1 – FINDINGS AND RECOMMENDATION 

UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

PORTLAND DIVISION 

HILARY ANDRIESIAN, 

Plaintiff, 

v. 

COSMETIC DERMATOLOGY, INC., 

a Florida Corporation, 

Defendant. 

 

Case No. 3:14-cv-01600-ST 

FINDINGS AND 

RECOMMENDATION 

STEWART, Magistrate Judge: 

INTRODUCTION 

 Plaintiff, Hilary Andriesian, filed this class action in the Multnomah County Circuit 

Court for the State of Oregon against defendant, Cosmetic Dermatology, Inc. (“CDI”), for false 

advertising in the sale of its skin care product, Dr. Brandt’s Pores No More Anti-Aging 

Mattifying Lotion (“Pores No More”). Plaintiff alleges claims for violations of Oregon’s 

Unlawful Trade Practices Act, ORS 646.605-.656 (“OUTPA”) (First Claim), violations of 

Florida’s Deceptive and Unfair Trade Practices Act, Fla Stat §§ 501.201-.213 (“FDUTPA”) 

(Second Claim), and breach of warranty (Third Claim). She seeks to represent a nationwide 

class of “all persons in the United States who purchased Pores No More for individual or 

household uses” on the Second and Third Claims and an Oregon Subclass of “all persons in 

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Oregon who purchased Pores No More for individual or household uses” on the First and Third 

Claims.

 CDI removed the case to this court based on the Class Action Fairness Act (“CAFA”) 

which confers original jurisdiction over class actions where the matter in controversy exceeds $5 

million and any member of the plaintiff class is a citizen of a different state than any defendant. 

28 USC § 1332(d)(2), (4), & (6). Plaintiff is a citizen of Oregon, and CDI is a citizen of both 

Delaware and Florida. Notice of Removal (docket #1), ¶¶ 14–15. The Complaint seeks 

restitution payments totaling between $2 and $4.5 million “to restore all funds acquired by 

means of any act or practice declared by this Court to be an unlawful or unfair business act or 

practice.” Complaint, Prayer for Relief, ¶ E. It also seeks pre-and post- judgment interest; 

injunctive and declaratory relief; the disgorgement of “all monies, revenues, and profits;” actual 

and statutory damages; punitive damages; and attorney fees and costs. Id, Prayer for Relief. 

This prayer alone cannot meet the CAFA amount in controversy requirements. If the amount in 

controversy is not “facially apparent” from the complaint, the court may consider facts in the 

removal petition as well as evidence submitted by the parties, including “summary-judgmenttype evidence relevant to the amount in controversy at the time of removal.” Singer v. State 

Farm Mut. Auto. Ins. Co., 116 F3d 373, 377 (9th Cir 1997) (citation omitted). Accordingly, CDI 

has submitted evidence that the other remedies sought, when aggregated with the restitution 

payment, exceed $5 million. Notice of Removal, ¶¶ 19-20; Collue Decl. (docket #12), ¶¶ 5-8. 

Therefore, this court has jurisdiction under CAFA. 

 Pursuant to FRCP 12(b)(6), CDI has filed a Motion to Dismiss all claims (docket #15). 

For the reasons stated below, that motion should be granted in part and denied in part. 

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STANDARDS 

In order to survive a motion to dismiss for failure to state a claim, a complaint must 

contain sufficient factual allegations which, when accepted as true, give rise to a plausible 

inference that defendants violated plaintiff’s rights. Ashcroft v. Iqbal, 556 US 662, 678 (2009); 

Bell Atl. Corp. v. Twombly, 550 US 554, 556-57 (2007). “A claim has facial plausibility when 

the plaintiff pleads factual content that allows the court to draw the reasonable inference that the 

defendant is liable for the misconduct alleged.” Iqbal, 556 US at 678. In evaluating a motion to 

dismiss, the court must accept the allegations of material fact as true and construe those 

allegations in the light most favorable to the non-moving party. Parks Sch. of Bus., Inc. v. 

Symington, 51 F3d 1480, 1484 (9th Cir 1995). 

ALLEGATIONS 

 Plaintiff alleges that CDI sells Pores No More directly to consumers online and in retail 

stores nationwide for approximately $60.00 per 1.7 oz. bottle (excluding tax and shipping 

charges). Complaint, ¶ 7. The packaging and marketing materials include, among others, 

representations that Pores No More is “Oil-Free” and “helps delay the natural signs of aging by 

maintaining the longevity & activity of stem cells in the skin.” Id, ¶ 9 & Ex. 1. In reliance on 

those representations, plaintiff purchased Pores No More for approximately $60.00 in or about 

the summer of 2013 from a retail store in the greater Portland area. Id, ¶¶ 11-12, 41. 

 She alleges that CDI’s representation that Pores No More is “Oil Free” is false because it 

contains at least three ingredients that are oils: (a) Hydrogenated polyisobutene, which is a 

synthetic oil used as a mineral oil substitute; (b) Lavender oil which is derived from the flower 

spikes of certain species of lavender; and (c) Melaleuca alternifolia (Tea Tree Leaf) oil, which is 

derived from the leaves of a plant native to Australia. Id, ¶¶ 13-14. 

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 With respect to the product’s efficacy, plaintiff alleges in 2008, an organization called 

Mibelle Biochemistry (“Mibelle”) published an article in the SOFW Journal titled “Plant Stem 

Cell Extract for Longevity of Skin and Hair.” Id, ¶ 15 & Ex. 2. The SOFW Journal is not a 

peer-reviewed journal, but promotes the formulation and sale of cosmetic treatments typically by 

publishing research studies performed by companies that promote and sell the cosmetic product 

being “tested.” Id, ¶ 25. 

 In its article, Mibelle claims to have harnessed the power of a species of apple known for 

its longevity to create a serum that could revitalize the skin. Id, ¶ 16. Specifically, on the basis 

of several tests, Mibelle claims that the apple’s stem cells stimulated human cell proliferation. 

Id. First, Mibelle scientists extracted apple stem cells, mixed the extract into a preparation called 

PhytoCellTechTM Malus Domestica, then introduced that solution to human embryonic stem cells 

from umbilical cord blood that reportedly proliferated by 80%. Id, ¶ 17. Second, Mibelle 

scientists stressed the human embryonic stem cells with UV light, noting that 50% of such cells 

cultured in a growth medium alone died, while cells cultured in the presence of the PhytoCell 

TechTM extract experienced “only a small loss of viability.” Id, ¶ 18. Third, Mibelle scientists 

exposed fibroblast cells, which are common in connective tissue, to hydrogen peroxide for two 

hours until they showed signs of aging, meaning that several genes essential for cell proliferation 

and growth were significantly down-regulated. Id, ¶ 19. They then incubated the cells in a 2% 

PhytoCell TechTM extract for 144 hours, concluding that the extract neutralized the downregulation or even induced an up-regulation, as well as stimulated an antioxidant enzyme. Id. 

Finally, Mibelle scientists conducted a study of 20 participants who used a 2% PhytoCell TechTM 

cream twice daily to the “crow’s feet” area around the eye, concluding that “wrinkle depth” was 

reduced 8% by two weeks and 15% after four weeks. Id, ¶ 20. After publication of Mibelle’s 

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article, cosmetic and skincare companies worldwide began featuring the serum in products. Id, 

¶ 21. Mibelle filed a patent application for PhytoCell TechTM and is a principal supplier of apple 

stem cell extract to the skincare and cosmetic industry. Id, ¶ 26. 

Pores No More contains “Malus Domestica Fruit Cell Culture Extract” which CDI’s 

marketing materials refer to as “apple stem cells.” Id, ¶ 22. CDI claims that its apple stem cell 

extract “helps delay the natural signs of aging by maintaining the longevity and activity of stem 

cells in the skin.” Id, ¶ 23. In making this claim, CDI relies exclusively or primarily on the 

results reported in the Mibelle article. Id, ¶ 24. However, Mibelle scientists did not perform 

tests under conditions that support efficacy claims concerning adult stem cells in the skin’s basal 

layer after topical application in a lotion. Id, ¶ 27. In addition, the Mibelle article fails to 

provide adequate information or data underlying its “clinical study” and includes misleading 

photographs. Id, ¶¶ 29, 31-32. Even with proper procedures under proper conditions, the group 

of 20 participants is statistically insignificant. Id, ¶ 30. In fact, Dr. Daniel Schmid, Mibelle’s 

research director and primary author of the article, has admitted that “[t]he anti-ageing benefit 

for the skin after topical application could not be confirmed in a clinical trial.” Id, ¶ 33. 

Therefore, CDI’s efficacy claims based on the Mibelle article are false and misleading. Id, ¶ 34. 

 CDI’s claims are also false or misleading because the apple stem cell extract in Pores No 

More must be alive to provide any purported benefit, generally cannot survive long-term 

embedded in a cream, and at a minimum, is likely to degrade over time (both before and after a 

consumer’s purchase) resulting in a significantly diminished benefits, if any. Id, ¶ 35. 

Moreover, CDI does not disclose the amount of apple stem cell extract in Pores No More which 

may be significantly less than the 2% concentration used in the Mibelle study. Id, ¶ 36. 

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 As a result of CDI’s misrepresentations, plaintiff purchased and paid more for Pores No 

More than she otherwise would have, and CDI was able to command a price significantly above 

a fair market price. Id, ¶¶ 42-43. Plaintiff first discovered that Pores No More may have been 

falsely advertised in about May 2014. Before that time, she did not and could not have known 

facts that make an objectively reasonable person aware of a possible injury for which CDI was 

responsible. Id, ¶ 46. 

FINDINGS 

I. Failure to State a Claim 

All three claims are premised on allegations that CDI made the following false 

representations on the product packaging of Pores No More: (1) the Pores No More was “OilFree” (“Oil-Free” representation); and (2) that it “helps delay the natural signs of aging by 

maintaining the longevity & activity of stem cells in the skin” (“anti-aging” representation). Id, 

¶ 12. CDI seeks to dismiss all three claims for failing to adequately allege untrue statements or 

actionable misrepresentations. 

 To state a false labeling or advertising claim under each theory, plaintiff must 

affirmatively plead and prove that the statements at issue are either objectively false or at least 

likely to mislead a reasonable consumer. Under the UTPA, plaintiff must plead and prove that 

Pores No More has “characteristics, ingredients, uses, benefits, . . . or qualities that . . . [it] do[es] 

not have.” ORS 646.608(1)(e); see also Lund v. Arbonne Int’l, Inc., 132 Or App 87, 94, 887 P2d 

817 (1994) (affirming summary judgment on UTPA claim where plaintiff effectively admitted 

that defendant’s representation was not false). Similarly, under the FDUTPA, plaintiff must 

plead and prove that Pores No More’s labeling is likely to deceive a reasonable consumer. See 

Millennium Commc’ns & Fulfillment, Inc. v. Office of Attorney Gen., 761 So2d 1256, 1263-64 

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(Fla Ct App 2000) (affirming dismissal of FDUTPA claim because alleged omissions were not 

deceptive). 

 Although not specifically alleged in the Complaint, plaintiff appears to premise her 

breach of warranty claim on Oregon’s version of § 2-313 of the Uniform Commercial Code 

(“UCC”), ORS 72.3130. See Complaint, ¶ 79 (referring to remedy under ORS 72.6070(3)(a), 

which provides remedies for ORS 72.3130). Generally, an express breach of warranty claim 

under § 2-313 of the UCC requires proof that “the goods did not comply with the warranty, that 

is, that they were defective.’” Genetti v. Caterpillar, Inc., 261 Neb 98, 112, 621 NW2d 529 

(2001) (citation omitted). A warranty is not created by “an affirmation merely of the value of the 

goods or a statement purporting to be merely the seller’s opinion or commendation of the 

goods.” ORS 72.3130(2). 

 “[G]eneralized, vague and unspecific assertions constitut[e] mere ‘puffery’ upon which a 

reasonable consumer [cannot] rely.” Glen Holly Entm’t, Inc. v. Tektronix Inc., 343 F3d 1000, 

1015 (9th Cir 2003) (holding that a company’s statements “generally describing the ‘high 

priority’ [it] placed on product development and alluding to marketing efforts” that suggested the 

product was almost complete and would be released could not form the basis for a fraud or 

negligent misrepresentation claim). The court may determine as a matter of law whether a 

statement is puffery. Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F2d 242, 

245 (9th Cir 1990) (“District courts often resolve whether a statement is puffery when 

considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) and we can 

think of no sound reason why they should not do so.”). 

/// 

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 1. Falsity of “Oil-Free” Representation 

 CDI acknowledges that Pores No More contains three ingredients that plaintiff considers 

to be oils, namely a synthetic oil, lavender oil, and tea tree leaf oil. However, it argues that “oil” 

is an inherently ambiguous term that is not susceptible to proof of truth or falsity and that, in any 

event, the ingredients are listed on Pores No More’s label. Neither of those arguments is 

persuasive. 

 To support its argument that the term “oil” is indefinite, CDI relies on various dictionary 

definitions referring to “any of a large class of substances” or “any of various substances” or 

“any of a number of liquids” which are typically unctuous, viscous, and combustible. Although 

these definitions are broad, they are not in any sense inherently ambiguous or indefinite to a 

reasonable speaker of English. To the contrary, “Oil-Free” is an objectively verifiable factual 

representation. Either the product contains oil, whether natural or artificial, in its ingredients or 

it does not. See Lam v. Gen. Mills, Inc., 859 F Supp2d 1097, 1103-04 (ND Cal 2012) (finding 

the term “gluten free . . . communicates nothing more than the absence of gluten in the 

product”). 

 In support, CDI cites cases which are easily distinguishable. In Viggiano v. Hansen 

Natural Corp., 944 F Supp2d 877, 894-95 (CD Cal 2010), the court dismissed a breach of 

warranty claim against the maker of Diet Hansen’s Premium Sodas on the ground, among other 

things, that the representation of the product as “premium” was not sufficiently specific to be 

susceptible of truth or falsity. In In re All Terrain Vehicle Litig., 771 F Supp 1057, 1060-61 (CD 

Cal 1991), aff’d 978 F2d 1265 (9th Cir 1992), the court dismissed fraud claims against vehicle 

manufacturers who characterized their products as “all terrain vehicle[s]” and “precisely 

balanced in the frame for superb handling,” among other representations. 

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 “‘[A]dvertising which merely states in general terms that one product is superior is not 

actionable.’” Cook, Perkiss & Liehe, Inc., 911 F2d at 246, quoting Smith–Victor Corp. v. 

Sylvania Elec. Prods., Inc., 242 F Supp 302, 308-09 (ND Ill 1965) (advertiser’s statement that its 

lamps were “far brighter than any lamp ever before offered for home movies” was ruled puffery, 

but quantifying the superior brightness with statements such as “35,000 candle power and 10-

hour life” supported a potential Lanham Act claim). “However, misdescriptions of specific or 

absolute characteristics of a product are actionable.” Id (citation and internal quotation marks 

omitted). Both of the cases cited by CDI involve highly subjective terms that cannot be 

empirically tested and that vary according to their context. In contrast, the representation that 

Pores no More is “Oil-Free” is not merely general in nature, but conveys the specific factual 

representation that its ingredients do not contain oil. CDI asserts that Pores No More is “OilFree” in the sense that it does not contain a moisturizing oil ingredient, but that claim is not 

expressed either on the package or the bottle. Since it is plausible that a reasonable consumer 

would read “Oil-Free” to mean the product contains no artificial or synthetic oil ingredient, the 

“Oil-Free” representation is potentially deceptive and actionable.

 CDI also argues that a reasonable consumer could not be misled because the allegedly 

oil-based ingredients were plainly listed on the product’s label.1

 Plaintiff responds that the 

ingredient list, which is located on the bottom flap of the package and in small print, does not 

dispel the confusion created by the “Oil-Free” claim which is prominently displayed on the front 

of the label and on the bottle. 

 The Ninth Circuit has rejected CDI’s argument that an ingredient list clears up any 

possible misconception by a consumer: 

 

1

 CDI concedes that, in any event, the question of whether reasonable consumers would be expected to read the 

ingredient list is material only to plaintiff’s FDUTPA claim. Reply In Support of Motion to Dismiss (docket #21), 

p. 7. 

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We disagree with the district court that reasonable consumers 

should be expected to look beyond misleading representations on 

the front of the box to discover the truth from the ingredient list in 

small print on the side of the box. . . . We do not think that the 

[Food and Drug Administration] requires an ingredient list so that 

manufacturers can mislead consumers and then rely on the 

ingredient list to correct those misinterpretations and provide a 

shield for liability for the deception. Instead, reasonable 

consumers expect that the ingredient list contains more detailed 

information about the product that confirms other representations 

on the packaging. 

Williams v. Gerber Prods. Co., 552 F3d 934, 939-40 (9th Cir 2008); accord Lam, 859 F Supp2d 

at 1105 (“ingredients list cannot be used to correct the message that reasonable consumers may 

take from the rest of the packaging”). 

 Following Williams, numerous district courts in the Ninth Circuit have rejected similar 

arguments that a consumer who cares about the ingredients must read the ingredient list. See 

Rojas v. Gen. Mills, Inc., No. C 12-5099 WHO, 2014 WL 1248017, at *7-8 (ND Cal Mar. 26, 

2014) (rejecting contention that the ingredient list on the product packaging resolved any 

possible consumer confusion by identifying which ingredients in the products are not “100% 

Natural”); Wilson v. Frito–Lay N. Am., Inc., No. C 12–1586 SC, 2013 WL 1320468, at *12-13 

(ND Cal Apr. 1, 2013) (“Plaintiffs have adequately pled that a reasonable consumer could 

interpret a bag of chips claiming to have been ‘Made with ALL NATURAL Ingredients’ to 

consist exclusively of natural ingredients, contrary to the reality described in the nutrition box.”); 

Jou v. Kimberly-Clark Corp., No. C–13–3075 JSC, 2013 WL 6491158, at *8-9 (ND Cal Dec. 10, 

2013) (“Defendant cannot rely on disclosures on the back or side panels of the packaging to 

contend that any misrepresentation on the front of the packaging [‘pure & natural’ diapers] is 

excused.”). 

 CDI insists that the holding in Williams is restricted to cases where the ingredient list 

corrects a “pointed deception.” That reading of Williams is too narrow and is based on other 

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district court cases that either predate Williams2

 or are easily distinguishable.3 Even if CDI’s 

reading of Williams is correct, the “Oil-Free” claim on the front of the packaging is a “pointed 

deception” that is likely to misrepresent a reasonable consumer that Pores No More contains no 

oil. 

 Thus, this court cannot conclude as a matter of law that no reasonable consumer would be 

deceived by the “Oil-Free” label. 

 2. Falsity of “Anti-Aging” Representation 

 The Complaint repeatedly contends that references to stem cell activity on Pores No 

More’s label lack scientific substantiation. Nonetheless, CDI argues that plaintiff fails to allege 

facts that, if true, would affirmatively establish that the statements on which plaintiff relied are 

false. CDI accuses plaintiff of improperly conflating two distinct statements about different 

types of stem cells: (1) Pores No More “helps delay the natural signs of aging by maintaining 

the longevity and activity of stem cells in the skin” (Complaint, ¶ 3); and (2) its ingredients 

include “apple stem cells.” Id, ¶ 22. CDI contends that plaintiff fails to allege any facts 

establishing that the first statement, on which she relied when purchasing Pores No More (id, 

¶ 41), is false. And even though plaintiff alleges that the second statement regarding apple stem 

cells is false, she does not specifically allege that she relied on it. 

 Contrary to CDI’s reading of plaintiff’s allegations, the Complaint clearly links the 

ingredient of apple stem cells to the anti-aging representations regarding the benefit to human 

stem cells: 

 

2

 McKinniss v. Gen. Mills, Inc., No. 07-2521, 2007 WL 4762172, at *3 (CD Cal Sept. 18, 2007); McKinniss v. 

Sunny Delight Beverages Co., No. 07-02034, 2007 WL 4766525, at *4 (CD Cal Sept. 4, 2007). 3

 Hairston v. S. Beach Beverage Co., Inc., 2012 WL 1893818, at *5 (CD Cal May 18, 2012) (finding Williams

distinguishable where the phrase “all natural with vitamins” was consistent with the ingredient label that listed only 

natural ingredients and vitamins). 

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Second, CDI represents on its packaging that Pores No More 

“helps delay the natural signs of aging by maintaining the 

longevity & activity of stem cells in the skin,” and on its website 

and in marketing materials CDI specifically links this claim to its 

use of “apple stem cells.” This claim is false (or a minimum 

misleading) because apple stem cells cannot survive in active form 

long-term in a cream, and therefore cannot provide the therapeutic 

anti-aging benefits CDI claims. In addition, the in vitro study on 

which CDI’s claims are based does not reliably establish the 

claims, with its author even admitting that its results could not be 

confirmed in a clinical trial. 

Complaint, ¶ 3 (emphasis added). 

 There is no mismatch between plaintiff’s allegations of falsity regarding the “anti-aging” 

representation and the allegations of evidence debunking the efficacy of apple stem cells. 

According to the Complaint, CDI attributes its “anti-aging” claim to an ingredient referred to as 

apple stem cell extract and relies on a non-peer reviewed journal article reporting the results of 

an experiment combining human embryonic stem cells and an apple stem cell extract serum to 

support the claim. Id, ¶¶ 15-37, Exs. 1-2. In addition, plaintiff alleges that the anti-aging claim 

is false or misleading because, among other things, the apple stem cells must be alive in order to 

provide any purported benefit. Id, ¶ 35. 

 For purposes of a motion to dismiss, plaintiff has sufficiently alleged facts that would 

establish that the “anti-aging” representation is false. Plaintiff should be permitted to prove the 

falsity of the anti-aging representation through scientific literature and expert testimony. 

II. Preemption of “Oil-Free” Claims 

CDI argues that even if plaintiff states a claim under state law based on the “Oil-Free” 

claim, it is preempted by the Food, Drug, and Cosmetic Act (“FDCA”). The FDCA bars statelaw causes of action that seek to impose “any requirement for labeling or packaging of a 

cosmetic that is different from or in addition to, or that is otherwise not identical with, a 

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requirement specifically applicable to a particular cosmetic or class of cosmetics” under the 

FDCA. 21 USC § 379s(a). In other words, for a state law to be preempted it must be: (1) a 

requirement for labeling or packaging, and (2) not identical with a specific FDCA requirement. 

See Bates v. Dow Agrosciences LLC, 544 US 431, 444 (2005). 

 The FDCA prohibits the “misbranding” of cosmetics. 21 USC § 331(b). A cosmetic is 

misbranded “[i]f its labeling is false or misleading in any particular,” 21 USC § 362(a), or “[i]f 

its packaging or labeling is in violation of an applicable regulation.” 21 USC § 362(f). The 

Food and Drug Administration (“FDA”) has promulgated regulations regarding cosmetic 

misbranding, but only in two narrow areas: (1) a label that is misleading with respect to another 

product, and (2) a name that includes or suggests one or more, but not all main ingredients. 

2 CFR § 701.1. In addition, the regulations require that all ingredients be listed on the package 

in descending order of predominance, using ingredient names specified by regulation or by 

reference, and in a way “likely to be read and understood by ordinary individuals under normal 

conditions of purchase.” 21 CFR § 701.3(a)-(c). The list may appear “on any appropriate 

information panel in letters not less than 1/16 of an inch in height.” 21 CFR § 701.3(b). 

 CDI asserts that plaintiff’s “Oil-Free” claims under the OUTPA, FDUTPA, and 

ORS 72.3130 would create a new misbranding requirement that differs from these regulations 

and would create new rules for describing a product’s ingredients. In support, CDI relies upon 

Crozier v. Johnson & Johnson Consumer Cos., 901 F Supp2d 494, 503-04 (D NJ 2012), which 

held that the FDCA preempted a claim that defendant’s use of its Neosporin yellow and green 

color scheme, Signature Gold Mark, trade dress, and goodwill and reputation in a portable spray 

misled consumers to believe that the spray contained the same antibiotics as in regular Neosporin 

products, even though defendant listed its ingredients as required by FDA regulations. 

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 However, Crozier is distinguishable. It dealt with drugs that are subject to vastly 

different rules than cosmetics and involved a new product with different ingredients carrying the 

same brand name. In contrast, plaintiff alleges that the conspicuous “Oil-Free” claims on the 

front of the package and bottle are misleading because they expressly contradict the virtually 

hidden ingredient list, which leads reasonable consumers to erroneously believe that the product 

contains no oil. Plaintiff neither suggests that CDI deliberately concealed any information from 

the ingredient list nor seeks to change the ingredient list. There is no FDCA regulation 

governing a label that contradicts the ingredient list. Plaintiff’s claims do not impose any new, 

different, or additional requirements from those mandated by the FDCA, but instead are 

consistent with the FDCA’s prohibition of labeling that “is false or misleading in any particular.” 

 More importantly, Crozier held that the FDCA preempted the allegations that the 

package labeling was misleading under New Jersey law, but not the allegations concerning 

advertising and marketing. Crozier, 901 F Supp2d at 503. To a large extent, plaintiff’s claims 

are premised on advertising and marketing its product as “Oil-Free” on the packaging, website, 

and marketing materials. Complaint, ¶¶ 2, 9, 41-45. Pursuant to Crozier, those advertising and 

marketing claims are not preempted by the FDCA. In fact, according to the Congressional 

Record, “advertising issues relating to . . . misleading or deceptive claims are outside the scope 

of preemption.” Goldemberg v. Johnson & Johnson Consumer Cos., Inc., 8 F Supp3d 467, 475 

(SDNY 2014), citing HR Rep. No. 105-399, at 103 (1997) (Conf Rep). 

 Therefore, plaintiff’s state law claims should not be dismissed as preempted by the 

FDCA. 

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III. Violations of OUTPA (First Claim)

 Plaintiff alleges that CDI violated the OUTPA by: 

a. Representing that Pores No More has “characteristics, . . . uses, 

benefits, . . . or qualities that [it] do[es] not have” (id

§ 646.608(1)(e)); 

b. Representing that Pores No More is “original or new [when it 

is] deteriorated” (id § 646.608(1)(f)); 

c. Representing that Pores No More is “of a particular standard, 

quality, or grade . . . [when it is] of another” (id § 646.608(1)(g)); 

d. Advertising Pores No More “with intent not to provide [it] as 

advertised” (id § 646.608(1)(i)); 

e. Concurrently with the tender of Pores No More, “fail[ing] to 

disclose any known material defect or material nonconformity” (id 

§ 646.608 (1)(t)); and 

f. “Engag[ing] in any other unfair or deceptive conduct in trade or 

commerce” (id § 646.608(1)(u)). 

Complaint, ¶ 58 (alterations in original). 

 CDI contends that the First Claim is properly analyzed only under ORS 646.608(1)(e) 

and that the remaining alleged violations of other provisions of the OUTPA should be dismissed. 

 As for the violation of ORS 646.608(1)(f), CDI argues that the Complaint does not allege 

that CDI represented that its product was “original or new,” much less that any such 

representation was false. Plaintiff has not submitted any contrary argument. This alleged 

violation may be premised on the product containing apple stem cells which degrade over time. 

However, plaintiff purchased a new product. Therefore, this alleged violation should be 

dismissed. 

 As for the violation of ORS 646.608(1)(g), CDI argues that the Complaint does not allege 

that CDI represented that its product was “of a particular standard, quality, or grade,” much less 

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that any such representation was false. However, plaintiff alleges that CDI represented that its 

product was of a particular quality, namely “Oil-Free,” and that it was not of the quality as 

represented because it contains three oils. Although this alleged violation may be somewhat 

duplicative of a violation of ORS 646.608(1)(e), it is not subject to dismissal for that same 

reason. 

 As for the violation of ORS 646.608(1)(i), CDI asserts that plaintiff complains about 

Pores No More’s label, not its advertising. However, plaintiff’s claim is not limited solely to the 

label on the package and bottle, but also is directed at website and marketing materials that Pores 

No More is “Oil-Free.” Complaint, ¶ 2. To that extent, it may be somewhat duplicative of the 

violation of ORS 646.608(1)(e), but is not subject to dismissal for that reason. CDI also asserts 

that this provision is aimed at “bait and switch” tactics that plaintiff does not allege. Parrott v. 

Carr Chevrolet, Inc., 156 Or App 257, 270-71, 965 P2d 440, 448 (1998). However, a “bait and 

switch” is a transaction “which makes it unlawful to advertise goods with intent not to provide 

them as advertised.” Id. That is arguably what plaintiff alleges, namely advertising Pores No 

More as “Oil-Free” with the intent not to provide an oil-free product. 

 As for the violation of ORS 646.608(1)(t), CDI contends that the Complaint does not 

allege that it knew of a defect in its product and failed to disclose it, as in the sale of used goods, 

especially cars. Id at 270, 965 P2d at 448. Plaintiff responds that the defect, namely the 

inclusion of oil, was obvious to CDI which it failed to disclose. However, plaintiff’s claim is 

based on a misrepresentation contrary to the ingredient list, rather than a failure to disclose a 

known defect. This court agrees with CDI that the Complaint cannot be read to state a violation 

of ORS 646.608(1)(t). 

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 As for the violation of ORS 646.608(1)(u), CDI argues that the Complaint does not 

specify any “other unfair or deceptive conduct,” and even if it did, under ORS 646.608(4), the 

Attorney General must “first establish[] a rule . . . declaring the conduct to be unfair or deceptive 

in trade or commerce,” which has not occurred here. CDI’s argument is well-taken. This is a 

catch-all provision designed to capture unfair or deceptive conduct not otherwise listed in the 

other subsections but found to be unlawful by the Attorney General. This is another arrow that 

should be removed from the plaintiff’s quiver. 

 Accordingly, the alleged violations of ORS 646.608(1)(f), (t) and (u) should be dismissed 

from paragraph 58 of the First Claim. 

IV. Violation of FDUTPA (Second Claim) 

A. Plaintiff’s Standing 

CDI argues that plaintiff cannot state a claim under FDUTPA because she is not a Florida 

resident. Plaintiff argues that she has a claim under Florida’s statute because injury occurred in 

Florida. She does not allege the product’s connection to Florida other than the fact that 

defendant is headquartered there. Nevertheless, CDI argues that even an allegation that Pores No 

More is manufactured and labeled with the misleading information in Florida would be 

insufficient to state a claim under the FDUTPA. 

 FDUTPA protects the “consuming public . . . from those who engage in unfair methods 

of competition, or unconscionable, deceptive, or unfair acts or practices in the conduct of any 

trade or commerce.” Fla Stat § 501.202(2). The statute defines “consumer” as “an individual; 

child, by and through its parent or legal guardian; business; firm; association; joint venture; 

partnership; estate; trust; business trust; syndicate; fiduciary; corporation; any commercial entity, 

however denominated; or any other group or combination.” Fla Stat § 501.203(7). The statute 

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also defines “interested party or person” as “any person affected by a violation of this part or any 

person affected by an order of the enforcing authority.” Fla Stat § 501.203(6). 

 Without interpreting these definitions or any other of the statute’s express terms, the 

Florida Court of Appeals (Fourth District) held that “only in-state consumers can pursue a valid 

claim under the [FDUTPA].” Oce Printing Sys. USA, Inc. v. Mailers Data Servs., Inc., 760 So2d 

1037, 1042 (Fla Dist Ct App 2000), citing Coastal Physician Servs. of Broward Cnty., Inc. v. 

Ortiz, 764 So2d 7, 8 (Fla Dist Ct App 1999) (“Other states can protect their own residents.”). 

Accordingly, it reversed the trial court’s order certifying a nationwide class and remanded the 

case to give plaintiffs the ability to redefine their class to fall within the provisions of the 

FDUTPA. 

 A year later, the Florida Court of Appeals (Third District) disagreed with Ortiz based on 

the statutory definitions for the terms “interested party or person,” “consumer,” and “trade or 

commerce.” It observed: “Conspicuously absent from this chapter, . . . is any language which 

purports to confine the provisions of FDUTPA or limit the . . . enforcement authority to 

commercial transactions involving only Florida residents.” Millennium Commc’ns & 

Fulfillment, Inc. v. Office of Attorney Gen., Dep’t of Legal Affairs, State of Fla., 761 So 2d 1256, 

1261 (Fla Dist Ct App 2000). Citing a later decision by the Fourth District that applied the 

FDUTPA to both in-state and out-of-state residents in a class action, the Third District opined 

that the Fourth District had “receded, sub silentio, from its earlier holding in Ortiz” and held that 

when “the offending conduct occurred entirely within [Florida],” there is no articulated 

legislative intent to preclude the FDUTPA from protecting persons affected by the conduct 

residing outside the state. Id at 1262. 

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 However, the Fourth District later clarified that Ortiz survived subsequent case law. In 

Hutson v. Rexall Sundown, Inc., 837 So2d 1090 (Fla Dist Ct App 2003), it held that the 

FDUTPA did not protect non-resident customers of products sourced from Florida. In Hutson, 

as case here, the alleged deceptive trade practice was the nationwide sale of products (calcium 

supplements) with a misleading label. Id at 1094. The Fourth District found that “the alleged 

wrong was committed, and the damage done, at the site of the sale of [the] product; that is in the 

various states where members of the purported class made their purchases” and affirmed the 

denial of certification. Id. Hutson is the latest ruling by any Florida court interpreting the 

FDUTPA. Therefore, this court deems it controlling in this case. 

 Accordingly, the Second Claim alleging a violation of the FDUTPA should be dismissed. 

 B. Conflict of Law 

Even if plaintiff can state a claim under the FDUTPA, defendant argues in the alternative 

that plaintiff may not avail herself of the FDUTPA under Oregon’s conflict of law rules. 

Plaintiff responds that defendant’s conflict of law argument is premature and should be 

addressed during the Rule 23 certification stage. 

 Although courts disagree, most hold that a case should not be dismissed based on a 

conflict of law analysis prior to class certification. In re 5-hour ENERGY Mktg. & Sales 

Practices Litig., No. MDL 13-2438 PSG PLAX, 2014 WL 5311272, at *18-19 (CD Cal Sept. 4, 

2014) (holding that at the pleading stage of litigation, “a choice of law analysis would be 

premature”); Gitson v. Trader Joe’s Co., No. 13-CV-01333-VC, 2014 WL 3933921, at *1 (ND 

Cal Aug. 8, 2014) (“Under Ninth Circuit law, then, at least in certain circumstances, a consumer 

protection class action can proceed under the laws of multiple states, . . . the Court will not strike 

the nationwide class claims at the pleading stage.”); Forcellati v. Hyland’s, Inc., 876 F Supp2d 

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1155, 1159 (CD Cal 2012) (“Courts rarely undertake choice-of-law analysis to strike class claims 

at this early [pleading] stage in litigation.”); In re Sony Grand Wega KDF-E A10/A20 Series 

Rear Projection HDTV Television Litig., 758 F Supp 2d 1077, 1096 (SD Cal 2010) (“In a 

putative class action, the Court will not conduct a detailed choice-of-law analysis during the 

pleading stage.”). 

Until the [p]arties have explored the facts in this case, it would be 

premature to speculate about whether differences in various states’ 

consumer protections laws are material in this case. . . . [O]nce the 

relevant facts of the case have been explored during discovery, it is 

possible that Plaintiff could narrow or define the class in such a 

way at the class certification stage to make any differences 

between applicable laws immaterial. Moreover, should choice-oflaw analysis appear to pose problems at the class certification 

stage, [p]laintiff could seek to certify subclasses of putative class 

members from individual states or subclasses of class members 

from groups of states with consumer protections laws that are not 

materially different. 

Forcellati, 876 F Supp2d at 1159. 

 CDI contend that a conflict of law has already arisen because the OUTPA requires proof 

of falsity and reliance while the FDUTPA only requires that a reasonable consumer would be 

deceived and no reliance. Even if true, it is premature to undertake that analysis on a motion to 

dismiss.

RECOMMENDATION 

 For the reasons set forth above, CDI’s Motion to Dismiss (docket #15) should be 

GRANTED as to the alleged violations of ORS 646.608(1)(f), (t) and (u) in the First Claim and 

as to the Second Claim and otherwise should be DENIED. 

/// 

/// 

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SCHEDULING ORDER 

These Findings and Recommendations will be referred to a district judge. Objections, if 

any, are due Friday, March 20, 2015. If no objections are filed, then the Findings and 

Recommendations will go under advisement on that date. 

If objections are filed, then a response is due within 14 days after being served with a copy of the 

objections. When the response is due or filed, whichever date is earlier, the Findings and 

Recommendations will go under advisement. 

DATED March 3, 2015. 

s/ Janice M. Stewart 

Janice M. Stewart 

United States Magistrate Judge 

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