United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
JORGE ALONSO, UNITED STATES DISTRICT JUDGE
defrauded by a sunscreen label that directed her to
“SHAKE WELL” rather than “SHAKE VIGOROUSLY
for 10 seconds, ” plaintiff Katy Manley
(“Manley”) filed against defendant Hain Celestial
Group, Inc. (“Hain”) a six-count complaint
asserting claims for violation of the Illinois Consumer Fraud
and Deceptive Trade Practices Act, breach of express and
implied warranties, negligent misrepresentation and unjust
enrichment. Defendant moves to dismiss. For the
reasons set forth below, the Court grants the motion to
following facts are from plaintiff's complaint, and the
Court takes them as true.
7, 2018, plaintiff paid $9.99 at TJ Maxx for a bottle of
“Alba Botanica Very Emollient Mineral Spray
Sunscreen” (the “Product”), which was
manufactured by defendant. The label on the front of the
Product said, “SPF 35.” The label on the back of
the Product included “Directions, ” which stated,
“SHAKE WELL before use.” (Complt. ¶ 25).
Plaintiff alleges the label failed “to warn the
consumer about . . . the importance of shaking the product
vigorously for at least ten seconds and blending the Product
well into the skin after spraying it on as one would with
traditional, non-spray sunscreen lotion.” (Complt.
also alleges that defendant's website states the
following with respect to the Product:
Broad spectrum mineral sunscreen protection is easily
applied with this air-powered, earth-friendly spray.
Fragrance free formula helps protect against sunburn,
skin cancer and premature signs of aging and is ideal
for sensitive skin. Can conveniently be sprayed on at any
angle and rubs in fast.
¶ 21) (emphasis in original).
28, 2018, plaintiff “applied and reapplied the Product
as instructed on the label but was unaware of the need to
shake the product vigorously for at least ten seconds and to
blend it well into her skin after applying it.”
(Complt. ¶ 33). Plaintiff suffered severe sunburn.
Plaintiff alleges that “[h]ad [she] known at the time
of purchase that the Product did not provide adequate sun
protection even when used as directed, she would not have
purchased it.” (Complt. ¶ 35).
alleges that the Product has received “hundreds of
complaints” in reviews on Amazon.com. (Complt. ¶
29). In Amazon.com reviews, people complained that, among
other things, the product “goes on like white face
paint” and that their skin burned while using the
point after plaintiff purchased the Product, defendant
changed the label it uses on Alba Botanica Very Emollient
Mineral Spray Sunscreen. The new label contains different
directions. Specifically, the new directions say,
“SHAKE VIGOROUSLY for 10 seconds before use.”
(Complt. ¶ 20).
on these allegations, plaintiff asserts six claims, and
defendant moves to dismiss them all.
STANDARD ON A MOTION TO DISMISS
Court may dismiss a claim pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure if the plaintiff fails
“to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). Under the
notice-pleading requirements of the Federal Rules of Civil
Procedure, a complaint must “give the defendant fair
notice of what the . . . claim is and the grounds upon which
it rests.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355
U.S. 41, 47 (1957)). A complaint need not provide detailed
factual allegations, but mere conclusions and a
“formulaic recitation of the elements of a cause of
action” will not suffice. Twombly, 550 U.S. at
555. To survive a motion to dismiss, a claim must be
plausible. Ashcroft v. Iqbal, 556 U.S. 662 (2009).
Allegations that are as consistent with lawful conduct as
they are with unlawful conduct are not sufficient; rather,
plaintiffs must include allegations that “nudg[e] their
claims across the line from conceivable to plausible.”
Twombly, 550 U.S. at 570.
considering a motion to dismiss, the Court accepts as true
the factual allegations in the complaint and draws
permissible inferences in favor of the plaintiff. Boucher
v. Finance Syst. of Green Bay, Inc., 880 F.3d 362, 365
(7th Cir. 2018). Conclusory allegations “are not
entitled to be assumed true, ” nor are legal
conclusions. Iqbal, 556 U.S. at 680 & 681
(noting that a “legal conclusion” was “not
entitled to the assumption of truth[;]” and rejecting,
as conclusory, allegations that “‘petitioners
‘knew of, condoned, and willfully and maliciously
agreed to subject [him]' to harsh conditions of
confinement”). The notice-pleading rule “does not
unlock the doors of discovery for a plaintiff armed with
nothing more than conclusions.” Iqbal, 556
U.S. at 678-679.
to Rule 9(b) of the Federal Rules of Civil Procedure, the
“circumstances constituting fraud” must be
alleged with particularity. Fed.R.Civ.P. 9(b).
Plaintiff's claims for consumer fraud and unjust
Count I, plaintiff asserts that defendant violated the
Illinois Consumer Fraud and Deceptive Trade Practices Act
(“ICFA”), 815 ILCS 505/1 et seq. To state a
claim, plaintiff must allege: “(1) a deceptive act or
practice by the defendant; (2) the defendant's intent
that the plaintiff rely on the deception; (3) the occurrence
of the deception in the course of conduct involving trade or
commerce, and (4) actual damage to the plaintiff (5)
proximately caused by the deception.” Avery v.
State Farm Mut. Auto. Ins. Co., 216 Ill.2d 100, 180
moves to dismiss, and plaintiff, in her response brief,
clarifies what her claim is and what it is not. “[T]his
case is about Defendant's practice of omitting material
facts, ” namely “that the sunscreen would not
provide adequate protection unless the consumer takes the
unusual step of vigorously shaking the aerosol
aluminum bottle for at least ten seconds.” (Plf. Brief
at 1). Plaintiff notes the case is not about rubbing the
product into the skin. Specifically, she states, “no
amount of rubbing after the product is applied would prevent
burns if the product is not properly mixed before it is
sprayed.” (Plf. Brief at 2). Plaintiff's claim is
that defendant violated the ICFA by omitting from its label
the fact that the product needed to be shaken vigorously for
ten seconds in order to work. ...