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Gisvold v. Merck & Co., Inc.

United States District Court, S.D. California

November 25, 2014

MERCK & CO., INC. et al., Defendants

Page 1199

For Danika Gisvold, On Behalf of Herself and All Others Similarly Situated, Plaintiff: James Richard Patterson, LEAD ATTORNEY, Patterson Law Group, APC, San Diego, CA; Todd D. Carpenter, Carpenter Law Group, San Diego, CA.

For Merck & Co., Inc, a Delaware corporation, MSD Consumer Care Inc., a Delaware corporation, Merck Sharp & Dohme Corp., a New Jersey corporation, Defendants: David E Stanley, LEAD ATTORNEY, Reed Smith, Los Angeles, CA; Michael L. Mandell, LEAD ATTORNEY, Reed Smith LLP, Los Angeles, CA.

Page 1200


HON. DANA M. SABRAW, United States District Judge.

Pending before the Court in this putative consumer class action is Defendants' Merck & Co., Inc., MSD Consumer Care Inc., and Merck Sharp & Dohme Corp.'s (collectively " Merck Defendants" or " Merck" ) motion to dismiss the First Amended Complaint (" FAC" ). Plaintiff Danika Gisvold filed an opposition and Defendants replied. The motion came on for hearing on November 4, 2014. James Patterson appeared on Plaintiff's behalf; David Stanley appeared on behalf of Defendants. Upon consideration of the briefing and oral argument, and for the reasons set forth below, Defendants' motion to dismiss is granted.

Plaintiff alleges the Merck Defendants are manufacturers, distributors and marketers of Coppertone over-the-counter (" OTC" ) sunscreen products, including products labeled with Sun Protection Factor (" SPF" ) 50 and above. (FAC ¶ 1.) Plaintiff claims she purchased Coppertone SPORT SPF 100 sunscreen lotion at Wal-Mart for a premium price ($1.00 or more than the same size SPF 50 product) after " reading [Merck's] Coppertone SPORT SPF 100 Sunscreen Lotion label." (FAC ¶ 12.)

Plaintiff alleges that consumers have learned to associate higher SPF values with greater sun protection; consumers assume a product with an SPF of 100 provides twice the protection against sunburn caused by ultraviolet B (" UVB" ) of a sunscreen product with an SPF of 50, when in fact products with SPF values of over 50 do not provide any increase in clinical benefit over SPF 50 sunscreen products. (FAC ¶ 3.) Plaintiff alleges that Merck's SPF 55, 70, 80 and 100 representations on its sunscreen products are therefore false, misleading, and reasonably

Page 1201

likely to deceive the public. (FAC ¶ 3.) Plaintiff filed this action alleging violations of the Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 et seq. (" UCL" ) and the Consumer Legal Remedies Act, Cal. Civ. Code § 1750 et seq. (" CLRA" ), and breach of express warranty under California common law. She seeks damages and injunctive relief for herself and a class of similarly situated individuals. Specifically, Plaintiff requests an order that Defendants charge the same price for SPF 50 products as SPF 50 products, and/or that they include " a disclaimer on the label or packaging that a SPF value above 50 does not provide proportional clinical benefits." (Id. at 10-11 & 16.) Plaintiff further seeks an order requiring that Merck " engage in a corrective advertising campaign." (FAC, Prayer for Relief, ¶ E.) The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332(d).

Defendants filed their motion to dismiss under Rule 12(b)(6), which tests the sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal is warranted where the complaint lacks a cognizable legal theory. Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (internal quotation marks and citation omitted). Alternatively, a complaint may be dismissed where it presents a cognizable legal theory, yet fails to plead essential facts under that theory. Robertson v. Dean Witter Reynolds, Inc.,749 F.2d 530, 534 (9th Cir. 1984); see also Shroyer, 622 F.3d at 1041. In reviewing a Rule 12(b)(6) motion, the Court must assume the truth of all factual allegations and construe them most favorably to the nonmoving party. Huynh v. Chase Manhattan Bank, 465 F.3d 992, 997 (9th Cir. 2006). However, legal conclusions need not be taken as true merely because they are couched as factual allegations. Bell A. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Similarly, " conclusory allegations of law and unwarranted inferences are not sufficient to defeat a motion to dismiss." Pareto v. Fed. Deposit Ins. Corp., 139 F.3d 696, 699 (9th Cir. 1998).

Defendants argue Plaintiff's action is pre-empted by the Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq. (" FDCA" ). " In pre-emption cases, the question is whether state law is pre-empted by a federal statute, or in some instances, a federal agency action." Pom Wonderful LLC v. The Coca-Cola Co., __ U.S. __, 134 S.Ct. 2228, 2236, 189 L.Ed.2d 141 (2014). Although it is presumed that Congress does not intend to displace state law,

State action may nonetheless be foreclosed by express language in a congressional enactment, by implication from the depth and breadth of a congressional scheme that occupies the legislative field, or by implication because of a conflict with a congressional enactment.

Holmes v. Merck & Co., Inc., 697 F.3d 1080, 1085 (9th Cir. 2012) (internal quotation marks and citations omitted); see also Arizona v. United States, 567 U.S., 132 S.Ct. 2492, 2500-01, 183 L.Ed.2d 351 (2012). " Regardless of the type of preemption involved -- express, field, or conflict -- 'the purpose of Congress is the ultimate touchstone of pre-emption analysis.'" Gilstrap v. United Air Lines, Inc., 709 F.3d 995, 1003 (2013), quoting Cipollone v. Liggett Group., Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) (brackets omitted). The " task is to 'identify the domain expressly pre-empted by that language.' That task must 'in the first instance focus on the plain wording of the clause, which necessarily contains the ...

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