Yamasaki v. Zicam LLC

Background

Venus Yamasaki filed a proposed class action against Zicam LLC and other defendants. Church & Dwight Co., Inc., identified as the successor to Zicam LLC and Matrixx Initiatives, Inc., filed the motion to dismiss.

Yamasaki alleged that several Zicam cold-remedy products were advertised as “clinically proven to shorten colds.” She alleged that the products had not been clinically proven to affect the duration of the common cold and that there was not adequate scientific evidence supporting the advertising. She said she bought Zicam Nasal Spray from a California drugstore in approximately 2019. Her amended complaint asserted claims under California’s Unfair Competition Law, False Advertising Law, and Consumer Legal Remedies Act, along with breach-of-warranty claims. She also sought to represent California consumers who bought seven Zicam products.

Standing for Unpurchased Products

The court held that Yamasaki had not alleged enough facts to establish standing to pursue claims involving products she did not buy. Zicam Nasal Spray and Zicam Nasal Swabs did not contain zinc and instead contained galphimia glauca, luffa operculata, and sabadilla. The other products at issue contained zinc compounds. Because Yamasaki’s allegations focused on the effectiveness of the products’ active ingredients, the court found that she had not shown the required substantial similarity between the purchased and unpurchased products. The court granted the motion to dismiss on this basis as to the products containing zinc, while excluding Zicam Nasal Spray and Zicam Nasal Swabs from that particular ruling.

Standing for Injunctive Relief

The court also granted the motion concerning Yamasaki’s request for an injunction. To seek injunctive relief, a plaintiff must allege a real and immediate threat of being injured again. Yamasaki alleged that she intended to buy Zicam products in the future if they were truthfully labeled and clinically proven to shorten colds. The court found that this general statement did not explain how she would be harmed again. The court noted that she might be able to correct this deficiency in an amended complaint.

Advertising Claims

The court held that Yamasaki’s claims under the Unfair Competition Law, False Advertising Law, and Consumer Legal Remedies Act were based largely on an alleged lack of substantiation—that is, an allegation that the advertiser lacked adequate evidence supporting its claim. Under the authorities discussed by the court, private plaintiffs may not bring false-advertising claims merely to demand substantiation.

The court also considered whether Yamasaki had alleged that the “clinically proven” statements were actually false, rather than merely unsupported. It found that she had not identified studies evaluating the Zicam products or studies addressing the effectiveness of the active ingredients in Zicam Nasal Spray and Zicam Nasal Swabs. The court was not persuaded by her allegations that “clinically proven” necessarily conveyed that there was a broad scientific consensus or that the supporting studies had to be published, peer-reviewed, and controlled.

Warranty Claims

The court granted the motion as to the express-warranty and implied-warranty-of-merchantability claims. Yamasaki alleged that Zicam warranted that its products were “clinically proven to shorten colds,” but the court found that she had not sufficiently alleged that the representations were false. The court also rejected her theory that the absence of citations to clinical testing established a warranty breach, noting that she provided no authority showing that the defendant had an affirmative duty to disclose the studies on which it relied or that failing to do so was equivalent to breaching a warranty.

Disposition

The court granted the motion to dismiss. It stated that any amended complaint had to be filed within 30 days of the order. The court also extended the existing discovery stay until after the pleadings were finalized and set a telephonic case-management conference. The opinion does not state that the dismissal was with or without prejudice.