893 (C.D. Cal. 2013). 10 Plaintiff’s theory is that Defendant (1) made an affirmative promise that the Product was 11 “made with” or “flavored with” honey such that the honey would “coat and soothe”; (2) the 12 promises “formed the basis of the price” Plaintiff paid for the Product; (3) the Product did not, in 13 fact, contain enough honey to flavor the Product or to coat and soothe; and (4) Plaintiff was 14 damaged by the purchase price. Strumlauf v. Starbucks Corp., 192 F. Supp. 3d 1025, 1031 (N.D. 15 Cal. 2016); (FAC ¶¶ 130-31). The Court agrees this theory is plausible, for the same reasons it 16 finds that a reasonable consumer would understand the Representations to mean that the Product 17 contains enough honey to flavor the Product, coat and soothe, or provide other benefits. 18 Nevertheless, Plaintiff’s claim stumbles on the fourth prong: damages. Plaintiff now 19 argues that he seeks the “benefit of his bargain” damages in the alternative to purchase price 20 damages. That argument contradicts the plain text of the FAC, which claims that Plaintiff and 21 putative class members “were harmed in the amount of the purchase price they paid” and in “the 22 amounts paid for the Products, and any interest that would have accrued on those monies.” (Id. ¶¶ 23 130-31.) Plaintiff’s allegations of harm are not plausible given that he received some value from 24 the purchase. See, e.g., In re MyFord Touch Consumer Litig., 291 F. Supp. 3d 936, 966 (N.D. Cal. 25 2018) (noting damages for breach of warranty for defect in vehicles “will be measured by the 26 diminution in value between the vehicles as warranted and the vehicles as sold”). 27 Because Plaintiff can cure this defect, the Court dismisses this claim with leave to amend. 1 G. The Court Dismisses the Quasi-Contract Claim, With Leave to Amend. 2 Under California law, the elements of a quasi-contract claim are “(1) a defendant’s receipt 3 of a benefit and (2) unjust retention of that benefit at the plaintiff’s expense.” MH Pillars Ltd. v. 4 Realini, 277 F. Supp. 3d 1077, 1094 (N.D. Cal. 2017) (citing Peterson v. Cellco P’ship, 164 Cal. 5 App. 4th 1583, 1593 (2008)). Here, Defendant argues that the quasi-contract claim should be 6 dismissed because (i) Plaintiff fails to allege he lacks an adequate remedy at law; (ii) Plaintiff 7 received the benefit of his bargain; and (iii) the quasi-contract claim is duplicative of Plaintiff’s 8 other claims. 9 Defendant’s latter argument is precluded by Ninth Circuit precedent holding that district 10 courts should not dismiss claims solely for being duplicative. Astiana, 783 F.3d at 762-63 11 (holding, “[t]o the extent the district court concluded that the cause of action was nonsensical 12 because it was duplicative of or superfluous to Astiana’s other claims, this is not grounds for 13 dismissal.”). 14 As discussed above, Plaintiff plausibly alleges that a reasonable consumer would 15 understand the Representations to promise that the Product was made with a non-negligible 16 amount of honey. If the Product does not contain sufficient honey to coat and soothe or to flavor 17 the Product, then Defendant’s retention of a price premium from the Representations could be 18 unjust. 19 However, Plaintiff does not rebut Defendant’s argument that Plaintiff failed to plead facts 20 showing that Plaintiff lacks an adequate remedy at law. In the absence of such allegations, 21 Plaintiff’s quasi-contract claim fails. 22 Because amendment would not be futile, the Court grants Plaintiff leave to amend. 23 H. Standing for Products Not Purchased. 24 Lastly, Defendant argues that Plaintiff lacks standing to seek relief based on products that 25 he did not purchase. This challenge is not well taken, because a plaintiff who seeks to represent a 26 putative class may have standing to pursue claims based upon products he did not purchase. 27 Melendres v. Arpaio, 784 F.3d 1254, 1261-62 (9th Cir. 2015). If the named plaintiff has a claim, 1 injury” as unnamed class members unless the conduct raises “a significantly different set of 2 concerns.” Id. at 1263 (citing Gratz v. Bollinger, 539 U.S. 244, 265 (2003). Differences between 3 the claims are then tested at the class certification stage. Id. at 12-62-63. 4 To make this determination in the labeling context, “courts look to a series of factors 5 including whether the challenged products are of the same kind, comprised of largely the same 6 ingredients, and whether each of the challenged products bears the same alleged mislabeling[.]” 7 Roffman v. Rebbl, Inc., 653 F. Supp. 3d 723, 729 (N.D. Cal. 2023) (quoting Figy v. Frito-Lay N. 8 Am., Inc., 67 F. Supp. 3d 1075, 1083 (N.D. Cal. 2014)). Courts have found that diverse products 9 bearing similar labels are “substantially similar.” Maisel v. S.C. Johnson & Son, Inc., No. 21-CV- 10 00413-TSH, 2021 WL 1788397, at *4 (N.D. Cal. May 5, 2021) (collecting cases). “In cases 11 where a plaintiff's allegations that a product's label would mislead a reasonable consumer ‘require 12 a context-specific analysis of the appearance of the label, the misrepresentation's placement on the 13 label, and other information contained on the label,’ the plaintiff ‘may only be allowed to pursue 14 those claims for products with identical labels.’” Zimmerman v. L'Oreal USA, Inc., No. 22-CV- 15 07609-HSG, 2023 WL 4564552, at *3 (N.D. Cal. July 17, 2023) (quoting Ang v. Bimbo Bakeries 16 USA, Inc., No. 13-CV-01196-WHO, 2014 WL 1024182, at **4-8 (N.D. Cal. Mar. 13, 2014)). 17 Here, the products that Plaintiff did not purchase differ from the Product in the following 18 ways: certain of the labels were for DayQuil, not NyQuil, medicine; the products directed at 19 children include the word “Kids” in the name (DayQuil and NyQuil Kids Honey Cold & Cough + 20 Congestion); and the DayQuil and NyQuil Severe Honey Cold & Flu Liquid medicines might say 21 “Flavored with Real Honey” instead of “Made with Real Honey” on the cap. (See FAC ¶¶ 1-2.) 22 Defendant contends that the “Flavored with Real Honey” labels are materially different 23 than the “Made with Real Honey” labels. It argues that “courts have acknowledged there is a 24 meaningful difference between saying a product is ‘made’ with an ingredient and ‘flavored’ with 25 an ingredient.” (Mot. at 14.) 26 Defendant’s authority undercuts its argument. In Cruz v. D.F. Stauffer Biscuit Co., for 27 example, the Magistrate Judge found that the absence of a claim on the label that the lemon snap 1 were “flavored” with lemons. No. 20CV2402PGGJLC, 2021 WL 5119395, at *6 (S.D.N.Y. Nov. 2 4, 2021), report and recommendation adopted, No. 20CIV2402PGGJLC, 2022 WL 4592616 3 (S.D.N.Y. Sept. 29, 2022). Cruz thus supports an inference of some degree of interchangeability 4 between “made with” and “flavored with” statements. Similarly, the label at issue in Fahey v. 5 Whole Foods Market, Inc. did not include any “made with” or “flavored with” representations that 6 would imply vanilla was an ingredient in vanilla almond milk. No. 20-CV-06737-JST, 2021 WL 7 2816919, at *3 (N.D. Cal. June 30, 2021). In reaching this conclusion, the Fahey court cited a 8 decision holding that a “made with aged vanilla” claim on a label “implies that the product’s 9 vanilla flavor is derived predominately from the vanilla plant.” Id. (citing Dailey v. A&W 10 Concentrate Co., No. 19-CV-768 (BMC), 2021 WL 777114, at *1 (N.D. Cal. Feb. 16, 2021)). 11 Finally, Red v. Kraft Foods, Inc. is inapposite because, in that case, the plaintiff challenged the 12 phrase “made with real vegetables.” No. CV 10-1028-GW(AGRX), 2010 WL 11586887, at *4 13 (C.D. Cal. Nov. 4, 2010). In finding that this “made with” statement likely did not relate to the 14 product’s characterizing flavor, the court mused, “Query, is there a taste that is associated with 15 ‘real vegetables?’” Id. n.4. Honey, unlike unspecified “real vegetables,” has a distinct and well- 16 known flavor. 17 Plaintiff plausibly asserts that “Made with Real Honey” and “Flavored with Real Honey” 18 mislead consumers in substantially the same way. The phrases are located in the same position on 19 the bottle cap, in the same font, on the same or similar background of dripping honey. The other 20 information and design on the labels are the same. The Product ingredients are the same. 21 According to Plaintiff, both phrases imply that honey is the predominant source of the honey 22 flavor, and that honey is primarily responsible for the medicines’ coating and soothing effect. 23 Whether this contention is correct is a question of fact not suitable for resolution at this stage. 24 The Court finds that Plaintiff has standing to pursue claims relating to the products he did 25 not personally purchase. 26 CONCLUSION 27 For the foregoing reasons, the Court hereby GRANTS, IN PART, and DENIES, IN PART, 1 e Plaintiff's FAL, UCL, and Quasi-Contract claims are dismissed, without prejudice, for 2 failure to plead facts showing that Plaintiff lacks an adequate remedy at law; 3 e Plaintiff's Breach of Express Warranty claim is dismissed because Plaintiff fails to 4 plead the appropriate measure of damages; 5 e Plaintiff's CLRA claim remains, because the claim is not preempted and Plaintiff 6 plausibly alleges that a reasonable consumer would be misled by the Representations. 7 Plaintiff may file an amended pleading, if it so chooses, by May 1, 2024. The Court 8 || HEREBY ORDERS the parties to appear for a Case Management Conference on June 21, 2024, at 9 11:00 a.m. The parties shall submit an updated Joint Case Management Statement no later than 10 || June 14, 2024. 1] IT IS SO ORDERED. 12 || Dated: April 9, 2024 13 Sy deekes— 14 Ua d States strict Judge 15
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