Angela Ebner v. Fresh, Inc.
2016 U.S. App. LEXIS 4875
| 9th Cir. | 2016Background
- Plaintiff Angela Ebner purchased Fresh, Inc.’s Sugar lip treatment and sued on behalf of consumers, alleging deceptive labeling, tube design, and packaging.
- Sugar’s label accurately discloses net weight (original 4.3 g; mini 2.2 g), but the screw-style tube prevents about 25% of the product from advancing past a plastic stop; remaining product is visible but not easily dispensed.
- Tubes include a 5.35 g metallic weight and are sold in oversized boxes; plaintiff alleges these features mislead consumers about accessible product quantity and reduce purchase value.
- Claims asserted: violations of California False Advertising Law (FAL), Consumers Legal Remedies Act (CLRA), Unfair Competition Law (UCL), Sherman Law provisions re: misleading cosmetics containers, the Fair Packaging & Labeling Act (FPLA) re: slack fill, and unjust enrichment.
- District court dismissed the First Amended Complaint with prejudice under Fed. R. Civ. P. 12(b)(6); Ninth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether accurate net-weight labeling can form basis for UCL/CLRA/FAL claim (safe-harbor) | Net-weight label is misleading because omission of supplemental disclosure conceals that 25% is not reasonably accessible | Compliance with federal and California net-weight labeling laws immunizes the label from UCL-based challenge | Accurate net-weight statement is within California’s safe-harbor; cannot be basis for UCL claim, but omission-claim is not automatically precluded (see next issues) |
| Whether state-law claim forcing supplemental disclosure is preempted by the FDCA | California may require supplemental disclosure to avoid misleading labeling under state Sherman Law | FDCA preempts state requirements that are different from or in addition to federal labeling rules | No preemption: Sherman Law’s prohibition on false/misleading labeling parallels FDCA, so plaintiff’s claim enforcing that duty is not preempted |
| Whether omission of supplemental disclosure is deceptive to a reasonable consumer | Omission makes label misleading because consumers cannot access advertised quantity | Reasonable consumers see net weight and understand screw-tube mechanics and visible remaining bullet; no likelihood of deception | Omission claim fails on the merits under the reasonable-consumer standard — no plausible allegation that a significant portion of consumers would be deceived |
| Whether tube design and packaging (oversized box, metallic weight) are deceptive | Packaging and weighted tube create false impression of more product and constitute unfair/deceptive practice | Such premium packaging and weighting are common in the high-end cosmetics market; reasonable consumers do not expect packaging weight/size to equal product quantity | Packaging/design claims fail: no plausible allegation that reasonable consumers would be misled |
| Whether product below the stop device is "nonfunctional slack fill" under FPLA §12606(b) | The portion of product below the mechanical stop is actionable slack fill because it is not reasonably accessible | Slack fill means empty space; product below stop is product, not empty space | Claim fails as a matter of law: remaining product is not "slack fill" because slack fill refers to empty space |
| Whether leave to amend should have been granted | Plaintiff sought leave to amend to cure defects | Fresh opposed | Denial of leave was proper because amendment would be futile given legal defects identified |
Key Cases Cited
- Skilstaf, Inc. v. CVS Caremark Corp., 669 F.3d 1005 (9th Cir. 2012) (pleading standard on Rule 12(b)(6) review)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (plausibility standard for complaints)
- Williams v. Gerber Prods. Co., 552 F.3d 934 (9th Cir. 2008) (reasonable-consumer standard for California consumer-protection statutes)
- Astiana v. Hain Celestial Grp., Inc., 783 F.3d 753 (9th Cir. 2015) (FDCA preemption and state misbranding claims)
- Cel‑Tech Commc’ns, Inc. v. L.A. Cellular Tel. Co., 973 P.2d 527 (Cal. 1999) (safe-harbor doctrine under California UCL)
- Davis v. HSBC Bank Nev., N.A., 691 F.3d 1152 (9th Cir. 2012) (limits of safe-harbor and omission-based claims)