and Submitted January 11, 2016, Pasadena, California
from the United States District Court for the Central
District of California. DC No. 8:13 cv-00477 JVS-RNB. James
V. Selna, District Judge, Presiding.
panel affirmed the district court's Fed.R.Civ.P. 12(b)(6)
dismissal of a plaintiff's putative consumer class action
alleging that cosmetics and skin care products manufacturer
Fresh, Inc. deceived consumers about the quantity of lip balm
in its Sugar Lip Treatment product line.
panel held that under California law, plaintiff has not
alleged, and cannot allege, facts to state a plausible claim
that the Sugar label was false, deceptive, or misleading; and
thus, the district court did not err in dismissing the
label-based claims. The panel also held that because
plaintiff cannot plausibly allege that Sugar's design and
packaging was deceptive, the district court did not err in
dismissing the packaging-based claims. The panel further held
that the district court correctly concluded that the First
Amended Complaint failed to allege a violation of the
California Fair Packaging and Labeling Act, Cal. Bus. & Prof.
Code § 12606(b).
panel held that any further amendment of plaintiff's
complaint would be futile. Finally, the panel held that
because the First Amended Complaint failed to state a claim
under any of the California statutes -- the Unfair
Competition Law, the Consumer Legal Remedies Act, the False
Advertising Law, and the Fair Packaging and Labeling Act, the
unjust enrichment cause of action was mooted.
Alexander Iliff (argued), Dorsey & Whitney LLP, New York, New
York; James E. Howard, Dorsey & Whitney LLP, Seattle,
Washington; Adam H. Springel, Springel & Fink LLP, Costa
Mesa, California, for Plaintiff-Appellant.
R. Smerek (argued), Drew A. Robertson, and Shawn Rieko Obi,
Winston & Strawn LLP, Los Angeles, California, for
Jerome Farris, A. Wallace Tashima, and Jay S. Bybee, Circuit
Judges. Opinion by Judge Tashima.
Wallace Tashima, Circuit Judge.
Ebner (" Plaintiff" ) alleges that cosmetics and
skin care products manufacturer Fresh, Inc. ("
Fresh" ) deceived consumers about the quantity of lip
balm in its Sugar Lip Treatment (" Sugar" ) product
line. Although Sugar's label accurately indicates the net
weight of included lip product, the tube design uses a screw
mechanism that allows only 75% of the product to advance up
the tube. A plastic stop device prevents the remaining 25%
from advancing past the tube opening. Each Sugar tube
contains a weighted metallic bottom and is wrapped in
oversized packaging. Plaintiff brought a putative consumer
class action against Fresh, alleging that Fresh's label,
tube design, and packaging are deceptive and misleading. The
district court granted Fresh's Rule 12(b)(6) motion to
dismiss Plaintiff's First Amended Complaint ("
FAC" ) with prejudice. We affirm.
accept as true the well-pleaded factual allegations in the
complaint. Skilstaf, Inc. v. CVS Caremark Corp., 669
F.3d 1005, 1014 (9th Cir. 2012). According to the FAC, Sugar
is a lip treatment that comes in a variety of flavors and
tints and sells in retail stores and on the internet for
approximately $22.50 to $25.00 per unit. Over the past four
years, Plaintiff, a California resident, has purchased Sugar
at various locations in Southern California.
comes in an oversized dispenser tube that uses a screw
mechanism to push the lip product to the top of the tube. The
tube is packaged and sold in a large cardboard box. Both the
tube and the cardboard box have labels indicating the net
weight of the included lip product. For an "
original" size tube, the indicated product weight is
" 4.3g e 0.15 oz." ; for the " mini"
size, the label reads " 2.2.g e 0.08 oz." The FAC
does not allege that the Sugar tube contains less than the
stated quantity of product. Rather, it alleges that the
stated product quantity is false and misleading because only
a portion of that product is reasonably accessible to the
consumer. Specifically, the tube's screw mechanism
permits only 75% of the total lip product to advance past the
top of the tube. A plastic stop device prevents the remaining
25% of the product " from being accessible to the
consumer in its intended manner or any other reasonable
manner." Plaintiff alleges that the " intended
manner" of application is to apply the product from the
tube directly to the lips. By contrast, other lip balms using
a dispenser tube, such as Burt's Bees, make " all or
more" of the advertised product weight accessible to the
alleges that Sugar's " vastly oversized tubes and
boxes" create the misleading impression that each unit
has a larger quantity of lip product than it actually
contains. Each Sugar tube also contains a 5.35 gram metallic
weight that is concealed at the base of the tube.
Collectively, the tube, cardboard box, weighted bottom, and
4.3 grams of lip product in an original tube of Sugar weigh
approximately 29 grams. Plaintiff contends that as a result
of Fresh's labeling, design, and packaging practices, she