Langan v. Johnson & Johnson Consumer Companies, Inc.

Filing 47

ORDER. Defendant's Motion to Dismiss (Doc. # 30 ) is DENIED. See attached ruling. Signed by Judge Jeffrey A. Meyer on 3/31/2015. (Norman, D.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

HEIDI LANGAN, on behalf of herself and
all others similarly situated,
Plaintiff,
No. 3:13-cv-01470 (JAM)

v.
JOHNSON & JOHNSON CONSUMER
COMPANIES, INC.,
Defendant.

RULING DENYING DEFENDANT’S MOTION TO DISMISS
This case is about the use of the word “natural” on labels for sunscreen products.
Defendant Johnson & Johnson Consumer Companies Inc. makes and sells sunscreen products
under its well-known Aveeno brand name. Some of these products have prominent labels stating
that they provide “natural protection” and contain “100% naturally-sourced sunscreen
ingredients.” Plaintiff Heidi Langan claims that these labels are misleading—that they led her
and other reasonable consumers to believe that all the ingredients in the sunscreen products were
natural, when in fact the products actually contain synthetic ingredients such as in the lubricating
skin lotion that is mixed in with ingredients that protect against exposure to the sun. In response,
defendant readily admits that its sunscreen products contain many unnatural ingredients, but it
nevertheless contends that the statements on its labels are literally true and not misleading
because the ingredients in the products that actively protect a user from the sun’s rays are in fact
natural.
In this putative class action case, plaintiff contends that defendant’s use of these
statements on the sunscreen product labels is deceptive and unfair in violation of the Connecticut

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Unfair Trade Practices Act (“CUTPA”), Conn. Gen. Stat. § 52-110a et. seq.1 Defendant has
moved to dismiss this claim pursuant to Fed. R. Civ. P. 12(b)(6). Defendant argues (1) that
plaintiff has failed to state a claim under CUTPA, and (2) that plaintiff’s CUTPA claim is
preempted by the Food, Drug, and Cosmetic Act (“FDCA”) or, in the alternative, is within the
primary jurisdiction of the Food and Drug Administration (“FDA”). Because I find that plaintiff
has alleged a viable CUTPA claim that is not preempted by federal law or barred by the primary
jurisdiction doctrine, I will deny the motion to dismiss.
BACKGROUND
Plaintiff’s second amended complaint (Doc. #29)—currently the operative complaint in
this litigation—alleges the following facts. Defendant manufactures and markets sunscreen
products under its Aveeno brand name. Three particular Aveeno sunscreens—Aveeno Baby
Brand Natural Protection Lotion Sunscreen, Aveeno Brand Natural Protection Lotion Sunscreen,
and Aveeno Baby Brand Natural Protection Face Stick—are at issue in this case. The front labels
of each of these three sunscreen products prominently feature the words “natural protection” and
“100% naturally-sourced sunscreen ingredients.” These phrases “constitute representations to a
reasonable consumer that the Sunscreen Products contain only natural ingredients.” Doc. #29, ¶
11.
Indeed, plaintiff herself went shopping, saw these Aveeno sunscreen products at the
store, reviewed the product labels, and purchased two containers based on her understanding that
the sunscreens contained only natural ingredients. Plaintiff and other consumers paid a premium
for these Aveeno sunscreens, which are more expensive than comparable sunscreens that do not
purport to be natural. The Aveeno sunscreen products, however, are not entirely natural. They

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Plaintiff also alleges that defendant’s statements violate “materially identical” consumer protection
statutes from 20 other jurisdictions.

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“actually contain numerous unnatural, synthetic ingredients.” Ibid.
DISCUSSION
The principles governing this Court’s consideration of a motion to dismiss pursuant to
Fed. R. Civ. P. 12(b)(6) are well established. The Court must accept as true all factual matter
alleged in a complaint and draw all reasonable inferences in a plaintiff’s favor. See Ret. Bd. of
the Policemen’s Annuity & Ben. Fund of the City of Chicago v. Bank of New York Mellon, 775
F.3d 154, 159 (2d Cir. 2014). But “‘[t]o survive a [Rule 12(b)(6)] 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.’” TechnoMarine SA v. Giftports, Inc., 758 F.3d 493, 505 (2d Cir. 2014) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
Adequacy of CUTPA Allegations
CUTPA prohibits the use of “unfair or deceptive acts or practices in the conduct of any
trade or commerce.” Conn. Gen. Stat. § 42-110b(a). CUTPA claims can be based on either an
“actual deceptive practice” or an unfair practice—that is, a “practice amounting to a violation of
public policy.” Ulbrich v. Groth, 310 Conn. 375, 409, 78 A.3d 76 (2013) (internal quotation
marks omitted). Here, plaintiff claims that defendant’s practices are both deceptive and unfair.
An act or practice is actually deceptive under CUTPA when there is: (1) “a
representation, omission, or other practice likely to mislead consumers”; (2) the consumer
“interpret[s] the message reasonably under the circumstances”; and (3) “the misleading
representation, omission, or practice [is] material—that is, likely to affect consumer decisions or
conduct.” Smithfield Assocs., LLC v. Tolland Bank, 86 Conn. App. 14, 28, 860 A.2d 738 (2004)
(internal quotation marks omitted).
To determine whether an act or practice is unfair under CUTPA, Connecticut courts look

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to the following factors:
(1) [W]hether the practice, without necessarily having been previously considered
unlawful, offends public policy as it has been established by statutes, the common
law, or otherwise—in other words, it is within at least the penumbra of some
common law, statutory, or other established concept of unfairness; (2) whether it
is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes
substantial injury to consumers, [competitors or other businesspersons].
Ulbrich, 310 Conn. at 409 (alterations in original) (internal quotation marks omitted). “It is well
settled that whether a defendant’s acts constitute . . . deceptive or unfair trade practices under
CUTPA . . . is a question of fact for the trier . . . .” Naples v. Keystone Bldg. & Dev. Corp., 295
Conn. 214, 228, 990 A.2d 326 (2010) (internal quotation marks omitted).
Plaintiff claims that defendant’s use of the phrases “natural protection” and “100%
naturally-sourced sunscreen ingredients” on its sunscreen product labels is actually deceptive
because these phrases lead reasonable consumers to believe that the sunscreens contain only
natural ingredients when the products actually contain numerous unnatural ingredients.
Defendant disagrees, and argues that these statements merely convey the “unambiguous and
truthful message . . . that the ingredients that provide protection from the sun are naturallysourced.” Doc. #30-1 at 18. Defendant further argues that any ambiguity in the meaning of these
phrases is dispelled by the detailed ingredient list found elsewhere on the product packaging. Id.
at 19.
Whether the phrases on defendant’s sunscreen packaging are deceptive is a question of
fact that is not readily susceptible to resolution on a motion to dismiss. “Defendant’s argument
that the representations are literally true because the term ‘100%’ only applies to the ingredients
in the products that provide protection from the sun (and not to other ingredients in the lotions
that serve other purposes) rests on one possible interpretation of the language, but it is not the
only possible interpretation.” Fagan v. Neutrogena Corp., 2014 WL 92255, at *2 (C.D. Cal.
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2014). Indeed, it seems perfectly reasonable to me that a typical consumer might interpret the
phrase “100% naturally-sourced sunscreen ingredients” on a sunscreen product label to mean
that the whole product was natural. After all, the entire product—everything in the container—is
applied by a consumer as a sunscreen, and it seems unlikely that a reasonable consumer would
distinguish between the active “sunscreen ingredients” and the “non-sunscreen ingredients”
inside a container. I have little difficulty rejecting defendant’s argument that these phrases should
be deemed not deceptive as a matter of law. See Astiana v. Dreyer’s Grand Ice Cream, Inc.,
2012 WL 2990766, at *7 (N.D. Cal. 2012) (denying motion to dismiss because “it is [not]
implausible under Twombly and Iqbal that a reasonable consumer might . . . understand the term”
“‘All Natural Flavors’ to mean ‘all natural ingredients’”).
Nor can I conclude as a matter of law that the product ingredient list found on the back of
the products clarifies whether the sunscreens contain natural ingredients. To begin with, it is not
clear to me that merely listing the names of the various product ingredients—without specifying
whether those ingredients are natural or unnatural—elucidates whether the sunscreen contains
natural ingredients. Defendant contends that a reasonable consumer would recognize that certain
ingredients in the sunscreens, such as “hydroxyethyl acrylate/sodium acryloyldimethyl taurate
copolymer,” are “obvious[ly] synethetic.” Doc. #34 at 9. It may be that a jury ultimately accepts
this argument, but I decline to decree that certain ingredients would be understood by a
reasonable consumer to be unnatural. After all, a quick Google search indicates that even an
ordinary blueberry contains quite scary sounding ingredients like “isoleucine,” “phenylalanine,”
and “phytosterols,” as well as flavors with names like “ethyl ethanoate, 3-methyl butyraldehyde,
2-methyl butyraldehyde, pentanal, [and] methylbutyrate.” See “What It Would Look Like if
Your Banana Came With an Ingredient List,” available at

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http://www.businessinsider.com/ingredient-list-for-natural-products-2014-1 (last accessed March
30, 2015). Would a reasonable consumer be expected to know that these ingredients are
obviously natural?
Moreover, although there is apparently no Connecticut law directly on point, I do not
think that Connecticut courts would hold that a defendant can automatically immunize itself
from CUTPA liability by “rely[ing] on the ingredient list [on the back of its packaging] to correct
any false or misleading statements on the front of its packaging.” See Astiana, 2012 WL
2990776, at *11; see also Ackerman v. Coca-Cola Co., 2010 WL 2925955, at *16 (E.D.N.Y.
2010) (noting that “the presence of a nutritional panel, though relevant, does not as a matter of
law extinguish the possibility that reasonable consumers could be misled by the vitaminwater’s
labeling and marketing”). As the Ninth Circuit has stated when discussing the reasonable
consumer standard under a California consumer protection law:
We [do not think] that reasonable consumers should be expected to look beyond
misleading representations on the front of the box to discover the truth from the
ingredient list in small print on the side of the box. The ingredient list on the side
of the box appears to comply with FDA regulations and certainly serves some
purpose. We do not think that the FDA requires an ingredient list so that
manufacturers can mislead consumers and then rely on the ingredient list to
correct those misinterpretations and provide a shield for liability for the deception.
Instead, reasonable consumers expect that the ingredient list contains more
detailed information about the product that confirms other representations on the
packaging.
Williams v. Gerber Prods. Co., 552 F.3d 934, 939–40 (9th Cir. 2008). In sum, plaintiff has
alleged a plausible claim that defendant’s statements on the sunscreen products are deceptive in
violation of CUTPA.
I also find that plaintiff has sufficiently pleaded a claim that defendant’s statements are
unfair in violation of CUTPA. First, plaintiff plausibly alleges that defendant’s statements offend
an established public policy: the FDCA’s prohibition on sunscreen “labeling [that] is false or
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misleading in any particular.” See 21 U.S.C. § 362(a) (prohibiting such labeling in cosmetics); 21
U.S.C. § 352(a) (prohibiting such labeling in the drug context). Second, a jury that finds that the
statements on the product labeling are misleading could also find that defendant’s practice of
including these prominent statements is unethical, immoral, or unscrupulous, particularly given
the fact that the natural sunscreen ingredients in the products are only a small amount—about 7%
to 15%—of the total contents in each container. Third, there are sufficient allegations in the
complaint to indicate that these statements are substantially injurious to customers. Plaintiff
alleges that she and other members of the putative class paid a premium—ranging from $3 to
almost $6—for each product over comparable products that are not marketed as consisting of
natural ingredients. While this financial harm is rather small for each individual consumer,
plaintiff alleges that the cumulative injury to class members is in excess of $5 million. If the
allegations in the complaint are proven, a reasonable fact finder could conclude that defendant’s
statements on the sunscreen labels are unfair within the meaning of CUTPA.
Preemption
Defendant contends that plaintiff’s state consumer protection claims in this lawsuit are
expressly preempted by the FDCA. It is well established that “Congress has the power to
preempt state law[s]” by “enacting a statute containing an express preemption provision.”2
Arizona v. United States, 132 S. Ct. 2492, 2500–01 (2012). But a federal statute will not be
found to preempt claims arising under state law unless Congress’ intent to do so is “‘clear and
manifest.’” Wyeth v. Levine, 555 U.S. 555, 565 (2009) (quoting Medtronic, Inc. v. Lohr, 518
U.S. 470, 485 (1996)). This presumption against preemption applies with particular force where
Congress legislates “‘in a field which the States have traditionally occupied’”—that is, a field
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There are several other types of preemption, see, e.g., Arizona v. United States, 132 S. Ct. 2492, 2500–01
(2012) (discussing express preemption, field preemption, and conflict preemption), but here defendant has raised
only an express preemption challenge.

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within “‘the historic police powers of the States.’” Ibid. (quoting Lohr, 518 U.S. at 485). The
advertising and labeling of consumer products is a field traditionally subject to state regulation.
See Altria Grp., Inc. v. Good, 555 U.S. 70, 77 (2008).
The FDCA provides in relevant part that states may not create “any requirement . . . that
is different from or in addition to, or that is otherwise not identical with, a requirement [imposed
under federal law relating to over-the-counter drugs such as sunscreens].” 21 U.S.C. §
379r(a)(2). But the FDCA further provides that states are free to enforce “a requirement that is
identical to a requirement” under federal law. Id. § 379r(f). A state, therefore, is free to
“provid[e] a damage remedy for conduct that would otherwise violate federal law.” Ackerman,
2010 WL 2925955, at *6.
Plaintiff’s claims in this case are premised on the theory that defendant’s sunscreen labels
are false and misleading. According to defendant, “Plaintiff seeks to impose a requirement that is
different from the labeling requirements promulgated by the FDCA.” Doc. #30 at 2. I am not
persuaded. The FDCA itself prohibits “labeling [that] is false or misleading.” 21 U.S.C. § 362(a).
“[P]laintiff’s claims, if proved, ‘would simply require Defendant to truthfully state [whether the
sunscreen ingredients are 100% naturally sourced] or not sell its products; such relief would not
impose a state requirement that is different from or in addition to, or that is otherwise not
identical with that of the FDCA.’” Fagan, 2014 WL 92255, at *1 (alteration in original) (quoting
Delarosa v. Boiron, Inc., 818 F. Supp. 2d 1177, 1189–90 (C.D. Cal. 2011)); see also
Goldemberg v. Johnson & Johnson Consumer Cos., Inc., 8 F. Supp. 3d 467, 473–76 (S.D.N.Y.
2014) (FDCA did not preempt deceptive-act-and-practices claim under New York law alleging
misleading labeling of “Active Naturals” on Aveeno personal care products). Because plaintiff’s
CUTPA claims target conduct that is already prohibited under federal law and does not conflict

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with federal law, the claims are not preempted.
Primary Jurisdiction
Finally, defendant argues that plaintiff’s claims are barred by the doctrine of primary
jurisdiction. This doctrine seeks to “promot[e] proper relationships between the courts and
administrative agencies charged with particular regulatory duties,” and it applies when
“enforcement of the claim requires the resolution of issues which, under a regulatory scheme,
have been placed within the special competence of an administrative body.” Ellis v. Tribune
Television Co., 443 F.3d 71, 81 (2d Cir. 2006) (internal quotation marks omitted). While there is
“[n]o fixed formula” for deciding when to invoke the doctrine, courts generally examine whether
the case involves “technical or policy considerations within the agency’s particular field of
expertise,” and “whether the question at issue is particularly within the agency’s discretion”
(among other factors). Id. at 82–83 (internal quotation marks omitted). The Second Circuit has
cautioned that the doctrine has a “relatively narrow scope,” and does not apply when the claim
involves matters within the “traditional realm of judicial competence.” Goya Foods, Inc. v.
Tropicana Prods., Inc., 846 F.2d 848, 851 (2d Cir. 1988). When the doctrine does apply, a court
will either stay the case or dismiss it without prejudice. See Johnson v. Nyack Hosp., 86 F.3d 8,
11 (2d Cir. 1996).
The primary jurisdiction doctrine does not apply in this case. It is true that the FDA has
special competence to determine as a factual matter whether particular ingredients are or are not
“natural,” and that the FDA has the authority to regulate the use of the word “natural” in the
labeling of sunscreens. But here the parties agree that the Aveeno sunscreen products at issue
contain certain natural ingredients and certain unnatural ingredients. The only dispute is whether
the use of the terms “natural protection” and “100% naturally-sourced sunscreen ingredients”

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conveys the deceptive message that the whole sunscreen product is natural (as plaintiff claims),
or whether these terms convey the truthful and non-deceptive message that only those
ingredients that actively protect a user from the sun’s rays are natural (as defendant contends).
“[T]his is not a technical area in which the FDA has greater expertise than the courts—every day
courts decide whether conduct is misleading.” Ackerman, 2010 WL 2925955, at *14 (internal
quotation marks omitted). Ultimately, “‘[t]his case is far less about science than it is about
whether a label is misleading,’ and the reasonable-consumer inquiry upon which . . . the claims
in this case depend[ ] is one to which courts are eminently well suited, even well versed.’” In re
Frito-Lay N. Am., Inc. All Natural Litig., 2013 WL 4647512, at *8 (E.D.N.Y. 2013) (quoting
Jones v. ConAgra Foods, Inc., 912 F. Supp. 2d 889, 898 (N.D. Cal. 2012)).3
Moreover, application of the primary jurisdiction doctrine is particularly inappropriate
where, as here, the relevant administrative agency has shown no interest in addressing the matter.
In 2013, the FDA admitted that “proceedings to define ‘natural’ [in the context of cosmetic
product ingredients] do not fit within [its] current health and safety priorities.” Doc. #30-11 at 3.
The FDA is, of course, entitled to make this choice. It is a busy agency that “lacks the resources
to take enforcement action in every instance in which its policies are violated.” Ackerman, 2010
WL 2925955, at *14. But the FDA’s refusal to act in this field does not mean that courts should
indefinitely refrain from hearing claims that sunscreen manufacturers and sellers are making
deceptive and misleading statements in violation of state law. Invoking the primary jurisdiction
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Defendant relies heavily on Astiana v. Hain Celestial Grp., Inc., 905 F. Supp. 2d 1013 (N.D. Cal. 2012), a
decision from the Northern District of California that is currently on appeal to the Ninth Circuit. The Hain Celestial
court applied the primary jurisdiction doctrine because “mak[ing] any independent determination of whether
defendants’ use of ‘natural’ [on cosmetic product labels] was false and or misleading” would “risk undercutting the
FDA’s expert judgments and authority.” Id. at 1016 (internal quotation marks omitted). This decision relies on the
reasoning of the Ninth Circuit’s opinion in Pom Wonderful LLC v. Coca-Cola Co., 679 F.3d 1170 (9th Cir. 2012), a
decision that has since been unanimously reversed by the Supreme Court, see POM Wonderful LLC v. Coca-Cola
Co., 134 S. Ct. 2228 (2014). See also Goldemberg, 8 F. Supp. 3d at 478 (noting that FDA declined “to determine the
meaning of ‘natural’” following the Hain Celestial decision and therefore that “resort to the agency at this time
would be unavailing”). I decline to follow the Hain Celestial decision.

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doctrine under these circumstances “would do little more than protract matters.” See Parker v.
J.M. Smucker Co., 2013 WL 4516156, at *7 (N.D. Cal. 2013); see also Goldemberg, 8 F. Supp.
3d at 477–78 (declining to apply primary jurisdiction doctrine to claim involving use of term
“Active Naturals” on Aveeno products in light of evidence that FDA does not wish to determine
the meaning of “natural”); Fagan, 2014 WL 92255, at *1 (holding that nearly identical claims
were not barred by the doctrine of primary jurisdiction based on the FDA’s guidance that it had
no intention of defining the term “natural” in the cosmetics context); Ackerman, 2010 WL
2925955, at *14 (declining to apply primary jurisdiction doctrine because “deferral to the FDA is
unlikely to result in a timely resolution of plaintiffs’ claims”).
CONCLUSION
For the reasons set forth above, I find that plaintiff has a pled a plausible CUTPA claim
that is not preempted by federal law or barred by the primary jurisdiction doctrine. Therefore,
defendant’s motion to dismiss (Doc. #30) is DENIED.
It is so ordered.
Dated at Bridgeport this 31st day of March 2015.

/s/ Jeffrey Alker Meyer
Jeffrey Alker Meyer
United States District Judge

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