Everyone likes a bit of fancy packaging with their $25 lip gloss. Plaintiff Angela Ebner was presumably no exception, that is, until she brought a putative consumer class action against cosmetics manufacturer Fresh, Inc. alleging that the label, tube design and packaging of its Sugar lip product were deceptive and misleading in violation of California consumer protection laws. In a March 17, 2016 opinion, the Ninth Circuit affirmed the Central District of California’s dismissal of Ebner’s claims as well as its finding that further amendment of the complaint would be futile. Ebner v. Fresh, Inc., No. 13-56644, 2016 WL 1056088 (9th Cir. March 17, 2016).

As described in the opinion, the Sugar tube design uses a screw mechanism and plastic stop device that allows only 75% of the product to advance up the tube. Id. at *1. Each tube contains a weighted metallic bottom and is wrapped in what the court described as oversized packaging. Id. Plaintiff claimed that, collectively, Fresh’s label and packaging practices misled her as to the amount of lip product accessible in a tube of Sugar. Id. The district court divided plaintiff’s claims into two categories–those based on Sugar’s labeling, and those based on the tubing and packaging–and held that neither survived the FRCP 12(b)(6) motion to dismiss standard. The Ninth Circuit panel agreed. Id.

As to the label, plaintiff did not dispute it accurately stated the net weight of the lip product in the tube. The court found that any challenge to the label’s accurate net weight statement was therefore barred by the California safe harbor doctrine, which precludes plaintiffs from bringing unfair competition claims where the challenged conduct is affirmatively permitted by statute. Id. at *3. Because both federal and California law affirmatively require cosmetics manufacturers to include an accurate statement of the net weight of included cosmetic product (exclusive of wrappers and other packaging), this conduct could not form the basis of an unfair competition claim. Id.

Plaintiff also alleged that Fresh’s omission of any supplemental or clarifying statement about product accessibility (i.e., that only 75% of the lip gloss would advance up the tube) rendered the existing net weight label deceptive and misleading under California’s Sherman Food, Drug, and Cosmetics Law (“Sherman Law”). To defeat this claim, Fresh argued that any state law claim alleging it was required to include supplemental statements about product accessibility was preempted by the Federal Food, Drug, and Cosmetic Act (“FDCA”), because federal law does not impose any such requirement on cosmetics manufacturers. The court disagreed and, contrary to the district court’s conclusions, found that plaintiff’s omission claim was neither precluded by the safe harbor doctrine nor preempted by the FDCA. The FDCA, the court reasoned, is nearly identical to the Shearman Law, and both statutes impose a duty to avoid false or misleading labels. Id. at *4. Therefore, “[w]hether or not the lack of a supplemental statement rendered the accurate net weight label deceptive goes to the merits of the claim, not the question of federal preemption.” Id.

On the merits, however, the court was not convinced that Fresh’s alleged omission of supplemental information regarding product weight was false or misleading to a reasonable consumer. This finding was largely based on the fact that similar packaging designs for cosmetic products are “commonplace in the market,” and that they do not visually conceal the fact that some product remains in the tube that cannot be accessed without use of one’s finger or a small tool: “The reasonable consumer understands the general mechanics of these dispenser tubes and further understands that some product may be left in the tube to anchor the bullet in place.” Id. at *5.

The court applied similar reasoning to the claim that Sugar’s oversized and weighty packaging and tube design were deceptive as to the amount of accessible product contained inside. The reasonable consumer, the court found, would not be deceived by the “elaborate packaging and the weighty feel of the tube,” which is also commonplace “[w]hen viewed in the proper context of the high-end cosmetics market.” Id. Finally, the court quickly dismissed plaintiff’s claim that the Sugar tube violated the California statutory provision that deems a container misleading if it contains “nonfunctional slack fill,” defined as the portion of the packaging which does not contain product (i.e., unused empty space). See Cal. Bus. & Prof. Code § 12606(b). Here, the court concluded, the portion of the lip product falling below the stop device could not be actionable slack fill, since plaintiff’s argument was based on the fact that a portion of the tube was not empty, but rather, contained additional, albeit not easily accessible, lip product. Id. at *6.

Befitting the reasonable consumer test, the court’s reasoning here largely came down to practical arguments about the way cosmetics purchasers think based on whether the packaging practices at issue were commonplace in the relevant market. Query whether arguments regarding accessibility of a product within its packaging as distinct from classic slack fill claims might resurface around cosmetics or in other contexts. Might a court examine such a claim more closely if, for instance, only 50% of the lip product advanced up the tube despite an accurate net weight disclosure on the label? Based on this opinion, the answer seems to depend largely on what consumers come to expect from industry practice. The court here had little problem defining those expectations, but one can foresee a situation where the task would be more difficult.