MARCIA G. COOKE, District Judge.
THIS MATTER is before me on Defendant's Motion to Dismiss Plaintiff's Complaint and Incorporated Memorandum of Law (ECF No. 21). Plaintiff Nathan Dapeer filed his Opposition to Defendant's Motion to Dismiss Complaint and Incorporated Memorandum of Law (ECF No. 30), to which Defendant Neutrogena Corporation submitted its Reply Brief in Support of its Motion to Dismiss Plaintiff's Complaint and Incorporated Memorandum of Law (ECF No. 40). Therefore, Defendant's Motion to Dismiss Plaintiff's Complaint and Incorporated Memorandum of Law is fully briefed and ripe for adjudication. I have reviewed Defendant's Motions to Dismiss, the Response and Reply thereto, the record, and the relevant legal authority. For the reasons provided herein, Defendant's Motion to Dismiss is granted in part and denied in part.
Plaintiff Nathan Dapeer ("Plaintiff" or "Mr. Dapeer") brings this action on behalf of himself and all others similarly situated against Defendant Neutrogena Corporation ("Defendant" or "Neutrogena"), seeking monetary damages, restitution, and injunctive and declaratory relief as a result of Neutrogena's alleged deceptive and misleading labeling of a variety of sunscreen products. Plaintiff asserts claims for relief under the Florida Deceptive and Unfair Trade Practices Act ("FDUTPA") (Count I), as well as under theories of unjust enrichment (Count II) and negligent misrepresentation (Count III).
Plaintiff asserts that he purchased two Neutrogena sunscreens, Neutrogena Ultra Sheer Body Mist, SPF 30 ("Neutrogena Body Mist") and Neutrogena Beach Defense Broad Spectrum SPF 70 Lotion ("Neutrogena Beach Defense") because he believed the following: (1) Neutrogena Body Mist "provided `water resistant' SPF 30 level protection for a full 80 minutes after application"; (2) Neutrogena Beach Defense "was waterproof and provided `sun barrier' protection from the sun's harmful UV radiation"; and (3) Neutrogena Beach Defense, a high SPF sunscreen, provided "superior sun protection." Compl. ¶¶ 18-21. He claims that he would not have purchased the abovementioned sunscreens had he known that the Neutrogena Body Mist and Neutrogena Beach Defense sunscreens were not "water resistant" for 80 minutes, that they did not provide both water and sun barrier protection from the sun's UV radiation, and that the higher SPF value of the Neutrogena Beach Defense sunscreen did not necessarily mean that it provided superior UVB protection compared to less expensive, lower SPF value products. Id. at ¶¶ 22-23. Although Plaintiff only purchased two Neutrogena sunscreens, he believes his claims are representative of the claims of a larger class of individuals who purchased similar beach defense and high SPF sunscreens. His proposed class encompasses over twenty Neutrogena sunscreen products. Id. at ¶¶ 70-81.
Claiming that he bought Neutrogena products as a result of false, misleading,
Defendant Neutrogena, in part, premises its Motion to Dismiss on Rule 12(b)(1) of the Federal Rules of Civil Procedure.
A complaint "must contain ... a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Thus, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (noting that a plaintiff must articulate "enough facts to state a claim to relief that is plausible on its face."). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. A complaint's factual allegations must be enough to raise a right to relief above speculative level. Id. Detailed factual allegations are not required, but a pleading "that offers `labels and conclusions' or a `formulaic recitation of the elements of a cause of action will not do.'" Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 555, 127 S.Ct. 1955).
A court need not have to accept legal conclusions in the complaint as true. See Ashcroft v. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. at 679, 129 S.Ct. 1937. "[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss." Id. When a plaintiff pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief. See id. at 678, 129 S.Ct. 1937.
Neutrogena argues the following regarding Plaintiff's claims: (1) Plaintiff lacks standing under Article III of the Constitution to pursue claims for products he neither purchased nor used; (2) Plaintiff lacks standing to seek injunctive relief because he has failed to allege a risk of future harm; (3) Plaintiff's SPF claims should be dismissed because they are preempted; and (4) Plaintiff's SPF claims should be dismissed under the primary jurisdiction doctrine. I will address each argument in turn.
Neutrogena challenges Plaintiff's standing under Article III of the U.S. Constitution to bring claims on behalf of products he never purchased as well as Plaintiff's standing to seek injunctive relief when he has failed to allege a risk of future harm.
In his Complaint, Plaintiff admits to having only purchased Neutrogena Ultra Sheer Body Mist, SPF 30 and Neutrogena Beach Defense Broad Spectrum SPF 70 Lotion, and yet brings claims on behalf of all Neutrogena Beach Defense sunscreens as well as all Neutrogena sunscreens with an SPF of above 50. Neutrogena argues that Plaintiff lacks standing to pursue any
District courts appear to be split on this issue of standing.
Here, Plaintiff lacks Article III standing to bring claims on behalf of the Neutrogena products he did not purchase because he cannot conceivably allege any injuries from products that he never purchased or used. Therefore, all of Plaintiff's claims related to unpurchased products are dismissed.
Neutrogena also argues that Plaintiff lacks standing to seek injunctive relief because he fails to allege that he is threatened by repetition of the injury. Plaintiff responds that under FDUTPA requirements, he "need not allege `that he intends to purchase any of the [p]roducts in the future.'" Pl.'s Opp. to Def.'s Mot. to Dismiss 11.
Although the FDUTPA allows a plaintiff to pursue injunctive relief even where the individual plaintiff will not benefit from an injunction, see Davis v. Powertel, Inc., 776 So.2d 971, 974 (Fla.App. 1st Dist.2000), it cannot supplant Constitutional standing requirements. Article III of the Constitution requires that a plaintiff seeking injunctive relief allege a threat of future harm. "The Supreme Court has
Here, although Plaintiff alleges a past injury, he fails to sufficiently allege a threat of future harm. In fact, Plaintiff acknowledges in his Complaint that Neutrogena "removed the `water + sun barrier' claim from the labels of newly manufactured Neutrogena Beach Defense Sunscreens." Compl. ¶ 49. Therefore, it would be impossible for Plaintiff to allege any threat of future harm from those products. Accordingly, Plaintiff's claims for injunctive relief are dismissed.
The United States Food and Drug Administration ("FDA") regulates sunscreens under the Food, Drug, and Cosmetic Act ("FDCA"). Under the Supremacy Clause of the United States Constitution, federal law is the supreme law of the land and any conflicts between federal and state law must be resolved in favor of federal law. Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) ("[S]tate law that conflicts with federal law is `without effect.'"). Regardless of the type of preemption, "the purpose of Congress is the ultimate touchstone of pre-emption analysis." Id. at 516, 112 S.Ct. 2608 (internal quotations omitted). Neutrogena argues that the FDCA expressly and impliedly preempts Plaintiff's claims.
According to Neutrogena, Plaintiff's SPF claims are expressly preempted because Plaintiff seeks to impose labeling requirements that differ from those established by the FDA.
The FDA heavily regulates the sunscreen industry. Every sunscreen must contain an SPF value derived from FDA-approved testing. 21 C.F.R. § 201.327(a)(1); see also Sunscreen Drug Products for Over-The-Counter Human Use; Final Monograph, 64 Fed.Reg. 27688 (May 21, 1999). While the FDA has not yet established a minimum or maximum allowable SPF value, it has promulgated regulations requiring that all SPF values included on sunscreen labels accurately reflect the results of FDA-approved testing. See id. However, while there exists no final rule regarding minimum or maximum SPF values, the FDA does have a long history of considering proposed rules that establish a maximum SPF value. The FDA considered maximum SPF values of both 30 and 50, and eventually rejected both proposals. See Sunscreen Drug Products for Over-The-Counter Human Use; Final Monograph, 64 Fed.Reg. 27674-27675; see also Sunscreen Drug
Here, Plaintiff claims that he is "not seeking to impose different testing standards or methods for measuring SPF" nor he is "seeking to change the specific way Neutrogena displays the SPF value on the label." Pl.'s Resp. 13. Instead, Plaintiff argues that his complaint addresses "Neutrogena's marketing — the combination of the high SPF ratings with charging a price premium and claiming greater protection" as being "misleading and deceptive to consumers." Id. at 14. To the extent that Plaintiff challenges as false and misleading the way that Neutrogena marketed its products — by combining SPF values with higher prices — those claims are not expressly preempted. If Plaintiff were to prevail, Neutrogena's SPF labeling requirements would technically remain unchanged. Neutrogena could still include SPF values of greater than 50 on product labels, but would be precluded from falsely misleading consumers into believing that a higher SPF provides significantly greater clinical protection than sunscreens with an SPF of 50 or lower. See Lombardo v. Johnson & Johnson Consumer Co.'s, Inc., No. 13-60536-Civ-Scola, 2013 U.S. Dist. LEXIS 189043, at *10-11 (S.D.Fla. Dec. 19, 2013); see also Corra v. Energizer Holdings, Inc., 962 F.Supp.2d 1207, 1214 (E.D.Cal.2013).
Before moving on to consider Neutrogena's other arguments however, I would like to note that my decision to allow Plaintiff to move forward with his high SPF claims is more a reflection of the standard required when considering a Rule 12(b)(6) motion to dismiss then of my confidence in the underlying merit of Plaintiff's claims. At this stage in the litigation, I must accept all material facts alleged as true and construe them in the light most favorable to the plaintiff. However, Plaintiff should not place a great amount of faith in my decision to allow his high SPF claims to proceed. There remain a great number of questions regarding the viability of Plaintiff's claims and the relief he seeks that will not be as easily overlooked as this case proceeds.
Conflict preemption arises where "(1) compliance with both federal and state regulations is a physical impossibility, or (2) the challenged state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Fresenius Med. Care Holdings, Inc. v. Tucker, 704 F.3d 935, 936 (11th Cir.2013) (internal quotation marks omitted). Neutrogena argues that Plaintiff's SPF claims are impliedly preempted because Plaintiff is attempting to establish labeling requirements that would prohibit the display of SPF values above 50 on Neutrogena's labels,
Neutrogena also argues that Plaintiff's high SPF claims be dismissed under the primary jurisdiction doctrine. Primary jurisdiction "is a doctrine specifically applicable to claims properly cognizable in court that contain some issue within the special competence of an administrative agency. It requires the court to enable a `referral' to the agency, staying further proceedings so as to give the parties reasonable opportunity to seek an administrative ruling." Reiter v. Cooper, 507 U.S. 258, 268, 113 S.Ct. 1213, 122 L.Ed.2d 604 (1993). The "main justifications for the rule of primary jurisdiction are the expertise of the agency deferred to and the need for a uniform interpretation of a statute or regulation." Boyes v. Shell Oil Products Co., 199 F.3d 1260, 1265 (11th Cir.2000) (quoting County of Suffolk v. Long Island Lighting Co., 907 F.2d 1295, 1310 (2d Cir.1990)).
Neutrogena's main argument in favor of applying the primary jurisdiction doctrine here is the risk of inconsistent rulings due to the FDA's ongoing evaluation of the additional clinical benefits of sunscreen products with SPF values above 50. However, I find that application of the primary jurisdiction doctrine would be inappropriate in this case because Plaintiff's claims rest on a determination of whether Neutrogena's marketing of its high SPF products is false and misleading. "Determining whether a manufacturer has misled consumers is squarely within the judicial function." Karhu v. Vital Pharm., Inc., 2013 U.S. Dist. LEXIS 112613, 2013 WL 4047016, at *4 (S.D.Fla.2013) (Cohn, J.). Therefore, I will not dismiss Plaintiff's high SPF claims on primary jurisdiction grounds.
Having reviewed all of the arguments regarding the dismissal of Plaintiff's Complaint, along with the record and relevant legal authorities, Defendant Neutrogena's Motion to Dismiss Plaintiff's Complaint and Incorporated Memorandum of Law (ECF No. 21) is