Perez v. Bath & Body Works, LLC

Background

Carmen Perez sued Bath & Body Works, LLC and Bath & Body Works, Inc. (collectively, “BBW”) over statements about products containing hyaluronic acid. The products included body cream, hand cream, body wash, body gel lotion, and Mineral Body Polish. Perez alleged that BBW represented that hyaluronic acid “attracts and retains up to 1,000x its weight in water to make skin look smoother and more supple,” and that this statement was false.

Perez alleged that she purchased the Hyaluronic Acid Hydrating Body Cream in approximately February or March 2019 after seeing the product’s representation and hearing the claim repeated by a store employee. She alleged that she believed the product would moisturize and hydrate her skin but saw no improvement after using it. Her Second Amended Complaint asserted claims under California’s Consumer Legal Remedies Act, False Advertising Law, and Unfair Competition Law, along with fraud, negligent misrepresentation, and quasi-contract restitution claims. She sought to represent a California class of consumers who purchased the products from July 21, 2017, to the present.

BBW moved under Federal Rule of Civil Procedure 12(b)(1), which allows a party to challenge the court’s subject-matter jurisdiction. BBW argued that Perez lacked standing—the legal requirement that a plaintiff show a concrete injury connected to the defendant’s conduct and capable of being remedied by the court—to seek injunctive relief. BBW also challenged Perez’s standing to bring claims concerning the Mineral Body Polish because Perez purchased only the Body Cream.

Injunctive Relief

The court denied BBW’s motion to dismiss the claims for injunctive relief for lack of standing. Applying Ninth Circuit precedent, the court explained that a consumer who was allegedly deceived in the past may still have standing to seek an injunction if she plausibly alleges a real and immediate risk of future harm. Perez alleged that she continued to want to purchase BBW products, including hyaluronic-acid products, but could not determine whether BBW’s representations about their capabilities were true. The court found those allegations sufficient at the motion-to-dismiss stage.

The court rejected BBW’s argument that Perez could not want to purchase the products because she alleged that the 1,000x claim was scientifically impossible. The court noted that Perez did not allege that the products were completely useless; she alleged that the specific 1,000x claim was false. The court also distinguished a Ninth Circuit decision involving consumers who merely said they would “consider” purchasing a product, explaining that Perez alleged she wanted to purchase the products in the future.

The court also declined to dismiss the requested injunction as overly broad or not traceable to Perez’s alleged injury. It held that it was premature to decide the proper wording of any injunction based only on the complaint’s request for relief. If Perez ultimately became entitled to injunctive relief, the court could fashion an appropriate injunction at the end of the case.

The court further denied BBW’s argument that the request for injunctive relief was moot because there was nothing left to enjoin. Perez alleged that BBW continued to make the 1,000x claim during the class period and to the present. At the motion-to-dismiss stage, the court was required to accept that allegation as true.

Mineral Body Polish

The court granted BBW’s motion to dismiss all claims concerning the Mineral Body Polish without leave to amend. Perez had not purchased that product. To pursue claims based on a product she did not purchase, she had to allege facts showing substantial similarity between that product and the Body Cream she purchased. Relevant considerations included whether the products were of the same kind, had largely the same ingredients, and bore the same alleged misleading statement.

The court found Perez’s allegations insufficient. She alleged that the 1,000x claim appeared on BBW’s website and point-of-sale advertising for the Mineral Body Polish, but she did not allege that the claim appeared on the product’s label. The court held that the website allegation was insufficient to show substantial similarity to the purchased Body Cream. Because Perez had already had two opportunities to amend the complaint, the court granted the motion as to the Mineral Body Polish without leave to amend.

Disposition

The court denied in part and granted in part without leave to amend BBW’s motion to dismiss. It denied the motion concerning injunctive relief and granted the motion as to all claims concerning the Mineral Body Polish without leave to amend. Judge Beth Labson Freeman entered the order on May 15, 2023.