Lopez v. Zarbee's, Inc.

Background

Krystal Lopez brought a proposed class action against Zarbee's, Inc. concerning Zarbee's melatonin supplements. Lopez alleged that the products contained substantially more melatonin than their labels stated and therefore violated consumer-protection laws in California, Connecticut, Illinois, Maryland, Missouri, and New York. She also asserted claims under California's Unfair Competition Law, False Advertising Law, and Consumers Legal Remedies Act, along with claims for breach of express warranty and unjust enrichment or quasi-contract.

Lopez alleged that she bought Zarbee's Children's Sleep with Melatonin Gummies at a Walmart store in Salinas, California, for her 8-year-old child. She alleged that the label stated each gummy contained 1 milligram of melatonin. Testing of three gummies from each of two bottles allegedly found 2.16 milligrams in a gummy from the purchased bottle and 2.23 milligrams in a gummy from a bottle one month from expiration.

Zarbee's moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which permits dismissal when a complaint does not adequately state a legal claim. Zarbee's argued that federal food-and-drug regulations completely preempted Lopez's claims and that Lopez lacked standing to assert claims involving products she did not purchase, the company's website, and other states' laws.

Federal preemption

The court rejected Zarbee's argument that federal law preempted the claims because the Food and Drug Administration allows reasonable excess amounts of dietary ingredients. The court explained that Lopez was not alleging merely that any amount above the label was unlawful. Instead, she alleged that Zarbee's excess melatonin was materially more than reasonably necessary to ensure that the product would contain the labeled amount throughout its shelf life. The court held that this theory did not seek requirements different from the federal requirements and was not preempted at the pleading stage.

The court also rejected dismissal based on Lopez's testing method. Lopez tested three gummies from each of two bottles rather than using the FDA's required 12-sample testing method. The court held that this did not prevent her from plausibly alleging an unreasonable overage. At the pleading stage, she did not have to provide proof using the FDA method, and less extensive testing could support a reasonable inference that the product was overdosed. The court noted that Lopez would eventually have to prove that Zarbee's failed to comply with the FDA's overage requirements and that Zarbee's could raise preemption again later if appropriate.

Standing and product scope

The court dismissed Lopez's claims concerning Zarbee's melatonin products that she neither purchased nor tested, including an oral suspension and tablets. A plaintiff may sometimes assert claims involving unpurchased products when the purchased and unpurchased products are substantially similar, meaning that resolving the claims would be the same for both products. But the court found Lopez's allegations that all of the products were overdosed speculative and conclusory. Testing the children's gummies did not necessarily establish that the tablets and liquid products contained excessive amounts of melatonin. The court dismissed the claims involving unpurchased products and granted leave to amend.

The court did not dismiss claims based on Zarbee's website. Lopez did not allege that she relied on the website, but she said she cited it only to show that accurate dosing and labeling mattered to reasonable consumers. Because no website misrepresentation formed the basis of her claims, the court concluded there was nothing to dismiss on that issue.

The court also denied dismissal of Lopez's claims under the laws of Connecticut, Illinois, Maryland, Missouri, and New York. Zarbee's had not provided a sufficient showing that those states' laws differed from California law for purposes of the motion. The court allowed Zarbee's to raise the issue later, likely in connection with whether Lopez could represent class members under Federal Rule of Civil Procedure 23.

Disposition

The court's final order granted the motion to dismiss only as to the unpurchased products and denied it in all other respects. Lopez could amend her complaint as to the unpurchased products within 30 days of the order.