Yamasaki v. Zicam LLC

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA [6] 7 VENUS YAMASAKI, Case No. 21-cv-02596-HSG 8 Plaintiff, ORDER GRANTING MOTION TO DISMISS 9 v. Re: Dkt. No. 37 10 ZICAM LLC, et al., 11 Defendants. [12] 13 Pending before the Court is the motion to dismiss filed by Church & Dwight Co., Inc., the 14 successor to Defendants Zicam LLC and Matrixx Initiatives, Inc. (“Defendant”). See Dkt. No. 37. 15 The Court finds this matter appropriate for disposition without oral argument and the matter is 16 deemed submitted. See Civil L.R. 7-1(b). For the reasons detailed below, the Court GRANTS the 17 motion. 18 I. BACKGROUND 19 Plaintiff Venus Yamasaki filed this putative class action on April 9, 2021, against 20 Defendant, alleging that it engaged in fraudulent, unfair, deceptive and misleading advertising 21 relating to several of its Zicam cold remedy products. See Dkt. No. 1. Plaintiff then filed an 22 amended complaint on June 10, 2021. See Dkt. No. 30 (“FAC”). Plaintiff alleges that each of the 23 challenged products is advertised and marketed as “clinically proven to shorten colds.” Id. at 24 ¶¶ 2–13. Plaintiff further alleges that she purchased Zicam Nasal Spray from a California 25 drugstore in approximately 2019 based on these representations. See id. at ¶ 41. However, 26 Plaintiff contends that the products have not been clinically proven to impact the duration of the 27 common cold, and that there is not adequate scientific evidence to support this assertion. Id. at 1 that contain zinc do not actually shorten the duration of the common cold. See id. at ¶ 37. Based 2 on these allegations, Plaintiff brings causes of action for violations of California’s Unfair 3 Competition Law (“UCL”), False Advertising Law (“FAL”), and Consumer Legal Remedies Act 4 (“CLRA”), as well as for breach of warranty. Id. at ¶¶ 80–136. Plaintiff also seeks to represent a 5 class of California consumers for seven different Zicam products.1 Id. at ¶¶ 67–68. Defendant 6 now moves to dismiss the complaint. Dkt. No. 37. 7 II. LEGAL STANDARD 8 Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a short and plain 9 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A 10 defendant may move to dismiss a complaint for failing to state a claim upon which relief can be 11 granted under Federal Rule of Civil Procedure 12(b)(6). “Dismissal under Rule 12(b)(6) is 12 appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support 13 a cognizable legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th 14 Cir. 2008). To survive a Rule 12(b)(6) motion, a plaintiff must plead “enough facts to state a 15 claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 16 A claim is facially plausible when a plaintiff pleads “factual content that allows the court to draw 17 the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, [18] 556 U.S. 662, 678 (2009). 19 Rule 9(b) imposes a heightened pleading standard where fraud is an essential element of a 20 claim. See Fed. R. Civ. P. 9(b) (“In alleging fraud or mistake, a party must state with particularity 21 the circumstances constituting fraud or mistake.”); see also Vess v. Ciba–Geigy Corp. USA, 317 22 F.3d 1097 , 1107 (9th Cir. 2003). A plaintiff must identify “the who, what, when, where, and how” 23 of the alleged conduct, so as to provide defendants with sufficient information to defend against 24 the charge. Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir. 1997). 25 In reviewing the plausibility of a complaint, courts “accept factual allegations in the [27] 1 These products include Zicam Original RapidMelts, Zicam ULTRA RapidMelts, Zicam 1 complaint as true and construe the pleadings in the light most favorable to the nonmoving party.” 2 Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). Nonetheless, 3 Courts do not “accept as true allegations that are merely conclusory, unwarranted deductions of 4 fact, or unreasonable inferences.” In re Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th Cir. 5 2008). 6 III. DISCUSSION 7 A. Article III Standing 8 As a threshold matter, Defendant contends that Plaintiff lacks Article III standing to sue 9 regarding products that she did not purchase and also lacks standing to seek injunctive relief. See 10 Dkt. No. 37 at 14–17. To have standing under Article III of the Constitution, “[t]he plaintiff must 11 have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the 12 defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. 13 Robins, 136 S. Ct. 1540, 1547 (2016) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555 , 560 14 (1992)). 15 i. Unpurchased Products 16 It is undisputed that Plaintiff purchased Zicam Nasal Spray. See FAC at ¶¶ 41–43. 17 Defendant asserts, however, that Plaintiff lacks standing to challenge the six other products that 18 she did not purchase because she suffered no economic injury as to those products. Dkt. No. 37 at 19 14–15. In opposition, Plaintiff urges that she still has standing because the unpurchased Zicam 20 products are substantially similar to the product that she did purchase. See Dkt. No. 50 at 20–22. 21 In the Ninth Circuit, “[t]here is no controlling authority on whether [p]laintiffs have 22 standing for products they did not purchase.” Miller v. Ghirardelli Chocolate Co., 912 F. Supp. 23 2d 861, 868 (N.D. Cal. 2012). Although some district courts reserve the issue until a motion for 24 class certification, “[t]he majority of the courts that have carefully analyzed the question hold that 25 a plaintiff may have standing to assert claims for unnamed class members based on products he or 26 she did not purchase so long as the products and alleged misrepresentations are substantially 27 similar.” Id. at 869; see also Papasan v. Dometic Corp., 2017 WL 4865602 , at *8 (N.D. Cal 1 *12–13 (N.D. Cal. Oct. 2, 2013). If the products are sufficiently similar, “any concerns regarding 2 material differences in the products can be addressed at the class certification stage.” Anderson v. 3 Jamba Juice Co., 888 F. Supp. 2d 1000, 1006 (N.D. Cal. 2012). However, “[w]here the alleged 4 misrepresentations or accused products are dissimilar, courts tend to dismiss claims to the extent 5 they are based on products not purchased.” Miller, 912 F. Supp. 2d at 870. 6 Courts have found substantial similarity for purposes of standing where (1) the products 7 are physically similar; (2) the differences between the products are immaterial because the legal 8 claim and injury to the customer are the same; and (3) both the products and the legal claims and 9 injury are similar. See Ang v. Bimbo Bakeries USA, Inc., No. 13-CV-01196-WHO, 2014 WL 10 1024182, at *4–8 (N.D. Cal. Mar. 13, 2014). The Court agrees with Judge Orrick of this district 11 that “the best approach is one which focuses on whether the type of claim and consumer injury is 12 substantially similar as between the purchased and unpurchased products.” Id. at *8. “That 13 determination necessarily focuses on whether the resolution of the asserted claims will be identical 14 between the purchased and unpurchased products.” Id. 15 Defendant contends that Plaintiff has not established substantial similarity because the 16 products have distinct formulas. As the complaint recognizes, Zicam Nasal Spray and Zicam 17 Nasal Swabs do not contain zinc. See FAC at ¶¶ 3, 11, 25, 38, 48. Rather, they contain the active 18 ingredients galphimia glauca, luffa operculata, and sabadilla. Id. at ¶ 25. The other products at 19 issue, however, all contain zinc in the form of zincum aceticum and zincum gluconicum. See, e.g., 20 id. at ¶¶ 3, 24. Plaintiff attempts to sidestep these distinctions by emphasizing that the 21 misrepresentations at issue in this case are nevertheless “uniform” across the products because all 22 of the product packaging contains representations that the products are “clinically proven to 23 shorten colds.” See Dkt. No. 50 at 21; FAC at ¶¶ 30, 35. However, Plaintiff’s argument is 24 divorced from the allegations in her complaint and the nature of her claims about why the 25 “clinically proven” representation is false or misleading. Plaintiff’s argument is premised on the 26 efficacy of the products’ active ingredients, which differ across the products. The complaint 27 explains, for example, that “recent studies . . . have indicated that use of over-the-counter cold 1 common cold.” Id. at ¶ 37 (emphasis added). Plaintiff further questions the scientific papers 2 referenced on Defendant’s website, arguing that they “had uncertain results regarding the ability of 3 zinc to shorten the duration of the common cold.” Id. at ¶ 39 (emphasis added). Neither the 4 complaint nor Plaintiff’s opposition explains how such studies establish that Defendant’s 5 “clinically proven” representation is false or misleading as to products that do not contain zinc.2 6 The Court accordingly finds that Plaintiff has failed to establish that Zicam Nasal Spray and 7 Zicam Nasal Swabs, which do not contain zinc, are substantially similar to the other unpurchased 8 products that contain zinc. Accord Lytle v. Nutramax Lab’ys, Inc., No. EDCV19835JGBSPX, [9] 2019 WL 8060070 , at *3 (C.D. Cal. Sept. 26, 2019) (dismissing claims against unpurchased 10 products that contained different key ingredients where claims were based on ineffectiveness of 11 those key ingredients). Thus, Plaintiff has not alleged sufficient facts to establish that she has 12 standing to pursue claims regarding the products that contain zinc. The Court GRANTS the 13 motion to dismiss on this basis as to all products except Zicam Nasal Spray and Zicam Nasal 14 Swabs. 15 ii. Injunctive Relief 16 Defendant next argues that Plaintiff lacks standing to seek injunctive relief because she 17 fails to allege a likelihood of future harm. Dkt. No. 37 at 15–16. More specifically, Defendant 18 urges that “Plaintiff (incorrectly) presumes Zicam lacks clinical studies on its cold remedy 19 products,” and “she is now ‘aware’ of that supposed fact” so cannot be misled in the future. See 20 id. at 15. 21 To have standing to seek injunctive relief under Article III, a plaintiff must “demonstrate a 22 real and immediate threat of repeated injury in the future.” Chapman v. Pier 1 Imports (U.S.) Inc., [23] 631 F.3d 939, 946 (9th Cir. 2011) (quotation omitted). Therefore, “[o]nce a plaintiff has been 24 wronged, [she] is entitled to injunctive relief only if [she] can show that [she] faces a ‘real or 25 immediate threat . . . that [she] will again be wronged in a similar way.’” Mayfield v. United [27] 2 To the extent Plaintiff suggests that these products are all the same because Defendant has not 1 States, 599 F.3d 964, 970 (9th Cir. 2010) (quoting City of Los Angeles v. Lyons, 461 U.S. 95 , 111 2 (1983)). In the context of false advertising cases, the Ninth Circuit has confirmed “that a 3 previously deceived consumer may have standing to seek an injunction against false advertising or 4 labeling, even though the consumer now knows or suspects that the advertising was false at the 5 time of the original purchase.” Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 969 (9th Cir. 6 2018). A plaintiff may establish the risk of future harm in two ways: (1) “the consumer’s 7 plausible allegations that she will be unable to rely on the product’s advertising or labeling in the 8 future, and so will not purchase the product although she would like to”; or (2) “the consumer’s 9 plausible allegations that she might purchase the product in the future, despite the fact it was once 10 marred by false advertising or labeling, as she may reasonably, but incorrectly, assume the product 11 was improved.” Id. at 969–70. 12 The plaintiff in Davidson, for example, sought injunctive relief after learning that the 13 flushable wipes that she purchased were not in fact “suitable for disposal down a toilet.” Id. at 14 961–62 (emphasis omitted). The plaintiff alleged that she would purchase flushable wipes from 15 the defendant again if they were in fact flushable, but she “ha[d] no way of determining whether 16 the representation ‘flushable’ [on the product label] is in fact true.” Id. at 970–71. The Court 17 found such allegations sufficient to establish the risk of future harm because if the plaintiff 18 encountered the term “flushable” on the defendant’s products in the future, she “could not rely on 19 that representation with any confidence.” Id. at 971 . 20 Here, Plaintiff contends in opposition that she has “sufficiently alleged that a real threat 21 exists that she would be wronged again.” See Dkt. No. 23. However, Plaintiff does not explain 22 how she will be harmed again. Rather, the complaint merely alleges that Plaintiff “has an 23 intention to purchase the Zicam Products in the future if the Zicam Products are truthfully labeled 24 and not misleading, and are actually clinically proven to shorten colds.” See FAC at ¶¶ 45, 77. 25 This generic statement, on its own, does not establish a risk of future harm. As the Ninth Circuit 26 explained in Davidson, Plaintiff may establish future harm by alleging that she will be unable to 27 rely on the Zicam products’ advertising or labeling in the future. Davidson, 889 F.3d at 969–70. 1 purchase Zicam products incorrectly assuming that they have been improved and are clinically 2 proven to shorten colds. Id. The complaint does not contain such allegations. By contrast, buying 3 an accurately labeled product in the future, without more, would not result in any harm. Though 4 Plaintiff may be able to address this deficiency in an amended complaint, at this stage the Court 5 finds that Plaintiff has not alleged that she faces an imminent or actual threat of future harm 6 caused by Defendant’s false advertising. The Court therefore GRANTS the motion on this basis. 7 B. Claims 8 i. UCL, FAL, and CLRA Claims 9 Next Defendant argues that Plaintiff has failed to state a false advertising claim under the 10 UCL, FAL, or CLRA because these claims are based on an improper lack of substantiation theory 11 (i.e., that Defendant lacks support for its claim that the products are “clinically proven”). See Dkt. 12 No. 37 at 7–13. Throughout the complaint Plaintiff alleges that Defendant has “no adequate 13 scientific evidence” for its “clinically proven” representations. See, e.g., FAC at ¶¶ 5, 11–12, 55. 14 Plaintiff further states that “[t]he only logical conclusion drawn from this complete absence of 15 citations to adequate scientific support is that the Zicam Products are not clinically proven to 16 shorten colds.” Id. at ¶ 36. 17 It is well settled that private litigants may not bring false advertising claims based on an 18 alleged lack of substantiation. Nat’l Council Against Health Fraud Inc. v. King Bio Pharms. Inc., [19] 107 Cal. App. 4th 1336, 1345 (2003) (“Private plaintiffs are not authorized to demand 20 substantiation for advertising claims.”). The California legislature “has expressly permitted 21 prosecuting authorities, but not private plaintiffs, to require substantiation of advertising claims,” 22 and “[t]his limitation prevents undue harassment of advertisers and is the least burdensome 23 method of obtaining substantiation for advertising claims.” Id.; see also Aloudi v. Intramedic Rsch. 24 Grp., LLC, 2015 WL 4148381 (N.D. Cal. July 9, 2015) (granting motion to dismiss UCL, FAL, and 25 CLRA claims premised on lack of substantiation); Bronson v. Johnson & Johnson, No. 12-cv26 04184-CRB, 2013 WL 1629191 , at *8 (N.D. Cal. Apr. 16, 2013) (granting motion to dismiss 27 claims under all three prongs of the UCL premised on lack of substantiation allegations because 1 under the California consumer protection laws”); In re Clorox Consumer Litig., 894 F. Supp. 2d 2 1224, 1232 (N.D. Cal. 2012) (“Consumer claims for a lack of substantiation are not cognizable 3 under California law.”); Stanley v. Bayer Healthcare, Inc., No. 11-cv-00862-IEG, 2012 WL 4 1132920, at *6 (S.D. Cal. Apr. 3, 2012) (“Plaintiff’s argument that she can assert a UCL ‘unlawful 5 conduct’ claim based upon violation of [a federal statute that imposes substantiation standards for 6 certain advertising claims] is precluded by the California Court of Appeal’s opinion in King 7 Bio.”). 8 Throughout the complaint, Plaintiff contends that the “Zicam Products have never been 9 clinically tested to determine whether they impact the duration of the common cold, and that there 10 is no scientific support for the claim that the Zicam Products are ‘clinically proven to shorten 11 colds.’” See, e.g., FAC at ¶¶ 55, 58, 61, 64, 66, 126–127, 133. To the extent that Plaintiff intends 12 to argue that the “clinically proven” statements are nevertheless false (and not just 13 unsubstantiated), Plaintiff does not identify any studies in which Defendant’s products were 14 evaluated. Nor does she provide any studies about the efficacy of galphimia glauca, luffa 15 operculata, or sabadilla—the active ingredients in Zicam Nasal Spray and Zicam Nasal Swabs. 16 See FAC at ¶ 25. As Plaintiff’s own authorities make clear, “[i]n the false advertising context, an 17 advertising claim is false if it has actually been disproved, that is, if the plaintiff can point to 18 evidence that directly conflicts with the claim.” Liou v. Organifi, LLC, 491 F. Supp. 3d 740 , 750 19 (S.D. Cal. 2020) (quotation omitted). In her opposition brief, Plaintiff nevertheless attempts to 20 distance herself from the lack of substantiation theory in two ways. 21 First, Plaintiff contends that Defendant’s products are “homeopathic,” and as such cannot 22 be “clinically proven.” See Dkt. No. 50 at 2–3, 7–8, 13. As an initial matter, the Court notes that 23 Plaintiff did not allege this theory in her complaint. Rather, the complaint simply asserts that the 24 Zicam products are labeled “homeopathic,” and says that homeopathic products are not approved 25 by the FDA. See FAC at ¶¶ 26–27. But even as alleged, Defendant does not claim that its 26 products are FDA approved. Plaintiff also points to language on the bottom of the “products” 27 page of Defendant’s website, indicating that certain statements about the products are “based upon 1 See id. at ¶ 29, n.14.3 But this language only applies to the Elderberry Citrus RapidMelts, and the 2 Court has found that Plaintiff does not have standing to pursue claims against this unpurchased 3 product. See Section III.A.i above. In any event, the qualifying language only appears to apply to 4 the representation that Elderberry Citrus RapidMelts “help[] relieve cold symptoms.”4 Despite 5 Plaintiff’s urging, Dkt. No. 50 at 3–5, this does not appear to be a “veiled admission” that the 6 products are not clinically proven to shorten colds. 7 Second, Plaintiff contends that Defendant’s “clinically proven” representations are false 8 because there is no “robust scientific support” that Defendant’s products shorten colds. See Dkt. 9 No. 50 at 13–14. Plaintiff asserts that for a claim to be “clinically proven,” it must “be widely 10 accepted in its applicable field and have overwhelming evidence supporting it, including a 11 consensus in the scientific community agreeing with the representations.” Id. at 11. In the 12 complaint, Plaintiff alleges that the “clinically proven” language conveys to reasonable consumers 13 “that the state of the science regarding the Zicam Products and their ingredients have reached a 14 level of scientific consensus such that Defendants’ claim that the Products are ‘clinically proven to 15 shorten colds’ is an established truth and statement of fact.” See FAC at ¶ 32. Plaintiff suggests 16 that only studies that are “sufficiently large, randomized, controlled, double-blind” and publicly 17 available can provide such scientific consensus. Dkt. No. 50 at 11. And Plaintiff points out that 18 there are no publicly-available studies of Defendant’s products. See FAC at ¶¶ 12, 36, 40, 61. 19 The Court is not persuaded by Plaintiff’s conclusory allegations that the words “clinically 20 proven” imply to reasonable consumers that there is a scientific consensus about the efficacy of 21 Defendant’s products or that the studies on which Defendant relies have been published and peer22 reviewed. Plaintiff’s cases in support of this theory are inapposite. In Lytle v. Nutramax 23 Laboratories, Inc., for example, the court considered whether the studies at issue in that case were 24 peer-reviewed, published, and controlled because defendant specifically advertised that its canine 25 dietary supplements were “shown to be safe, effective, and absorbable in peer-reviewed, [26] 3 See https://www.zicam.com/our-products/cold-shortening/ (last visited October 22, 2021) (cited [27] in complaint). 1 published, controlled U.S. veterinary studies.” 2019 WL 8060077 , at *5 (C.D. Cal., Dec. 6, 2019). 2 The Court accordingly GRANTS the motion to dismiss on this basis. 3 ii. Breach of Warranty Claims 4 Lastly, Defendant challenges Plaintiff’s breach of express warranty and breach of implied 5 warranty of merchantability claims. See Dkt. No. 37 at 12–13. Plaintiff alleges that Defendant 6 expressly and impliedly warranted that the Zicam products were “clinically proven to shorten 7 colds.” See FAC at ¶¶ 123, 133. She further alleges that Defendant breached this warranty and 8 the products are not fit for their ordinary purpose because “the Products have never been clinically 9 tested to determine whether they impact the duration of the common cold, and there is no 10 scientific support for the claim that the Zicam Products are ‘clinically proven to shorten colds.’” 11 See FAC at ¶¶ 126, 134; see also id. at ¶¶ 134–35. 12 Defendant argues that Plaintiff’s breach of warranty claims should be dismissed because 13 she does not plausibly allege that the Zicam products fail to shorten colds as represented. As 14 explained above, the Court agrees that Plaintiff has not sufficiently alleged that the “clinically 15 proven” representations are false. She does not cite to any studies evaluating the efficacy of 16 Zicam Nasal Spray, Zicam Nasal Swabs, or their active ingredients. Plaintiff may not evade this 17 deficiency by arguing in conclusory fashion that the Zicam products are labeled as homeopathic 18 and have not been tested with sufficient scientific rigor. 19 Plaintiff appears to suggest that it is enough, however, to allege that Defendant has not 20 affirmatively substantiated its claims. See, e.g., Dkt. No. 50 at 18–20. In the complaint, Plaintiff 21 alleges that “Defendants fail to disclose any valid clinical testing citations or results on the Product 22 packaging, their websites, and in marketing and advertising.” See FAC at ¶ 36. She infers that 23 “[t]he only logical conclusion drawn from this complete absence of citations to adequate scientific 24 support is that the Zicam Products are not clinically proven to shorten colds.” Id. In short, 25 Plaintiff suggests that Defendant breached the warranties by failing to disclose the studies on 26 which it relied. But Plaintiff offers no authority for her contention that Defendant has an 27 affirmative duty to disclose such information or that the failure to do so is tantamount to a breach 1 IV. CONCLUSION 2 Accordingly, the Court GRANTS the motion to dismiss. Any amended complaint must be 3 || filed within thirty (30) days of the date of this order. The Court cautions Plaintiff that should she 4 || wish to amend the complaint to add other named plaintiffs, she must do so within this timeframe. 5 Given the deficiencies identified in the complaint, the Court finds that there is good cause to 6 || extend the current discovery stay until after the pleadings are finalized. See Dkt. No. 50. 7 The Court further SETS a telephonic case management conference on November 30, 2021, 8 at 2:00 p.m. The parties should be prepared to discuss how to move this case forward efficiently. 9 All counsel shall use the following dial-in information to access the call: 10 Dial-In: 888-808-6929; 11 Passcode: 6064255 12 || For call clarity, parties shall NOT use speaker phone or earpieces for these calls, and where at all 13 possible, parties shall use landlines. The joint case management statement is due November 9, 14 || 2021. IT IS SO ORDERED. a 16 || Dated: 10/25/2021 Abepured 3 Sb) HAYWOOD S. GILLIAM, JR. Z 18 United States District Judge