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Carrol v. S. C. Johnson & Son, Inc.

United States District Court, N.D. Illinois, Eastern Division

March 29, 2018

LAURA CARROL et al. Individually and on Behalf of All Others Similarly Situated, Plaintiffs,
S.C. JOHNSONS & SON, Inc. and VMG PARTNERS, LLC, Defendants.



         Plaintiffs Laura Carroll, Katherine Exo, Armand Ryden, and Katharine Shaffer ("Plaintiffs") bring this putative class action against Defendant S.C. Johnson & Son, Inc. ("Johnson" or "Plaintiff) and VMG Partners, LLC, for allegedly marketing the Babyganics mineral-based sunscreens with a false Sun Protection Factor ("SPF") rating.[1] Lauran Carroll and Katherine Exo are citizens of Illinois and residents of Cook County, Armand Ryden is a citizen of California, Katharine Shaffer is a citizen of Washington, and Defendant is a privately-held Wisconsin corporation. Plaintiffs allege: breach of warranty (Count I) on behalf of a nationwide class and subclasses; breach of implied contract and violation of the implied covenant of good faith and fair dealing (Count II) on behalf of a nationwide class and subclasses; disgorgement/restitution (Count III) on behalf of a nationwide class and subclasses; violation of California Unfair Competition Law (Count IV) on behalf of the California Subclass; violation of California Consumers Legal Remedies Act (Count V) on behalf of the California Subclass; violation of Illinois Consumer Fraud and Deceptive Business Practices (Count VI) on behalf of the Illinois Subclass; and violation of Washington Unfair Business Practices (Count VII) on behalf of the Washington Subclass. On July 26, 2016, Defendant purchased the entire Babyganics line of products from VMG Partners, LLC. On October 26, 2017, Plaintiffs voluntarily dismissed their claims solely against Defendant VMG Partners, LLC without prejudice. Before the Court is Defendant's Motion to Dismiss pursuant to Rule 12(b)(6) and Motion to Strike pursuant to Rule 12(f). For the following reasons, Defendant's motions are denied.

         I. BACKGROUND

         Plaintiffs allege that Consumer Report published an article stating that 43% of sunscreen products fail to meet the SPF claim on the label and that 74% of mineraL-based sunscreens tested did not meet their SPF claim. Here, Defendant is the manufacturer and distributor of a Babyganics mineraL-based sunscreen lotion SPF 50 (the "Lotion") and a Babyganics mineral-based sunscreen spray SPF 50 (the "Spray") (collectively the "Products"). Plaintiffs allege they are some of the hundreds of thousands of consumers who have purchased the Lotion and the Spray which are sold nationwide. The named Plaintiffs are consumers only of the Lotion, which they purchased from retail outlets, rather than directly from Defendant. Plaintiffs allege that the Spray and Lotion are practically identical in all matters relevant to their claims. Plaintiffs argue that the only difference between the Products is the method the product is applied to the skin.

         Defendant advertises the Products to have an SPF rating of 50 which are printed on the bottles. Plaintiffs allege that Consumer Reports conducted testing on the Lotion which indicated that the product actually only had an SPF of 25. Plaintiffs also completed their own independent testing on both the Spray and the Lotion, in compliance with all FDA testing methods, and that the results of their own testing demonstrated that the actual SPF rating for the Lotion was no higher than 30, possibly much lower.

         Plaintiffs allege that Defendant knew or should have known from its own testing that their SPF was not 50. The Complaint alleges that Defendant then misrepresented the actual SPF rating by falsely advertising the Products as having a SPF rating of 50. Plaintiffs allege that since SPF of 30, possibly lower, provides less sunscreen protection than SPF 50, they would not have purchased the Products, or paid less, had they known the actual SPF rating of the Products. Plaintiffs state that Defendant continues to manufacture, distribute, advertise, and sell the Products with the 50 SPF rating.

         II. ANALYSIS

         A. Standard of Review

         A motion under Rule 12(b)(6) tests the sufficiency of the complaint under the plausibility standard, Bell Atlantic Corporation v. Twombly, 550 U.S. 544. 570 (2007), not the merits of the suit. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990) (citation omitted). "[A] plaintiffs claim need not be probable, only plausible: 'a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.”' Indep. Trust Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930, 935 (7th Cir. 2012) (quoting Twombly. 550 U.S. at 556). "To meet this plausibility standard, the complaint must supply 'enough fact to raise a reasonable expectation that discovery will reveal evidence" supporting the plaintiffs allegations.” Id. at 935. (quoting Twombly, 550 U.S. at 556). In deciding a Rule 12(b)(6) motion, the Court accepts as true all well-pleaded facts in a plaintiffs complaint, and draws all reasonable inferences in his favor. Burke v. 401 N. Wabash Venture, LLC, 714 F.3d 501. 504 (7th Cir. 2013) (citations omitted). "[T]he complaint must describe the claim in sufficient detail to give the defendant fair notice of what the claim is and the grounds upon which it rests." EEOC v. Concentra Health Servs., 496 F.3d 773, 776 (7th Cir. 2007).

         B. Federal Preemption of Plaintiffs' Claims

         Defendant first argues that the entire Complaint fails because Plaintiffs are preempted from relying on the Consumer Reports test results. Defendant's argument for dismissal based on federal preemption is properly addressed under Fed.R.Civ.P. 12(b)(6). See Turek v. Gen. Mills, Inc., 662 F.3d 423, 425 (7th Cir. 2011). The Seventh Circuit has "treated federal preemption as an affirmative defense upon which the defendant bears the burden of proof and presumably the burden of persuasion, even if no additional facts must be proven and the issue is only a question of law." Russian Media Grp., LLC v. Cable Am.. Inc., 598 F.3d 302, 309 (7th Cir. 2010). Both parties agree that the FDA regulates the SPF testing procedures and labeling requirements for the Products, see 21 C.F.R. § 201.327. The FDA regulates products under the Food Drug and Cosmetics Act ("FDCA") which expressly preempts claims seeking to enforce state requirements that differ from those established by the FDA. 21 U.S.C. § 379r(a). The FDCA does not provide a private right of action; however, states can impose the identical requirement or requirements, and thus can effectively enforce a violation of the Act as a violation of state law. Turek, 662 F.3d at 426.

         Plaintiffs do not dispute Defendant's assertion that the Consumer Reports" testing does not strictly adhere to the FDA*s detailed testing protocol. However, Plaintiffs do not seek to use the Consumer Report test results as the basis for their allegations that the Products do not have a SPF rating of 50 and therefore are improperly labeled and marketed. Rather, as repeated in their Response, Plaintiffs allege that the basis for their claims is the independent testing they conducted which established that the SPF rating of the Products is actually 30 or less. Moreover, Plaintiffs allege that their independent testing complies with the standard that federal regulators adhere to in determining whether a product label accurately states the product's SPF rating. In sum, Plaintiffs claims do not rely on the Consumer Reports test results, as argued by Defendants. The sufficiency of these allegations are discussed infra. Accordingly, the Court concludes that at this stage of the proceeding, Plaintiffs claims are not preempted under the FDCA.

         C. The Sufficiency of Plaintiffs' Allegations Regarding Their Independent Testing

         Defendant argues that Plaintiffs have failed to sufficiently alleged the details of their independent testing and that they are required to attach those test results to the Complaint. Defendant, in its Motion does not cite any cases to support its claim that Plaintiffs must attach the test results. In federal court a complaint must pass satisfy the notice pleading standard articulated above. Courts in this district have held that plaintiffs can sufficiently allege mislabeling claims based on preliminary testing that was not completed in compliance with FDA standards. SeeGubala v. HBS Int'l Corp., No. 14 C 9299, 2016 WL 2344583 (N.D. 111. May 4, 2016); Gubala v. CVS Pharmacy. Inc., No. 14 C 9039. 2016 ...

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