Vance v. Church & Dwight Co., Inc., 2:22-cv-00044

Background

Plaintiff Shari Vance purchased Zicam "Pre-Cold" products (RapidMelts variants) after relying on label statements that the products "reduce the duration" and "shorten colds," and are a "cold remedy" to be used "at the first sign of a cold."
Plaintiff alleges she used the product as directed but experienced no benefit; she alleges Zicam Pre-Cold products are no more effective than a placebo.
The FAC asserts class claims including breach of express and implied warranties, CLRA, FAL, UCL (unlawful, fraudulent, unfair), and unjust enrichment on behalf of a nationwide/class and a ten-state express-warranty subclass.
Defendant moved to dismiss on multiple grounds: claims premised on lack of substantiation, equitable restitution/unjust enrichment barred by Sonner, lack of standing for injunctive relief, and lack of standing to sue under non-California state laws.
The court denied dismissal on the falsity/adequacy pleading ground (finding anecdotal allegations sufficient), denied dismissal of unjust enrichment, allowed injunctive-relief standing, and denied dismissal as to multi-state warranty subclass; but dismissed UCL/CLRA equitable restitution claims with leave to amend.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Adequacy: Are claims impermissibly premised on lack of substantiation?	Vance alleges products are affirmatively false (no more effective than placebo), not merely unsubstantiated.	Claims should be dismissed because California law bars private suits that merely challenge lack of substantiation.	Court: Denied dismissal; pleaded anecdotal experience plausibly alleges falsity rather than mere lack of substantiation.
Equitable restitution / unjust enrichment (Sonner)	Vance seeks restitution/disgorgement; alleges lack of adequate legal remedy for unjust enrichment claim.	Sonner requires plaintiffs to allege they lack an adequate remedy at law before obtaining equitable restitution under UCL/CLRA.	Court: CLRA and UCL restitution claims dismissed with leave to amend for failure to allege inadequacy of legal remedy; unjust enrichment survives because FAC alleges lack of legal remedy.
Injunctive relief standing	Vance will shop where Zicam is sold and would purchase again if product actually worked; thus she faces a reasonable threat of future harm or uncertainty about labeling.	Defendant: Vance already believes zinc remedies are ineffective, so she cannot plausibly face future deception.	Court: Denied dismissal; allegations (following Davidson) sufficiently plead likelihood of future harm or that she might be deceived if product were reformulated.
Standing to assert claims under other states' laws	Multi-state warranty subclass valid at pleading stage; choice of states based on similar warranty laws; challenge better suited for class certification.	Vance lacks standing to assert claims under laws of states where she was not injured or did not purchase product.	Court: Denied dismissal; court exercises discretion to defer the multi-state standing question to class-certification stage.

Key Cases Cited

Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336 (9th Cir. 1996) (accept factual allegations as true on Rule 12(b)(6))
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility pleading standard)
Ashcroft v. Iqbal, 556 U.S. 662 (2009) (court need not accept legal conclusions as true)
Foman v. Davis, 371 U.S. 178 (1962) (leave to amend generally granted absent prejudice, bad faith, or futility)
Intri-Plex Techs., Inc. v. Crest Group, Inc., 499 F.3d 1048 (9th Cir. 2007) (dismissal without leave only if amendment would be futile)
Nat’l Council Against Health Fraud, Inc. v. King Bio Pharm., Inc., 107 Cal. App. 4th 1336 (2003) (private plaintiffs cannot base consumer-law claims solely on lack of substantiation)
Kwan v. SanMedica Int’l, 854 F.3d 1088 (9th Cir. 2017) (California law does not permit private suits to enforce substantiation requirements; must allege actual falsity)
Sonner v. Premier Nutrition Corp., 971 F.3d 834 (9th Cir. 2020) (must allege lack of adequate legal remedy before obtaining equitable restitution under UCL/CLRA)
Davidson v. Kimberly-Clark Corp., 889 F.3d 956 (9th Cir. 2018) (previously deceived consumers may have standing to seek injunction for future deception)
Guzman v. Polaris Indus. Inc., 49 F.4th 1308 (9th Cir. 2022) (Sonner applies to equitable UCL claims when a viable damages claim exists)