Ebner v. Fresh, Inc.
838 F.3d 958
9th Cir.2016Background
- Plaintiff Angela Ebner bought Fresh, Inc.’s Sugar lip treatment (sold at ~$22–$25) and sued as a putative class member claiming deception about the usable quantity of product.
- Sugar tubes and outer boxes state accurate net weights (original 4.3g; mini 2.2g) but use a screw mechanism and an internal plastic stop that allegedly prevent ~25% of the product from advancing for normal application.
- Tubes contain a concealed weighted metal base and are sold in oversized packaging; plaintiff alleges these features, together with the label omission, mislead consumers about accessible product and deprive consumers of value.
- Plaintiff asserted claims under California’s False Advertising Law (FAL), Consumers Legal Remedies Act (CLRA), Unfair Competition Law (UCL), the Fair Packaging and Labeling Act (FPLA) slack-fill prohibition, and unjust enrichment.
- The district court dismissed the First Amended Complaint with prejudice under Rule 12(b)(6); plaintiff appealed. The Ninth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Fresh's Argument | Held |
|---|---|---|---|
| Whether an accurate net-weight label is actionable when the package design makes part of the product inaccessible | Ebner: omission of a supplemental disclosure about inaccessible product renders the accurate net-weight label misleading | Fresh: federal and California labeling laws require accurate net-weight statements (safe harbor); FDCA preempts state requirements for additional disclosures | Neither safe harbor nor FDCA preemption bars the claim, but plaintiff cannot plausibly show reasonable consumers would be misled by the omission; label-based claims fail |
| Whether FDCA preempts state-law duty to avoid misleading labeling here | Ebner: state law can require disclosure about accessibility as an aspect of avoiding misleading labels | Fresh: FDCA preempts any state requirement that is different from or additional to federal cosmetic labeling rules | Court: No preemption because California Sherman Law’s prohibition on misleading labeling parallels federal duty; the dispute is merits-based not preempted |
| Whether Sugar’s tube design, weighted bottom, and oversized packaging are deceptive to a reasonable consumer | Ebner: design and packaging create misleading impression of greater accessible product quantity (unfair/deceptive) | Fresh: such packaging and weighted feel are common in the high-end cosmetics market and do not suggest more usable product; label already states accurate net weight | Court: Reasonable consumer would expect some residual product and non-product weight; design/packaging not plausibly deceptive; claims fail |
| Whether the FPLA’s nonfunctional slack-fill prohibition covers product inaccessible below the stop device | Ebner: product below the stop device is effectively slack fill and therefore nonfunctional | Fresh: slack fill means empty space; product present below stop device is not empty slack fill | Court: Slack fill statute covers empty space; product below the stop is not slack fill—claim fails |
Key Cases Cited
- Skilstaf, Inc. v. CVS Caremark Corp., 669 F.3d 1005 (9th Cir.) (standard for accepting well-pleaded allegations on Rule 12(b)(6))
- Ashcroft v. Iqbal, 556 U.S. 662 (context-specific plausibility standard for pleadings)
- Williams v. Gerber Prods. Co., 552 F.3d 934 (9th Cir.) (reasonable-consumer test; packaging can be deceptive despite ingredient panel)
- Astiana v. Hain Celestial Grp., Inc., 783 F.3d 753 (9th Cir.) (FDCA does not preempt state-law suits enforcing federal labeling standards)
- Cel-Tech Commc’ns, Inc. v. L.A. Cellular Tel. Co., 20 Cal.4th 163 (Cal.) (safe-harbor doctrine for UCL claims—conduct affirmatively permitted by statute cannot form UCL basis)
- Davis v. HSBC Bank Nev., N.A., 691 F.3d 1152 (9th Cir.) (safe-harbor analysis requires affirmative permission by statute)
- Lavie v. Procter & Gamble Co., 105 Cal.App.4th 496 (Cal. Ct. App.) (reasonable-consumer requires a probability that a significant portion of consumers could be misled)
- Alvarez v. Chevron Corp., 656 F.3d 925 (9th Cir.) (standard for review of district court denial of leave to amend)