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Corra v. Energizer Holdings, Inc.

United States District Court, E.D. California

August 2, 2013

AIDA CORRA, on behalf of herself and all others similarly situated, Plaintiff,
v.
ENERGIZER HOLDINGS, INC., et al., Defendants

Decided August 1, 2013.

Page 1208

[Copyrighted Material Omitted]

Page 1209

For Aida Corra, on Behalf of Herself and All Others Similarly Situated, Plaintiff: Elaine A. Ryan, PHV, LEAD ATTORNEY, PRO HAC VICE, Patricia N. Syverson, Bonnett Fairbourn Freidman and Balint, Phoenix, AZ; Lindsey Gomez-Gray, PHV, LEAD ATTORNEY, PRO HAC VICE, Bonnett Fairbourn Friedman and Balint, PC, Phoenix, AZ; Manfred P. Muecke, LEAD ATTORNEY, Bonnett Fairbourn Friedman & Balint, PC, San Diego, CA; Stewart M. Weltman, PHV, LEAD ATTORNEY, PRO HAC VICE, Stewart M. Weltman LLC (Of Counsel Levin Fishbein Sedran & B, Chicago, IL.

For Energizer Holdings Inc., a Missouri Corporation, Defendant: Daniel Scott Schecter, LEAD ATTORNEY, Latham and Watkins, Los Angeles, CA; John W. Moticka, PHV, LEAD ATTORNEY, PRO HAC VICE, Stinson Morrison Hecker LLP, St. Louis, MO; Michael J. Reiss, LEAD ATTORNEY, Latham & Watkins Llp, Los Angeles, CA; William Rawson, PHV, LEAD ATTORNEY, PRO HAC VICE, Latham & Watkins LLP, Washington, DC.

For Playtex Products Inc, a Delaware Limited Liability Company, Sun Pharmaceuticals, LLC, a Delaware Corporation, Defendants: John W. Moticka, PHV, LEAD ATTORNEY, PRO HAC VICE, Stinson Morrison Hecker LLP, St. Louis, MO; Michael J. Reiss, LEAD ATTORNEY, Latham & Watkins Llp, Los Angeles, CA.

OPINION

Page 1210

ANTHONY W. ISHII, SENIOR UNITED STATES DISTRICT JUDGE.

ORDER RE: MOTIONS TO DISMISS FIRST AMENDED COMPLAINT AND FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

(Docs. 19, 30)

I. INTRODUCTION

Defendants Energizer Holdings, Inc., et al., have filed a motion to dismiss the first

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amended complaint without leave to amend. Plaintiff Aida Corra has filed a motion for leave to file a second amended complaint. For reasons discussed below, Defendants' motion shall be granted in part and denied in part; Plaintiff's motion shall be denied as moot.

II. FACTS AND PROCEDURAL BACKGROUND

The Court refers the parties to previous orders for a complete chronology of the proceedings. On November 26, 2012, plaintiff Aida Corra, individually and on behalf of all others similarly situated (hereinafter referred to as " Plaintiff), filed her first amended class-action complaint (FAC) against defendants Energizer Holdings, Inc., Playtex Products, LLC fka Playtex Products, Inc., and Sun Pharmaceuticals, LLC (hereinafter referred to as " Defendants" ), asserting causes of action for violations of California's Unfair Competition Law (" UCL," Cal. Bus. & Prof. Code, § 17200 et seq.) and Consumers Legal Remedies Act (" CLRA," Cal. Civ. Code, § 1750 et seq.) and breach of express warranty. Plaintiff alleged as follows:

" Defendants distribute, market and sell a variety of sun and skincare products. This lawsuit concerns the Banana Boat SPF [sun protection factor] 85-110 collection, a line of 10 sunscreen products labeled with a SPF of 85 or greater. The Banana Boat SPF 85-110 collection is sold online and at a variety of third-party retailers including Wal-Mart, Target, Walgreens and CVS."

Plaintiff further alleged:

" Since launching the Banana Boat SPF 85-110 collection, Defendants have consistently conveyed the message to consumers throughout the United States, including California, that the Banana Boat SPF 85-110 collection provides superior UVB protection compared to comparable lower SPF valued products, including the Banana Boat SPF 50 Products. They do not. Defendants' superior UVB protection claims are false, misleading and deceptive."

Plaintiff further alleged:

" There are only two material differences between the Products in the Banana Boat SPF 85-110 collection and the Banana Boat SPF 50 Products: (1) the SPF values; and (2) the price. The Banana Boat SPF 85-100 collection retails for a premium over comparable lower SPF products, including the Banana Boat SPF 50 Products. For example, the Sport Performance® Sunscreen SPF 100 Lotion Plaintiff purchased contains all of the active ingredients and provides the same UVB protection as Sport Performance® Sunscreen SPF 50 Lotion. Yet, the Sport Performance® Sunscreen SPF Lotion Plaintiff bought retails for at least a $1.00 or more over the Sport Performance® Sunscreen SPF 50 Lotion product."

Plaintiff further alleged:

" A sunscreen's SPF value is calculated by comparing the time needed for a person to burn unprotected with how long it takes for that person to burn wearing sunscreen. So a person who turns red after 20 minutes of unprotected sun exposure is theoretically protected 15 times longer if they adequately apply SPF 15. Importantly, the SPF rating system is non-linear. Also importantly, scientific studies establish that sunscreen products with SPF values over 50 provide no additional clinical benefit to consumers. SPF 100 blocks 99 percent of UV rays, while SPF blocks 98 percent, an immaterial difference that yields no clinical benefit to consumers."

Plaintiff further alleged:

" To stop the false sense of security high numbered SPF products create in the minds of consumers, in June 2011 the FDA proposed a regulation governing

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the labeling of sunscreen products that would cap SPF values at 'SPF 50." See 76 Fed. Reg. 35672. According to the FDA, there is insufficient data 'to establish that products with SPF values higher than 50 provide additional clinical benefit over SPF 50 sunscreen products.' Id. at 35673. In fact, scientific studies establish that there is no added clinical benefit associated with SPF values over 50. The FDA's proposed SPF 50 rule harmonizes with other countries, including Australia and the European Union, that have imposed similar SPF labeling restrictions to reduce consumer confusion."

Plaintiff further alleged:

" Defendants' superior UVB protection claims are designed to take advantage of health conscious consumers seeking protection from the damaging effects of unprotected sun exposure as increasingly expressed by members of the medical community and documented by the media. Each and every consumer who purchases a Product in the SPF 85-110 collection is exposed to the 85, 100 or 110 SPF values, which appear prominently and ...

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