Tobin v. Procter & Gamble Company

Background

Mark Tobin alleged that he purchased Procter & Gamble Company’s NyQuil Severe Honey Cold & Flu liquid medicine on November 29, 2022. The product label said “Coats & Soothes” and “Made with Real Honey,” and used the word “Honey,” honey-colored design elements, a honey-dripping cap, and an image of a honey dipper and honeycomb.

Tobin alleged that these representations led him to believe the product contained enough honey to flavor the medicine and provide coating, soothing, and other benefits. He alleged that the product contained only a negligible amount of honey and that he would not have bought it, or would have paid less, if he had known that. His claims were for violations of California’s Unfair Competition Law, False Advertising Law, and Consumer Legal Remedies Act; breach of express warranty; and quasi-contract. He also sought to represent purchasers of other products with allegedly similar labels.

Federal Preemption

Procter & Gamble argued that the Food, Drug, and Cosmetic Act expressly preempted Tobin’s California claims. The court rejected that argument. It reasoned that Tobin was not seeking to impose a different labeling requirement or to prevent language approved by federal law. Instead, he sought relief for alleged affirmative misrepresentations not specifically covered by the federal labeling rules. The court therefore found that the state-law claims were not preempted.

Whether the Labels Could Mislead Consumers

The court held that Tobin plausibly alleged that the representations could mislead a reasonable consumer. Although the product contained some honey, the court explained that a statement can be technically true yet still misleading if the overall presentation creates a false impression about the amount or role of an ingredient.

The court found it plausible that the prominent honey-related words, graphics, colors, packaging, and placement could lead a reasonable consumer to believe that honey was present in a non-negligible amount and was responsible for the product’s honey flavor or coating and soothing effects. The court also found plausible Tobin’s allegations about products labeled “Flavored with Real Honey,” reasoning that those products used similar wording, design, placement, and ingredients.

Relief and Individual Claims

The court dismissed Tobin’s False Advertising Law, Unfair Competition Law, and quasi-contract claims without prejudice because he did not allege facts showing that he lacked an adequate remedy at law. The court granted leave to amend because it could not conclude that amendment would be futile.

The court dismissed the express-warranty claim with leave to amend. It found that Tobin adequately alleged the warranty’s terms and a plausible breach theory, but not a plausible measure of damages. The complaint alleged harm equal to the full purchase price even though Tobin received some value from the product. The court stated that the damages would instead need to reflect the appropriate difference between the product as warranted and as sold.

The Consumer Legal Remedies Act claim remained because the court found that it was not preempted and that Tobin plausibly alleged that the representations could mislead a reasonable consumer. The court also rejected Procter & Gamble’s challenge to standing for products Tobin did not purchase, finding that he could pursue those claims at this stage because the products and alleged misrepresentations were substantially similar.

Disposition

The court granted in part and denied in part Procter & Gamble’s motion to dismiss. The False Advertising Law, Unfair Competition Law, and quasi-contract claims were dismissed without prejudice; the express-warranty claim was dismissed with leave to amend; and the Consumer Legal Remedies Act claim remained. Tobin was permitted to file an amended pleading by May 1, 2024. The court also set a case-management conference for June 21, 2024.