The U.S. Court of Appeals for the Ninth Circuit affirmed a lower court’s dismissal of a putative deceptive advertising class action against Fresh, Inc., finding that the plaintiff failed to allege—and could not allege—facts sufficient to state a claim that the labeling of the company’s Sugar Lip Treatment was false, deceptive or misleading. Ebner v. Fresh, Inc., No. 13-56644 (9th Cir., order entered March 17, 2016).

In the complaint, the plaintiff alleged the Sugar Lip Treatment tubes portrayed deceptive, inaccurate or misleading information about the amount of product available in each tube, which she claimed caused her to have an incorrect understanding of the “value of her purchases.” Her amended complaint asserted four causes of action, including violations  of California’s business and professions, consumer protection and unfair competition law codes, as well as a claim of unjust enrichment. The circuit court concluded that the plaintiff’s claims were barred by California’s safe harbor doctrine, which “precludes plaintiffs from bringing claims based on ‘actions the Legislature permits,’” were preempted under the Federal Food, Drug, and Cosmetic Act, or had failed to show that a “reasonable consumer” would be deceived as to the amount of product available.