FOR PUBLICATION



### UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BETH BOWEN, Individually and on Behalf of All Others Similarly Situated,

Plaintiff

- Appellant

,

v.

ENERGIZER HOLDINGS, INC.;
EDGEWELL PERSONAL CARE COMPANY; EDGEWELL PERSONAL CARE BRANDS, LLC; PLAYTEX PRODUCTS, INC.; SUN PHARMACEUTICALS, LLC,

Defendants

-

Appellees

. No. 23

- 55116

D.C. No.
2:21

- cv

- 04356

- MWF

- AGR

OPINION

Appeal from the United States District Court
for the Central District of California Michael W. Fitzgerald, District Judge, Presiding

Argued and Submitted May 13, 2024 Pasadena, California

Filed October 1, 20242 B OWEN V

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Before: Ronald Lee Gilman, * Ronald M. Gould, and Salvador Mendoza, Jr., Circuit Judges.

Opinion by Judge Mendoza

SUMMARY **

Article III Standing

The panel reversed the district court’s order dismissing, pursuant to Fed. R. Civ. P.12(b)(1), Beth Bowen’s suit for lack of Article III standing in her action alleging that the Banana Boat sunscreen that she bought contained dangerous levels of benzene, c ontrary to Defendants’ representations that the products were safe, in violation of various California

statutes.
Defendants moved to dismiss Bowen’s suit by raising a factual challenge to Bowen’s Article III standing by submitting evidence to undermine Bowen’s allegations that small amounts of benzene were unsafe. In response, Bowen
submitted evidence that benzene in sunscreen, at any level, was dangerous.

The panel held that the district court erred by failing to construe facts in Bowen’s favor and prematurely resolving merits issues. Although a district court faced with a factual

* The Honorable Ronald Lee Gilman, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

* * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.B OWEN V

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challenge to its exercise of jurisdiction may resolve disputed facts as to purely jurisdictional questions, it may not do so when those jurisdictional questions are intertwined with the merits of a claim. Applying that standard, the panel held
there was a clear overlap between Bowen’s asserted theory of Article III injury and the “economic injury” element of her claim under California’s False Advertising Law. Because the standing issue and substantive issues were so intertwined, resolution of genuinely disp uted facts was inappropriate. The panel held that Bowen adequately established an injury in fact for purposes of Article III, and genuine disputes of material fact rendered dismissal on standing grounds inappropriate.

Although the district court addressed only the first element of standing

— injury in fact

— the panel invoked its independent obligation to consider standing sua sponte, and
considered the second and third elements of Article III standing. As to the second ele ment, the panel held that
Bowen met her burden to show that Defendants caused her injury, in part, through their alleged misrepresentation that the Banana Boat products she purchased were safe for their intended use. As to the third element, the panel held that Bowen established that her injury would likely be redressed by judicial relief at this stage.4 B OWEN V

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COUNSEL

Kiley L. Grombacher (argued), Bradley Grombacher LLP, Westlake Village, California; R. Jason Richards, Aylstock Witkin Kreis & Overholtz PLLC, Pensacola, Florida; Sin

Ting M. Liu, Aylstock Witkin Kreis & Overholtz PLLC, Alameda, California; for Plaintiff

- A ppellant.

Megan McCurdy (argued), Ashley M. Crisafulli, and J. Emmett Logan, Stinson LLP, Kansas City, Missouri; John W. Moticka, Stinson LLP, St. Louis, Missouri; John P. Katerndahl, Gordon Rees Scully Mansukhani LLP, Irvine, California; for Defendants

- Appellees.

OPINION

MENDOZA, Circuit Judge:

In his 199 7 classic spoken

- word song

, Everybody’s Free (To Wear Sunscreen)

, Baz Luhrmann advises his audience
to “Wear sunscreen

, ” telling listeners that it help s prevent skin cancer and that “[t]he long

- term benefits of sunscreen have been proved by scientists

. ” 1 Today

, Plaintiff Beth
B o wen calls Mr. Luhrman n ’s advice into question , all eging
that the Banana Boat sunscreen she purchased was
adulterated with benzene , a carcinogen that scientists have

1 Baz Luhrmann, Everybody’s Free (To Wear Sunscreen)

, on Something for Everybody (Capitol Records 199 7 ). Luhrmann’s song popularized the words of journalist Mary Schmich from her essay in the Chicago
Tribune. See Mary Schmich, Opinion, Advice, L ike Y outh, P robably J

ust W asted on the Y

oung , Chi

. Trib

. , June 1, 1997, https://www.chicago
tribune.com/1997/06/01/advice

- like

- youth

- probably

- just

- wasted

- on

the

- young

- 2/

.B OWEN V

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det e rmined can cause cancer. Bowen sued six d efendants 2
who manufacture

, market, and distribute Banana Boat

s unscreen , claiming violations of various California statutes

, including California’s False Advertising Law

. Bowen alleg es that the Banana Boat bottles she bought contain ed dangerous levels of benzene , contrary to th e Defendants ’ representation s that the products were safe

. She also claims
that Defendants fail ed to disclose o n the products’ label ling
that those products contain benzene

. Defendants moved to dismiss Bowen’s suit pursuant to Federal Rule of Civil Procedure 12(b)(1), raising a factual challenge to Bowen’s Article III standing by submitting evidence to undermine Bowen’s allegation s that small
amounts of benzene in sunscreen is unsafe. In response , Bowen submitted evidence of her own to support her allegation that benzene in sunscreen, at any level

, is dangerous. The district court considered the parties’ competing evidence, as it may when addressing a factual challenge to Art icle III standing, and ultimately granted
Defendants’ motion , relying heavily on three documents
created by or associated with the Food and Drug Administration (“FDA”). It held that “[i]n light of the [FDA] guideline permitting 2 [parts per million] of benzene in sunscreen, [Bowen] does not allege facts that tend to show

a non

- speculative increased health risk or actual economic
harm” arising from her purchase of Banana Boat products

. On appeal, Bowen argues that the district court erred by failing to construe disputed facts in her favor and

2 The defendants are Energizer Holdings, Inc., Edgewell Personal Care Company, Edgewell Personal Care Brands, LLC, Edgewell Personal Care, LLC, Playtex Products, Inc., and Sun Pharmaceuticals, LLC (collectively, “Defendants”).6 B OWEN V

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prematurely resolving merits issues . We agree. Although a district court faced with a factual challenge to its exercise of jurisdiction may resolve disputed facts as to purely jurisdictional questions , it may not do so when those jurisdictional questions are intertwined with the merits of a
claim . When the jurisdictional and merits issues are inseparable, the court must treat a factual attack on jurisdiction as a motion for summary judgment and construe disputed issues of fact in favor of the nonmoving p arty. Applying that standard here, Bowen has adequately established an injury in fact for purposes of Article III. So we reverse the district court’s dismissal for lack of standing and remand for further proceedings.

I. B ACKGROUND

A. Bowe n P urchases Banana Boat

Bowen is a Californian who bought several bottles of
Banana Boat sunscreen from a Rite Aid pharmacy between 2017 and 2020. Relevant here, she purchased Banana Boat Ultra Sport Sunscreen SPF 100 (“Ultra Sport 100”), Banana Boat Ultra Sport Sunscreen SPF 50 (“Ultra Sport 50”), and Banana Boat Ultra Sport Sunscreen SPF 30 (“Ultra Sport 30”). For the most part, Bowen used the products and then discarded the bottles when empty. But Bowen kept one bottle of Ultra Sport 50, which she purchased and partially
used in 2020. She had the contents o f that bottle tested at a lab

, which revealed that the bottle contained 0.29 parts per million (“ppm”) of benzene. Bowen also alleges that a non

party pharmacy

—Valisure

— tested various Banana Boat products and found that they too contain ed benzene, including a bottle of Ultra Sport 100 , which Valisure found

to contain more than 0.1 ppm of benzene.B OWEN V

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Relying on various sources, including guidance from the FDA, Bowen alleges that “[b]enzene is a carcinogen that can cause cancer in humans,” and that “the application of sunscreen specifically increases the absorption rate of benzene through the skin.” Bowen ’s complaint also cites a statement by Yale University researcher, clinician, and professor of dermatology Dr. Christopher Bunick, who opine d that “[t]here is not a safe level of benzene that can exist in sunscreen products

, ” meaning that even trace

amo unts can b e harmful. 3 Dr. Bunick further explained :

Considering that human skin has a large total surface area (~1.85 m 2 ), and that ~28.5 g of sunscreen is needed per application to properly cover that skin surface, it follows
then that there is not a safe level of benzene that can exist in sunscreen products. The total mass of sunscreen required to cover and protect the hu man body, in single daily application or repeated applications daily, means that even benzene at 0.1 ppm in a sunscreen could expose people to excessively high nanogram amounts of benzene.

Bowen alleges that t he risk of sunscreen contamination
in Banana Boat has led to public concern and voluntary
recalls. On May 25, 2021, for example, “Valisure filed a citizen petition with the [ FDA ] asking the agency to recall all batches of Banana Boat Sunscreen Products containing 0.1 ppm or more benzene

. . . , including Banana Boat Ultra

3 Bowen quoted Dr. Bunick’s statements in her complaint and submitted
a letter from third

- party Valisure, LLC

, which also contains Dr. Bunick’s

statements

.8 B OWEN V

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Sport Sunscreen SPF 100.” In July 2021, consumers filed a putative class action in the District of Connecticut against several of the same parties who are Defendants here, alleging claims for false advertising and unjust enrichment, among others, arising from the defendants’ failur e to disclose the presence of benzene in Banana Boat products. See Clinger v. Edgewell Pers. Care Brands, LLC , No. 3:21

- CV

- 1040, 2023 WL 2477499 (D. Conn. Mar. 13, 2023). In December
2021 , while this case was pending before the district court,

non

- party Edgewell Personal Care Australia P ar ty Ltd.
i ssued a recall of “all batches” of several Banana Boat sunscreen sprays distributed in Australia because the Therapeutic Good Administration (“TGA”)

— Australia’s equivalent to the FDA

— “detected benzene at concentrations between 2.3 ppm and 5.2 ppm in four batches of the

. . . products supplied in Australia. ” “ Although not every batch of the affected products were tested by the TGA, the company issued the recall ‘to reduce the risk to consumers’ of using a benzene

- contaminated product.” Finally, Bowen alleges that o n July 29, 2022, Defendant Edgewell Personal Care Company (“EPCC”) announced a voluntar y recall of a Banana Boat product sold in the United States

— Banana Boat Hair and Scalp Sunscreen Spray SPF 30. EPCC stated that the reason for the recall was that “unexpected levels of benzene came from the propellant that sprays the product out
of the can.” EPCC further stated that “entire batches of the product were recalled on the basis of ‘unexpected levels of benzene’ found in samples of the product.”B OWEN V

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B. Bowen ’ s L awsuit

Bowen asserts nine California state

- law claims in her operative Second Amended Complaint (“SAC”)

. 4 She claims jurisdiction under the Class Action Fairness Act, 28 U.S.C. § 1332(d)(2). Bowen alleges that Defendants (1) failed to indicate on the labels of their products that many Banana Boat products contain benzene, and (2) engaged in false or misleading advertising by stating that Banana Boat products are “ safe ” when use d as directed. With regard to the former, Bowen alleges that “Defendants wrongfully advertised and sold the Sunscreen Products without any labeling to indicate to consumers that these products contain or may contain benzene.” Bowen further alleges that
Defendants’ misconduct “ includes representing in their labels that their Sunscreen Products contain only the ingredients listed in the label, which is untrue , and failing to make any mention that the Sunscreen Products are adulterated with benzene, a known human carcinogen.”

With regard to the latter, Bowen alleges that Defendants engaged in “deceptive, untrue, and misleading advertising by representing that their Sunscreen Products ( 1 ) ‘provide today’s busy family with sun protection without worry when used and reapplied as directed,’ ( 2 ) offer ‘safe and effective sun protection,’ and ( 3 ) are ‘safe for [their] intended use

4 These claims are: (1) violation of California’s Unfair Competition Law (“UCL”); (2) violation of California’s False Advertising Law (“FAL”); (3) violation of the California Consumer Legal Remedies Act; (4) unjust enrichment/quasi contract; (5) negligent m isrepresentation/omission; (6) breach of express warranty; (7) breach of implied warranty; (8) strict product liability under a failure to warn theory; and (9) strict product liability under a manufacturing defect theory.10 B OWEN V

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based on the formulation, testing results, and the long history
of safe consumer use.’”

Bowen also raises certain allegations explicitly related to Article III standing: 5

Plaintiff would have never paid a premium for sunscreen products that contained or were
at risk of containing the carcinogen benzene. Standing is satisfied by alleging economic injury. Here, Plaintiff suffered economic injury when she spent money to purchase sunscreen products she would not otherwise have purchased, or [would have] paid less for, absent Defendants’ misconduct, as alleged herein.

Bowen further alleges that she “suffered a concrete and particularized injury, because [she was] denied the opportunity to make informed financial and healthcare
decisions due to the Defendants’ misconduct,” and that she “instead unwittingly purchased and used sunscreen products [she] would [] not have otherwise purchased, or [would have] paid less for, absent Defendants’ misconduct.”

C. Motion to Dismiss the SAC and the District Court’s
Order

Defendants moved to dismiss the SAC on several bas e s : Rule 12(b)(1), for lack of Article III standing; Rules 8 and
12 (b) (6), for failure to state a claim; and Rule 9(b), for failure to plead her allegations grounded in fraud with particularity. Defendants argued that Bowen’s SAC should be dismissed

5 The district court had previously dismissed Bowen’s first amended complaint for lack of standing , with leave to amend

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for several distinct reasons , but t he district court considered only one

—

whether Bowen has Arti cle III standing to invoke the jurisdiction of the federal courts.

The district court concluded that, “[i]n light of the [FDA] guideline permitting 2 ppm of benzene in sunscreen, Plaintiff does not allege facts that tend to show a non

speculative increased health risk or actual economic harm.” To reach that conclusion, t he district court conducted a searching , three

- part analysis with respect to the bottle of Ultra Sport 50 that Bowen purchased, which contain ed 0.29 ppm of benzene. First, it looked outside the SAC to documents produced or relied upon by the FDA, and it
determined that they “impl[y] that manufacturers like Defendants may continue to release products that are adequately tested and contain less than 2 ppm of benzene.”
T he district court next considered whether Bowen had established standing under an “increased health risk” theory. The court reasoned that Bowen’s allegations, and the numerous sources cited in the SAC, “do not establish that .29 ppm of benzene in sunscreen creates a credible o r substant ial risk of [physical] harm.” Finally, the district court considered whether Bowen had standing under an “economic loss” theory. The court weighed Defendants’
evidence related to the amount of benzene that the FDA
deems tolerable in sunscreen products against Bowen’s
evidence relat ed to the harmful nature of benzene, and it held that Bowen’s “alleged economic harm ”

— i.e. , that she paid
more than she would have had she know n that Banana Boat
contained benzene

— “i s premised on the speculative notion that the presence of 0.29 ppm of benzene, or any potential presence of benzene, makes the sunscreen unsafe.”

Bowen timely appealed

. She argues that the district
court erred in its analysis under Rule 12(b)(1) by failing to12 B OWEN V

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construe disputed facts in her favor . Had the district court done so, Bowen contends, it would have found that she has Article III standing under both an increased health

- risk theory and an economic

- injury theory.

II. J URISDICTION & S TANDARD OF R EVIEW
We have appellate jurisdiction pursuant to 2 8 U.S.C. § 1291. “We review a district court’s dismissal under Rule 12(b)(1) for lack of standing de novo.” Unified Data Servs.,
LLC v. Fed. Trade Comm’n , 39 F.4th 1200, 1209 (9th Cir. 2022) ; S an Diego Cnty. Credit Union v. Citizens Equity First
Credit Union , 65 F.4th 1012, 1022 (9th Cir. 2023 ) (“The existence of a case or controversy is a question of law we review de novo.”)

, cert. denied , 144 S. Ct. 190 (2023).

III. D ISCUSSION
To satisfy Article III’s case or controversy requirement, a plaintiff must establish that she has standing to invoke the jurisdiction of the federal courts. TransUnion LLC v.
Ramirez , 594 U.S. 413, 423 (2021). To do so, she “must show (i) that [s]he suffered an injury in fact that is concrete, particularized, and actual or imminent; (ii) that the injury was likely caused by the defendant; and (iii) that the injury would likely be red ressed by judicial relief. ” Id. (citing Lujan v. Defenders of Wildlife , 504 U.S. 555, 560

– 61 (1992)). Here, t he district court treated Defendants’ Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction as a factual attack on standing

, 6 considered

6 A factual attack on jurisdiction “contests the truth of the plaintiff’s factual allegations, usually by introducing evidence outside the pleadings.” Leite v. Crane Co. , 749 F.3d 1117, 1121 (9th Cir. 2014) (quoting Safe Air for Everyone v. Meyer , 373 F.3d 1035, 1039 (9th Cir.B OWEN V

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evidence outside of the pleadings, and resolved disputed issues of fact in favor of Defendants in determining that Bowen lacked standing. Bowen concedes, as she must, that
the district court was permitted to consider evidence outside the pleadings . B ut she argues that the district court erred by failing to construe disputed questions of fact , which implicate the merits of her claims, in her favor. In response, Defendants contend tha t the relevant standard permitted the
district court to resolve disputed issues of fact because this
is not a case where a federal “statute provides the basis for both the court’s subject matter jurisdiction and plaintiff’s
claim for relief. ”
Bowen’s appeal therefore raises two issues. The first is a threshold question: did the district court err by resolving disputed issues of fact in its Rule 12(b)(1) analysis ? The answer to that first question informs the answer to the
second : has Bowen shown Article III standing sufficient to withstand Defendants’ Rule 12(b)(1) motion ? We address
each in turn.

A. Intertwining of Standing and the Merits

The rules governing a factual challenge to standing under Rule 12(b)(1) provide that once a defendant has “contested ‘the truth of the plaintiff[’s] factual allegations,’ the [plaintiff] ha[s] the burden to ‘support [her] jurisdictional allegations with ‘competent proof.’” Friends of the Earth v. Sanderson Farms, Inc.

, 992 F.3d 939, 944 (9th Cir. 2021) (quoting Leite v. Crane Co. , 749 F.3d 1117, 1121 (9th Cir.

2004)). A “facial attack,” by contrast “accepts the truth of the plaintiff’s allegations but asserts that they ‘are insufficient on their face to invoke federal jurisdiction.’” Id. (quoting Safe Air for Everyone , 373 F.3d at 1039).14 B OWEN V

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2014) ). 7 If the “existence of jurisdiction turn[s] on disputed factual issues,” and those “ jurisdictional disputes [are] not intertwined with the merits of the claim,” then “ it [falls] to the district court to ‘resolve those factual disputes itself.’”
Id. (quoting Leite , 749 F.3d at 1121

– 22, 1122 n.3). Conversely, when jurisdictional issues are “intertwined with an element of the merits of the plaintiff’s claim,” the court must treat the motion like a motion for summary judgment
and “leave the resolution of material fac tual disputes to the
trier of fact.” Leite , 749 F.3d at 1122. Accordingly, we must first answer the question posed by Friends of the Earth : are Bowen’s alle gations relating to standing “separable from the
merits of the case”

— such that the district court was free to “resolv[e] factual disputes if necessary”

— Jones v. L.A.
Cent. Plaza LLC , 74 F.4th 1053, 1057 n.2 (9th Cir. 2023), or are they “intertwined with an element of the merits of the plaintiff’s claim,” such that the district court was required to “leave the resolution of material factual disputes to the trier of fact,” Leite , 749 F.3d at 1122 ?

As we reasoned in Safe Air for Everyone

, “jurisdictional issue[s] and substantive issues” are deemed “intertwined [when] the question of jurisdiction is dependent on the resolution of factual issues going to the merits.” 373 F.3d at
10 39

. We have concluded that merits issues and jurisdictional issues are intertwined

— and thus, that the district court may not resolve disputed factual issues on a factual challenge to jurisdiction

— under several
circumstances. “S uch an intertwining of jurisdiction and merits may occur when ,” for example, “ a party’s right to recovery rests upon the interpretation of a federal statute that

7 Facial challenges, by contrast, are adjudicated under the familiar Rule 12(b)(6) standard. Leite , 749 F.3d at 1121.B OWEN V

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provides both the basis for the court’s subject matter jurisdiction and the plaintiff’s claim for relief.” Williston Basin Interstate Pipeline Co. v. An Exclusive Gas Storage
Leasehold & Easement , 524 F.3d 1090, 1094 (9th Cir. 2008) (citing Safe Air for Everyone , 373 F.3d at 1039). J urisdiction
and substance might also be intertwined whe n the claim at
issue arises under the Constitution

. S ee Roberts v.
Corrothers , 812 F.2d 1173, 1177 (9th Cir. 1987). And, in
the context of a motion to remand to state court a case invo lving federal

- officer removal jurisdiction, the district court may not resolve a “factual dispute material to [federal

officer] jurisdiction [that] is intertwined with an element of the plaintiff’s claim.” DeFiore v. SOC LLC , 85 F.4th 546, 553 (9th Cir. 2023).

We have considered on several occasions, though not expressly decided, whether a district court may resolve disputed issues of fact relating to Article III standing when a plaintiff’s allegations concerning standing are intertwined
with allegations concerning an element of her claim. In
Jones , for example, we noted that resolving “ Article III standing issue[s] under the guise of a Rule 12(b)(1) motion, rather than a summary

-

judgment motion under Rule 56, might be inappropriate if those jurisdictional issue s are ‘intertwined with the merits.’” 74 F.4th at 1057 n.2. Similarly, in Wood v. City of San Diego , we considered the plaintiff’s argument that, because the merits of her claim were intertwined with Article III standing issues, a “jurisdictional finding of genuinely disputed facts” was inappropriate. 678 F.3d 1075, 1084 (9th Cir. 2013) (quoting Safe Air for Everyone , 373 F.3d at 1039). But we left the resolution of that issue for another day because the plaintiff’s case was subject to dismissal regardless of the applicable
standard. Id. at 1085. Likewise, in Friends of the Earth , we16 B OWEN V

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implicitly suggested that when the merits of a plaintiff’s claims are intertwined with an Article III standing issue, the district court may not resolve disputed issues of fact. See 992 F.3d at 944. But w e did so by holding the inverse: “Importantly, because the jurisdictional disputes [as to standing] were not intertwined with the merits of the claim [,] . . . it fell to the district court to ‘resolve [the] factual disputes
itself.’” Id. (quoting Leite , 749 F.3d at 1121

– 22, 1122 n.3) (emphasis added)

. Accordingly, we conclude that the applicable standard for a Rule 12(b)(1) motion that raises a factual challenge to Article III standing tracks the standard set forth in cases like
Williston Basin , 524 F.3d 1094 ; Roberts

, 812 F.2d at 1177;
and DeFiore , 85 F.4th at 553. 8 A s with a motion for summary judgment, when a court is faced with a factual attack on standing pursuant to Rule 12(b)(1), the court “must leave the resolution of material factual disputes to the trier of fact when the issue of [standing] is intertwined with an element of the merits of the plaintiff ’ s claim.” Leite , 749

8 In so holding, we join the Tenth and Eleventh Circuits. See Baker v. USD 229 Blue Valley , 979 F.3d 866, 874 (10th Cir. 2020) (“We find standing intertwined with the merits when we cannot resolve a jurisdictional question without addressing the merits of a substantive claim.”); PDVSA US Litig. Tr. v. LukOil Pan Ams. LLC , 991 F.3d 1187, 1192 (11th Cir. 2021) (noting, on appeal from Rule 12(b)(1) challenge to Article III standing, that “[w]hen the jurisdictional basis of a claim is intertwined with the merits, the district court should apply a Rule 56 summary judgment stan dard when ruling on a motion to dismiss which asserts a factual attack on subject

- matter jurisdiction”).B OWEN V

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F.3d at 1122 (citing Safe Air for Everyone , 373 F.3d at 1039

– 40)

. 9

1. Bowen’s Appeal

We turn now to whether Bowen’s appeal raises
intertwined standing and merits issues. In making that
assessment, we consider whether “the question of [standing] is dependent on the resolution of factual issues going to the merits of [the] action.” See Saf e Air for Everyone

, 373 F.3d at 1039 (citation and internal quotation mark s omitted). Here, Bowen a lleges that she suffered an economic injury for purposes of Article III standing “when she spent money to purchase sunscreen products [that] she would not

9 We note that this rule is rooted in Supreme Court precedent involving “claim[s] under the constitution or federal statutes.” Safe Air for Everyone , 373 F.3d at 1039 (quoting Bell v. Hood , 327 U.S. 678, 682

– 83 (1946)). But the justification for this rule naturally extends to cases, like the present one, where a plaintiff invokes the diversity jurisdiction
of the federal courts to resolve state

- law claims. In Bell v. Hood , the Court highlighted the importance of preserving a federal forum for the vindication of federal rights, and it held that whe n a plaintiff sues “directly under the Constitution or laws of the United States, the federal court, but for [limited] exceptions . . . , must entertain the suit.” 327 U.S.
at 681

– 82. Bell did not consider whether, in a case where the plaintiff invokes federal jurisdiction based on diversity of citizenship, 28 U.S.C. § 1332, a district court’s obligation to “entertain the suit” is equally strong. But we have long held that “the district court has a ‘virtually unflagging’ obligation to exercise jurisdiction” once it attaches, regardless of whether the plaintiff invokes t he court’s diversity jurisdiction under § 1332 or federal

- question jurisdiction under § 1331. See Marlowe v. State Farm Fire & Cas. Co. , 145 F.3d 1339 (9th Cir. 1998). The obligation of the federal courts to exercise jurisdiction when it attaches is no less important when a plaintiff invokes the federal court’s diversity jurisdiction, and we therefore find no basis to apply differing

sta ndards to factual attacks on Article III standing in cases whe n , as here,
the court’s subject

- matter jurisdiction stems from § 1332.18 B OWEN V

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otherwise have purchased, or [would have] paid less for,
absent Defendants’ misconduct .” And she alleges that
Defendants’ misconduct includes both their fail ure to indicate on the ir products’ ingredient lists that many of them
contain benzene and their misleading advertising , which

states that Banana Boat products are “ safe ” to use as directed. In essence, she seeks a remedy for an economic injury, based on actual fraud and fraud by omission.

W he re , as here, plaintiffs in a false

- advertising case “‘contend that [they] paid more for [a product] than they otherwise would have paid, or bought it when they otherwise would not have done so’ they have suffered an Article III injury in fact.” Hinojos v. Kohl’s Corp. , 718 F.3d 1102, 1104 n.3 (9th Cir. 2013) (quoting Mazza v. Am. Honda
Motor Co. , 666 F.3d 581, 595 (9th Cir. 2012) )

. We sometimes call this an “overpayment theory.” McGee v. S

L Snacks Nat’l , 982 F.3d 700, 706 (9th Cir. 2020) (“[O ] verpaym ent is a viable theory of economic injury .”). A plaintiff pr oceeding on an overpayment theory of Article III standing typically must “allege that [the defendant] made false representations

— or actionable non

- disclosures

— about [the product].” Id. at 707. 10 Of course, w hether Defendants made “false representations” or “actionable non

10 In McGee , we noted that i t i s an open question whether the plaintiff ’s theory of Article III standing

— that “ a plaintiff may rely on an overpayment theory of economic injury in a case that does not involve misrepresentations ”

—

was viable and found that it “ appears to find some support ” in our precedent and Third Circuit precedent. 982 F.3d at 707 (citing Birdsong v. Apple, Inc. , 590 F.3d 955 (9th Cir. 2009) , and In re Johnson & Johnson Talcum Powder Prod. Mktg., Sales Prac. & Liab. Litig. , 903 F.3d 278, 2 90 & n.15 (3d Cir. 2018) )

. But w e need not answer the question left open in McGee today because Bowen alleges that
Defendants made misrepresentations with respect to Banana Boat and
benzene. Cf. McGee , 982 F.3d at 707.B OWEN V

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disclosures

, ” id.

, is also a merits issue central to Bowen ’s false

- advertising claim

. After all, o ne of the elements that
Bowen must establish to prevail on a cl aim under
California ’s FAL is an “economic injury”

— i.e.

, “ that she was exposed to false information about the product purchased, which caused the product to be sold at a higher price, and that she ‘ would not have purchased the goods in question absent this misrepresentation. ’ ” Davidson v. Kimberly

- Clark Corp. , 889 F.3d 956, 966 (9th Cir. 2018) (quoting Hinojos , 718 F.3d at 1105 )

. 11

Accordingly, there is a clear overlap between Bowen ’s asserted theory of Article III injury and the “economic injury” element of her FAL claim

. And Bowen ’s allegations relating to standing are not “separable from the merits of the case,” such that the district court was free to “resolv[e] factual disputes.” See Jones , 74 F.4th at 1057 n.2. To
resolve the Article III standing issue

— whether Defendants “made false representations[,] or actionable non

disclosures[,] about [the product],” McGee , 982 F.3d at
707

— would necessarily require us to resolve the meri t s issue

— whether Defendants’ representations and non

disclosures are “actionable” under California law. Because “the [standing] issue and substantive issues are so intertwined,” resolution of “ genuinely disputed facts is inappropriate.” See Safe Air for Everyone , 373 F.3d at 1039 ; cf Friends of the Earth , 992 F.3d at 944

. So w e mu st assess Defendants’ motion as we would a motion for summary

11 For the avoidance of doubt, we note that whether a plaintiff has
satisfied the economic

- injury element of a substantive claim under
California ’s FAL is a distinct inquiry from whether a plaintiff satisfies
Article III’s standing requirement s

. A plaintiff’s failure to satisfy the
strictures of California law is by no means determinative of whether a plaintiff has satisfied the strictures of Article III.20 B OWEN V

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judgment

, and “leave the resolution of material factual disputes [regarding Article III standing] to the trier of fact

. ”
Leite , 749 F.3d at 1122

.
B. Whether Bowen Has Established Article III Standing
Applying a summary judgment standard to Defendants’ Article III challenge, we conclude that genuine dispute s of
material fact render dismissal on standing grounds improper

. The district court considered only the first element of Article III standing

—

whether Bowen had established an injury in
fact. It answered “no” e ven though Bowen alleged that “she spent money to purchase sunscreen products she would not otherwise have purchased, or [would have] paid less for,
absent Defendants’ misconduct [.] ” The district court held
that “[i]n light of the [FDA] guideline permitting 2 ppm of benzene in sunscreen, Plaintiff does not allege facts that tend
to show

. . . actual economic harm

. ” The district court’s
decision suffers from two errors . First, the district court mistakenly require d Bowen to show that Banana Boat was noncompliant with FDA guidelines in order to establish injury under an economic

- harm theory

. S econd, to reach the
conclusion that 0.29 ppm of benzene in sunscreen is “safe

, ” the district court improperly weighed disputed evidence . We address each error in turn.

First, B owen’s theory of injury in fact finds ample support in our precedent. In Hinojos

, we considered whether a plaintiff who alleged claims under California’s UCL, FAL, and CLRA had Article III standing. 718 F.3d at 1102. The Hinojos plaintiff alleged that he “bought merchandise from a Kohl’s Department Store that he would not have purchased had he not been misled by advertisements stating that the merchandise was marked down from a fictitious ‘original’ or ‘regular’ price.” Id. at 1101. We found that “[t]here is noB OWEN V

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difficulty in this case regarding Article III injury in fact ” because “ when, as here, ‘[p]laintiffs contend that [they] paid more for [a product] than they otherwise would have paid, or bought it when they otherwise would not have done so’ [,] they have suffered an Article III injury in fact .” Hinojos

, 718 F.3d at 1104 n.3 (quoting Mazza , 666 F.3d at 595); see also Mazza , 666 F.3d at 595 (holding at the motion for class certification stage that “[t]o the extent that class members were relieved of their money by Honda’s deceptive
conduct

— as plaintiffs allege

— they have suffered an injury in fact” for purposes of Article III standing ( internal quotation marks and citation omitted) )

. Here, Bowen alleges that when “purchasing the sunscreen products, [she] reviewed the accompanying labels and disclosures, and understood them as representations and warranties by the manufacturer that the sunscreen products were properly manufactured, free from defec ts, safe for their intended use, and not adulterated or misbranded.” Bowen

“ relied on these representations and warranties in deciding to purchase the sunscreen products manufactured by Defendants, and these representations and warranties were part of the basis of the bargain.” But the bottle of Ultra Sport
50 that Bowen purchased in 2020 contained the alleged carcinogen benzene. And although Bowen discarded the Ultra Sport 100 bottle that she purchased without testing it, she alleges that Ultra Sport 100 has been tested by Valisure
and found to contain at leas t 0.1 ppm of benzene. Had
Bowen “known that any amount of benzene was or risked being contained in the sunscreen products she purchased, she would not have purchased and used the products at all or would have paid significantly less for them.” Finally,
Bowen alleges that she “suffered economic injury when she spent money to purchase sunscreen products she would not22 B OWEN V

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otherwise have purchased, or paid less for, absent Defendants’ misconduct, as alleged herein.” U nder Hinojos and Mazza , these allegations outline a theory of economic injury that qualifies as an injury in fact under established Article III standing caselaw

. Hinojos , 718 F.3d at 1104 n.3;
Mazza , 666 F.3d at 595; see also Reid v. Johnson & Johnson

, 780 F.3d 952, 958 (9th Cir. 2015) (quoting POM Wonderful
LLC v. Coca

- Cola Co. , 573 U.S. 102, 108 (2014) (“A consumer who is hoodwinked into purchasing a disappoi nting product may well have an injury

- in

- fact cognizable under Article III.

. . .”) )

. The district court cited Hinojos but found it materially distinguishable. The court characterized the standing analysis in Hinojos as follows: “In Hinojos , the plaintiff alleged he suffered economic harm because he would not have purchased merchandise if not for the inflated ‘regular’ price[;] it is not hypothetical that the fictitiously high ‘regular’ prices made the merchandise seem like more a bargain.” The district court then attempted to juxtapose
Bowen ’s alleged injury: “ U nlike the concrete premise [] for the economic harm[] in . . . Hinojos

, Bowen ’s alleged economic harm is premised on the speculative notion that the presence of 0.29 ppm of benzene, or any potential presence of benzene, makes the sunscreen unsafe.” But the distinction drawn by the district court is immaterial to the standing analy sis under Bowen’s economic

- harm theory of injury

. T he district court relies on the mistaken premise that
Bowen ’s theory of Article III injury requires her to prove that benzene in the quantity found in the bottle of Ultra Sport
50 that she purchased

— 0.29 ppm

— is unsafe

. That is not the case. Instead, Bowen need prove only that she “paid more for [ the product] than [she] otherwise would have paid, or bought it when [she] otherwise would not have done so

, ”B OWEN V

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Hinojos , 718 F.3d at 1104 n.3 , absent Defendants’ “false representations

— or actionable non

- disclosures

— about [the product,]” McGee , 982 F.3d at 706

. S econd

, under Bowen’s theory of standing, the evidence presented by the parties gives rise to dispute s of fact with respect to whether Defendants made actionable misrepresentations about Banana Boat sunscreen

. In finding
that Bowen failed to establish a non

- speculative injury, the district court gave controlling weight to three documents: (1) a document produced by the International Conference on Harmonization (“ICH”) titled “ Impurities: Guidelines for Residual Solvents Q3c ” (“ICH Q3C”); (2) an FDA news release from December 2021 titled “ FDA alerts drug manufacturers to the risk of benzene contamination in certain drugs ” (“FDA Alert”); and (3) the Frequently Asked Questions section of the FDA’s website

— specifically, the page titled “ Frequently Asked Questions on Benzene Contamination in Drugs ” (“FDA FAQ”). Even without considering Bowen’s countervailing evidence, those
documents do not resolve the question of whether benzene is actually unsafe at any level . Those sources merely highlight the FDA’s view that benzene “ should not be employed in the manufacture of . . . drug products because of their unacceptab le toxicity or their deleterious environmental effect. However, if their use is unavoidable in order to produce a drug product with a significant therapeutic advance, then their levels should be restricted ” to 2 ppm, “unless otherwise justified.” (emphasis added).

The FDA is not stating , a s Defendants argue and the
district court held , that products containing less than 2 ppm
of benzene are safe , full stop

. Characterizing such products
as safe runs counter to the agency’s caveat

- laden guidance

. Instead

, the FDA has expressed the view that benzene should24 B OWEN V

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not be used in products unless its “ use is unavoidable . . . to produce a drug with a significant therapeutic advance” or “unless otherwise justified” ; the FDA FAQ posted to the FDA’s website suggests that “[d]rug manufacturers with a risk for benzene contamination should test their drugs accordingly and should not release any drug product batch that contains benzene above 2 parts per million (ppm)” ; and
that manufacturers “should contact FDA using the information provided in FDA’s [A]lert if their testing reveals benzene in a product.”

Accordingly, there is in consistency even with in the documents put forth by Defendants and relied upon by the
district court: on the one hand, the FDA tells manufacturers

not to deliberately put benzene in drugs unless it is
“unavoidable” because of its “unacceptable toxicity ; ” on the other hand, the FDA advises manufacturers that if their drugs
become contaminated with benzene, they should not release batches with more than 2 ppm benzene. Hardly a ringing endorsement for the proposition that products with less than 2 ppm benzene are “safe.” T he FDA g uidance does not
establish as a matter of law that sunscreen with benzene levels under 2 ppm is safe for human use

. 12

Bowen submitted evidence in opposition to Defendants’
motion to dismiss that raises further dispute s of material fact
as to whether Defendants’ assertio n that Banan a Boat

12 The district court relied on the FDA Alert and FDA FAQ not as source s of federal law preempting Bowen’s state

- law claims, but instead as factual evidence that benzene levels under 2 ppm in sunscreen is safe. This was wise, as neither document has the force of federal law: “ [I] t cannot be disputed that the FAQ section of a federal website is not a source of ‘federal law,’ nor would an interpretation announced there be subject to deference by a court.” Ariz. Dream Act Coal. v. Brewer , 757 F.3d 1053, 1073 (9th Cir. 2014) (Christen, J., concurring).B OWEN V

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products are “safe” is a “misrepresentation.” See McGee

, 982 F.3d at 707. Chiefly, Bowen proffered Dr. Bunick’s opinion that “there is not a safe level of benzene that can exist in sunscreen products,” and “even benzene at 0.1 ppm in a sunscreen could expose people to excessively high nanogram amounts of benzene.” And although a plaintiff typically need not support her allegations with evidence at the plea d ing stage, Bowen did so here by providing evidence that the Ultrasport 50 bottle she bought contained 0.29 ppm
benzene and that the Ultrasport 100 product she bought was tested by a third

- party and contained more than .1 ppm benzene. The district court held that “Dr. Bunick’s statement that 0.1 ppm of benzene ‘ could expose people to excessively high amounts’ creates only a speculative risk of harm, especially in light of the FDA’s concentration limit of 2 ppm of benzene.” But it is not the district court’s role to weigh evidence that implicates both jurisdictional and merits
issues ; “contested evidence is viewed in the light most favorable to the nonmoving party

. ” Johnson , 79 F.4th at 999. In this case, that is Bowen.

When consumers like Bowen enter the marketplace, they have options. Faced with two sunscreens in the skincare aisle of a pharmacy

— one with benzene, the other with no
benzene

— it is perfectly reasonable that the consumer would avoid the product containing benzene, as Bowen alleges that
she would have absent Defendants’ alleged false advertising

. The FDA tells manufacturers not to put benzene in drugs
unless doing so is unavoidable. The Valisure letter that
Bowen submitted quotes Dr. Bunick as opining that “there is
not a safe level of benzene that can exist in sunscreen products,” and “even benzene at 0.1 ppm in a sunscreen could expose people to excessively high nanogram amounts
of benzene.” And Defen dant EPCC has voluntarily recalled26 B OWEN V

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batches of Banana Boat sunscreen sold in the United States that the company asserted contained “trace”

— though
undisclosed

— amounts of benzene. 13 In light of this record evidence, factual disputes remain as to the truthfulness of the Defendants’ representations that the Banana Boat products
were “safe

, ” and as to whether their omission of benzene
from the bottles’ labeling were misrepresentations

. Accordingly, the district court erred in dismissing Bowen ’s SAC for failure to establish an injury in fact for purposes of Article III standing. 14

1. Article III Causation and Redressability
Although the district court addressed only the first
element of standing

— injury in fact

— “we have an independent obligation to consider” standing sua sponte. Am. C.L. Union of Nev

. v. Lomax , 471 F.3d 1010, 1015 (9th Cir. 2006) ( internal quotation marks and citation omitted).

13 We note that, although Bowen did not provide evidence to support the allegation that the Ultrasport 30 she bought, used, and discarded
contained benzene

, she was not required to do so to withstand
Defendants’ motion to dismiss. Because Defendants did not produce evidence showing that the Ultra Sport 30 did not contain benzene, we review the issue of whether the Ultra Sport 30 contained benzene under the rubric for a facial challenge to jurisdiction, i.e. , the Rule 12(b)(6)
standard. Leite , 749 F.3d at 1121. And, in light of her allegations about the other Banana Boat spray products she purchased that contained benzene and allegations regarding Defendant EPCC ’ s recall of another SPF 30 Banana Boat product due to “unexpected levels of benzene [in] the propellant that sprays the product out of the can

, ” Bowen has plausibly alleged that the Ultrasport 30 bottle that she purchased and
used contained benzene.

14 Because Bowen has established an injury in fact under an economic

harm theory, we need not, and do not, address Bowen’s argument that the district court erred in determining that she failed to establish an injury
in fact under a physical

- harm theory.B OWEN V

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So we consider whether Bowen has satisfied the second and
third elements of Article III standing : “ (ii) that the injury was likely caused by the defendant; and (iii) that the injury would likely be redressed by judicial relief. ” TransUnion
LLC , 594 U.S. at 423

. Bowen alleges that Defendants caused her injury , in part, through their alleged misrepresentation that the Banana Boa t products she purchased are safe for their intended use . As set forth above, whether the Banana Boat bottles that Bowen purchased contained unsafe levels of benzene is a disputed
issue of fact. Bowen cites Dr. Bunick’s opinion that “[t]here
is not a safe level of benzene that can exist in sunscreen products.” Accordingly, whether Defendants “made false representations ” about the safety of their products that “likely caused ” Bowen ’s economic injury is a disputed question of fact

, s ee McGee , 982 F.3d at 707

, and Bowen has
met her burden to satisfy the causation element of Article III standing at this juncture.

Bowen has also met her burden to establish redressability. Defendants did not submit evidence in support of their Rule 12(b)(1) motion challenging redressability, and we therefore consider whether Bowen has
established that element of standing under the 12(b)(6) rubric, which we apply to a facial challenge to jurisdiction.
Leite , 749 F.3d at 1121. Bowen plausibly alleges that she paid more for the Banana Boat products tha n she would have absent Defendants’ alleged misconduct

, and she seeks damages for that alleged overpayment. Bowen also alleges that she intends to purchase Banana Boat products in the future, but only if they “are unadulterated and meet the advertising claims

. ” She further seek s to enjoin the
Defendants “ from distributing such false advertising and28 B OWEN V

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misrepresentations ” as is alleged in the SAC

. 15 Bowen has therefore established that her injury “would likely be redressed by judicial relief” at this stage of the litigation.
TransUnion LLC , 594 U.S. at 423.

IV. C ONCLUSION
For the foregoing reasons, we REVERSE the district
court’s order dismissing Bowen’s suit for lack of Article III standing , and REMAND for further proceedings consistent with this opinion

.

15 We note the Defendants’ assertion that “Plaintiff has no standing to prosecute claims on the basis of products she did not purchase

, ” and they contend that Plaintiff should not be allowed to pursue an injunction with respect to products that she did not buy. We decline Defendants’ invitation to prejudge these issue s

.