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, 2024
2 BOWEN V. ENERGIZER HOLDINGS, INC.

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, contrary 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.
BOWEN V. ENERGIZER HOLDINGS, INC. 3

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 disputed 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 element, 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 BOWEN V. ENERGIZER HOLDINGS, INC.

COUNSEL

Kiley L. Grombacher (argued), Bradley Grombacher LLP, 

Westlake Village, California; R. Jason Richards, Aylstock 

Witkin Kreis & Overholtz PLLC, Pensacola, Florida; SinTing M. Liu, Aylstock Witkin Kreis & Overholtz PLLC, 

Alameda, California; for Plaintiff-Appellant.

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 1997 classic spoken-word song, Everybody’s Free 

(To Wear Sunscreen), Baz Luhrmann advises his audience

to “Wear sunscreen,” telling listeners that it helps prevent 

skin cancer and that “[t]he long-term benefits of sunscreen 

have been proved by scientists.”

1 Today, Plaintiff Beth 

Bowen calls Mr. Luhrmann’s advice into question, alleging 

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 1997). Luhrmann’s song popularized 

the words of journalist Mary Schmich from her essay in the Chicago 

Tribune. See Mary Schmich, Opinion, Advice, Like Youth, Probably Just 

Wasted on the Young, Chi. Trib., June 1, 1997, https://www.chicago

tribune.com/1997/06/01/advice-like-youth-probably-just-wasted-onthe-young-2/.
BOWEN V. ENERGIZER HOLDINGS, INC. 5

determined can cause cancer. Bowen sued six defendants2

who manufacture, market, and distribute Banana Boat 

sunscreen, claiming violations of various California statutes, 

including California’s False Advertising Law. Bowen

alleges that the Banana Boat bottles she bought contained

dangerous levels of benzene, contrary to the Defendants’ 

representations that the products were safe. She also claims 

that Defendants failed to disclose on the products’ labelling

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 allegations 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 Article 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 BOWEN V. ENERGIZER HOLDINGS, INC.

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 party. 

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. BACKGROUND

A. Bowen Purchases 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 of 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 nonparty pharmacy—Valisure—tested various Banana Boat 

products and found that they too contained benzene, 

including a bottle of Ultra Sport 100, which Valisure found 

to contain more than 0.1 ppm of benzene.
BOWEN V. ENERGIZER HOLDINGS, INC. 7

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 

opined that “[t]here is not a safe level of benzene that can 

exist in sunscreen products,” meaning that even trace 

amounts can be harmful.3 Dr. Bunick further explained: 

Considering that human skin has a large total 

surface area (~1.85 m2), 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 human 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 the 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 BOWEN V. ENERGIZER HOLDINGS, INC.

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’ failure 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 Party Ltd. 

issued 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 on July 29, 2022, Defendant Edgewell Personal 

Care Company (“EPCC”) announced a voluntary 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.” 
BOWEN V. ENERGIZER HOLDINGS, INC. 9

B. Bowen’s Lawsuit

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 used 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 misrepresentation/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 BOWEN V. ENERGIZER HOLDINGS, INC.

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 bases: 

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.
BOWEN V. ENERGIZER HOLDINGS, INC. 11

for several distinct reasons, but the district court considered 

only one—whether Bowen has Article 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 nonspeculative increased health risk or actual economic harm.” 

To reach that conclusion, the district court conducted a 

searching, three-part analysis with respect to the bottle of 

Ultra Sport 50 that Bowen purchased, which contained 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.” 

The 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 or 

substantial 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 related 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 known that Banana Boat 

contained benzene—“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.” 

Bowen timely appealed. She argues that the district 

court erred in its analysis under Rule 12(b)(1) by failing to 
12 BOWEN V. ENERGIZER HOLDINGS, INC.

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. JURISDICTION & STANDARD OF REVIEW

We have appellate jurisdiction pursuant to 28 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); San 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. DISCUSSION

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 redressed by judicial relief.” Id. (citing 

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 

(1992)). Here, the 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. 
BOWEN V. ENERGIZER HOLDINGS, INC. 13

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. But 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 that 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 BOWEN V. ENERGIZER HOLDINGS, INC.

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 factual 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 allegations 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 

1039. 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. “Such 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.
BOWEN V. ENERGIZER HOLDINGS, INC. 15

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). Jurisdiction 

and substance might also be intertwined when the claim at 

issue arises under the Constitution. See 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 

involving federal-officer removal jurisdiction, the district 

court may not resolve a “factual dispute material to [federalofficer] 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 issues 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, we 
16 BOWEN V. ENERGIZER HOLDINGS, INC.

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 we 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 As 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 standard when ruling on a motion to dismiss which 

asserts a factual attack on subject-matter jurisdiction”). 
BOWEN V. ENERGIZER HOLDINGS, INC. 17

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 Safe Air for Everyone, 373 F.3d 

at 1039 (citation and internal quotation marks omitted). 

Here, Bowen alleges 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 when 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 the 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 

standards to factual attacks on Article III standing in cases when, as here, 

the court’s subject-matter jurisdiction stems from § 1332.
18 BOWEN V. ENERGIZER HOLDINGS, INC.

otherwise have purchased, or [would have] paid less for, 

absent Defendants’ misconduct.” And she alleges that 

Defendants’ misconduct includes both their failure to 

indicate on their 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. 

Where, 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. SL Snacks Nat’l, 982 F.3d 700, 706 (9th Cir. 2020) 

(“[O]verpayment is a viable theory of economic injury.”). A 

plaintiff proceeding 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, whether Defendants 

made “false representations” or “actionable non10 In McGee, we noted that it is 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, 290 & n.15 (3d Cir. 2018)). But we 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.
BOWEN V. ENERGIZER HOLDINGS, INC. 19

disclosures,” id., is also a merits issue central to Bowen’s

false-advertising claim. After all, one of the elements that 

Bowen must establish to prevail on a claim 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 nondisclosures[,] about [the product],” McGee, 982 F.3d at 

707—would necessarily require us to resolve the merits 

issue—whether Defendants’ representations and nondisclosures 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 we must 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 requirements. 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 BOWEN V. ENERGIZER HOLDINGS, INC.

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 disputes 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” even 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 required Bowen to show that Banana Boat was 

noncompliant with FDA guidelines in order to establish 

injury under an economic-harm theory. Second, 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, Bowen’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 no 
BOWEN V. ENERGIZER HOLDINGS, INC. 21

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 defects, 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 least 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 not 
22 BOWEN V. ENERGIZER HOLDINGS, INC.

otherwise have purchased, or paid less for, absent 

Defendants’ misconduct, as alleged herein.” Under 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 

disappointing 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: “Unlike 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 

analysis under Bowen’s economic-harm theory of injury. 

The 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,” 
BOWEN V. ENERGIZER HOLDINGS, INC. 23

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.

Second, under Bowen’s theory of standing, the evidence 

presented by the parties gives rise to disputes 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 unacceptable 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, as 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 should 
24 BOWEN V. ENERGIZER HOLDINGS, INC.

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 inconsistency even within 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.” The FDA guidance 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 disputes of material fact

as to whether Defendants’ assertion that Banana Boat 

12 The district court relied on the FDA Alert and FDA FAQ not as sources

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).
BOWEN V. ENERGIZER HOLDINGS, INC. 25

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 pleading 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 Defendant EPCC has voluntarily recalled 
26 BOWEN V. ENERGIZER HOLDINGS, INC.

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 economicharm 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.
BOWEN V. ENERGIZER HOLDINGS, INC. 27

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 Boat

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, see 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 than 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 seeks to enjoin the

Defendants “from distributing such false advertising and 
28 BOWEN V. ENERGIZER HOLDINGS, INC.

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. CONCLUSION

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 issues.