On November 18, 2013, the Ninth Circuit affirmed a district court’s dismissal of a putative class action suit against HBB, LLC. Cheramie v. HBB, LLC, Case No. 12-55148 (9th Cir. Nov. 18, 2013). HBB produces Lazy Cakes, a melatonin-laced brownie-like product. The plaintiff accused HBB of omitting material facts in Lazy Cakes’ labels about the dangers of excessive consumption of melatonin, and of misrepresenting Lazy Cakes as not posing any more health risks than normal brownies. The Ninth Circuit upheld the trial court’s determination that the plaintiff’s own complaint foreclosed continuation of his claims.

In particular, the complaint alleged “that the Lazy Cakes packaging describes the product as a relaxation agent, discloses the presence and quantity of melatonin in each serving and the relevant serving size, and warns consumers about the risk of drowsiness.” The complaint also acknowledged that research into the possible side effects and risks of melatonin consumption is inconsistent and inconclusive. Id.

The court held that the complaint’s description of the product labeling and detailing of the inconclusive research findings about melatonin made it “impossible” for the plaintiff to show that a reasonable consumer was likely to be deceived by Lazy Cakes in the manner asserted.  The same alleged facts also made it impossible for the plaintiff to claim a fraudulent concealment.

The court did, however, reverse the district’s court denial of leave to amend because the district court failed to provide an explanation as to why it denied the request for leave to amend. Thus the plaintiff will have the opportunity to try again to allege facts sufficient to survive a motion to dismiss. One member of the three judge panel suggested in concurrence that the plaintiff could potentially plead that HBB sold a sleep aid falsely marketed as a relaxation aid. Id. at *2 (Kleinfeld, J., concurring).