TASHIMA, Circuit Judge:
Angela Ebner ("Plaintiff") alleges that cosmetics and skin care products manufacturer Fresh, Inc. ("Fresh") deceived consumers about the quantity of lip balm in its Sugar Lip Treatment ("Sugar") product line. Although Sugar's label accurately indicates the net weight of included lip product, the tube design uses a screw mechanism that allows only 75% of the product to advance up the tube. A plastic stop device prevents the remaining 25% from advancing past the tube opening. Each Sugar tube contains a weighted metallic bottom and is wrapped in oversized packaging. Plaintiff brought a putative consumer class action against Fresh, alleging that Fresh's label, tube design, and packaging are deceptive and misleading. The district court granted Fresh's Rule 12(b)(6) motion to dismiss Plaintiff's First Amended Complaint ("FAC") with prejudice. We affirm.
We accept as true the well-pleaded factual allegations in the complaint. Skilstaf, Inc. v. CVS Caremark Corp., 669 F.3d 1005, 1014 (9th Cir.2012). According to the FAC, Sugar is a lip treatment that comes in a variety of flavors and tints and sells in retail stores and on the internet for approximately $22.50 to $25.00 per unit. Over the past four years, Plaintiff, a California resident, has purchased Sugar at various locations in Southern California.
Sugar comes in an oversized dispenser tube that uses a screw mechanism to push the lip product to the top of the tube. The tube is packaged and sold in a large cardboard box. Both the tube and the cardboard box have labels indicating the net weight of the included lip product. For an "original" size tube, the indicated product weight is "4.3g e 0.15 oz."; for the "mini" size, the label reads "2.2.g e 0.08 oz." The FAC does not allege that the Sugar tube contains less than the stated quantity of product. Rather, it alleges that the stated product quantity is false and misleading because only a portion of that product is reasonably accessible to the consumer.
Plaintiff alleges that Sugar's "vastly oversized tubes and boxes" create the misleading impression that each unit has a larger quantity of lip product than it actually contains. Each Sugar tube also contains a 5.35 gram metallic weight that is concealed at the base of the tube. Collectively, the tube, cardboard box, weighted bottom, and 4.3 grams of lip product in an original tube of Sugar weigh approximately 29 grams. Plaintiff contends that as a result of Fresh's labeling, design, and packaging practices, she was misled as to the amount of lip product actually accessible in a tube of Sugar and was deprived of the value of her purchases.
The FAC asserts four state-law causes of action: (1) violation of California's False Advertising Law ("FAL"), Cal. Bus. & Prof.Code § 17500 et seq.; (2) violation of the California Consumers Legal Remedies Act ("CLRA"), Cal. Civ.Code § 1750 et seq.; (3) violation of California's Unfair Competition Law ("UCL"), Cal. Bus. & Prof.Code § 17200 et seq.; and (4) unjust enrichment. Fresh moved to dismiss the FAC under Federal Rule of Civil Procedure 12(b)(6). The district court granted the motion and denied leave to amend. This timely appeal followed.
We have jurisdiction pursuant to 28 U.S.C. § 1291. "We review de novo the district court's grant of a motion to dismiss under Rule 12(b)(6), accepting all factual allegations in the complaint as true and construing them in the light most favorable to the nonmoving party." Skilstaf, Inc., 669 F.3d at 1014. We may "affirm the district court's dismissal on any ground supported by the record." ASARCO, LLC v. Union Pac. R.R., 765 F.3d 999, 1004 (9th Cir.2014) (citations omitted). Dismissal is appropriate if the plaintiff has not "allege[d] enough facts to state a claim to relief that is plausible on its face." Turner v. City & Cty. of S.F., 788 F.3d 1206, 1210 (9th Cir.2015) (quoting Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008)). Determining whether a complaint states a plausible claim for relief is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
A court's denial of leave to amend is reviewed for an abuse of discretion. Alvarez v. Chevron Corp., 656 F.3d 925, 931 (9th Cir.2011). "In dismissing for failure to state a claim, a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Doe v. United States, 58 F.3d 494, 497 (9th Cir.1995) (citation omitted).
The district court divided Plaintiff's claims into two categories: (1) claims based on Sugar's labeling; and (2) claims based on Sugar's tube design and packaging. In dismissing the label-based claims, the district court concluded that both California's
The UCL, CLRA, and FAL, under which Plaintiff's deceptive labeling claims are brought, all prohibit unlawful, unfair, or fraudulent business practices. See Cal. Bus. & Prof.Code §§ 17200, 17500; see also Cal. Civ.Code § 1770. In California, unfair competition claims are subject to the safe harbor doctrine, which precludes plaintiffs from bringing claims based on "actions the Legislature permits." Cel-Tech Commc'ns, Inc. v. L.A. Cellular Tel. Co., 20 Cal.4th 163, 83 Cal.Rptr.2d 548, 973 P.2d 527, 542 (1999). To fall within the safe harbor, the challenged conduct must be affirmatively permitted by statute — the doctrine does not immunize from liability conduct that is merely not unlawful. As the California Supreme Court explained:
Id. 83 Cal.Rptr.2d 548, 973 P.2d at 541-42.
The FAC alleges that, although the Sugar label accurately states the net weight of lip product in the tube, only 75% of that product is reasonably accessible. To the extent the FAC challenges the Sugar label's accurate net weight statement, this claim is barred by the safe harbor doctrine. Both federal and California law affirmatively require cosmetics manufacturers to include an accurate statement of the net weight of included cosmetic product. 21 C.F.R. § 701.13(g) ("The declaration shall accurately reveal the quantity of cosmetic in the package exclusive of wrappers and other material packed therewith[.]"); Cal. Bus. & Prof.Code § 12603(b) ("The net quantity of contents [] in terms of weight or mass ... shall be separately and accurately stated ... upon the principal display panel of that label[.]"). Because Fresh complied with federal and state law requiring a net weight statement on Sugar's label, this conduct cannot form the basis of an unfair competition claim. Cal-Tech Commc'ns, Inc., 83 Cal.Rptr.2d 548, 973 P.2d at 541-42.
Plaintiff's other label claim is based on Fresh's omission of any supplemental or clarifying statement about product accessibility. This omission, Plaintiff argues, renders the existing net weight label deceptive and misleading. Unlike a claim seeking to alter the net weight declaration itself, this claim does not fall within the safe harbor because there is no law expressly permitting the omission of supplemental statements. See Davis v. HSBC Bank Nev., N.A., 691 F.3d 1152, 1167 (9th Cir.2012) ("[T]o fall under a safe harbor, the omission of the annual [fee] disclosure from Defendants' advertisements must be expressly permitted by some other provision. It is not enough if
As an additional ground for dismissing the label-based claims, the district court held that Plaintiff's claim that Fresh was required to include supplemental statements regarding product accessibility was preempted by the FDCA. We disagree.
The relevant FDCA provision states:
21 U.S.C. § 379s(a). Importantly, § 379s "does not preempt state laws that allow consumers to sue cosmetics manufacturers that label or package their products in violation of federal standards." Astiana v. Hain Celestial Grp., Inc., 783 F.3d 753, 757 (9th Cir.2015) (emphasis added).
Fresh argues that any state-law claim requiring it to include supplemental statements about product accessibility is preempted by the FDCA because federal law does not impose any such requirement on cosmetics manufacturers. This argument misconstrues Plaintiff's claim. In challenging Fresh's omission of supplemental statements about product weight, Plaintiff seeks to enforce § 111730 of California's Sherman Food, Drug, and Cosmetic Law ("Sherman Law"), Cal. Health & Safety Code § 109875 et seq. Section 111730 states that "[a]ny cosmetic is misbranded if its labeling is false or misleading in any particular." Cal. Health & Safety Code § 111730. The language in the Sherman Law is virtually identical to the language in the FDCA, which states that a "cosmetic shall be deemed to be misbranded if its labeling is false or misleading in any particular." 21 U.S.C. § 362(a). In other words, both the federal FDCA and California's Sherman Law prohibit the false or misleading labeling of a cosmetic. Viewed in this light, Plaintiff "is not asking [Fresh] to modify or enhance any aspect of its cosmetics labels that are required by federal law." Astiana, 783 F.3d at 758. Rather, the state-law duty that Plaintiff seeks to enforce under the Sherman Law is identical to Fresh's federal duty under the FDCA: the duty to avoid false or misleading labeling. Whether or not the lack of a supplemental statement rendered the accurate net weight label deceptive goes to the merits of the claim, not the question of federal preemption. See id. at 758 n. 3 ("To the extent [the defendant] claims that no consumer would be deceived ... this argument goes to the merits of [plaintiff's] assertion that she was deceived by the allegedly false or misleading label, not the question of federal preemption."). Because the Sherman Law does not amount to something "different from or in addition to" what federal
Although we conclude that neither the safe harbor doctrine nor FDCA preemption bars Plaintiff's supplemental statement claim, this label claim ultimately fails on the merits because Plaintiff cannot plausibly allege that the omission of supplemental disclosures about product weight rendered Sugar's label "false or misleading" to the reasonable consumer. Plaintiff's claims under the California consumer protection statutes are governed by the "reasonable consumer" test. Williams v. Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir.2008). Under this standard, Plaintiff must "show that `members of the public are likely to be deceived.'" Id. (citation omitted); Freeman v. Time, Inc., 68 F.3d 285, 289 (9th Cir.1995). This requires more than a mere possibility that Sugar's label "might conceivably be misunderstood by some few consumers viewing it in an unreasonable manner." Lavie v. Procter & Gamble Co., 105 Cal.App.4th 496, 129 Cal.Rptr.2d 486, 495 (2003). Rather, the reasonable consumer standard requires a probability "that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled." Id.
Plaintiff's claim that the reasonable consumer would be deceived as to the amount of lip product in a tube of Sugar is not plausible. It is undisputed that the Sugar label discloses the correct weight of included lip product. Dispenser tubes that use a screw mechanism to push up a solid bullet of lip product
Next, Plaintiff alleges that Sugar's oversized and weighty packaging and tube design are unfair, deceptive, and misleading under the FAL, CLRA, and UCL. As part of her UCL claim, Plaintiff also alleges unlawful acts in violation of the Sherman
Like the label-based claims, Plaintiff's design and packaging claims under these statutes are governed by the reasonable consumer test.
Sugar sells for approximately $22.50 to $25.00 a unit. When viewed in the proper context of the high-end cosmetics market, Sugar's elaborate packaging and the weighty feel of the tube is commonplace and even expected by a significant portion of Fresh's "targeted consumers." Lavie, 129 Cal.Rptr.2d at 495. Because of the widespread nature of this practice, no reasonable consumer expects the weight or overall size of the packaging to reflect directly the quantity of product contained therein. Because Plaintiff cannot plausibly allege that Sugar's design and packaging is deceptive, the district court did not err in dismissing the packaging-based claims.
Finally, Plaintiff claims that the Sugar tube violates § 12606(b) of the FPLA, which deems a container misleading if it, contains nonfunctional slack fill. Cal. Bus. & Prof.Code § 12606(b). Slack fill is defined as "the difference between the actual capacity of a container and the volume of product contained therein." Id. "Nonfunctional slack fill is the empty space in a package that is filled to substantially less than its capacity for reasons other than" one or more of the 15 enumerated reasons listed in the statute. Id.
The FAC alleges that "the significant portion of product falling below the mechanical stop device constitutes nonfunctional slack fill." This cannot constitute "slack fill" because under the plain language of the statute, slack fill means the portion of the container without product, i.e., empty space. Thus, the lip product falling below the stop device does not meet the definition of actionable slack fill. The district court correctly concluded that the
Plaintiff also contends that she should have been given leave to amend her FAC. Although, under Federal Rule of Civil Procedure 15(a)(2), leave to amend should be "freely" given, that liberality does not apply when amendment would be futile. See Doe, 58 F.3d at 497 (leave to amend should be freely given, "unless [the court] determines that the pleading could not possibly be cured by the allegation of other facts"). Such is the case here. As the above analysis in Part III demonstrates, any further amendment would be futile.
Finally, Plaintiff also pleads a cause of action for unjust enrichment. The FAC recognizes, however, that "[u]njust enrichment is a component of recovery under the statutes [UCL, CLRA, FAL, and FPLA] cited above." Thus, here, unjust enrichment is asserted as a remedy for the statutory violations alleged in the FAC. Because we have concluded that the FAC fails to state a claim under any of these statutes, the unjust enrichment cause of action has been mooted.
For the foregoing reasons, the judgment of the district court is