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Langan v. Johnson & Johnson Consumer Companies, Inc.

United States District Court, D. Connecticut

March 13, 2017

HEIDI LANGAN, on behalf of herself and all others similarly situated, Plaintiff,
v.
JOHNSON & JOHNSON CONSUMER COMPANIES, INC. Defendant.

          OMNIBUS RULING RE: PENDING MOTIONS

          Jeffrey Alker Meyer, United States District Judge

         These combined cases concern when a company may lawfully call its products “natural.” Plaintiff Heidi Langan has brought two putative class actions alleging deceptive marketing practices in the well known Aveeno line of products, produced by defendant Johnson & Johnson. In one case (the Sun Case), she challenges defendant's claim as displayed on product labels that its sunscreens contain “100% naturally-sourced sunscreen ingredients.” In the other case (the Bath Case), she challenges the labeling claim that Aveeno baby washes use a “Natural Oat Formula.” The parties have filed a swarm of motions, variously seeking summary judgment, to exclude expert reports, and to certify the respective classes. I ultimately conclude that neither side is entitled to summary judgment in either case, and that none of the expert reports are so flawed that they should be excluded altogether. I will also certify the damages class in the Bath Case. But I will not certify the class in the Sun Case because I conclude that plaintiff lacks standing to pursue an injunctive action.

         Background

         The Products

         These cases involve products in Johnson & Johnson's Aveeno line. The Sun Case implicates six Aveeno sunscreen products.[1] All of these products are so-called physical sunscreens, which use ingredients such as titanium dioxide and zinc oxide to block the harmful effects of sunlight. Physical sunscreens are distinct from chemical sunscreens, which use chemicals to absorb the sun's rays and disperse them. The Aveeno physical sunscreens use active ingredients that are naturally-sourced, as opposed to the chemical sunscreens, which use chemical active ingredients. Physical sunscreens have a number of benefits, including being gentler and less likely to be absorbed in the skin, but they cost more to produce.

         The labels of each of these Aveeno sunscreen products state that they contain “100% naturally sourced sunscreen ingredients, ” and provide “natural protection.” See No. 13-cv-1470, Doc. #69-1 at 7. But the entire sunscreen product (i.e., the material that comes out when a customer squeezes the tube or bottle) contains additional lotion substances beyond the ingredients that perform a sunscreen function. The parties dispute what percentage of the entire product ingredients are properly characterized as natural, but agree, at minimum, that more than 35% of all the ingredients in each sunscreen product are not natural.

         The Bath Case implicates two Aveeno Baby products, the Calming Comfort Bath and the Wash & Shampoo. These products contain Avena Sativa (Oat) Kernel Extract, as well as other chemical ingredients. Until November 2012 and November 2013, respectively, the labels of Wash & Shampoo and Calming Comfort Bath contained the claim that they were a “Natural Oat Formula.” No. 13-cv-1471, Doc. #66-1 at 8. If water is considered as a natural ingredient, both bath products contain over 60% natural ingredients, but contain less than 1% natural non-water ingredients.

         While plaintiff argues that defendant's varied “natural” label claims are misleading, defendant contends that the statements are literally truthful and not misleading. In the Sun Case, defendant argues that the “natural” claim merely means that the active sunscreen ingredients are naturally sourced, despite the fact that the products' remaining lotion ingredients are chemical. In the Bath Case, defendant argues that the baby products really do use a “natural oat formula, ” apart from anything else that is in the product.

         The Named Plaintiff

         Plaintiff Heidi Langan is a resident of Connecticut who has purchased products from both the Sun and Bath Cases with the above labeling. Plaintiff testified at her deposition that she bought the products in part because she believed that the products were natural. She testified that it was “possible” she would have purchased the products even if they did not contain the challenged claims. See No. 13-cv-1471, Doc. #92-3 at 37. But she also testified that she believed the claims to mean that the products were 100% natural, and that this belief was important to her in choosing to buy them.

         Plaintiff is also a personal friend of one of the lead attorneys that seeks to be appointed class counsel, attorney Nicole Veno. Plaintiff and attorney Veno have been acquaintances who have seen each other occasionally for ten years. Plaintiff stated at her deposition that she does not know what responsibilities she has to keep informed about the case, but stated that she understood that the case was about defendant's allegedly false claims that the products were 100% natural, and that she reviewed the complaint before it was filed.

         Expert Reports

         Plaintiff has put forward a total of three expert reports in the two cases. Dr. Elizabeth Howlett wrote a report for both cases. Dr. Howlett is, among other things, a professor in the Department of Marketing at the University of Arkansas' business school and a consultant for the Food and Drug Administration.

         In both reports, she attempted to show that reasonable consumers would be misled by the challenged claims. In order to do so, she designed surveys administered by Qualtrics Software Company, which showed the products to consumers who said they had purchased similar products-sunscreen and baby wash, respectively-in the past three months. The respondents were divided between a “test” group and a “control” group. The test group was shown the front and back labels of the actual products, and the control group was shown the same products with the natural claims removed from the labels. The participants were instructed to examine the labels as if they were considering buying the products, and then asked a series of questions about the products, such as whether they were “calming.” They were also asked whether the products were natural: For the sunscreens, they were asked whether the products were “100% natural.” No. 13-cv-1470, Doc. #69-9 at 10-11. For the baby washes, they were asked whether the products were “an all-natural formula.” No. 13-cv-1471, Doc. #66-20 at 10.

         For each of the six different sunscreen products and two different baby wash products, there was a significant difference between the percentage of respondents from the different groups about whether the product was natural. For the sunscreen products, the difference was stark. About 90% of respondents to the test group answered “yes” that the product was 100% natural, while 12% or fewer of the control respondents answered “yes” to that question. See No. 13-cv-1470, Doc. #69-9 at 11-12. For the bath products, the difference was less extreme, but still significant, with between 71% and 78% of test group respondents answering “yes” as to whether the product is an all-natural formula, and between 36% and 40% of control group respondents answering “yes” to the same question. No. 13-cv-1471, Doc. #66-20 at 10-11.

         In the Bath Case, plaintiff also produced an expert report from Colin Weir, who employed a so-called “hedonic regression analysis.” See No. 13-cv-1471 Doc. #66-19 at 8. This analysis, by incorporating sales data from a wide array of similar products, attempts to isolate through regression analysis the price premium defendant was able to charge by making “natural” claims about the bath products. Weir concluded that, within the relevant statute of limitations, defendant made an extra $3, 903, 942 in all the relevant states ($108, 231 in Connecticut) because of the natural price premium. Id. at 22.

         Pending Motions

         Plaintiff has moved for class certification in both cases. In the Sun Case she seeks certification under Fed.R.Civ.P. 23(b)(2), seeking only declaratory and injunctive relief. The proposed class definition is as follows:

All purchasers of the Aveeno® Brand Natural Protection Sunscreen products (Aveeno® Baby Brand Natural Protection Lotion Sunscreen with Broad Spectrum SPF 30 and SPF 50, Aveeno® Brand Natural Protection Lotion Sunscreen with Broad Spectrum SPF 30 and SPF 50, and Aveeno® Baby Brand Natural Protection Face Stick with Broad Spectrum SPF 50 and SPF 50) in Alaska from January 25, 2011 to the present, and in Arkansas, California, Connecticut, Delaware, the District of Columbia, Florida, Hawaii, Illinois, Massachusetts, Michigan, Missouri, New Jersey, New York, Rhode Island, Vermont, Washington and Wisconsin from September of 2010 until the present, who purchased the Products primarily for personal, family or household purposes. Specifically excluded from this Class are: the Defendant, the officers, directors and employees of Defendant; any entity in which Defendant has a controlling interest; any affiliate, legal representative of Defendant; the judge to whom this case is assigned and any member of the judge's immediate family; and any heirs, assigns and successors of any of the above persons or organizations in their capacity as such.

         Alternatively, she seeks to certify the following class:

All purchasers of the Aveeno® Brand Natural Protection Sunscreen products (Aveeno® Baby Brand Natural Protection Lotion Sunscreen with Broad Spectrum SPF 30 and SPF 50, Aveeno® Brand Natural Protection Lotion Sunscreen with Broad Spectrum SPF 30 and SPF 50, and Aveeno® Baby Brand Natural Protection Face Stick with Broad Spectrum SPF 50 and SPF 50) in the State of Connecticut from September of 2010 until the Present, who purchased the Products primarily for personal, family or household purposes. Specifically excluded from this Class are: the Defendant, the officers, directors and employees of Defendant; any entity in which Defendant has a controlling interest; any affiliate, legal representative of Defendant; the judge to whom this case is assigned and any member of the judge's immediate family; and any heirs, assigns and successors of any of the above persons or organizations in their capacity as such.

         No. 13-cv-1470, Doc. #69 at 1-2.

         In the Bath case, she seeks certification for a damages class under Fed.R.Civ.P. 23(b)(3) with the following class definition:

All purchasers of the Aveeno® Baby Brand Wash and Shampoo until November of 2012 and Aveeno® Baby Brand Calming Comfort Bath baby wash until November of 2013, beginning on the following dates in the following states: in Alaska from January 25, 2011 in California, Connecticut, Delaware, the District of Colombia, Illinois, New York and Wisconsin from January 25, 2010; in Florida, Hawaii, Massachusetts, and Washington from January 25, 2009; in Arkansas and Missouri from January 25, 2008; in Michigan, New Jersey, and Vermont from January 25, 2007; in Rhode Island from January 25, 2003; and in any additional states which the Court determines to have sufficiently similar law to Connecticut without creating manageability issues, who purchased the Products primarily for personal, family or household purposes. Specifically excluded from this Class are: the Defendant, the officers, directors and employees of Defendant; any entity in which Defendant has a controlling interest; any affiliate, legal representative of Defendant; the judge to whom this case is assigned and any member of the judge's immediate family; and any heirs, assigns and successors of any of the above persons or organizations in their capacity as such.

         Or alternatively:

All persons who purchased either the Aveeno® Baby Brand Wash and Shampoo from January 25, 2010 until November of 2012 or who purchased Aveeno® Baby Brand Calming Comfort Bath baby wash from January 25, 2010 until November of 2013, in the State of Connecticut and in any additional states which the Court determines to have sufficiently similar law to any of the foregoing states without creating manageability issues; who purchased the Products primarily for personal, family or household purposes. Specifically excluded from this Class are: the Defendant, the officers, directors and employees of Defendant; any entity in which Defendant has a controlling interest; any affiliate, legal representative of Defendant; the judge to whom this case is assigned and any member of the judge's immediate family; and any heirs, assigns and successors of any of the above persons or organizations in their capacity as such.

No. 13-cv-1471, Doc. #66 at 1-2.

         The parties have also filed cross-motions for summary judgment in both cases. Defendant seeks summary judgment on all counts, arguing that plaintiff has not created a genuine dispute of material fact that the challenged claims are deceptive to a reasonable consumer. No. 13-cv-1470, Doc. #85; No. 13-cv-1471, Doc. #137. Plaintiff has moved for complete summary judgment in the Sun Case and partial summary judgment on the issue of liability in the Bath Case, arguing in both that the undisputed facts establish that defendant is liable under the Connecticut Unfair Trade Practices Act (CUTPA). No. 13-cv-1470, Doc. #94; No. 13-cv-1471, Doc. #129.

         Finally, defendant has moved to exclude all of the expert reports in both cases. No. 13-cv-1470, Docs. #84 (motion to exclude expert testimony of Howlett), #113 (motion to strike portions of Howlett's response declaration); No. 13-cv-1471, Docs. #78 (motion to preclude ...


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