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					IN THE COURT OF APPEAL FOR THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT, DIVISION FOUR Superior Court No. 317107 County of San Francisco

Compassionate Fashion, Inc., Plaintiff and Appellant

v. You Go Girl, Inc., Defendant and Respondent

On Appeal From the Superior Court County of San Francisco

BRIEF FOR RESPONDENT

KRISTIE M. BLASE Team 5 (Issue I) LYNN M. DEAVERS Team 5 (Issue II) Attorneys for Respondent George Washington University Law School 2000 H Street, N.W. Washington, D.C. 20052

TABLE OF CONTENTS TABLE OF AUTHORITIES ........................................................................................................ iii STATEMENT OF THE CASE........................................................................................................1 STATEMENT OF FACTS ..............................................................................................................1 ISSUES PRESENTED FOR REVIEW ...........................................................................................3 STANDARD OF REVIEW .............................................................................................................3 SUMMARY OF THE ARGUMENT ..............................................................................................3 ARGUMENT ...................................................................................................................................4 I. Appellant’s Claims Under California Statutes are Preempted by Federal Law ...4 a. Appellant’s Claims are Expressly Preempted by Congress through the Preemption Provision of the FDCA ......................................................................6 b. Appellant’s Claims are Preempted Because Congress Intended to Fill the Entire Field of Cosmetic Labeling with a Comprehensive Statutory and Regulatory Scheme ..............................................................................................10 II. Even if its Claims are Not Preempted by Federal Law, Appellant has Nonetheless Failed to State a Cause of Action for False Advertising under the California Business and Professions Code ...............................................................13 a. Respondent’s Use of the Phrase “Cruelty Free” Constitutes Non-Actionable Puffery under the California Unfair Competition Laws ..................................14 b. Appellant has Failed to Prove that a Reasonable Consumer would be Misled into Believing that Respondent’s Products Meet the Same Standard for “Cruelty Free” as Appellant’s Products ............................................................16 c. Respondent’s Use of the Term “Cruelty Free” as Puffery Also Serves the Policies Behind the California Unfair Competition Laws ................................17 d. The Trial Court’s Finding of Non-Actionable Puffery is Consistent with Other California Cases Interpreting the State’s False Advertising Laws ......18 e. Respondent’s Use of “Cruelty Free” is also puffery under the Federal Trade Commission Act ........................................................................................19

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f. Even if Respondent’s Use of the Term “Cruelty Free” on its Hey, Girl! Products are Subject to California’s Unfair Competition Laws, This Usage is Neither False Nor Misleading .............................................................................21 g. Respondent’s utilization of animal testing also serves general research purposes and policy goals ....................................................................................22 h. Congress and the California Legislature Did Not Intend to Prohibit Animal Testing or Slaughter of Animals or Respondent’s Utilization of These Practices in Manufacturing Ingredients for its Hey, Girl! Products ................................................................................................................24 CONCLUSION ..............................................................................................................................25

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TABLE OF AUTHORITIES Federal Statutes Animal Welfare Act, 7 U.S.C. §§ 2131-59 (1994) ......................................................10, 12, 21, 24 Food, Agriculture, Conservation, and Trade Act of 1990, Pub. L. No. 101-624 ..........................24 Federal Food, Drug, and Cosmetic Act, 21 U.S.C. §§ 301-99 (1997) ................................... passim Food Security Act of 1985, Pub. L. No. 99-198 ............................................................................24 Humane Methods of Slaughter Act, Pub. L. No. 94-445, 92 Stat. 1069 (1978) ................10, 22, 24 Humane Slaughter Act, 7 U.S.C. §§ 1901-07 (1958) ........................................................10, 12, 22 Medical Device Amendments, Pub. L. 94-295, 90 Stat. 539 (1976) ...............................................8 Pub. L. No. 91-579 (1970) .............................................................................................................24 Pub. L. No. 94-279 (1976) ............................................................................................................24 21 C.F.R. § 701.1 (2004) .................................................................................................................8

California Statutes Cal. Bus. & Prof. Code § 17200 (West 1997) ....................................................................... passim Cal. Bus. & Prof. Code § 17500 (West 1998) ....................................................................... passim Cal. Code Civ. P. § 904.1(a)(1) (West 1999)...................................................................................1 Cal. Food & Agric. Code §§ 19501-03 (1967) ..............................................................................22 Cal. Penal Code § 597 (West 1999) .........................................................................................16, 21

Federal Cases Am. Pub. Health Ass’n. v. Butz, 511 F.2d 331, 332 (D.C. Cir. 1974)......................................12, 13 Animal Legal Def. Fund v. Provimi Veal, 626 F.Supp. 278 (D. Mass. 1986) .......................3, 4, 12 Cipollene v. Liggett Group, Inc., 505 U.S. 504 (1992)................................................................5, 6 Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824) ..............................................................................5 iii

Grocery Mfgrs. of America, Inc. v. Gerace, 755 F.2d 993 (2d Cir. 1985) ......................................5 Hillsborough County, Fla. v. Automated Labs., Inc., 471 U.S. 707 (1985) ..............................6, 10 Hines v. Davidson, 312 U.S. 52 (1941) ...........................................................................................6 Hillsborough County, Fla. v. Automated Labs., Inc., 471 U.S. 707 (1985) ..............................6, 10 Hines v. Davidson, 312 U.S. 52 (1941) ...........................................................................................6 In re Bristol-Myers Co., 102 F.T.C. 21, 321 (1983) ................................................................19, 20 In re Cal. & Haw. Sugar Co., 119 F.T.C. 39, 44 (1995) ...............................................................20 In re Wilmington Chem. Corp., 69 F.T.C. 826, 865 (1966)...........................................................20 Lever Bros. Co. v. Maurer, 712 F.Supp. 645 (S.D. Ohio 1989) ......................................................5 Maryland v. Louisiana, 451 U.S. 725 (1981) ..................................................................................5 McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819) ................................................................5 McDermott v. Wisconsin, 228 U.S. 115 (1913) ...............................................................................5 Nat’l Pork Producers Council v. Bergland, 631 F.2d 1353, 1361 (8th Cir. 1980) .......................13 Pizza Hut, Inc. v. Papa John’s Int’l., Inc., 227 F.3d 489, 497 (5th Cir. 2000) ........................15, 18 Presidio Enters. v. Warner Bros. Distrib., 784 F.2d 674, 679 (5th Cir. 1986)........................15, 18 Southwest Sunsites, Inc. v. F.T.C., 785 F.2d 1431, 1436 (9th Cir. 1986) ......................................19 Sterling Drug, Inc. v. F.T.C., 741 F.2d 1146, 1150 (9th Cir. 1984) ..............................................19 Vulcan Metals Co. v. Simmons Mfg. Co., 248 F. 853, 856 (2d Cir. 1918) ....................................20

California Cases Blank v. Kirwan, 703 P.2d 58 (Cal. 1985) .......................................................................................3 Consumer Advocates v. Echostar Satellite Corp., 8 Cal. Rptr. 3d 22 (Ct. App. 2 Dist. 2003)15, 18 Hauter v. Zogarts, 534 P.2d 377, 381 (Cal. 1975) ..................................................................14, 15 Jones v. Rath Packing Co., 430 U.S. 519 (1977).............................................................................5 La.-Pac. Corp. v. Koppers Co., 38 Cal. Rptr. 2d 257 (Ct. App. 1 Dist. 1995) ................................6

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Lavie v. Proctor & Gamble Co., 129 Cal. Rptr. 2d 486 (Ct. App. 1 Dist. 2003) ..............14, 16, 19 People v. Cole, 7 Cal. Rptr. 3d 333 (Cal. App. 4 Dist. 2003)..................................................16, 17 Pulvers v. Kaiser Found. Health Plan, Inc., 160 Cal. Rptr. 392, 393-94 (Ct. App. 2 Dist. 1979) 18 Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947)....................................................................5 Rosenbluth Int’l, Inc. v. Super. Ct., 124 Cal. Rptr. 2d 844, 847 (Ct. App. 2 Dist. 2002) ..............17 Rubin v. Green, 847 P.2d 1044 (Cal. 1993) ...................................................................................19 Schmidt v. Found. Health, 42 Cal. Rptr. 2d 172 (Ct. App. 3 Dist. 1995) ........................................3 Schonfield v. City of Vallejo, 57 Cal. Rptr. 2d 798, 816-17 (Ct. App. 2 Dist. 1994).....................18 Wells v. One 2 One Learning Found., 10 Cal. Rptr. 3d 456 (Ct. App. 3 Dist. 2004) ..............17, 18

Miscellaneous S. Rep. No. 33, 94th Cong., 2d Sess. 1-2 (1976) .............................................................................8 H.R. Rep. No. 853, 94th Cong., 2d Sess. 45 (1976) ........................................................................9 Carter Dillard, False Advertising, Animals, and Ethical Consumption, 10 Animal L. 25 (2004) .19 Committee on the Use of Animals in Research, Science, Medicine, and Animals (1991) ...........23 Federal Trade Commission, FTC Policy Statement Regarding Advertising Substantiation, available at http://www.ftc.gov/bcp/guides/ad3subst.htm ............................................................19 Ivan L. Preston, Puffery and Other “Loophole” Claims: How the Law’s “Don’t Ask, Don’t Tell” Policy Condones Fraudulent Falsity in Advertising, 18 J.L. & Com. 49 (1998) ..........................20 Lorna A. Walker, Cages and Codes: The Debate Over the Use of Laboratory Animals, 11 J. Energy Nat. Resources & Envtl. L. 319 (1991) .............................................................................23 Michael K. Carrier, Federal Preemption of Common Law Tort Awards by the Federal Food, Drug, and Cosmetic Act, 51 Food & Drug L.J. 509 (1996) .............................................................8 Office for Protection From Research Risks, National Institutes of Health, Public Health Service Policy on Humane Care and Use of Laboratory Animals § II (rev. ed. 1986) ..............................21 Vasanth R. Shenai, If Animal Rights Activists Could Write Federal Research Policy, 4 Animal L. 211 (1998) ................................................................................................................................22, 23 Webster‟s Dictionary, Puffery, available at http://www.merriam-webster.com ...........................18

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STATEMENT OF THE CASE Appellant Compassionate Fashion, Inc. brought an action against Respondent You Go Girl!, Inc., for unfair competition and false advertising under Business and Professions Code sections 17200 and 17500, seeking an injunction and restitution based on Respondent‟s use of the term “Cruelty Free” on the labels of its Hey, Girl! products. Respondent demurred, based on federal preemption and, in the alternative, based on Appellant‟s failure to allege facts sufficient to state a cause of action. The Superior Court of San Francisco County sustained Respondent‟s demurrer, finding that Appellant‟s claim was not preempted by federal law, but Appellant nevertheless failed to state a cause of action because the term “Cruelty Free” constitutes non-actionable puffery. Appellant now appeals the lower court‟s sustaining of the demurrer. Because this is an appeal from a judgment of dismissal following a demurrer, it is appealable to this Court pursuant to Code of Civil Procedure section 904.1(a)(1) (West 1999). STATEMENT OF FACTS Appellant Compassionate Fashion, Inc. manufactures and sells cosmetics and other similar products without testing the final products, or any of their ingredients, on animals. (Record at 1.) Almost all of its products contain no ingredients derived from animals, and Appellant has formal agreements with suppliers to ensure that none of its products are tested on animals. (R. at 1) Appellant‟s devotion to creating products using the most compassionate methods possible is a central feature of its marketing strategy, and it includes a “Cruelty Free” label on all of its products. (R. at 1-2.) Respondent You Go Girl!, Inc. manufactures and sells similar products, and recently introduced a new line entitled “Hey, Girl!” to reach younger consumers. (R. at 2.) These

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products also contain a “Cruelty Free” label on the back of its Hey, Girl! cosmetic, hair care, skin care, and nail care items. (R. at 2.) Appellant filed suit against You Go Girl! and its parent company, McDermott Manufacturing, Inc., claiming that its products are not “Cruelty Free” because they are regularly tested on animals. (R. at 2.) In addition, Appellant claimed that Respondent‟s Hey, Girl! products also contained ingredients purchased from suppliers who possibly test on animals. (R. at 2.) Specifically, Appellant claimed that both companies use the Draize eye irritancy and skin irritancy experiments on laboratory animals bred and raised for research purposes, and further alleged that these tests can be painful. (R. at 2-3.) Overall, Appellant argued that both tests, as well as practices involved in raising and slaughtering animals for food, are cruel, and therefore Respondent‟s “Cruelty Free” labeling is untrue and misleading. (R. at 3.) As a result, Appellant asserted that consumers who want products such as Appellant‟s instead purchase Hey, Girl! items when they notice the “Cruelty Free” labels on each, based on an incorrect belief that Hey Girl! products meet the same standards as Appellant‟s products. (R. at 3.) Thus, Appellant claimed a substantial competitive injury. (R. at 3.) Appellant also claimed that Respondent‟s use of the term “Cruelty Free” is false and misleading, because Hey, Girl! products are tested on animals and contain slaughterhouse byproducts. (R. at 5.) Respondent, however, asserted that the only factual representation of the term is that it has not violated the laws prohibiting cruelty to animals. (R. at 5.) Thus, Respondent believed it is true. (R. at 5.) The court below found that neither of these definitions of “Cruelty Free” are wrong, but rather represent different opinions of what is cruel. (R. at 6.) Therefore, it is an opinion, and mere sales puffery, which is non-actionable under the California laws. (R. at 6.)

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ISSUES PRESENTED FOR REVIEW There are two issues presented for review, and they are as follows: 1. Did the Superior Court err in finding that Appellant‟s claim is not preempted by federal law? 2. Did the Superior Court err in finding that Appellant failed to state a cause of action? STANDARD OF REVIEW Because this is an appeal from a judgment of dismissal following a sustained demurrer, this Court must assume as true all facts Appellant has properly pleaded. See Blank v. Kirwan, 703 P.2d 58 (Cal. 1985). In addition, this Court must use its independent judgment to determine whether the factual allegations of the Appellant‟s complaint are sufficient to state a cause of action against Respondent. Schmidt v. Found. Health, 42 Cal. Rptr. 2d 172, 175 (Ct. App. 3 Dist. 1995). SUMMARY OF THE ARGUMENT Appellant‟s claims are preempted by federal law, either expressly through the Food, Drug, and Cosmetic Act, 21 U.S.C. § 301-99 (1997) (hereinafter “FDCA”), § 379s prohibition of states imposing “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 requirement specifically applicable to a particular cosmetic or class of cosmetics under this Act,” or impliedly through Congress‟ intent to fill the entire field of cosmetic labeling and regulation. See Animal Legal Def. Fund v. Provimi Veal, 626 F. Supp. 278, 283 (D. Mass. 1986), aff’d 802 F.2d 440 (1st Cir. 1986). Even if Appellant‟s claim is not preempted by federal law, Appellant has nevertheless failed to state a cause of action under the California unfair competition laws for false advertising because Respondent‟s use of the phrase “Cruelty Free” on its products is mere sales puffery, and

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not a statement upon which reasonable consumers would rely. This finding is supported by the text, structure and policies behind the California statutes, as well as other cases interpreting such laws. Moreover, Respondent‟s use of the phrase “Cruelty Free” represents mere puffery under the Federal Trade Commission Act, upon which the California Unfair Competition Laws are based. Even if Respondent‟s use of the term “Cruelty Free” constitutes an objectively verifiable statement subject to the California laws, Respondent‟s statements are neither false nor misleading. Indeed, Respondent‟s use of the phrase on its Hey, Girl! products is consistent with state and federal laws governing treatment of research animals and animals raised for slaughter. Further, Congress and the California legislature did not intend to prohibit the tests and practices utilized by Respondent. Thus, even assuming all facts well-pleaded by Appellant are true, Appellant has nonetheless presented insufficient evidence to state a cause of action, and this Court should affirm the judgment of the lower court sustaining Respondent‟s demurrer. ARGUMENT I. Appellant’s Claims Under California Statutes are Preempted by Federal Law. Appellant‟s claims are preempted by federal law, either expressly through the Food, Drug, and Cosmetic Act, 21 U.S.C. §§ 301-99, § 379s prohibition of states imposing “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 requirement specifically applicable to a particular cosmetic or class of cosmetics under this Act,” or impliedly through Congress‟ intent to fill the entire field of cosmetic labeling and regulation with a comprehensive statutory and regulatory scheme involving three federal statutes and two federal agencies. See Provimi Veal, 626 F. Supp. at 283.

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The doctrine of preemption arises from the Supremacy Clause of the United States Constitution: federal law “shall be the supreme Law of the Land; . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const, art. VI, cl. 2. State law that conflicts with federal law is “void.” Maryland v. Louisiana, 451 U.S. 725, 747 (1981); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 427 (1819). Congressional intent is of primary importance in preemption issues. If Congress manifests its intent to supersede the states police powers, then the Court will find that Congress has preempted state law. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). Under the doctrine of preemption, when Congress passes a law in a field of legislation common to both federal and state governments, the act of Congress supersedes all inconsistent state legislation. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 21 (1824). Federal law preempts state law in three instances: express, conflict, and field preemption. Express preemption occurs when Congress specifically states in the regulation that it is preempting all state action in that area. See, e.g., Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977). Where state law directly conflicts with federal law, making compliance with both impossible, federal law supersedes state law. See, e.g., Grocery Mfrs. of America, Inc. v. Gerace, 755 F.2d 993 (2d Cir. 1985), aff’d 474 U.S. 801 (1985), cert. denied 474 U.S. 820 (1985) (compliance with both the state and federal regulations was impossible when the federal and state definitions of “imitation” were contradictory); Lever Bros. Co. v. Maurer, 712 F. Supp. 645 (S.D. Ohio 1989) (a state law prohibiting inclusion of butter as an ingredient on a federally required label was preempted by the federal law); McDermott v. Wisconsin, 228 U.S. 115 (1913) (state regulation frustrated the federal regulation of foods because it required the product to bear only the label required by state law and no other label). In the absence of express preemptive

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language or conflict, “where the scheme of federal regulation is sufficiently comprehensive to make reasonable the inference that Congress left no room for supplementary state regulation,” Hillsborough County, Fla. v. Automated Med. Labs., Inc., 471 U.S. 707, 713 (1985), federal preemption of the state law will be inferred. Rice, 331 U.S. at 230. Where the field is one in which “the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject,” federal preemption will also be inferred. Id.; see Hines v. Davidowirz, 312 U.S. 52, 61 (1941). a. Appellant’s Claims are Expressly Preempted by Congress through the Preemption Provision of the FDCA. The Food, Drug, and Cosmetics Act (“FDCA”), 21 U.S.C. §§ 301-392 (1997), contains certain specific preemption language that preempts state action with respect to labeling and misbranding cosmetics. An express preemption provision limits the scope of, or prohibits, any legal requirement beyond that stated in the subject law. See, e.g., Cipollone, 505 U.S. at 514 (“No statement relating to smoking and health, other than the statement required by section 4 of this Act, shall be required on any cigarette package.”); La.-Pac. Corp. v. Koppers Co., 38 Cal. Rptr. 2d 257 (Ct. App. 1 Dist. 1995) (state regulation of sale or use of pesticides restricted). The FDCA regulates, among other consumer products, cosmetics. Its mandate that cosmetics not be misbranded prohibits, in pertinent part: (a) The introduction or delivery for introduction into interstate commerce of any food, drug, device, or cosmetic that is adulterated or misbranded. (b) The adulteration or misbranding of any food, drug, device, or cosmetic in interstate commerce. (c) The receipt in interstate commerce of any food, drug, device, or cosmetic that is adulterated or misbranded, and the delivery or proffered delivery thereof for pay or otherwise. (g) The manufacture within any Territory of any food, drug, device, or cosmetic that is adulterated or misbranded.

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Id. § 331. The FDCA section on preemption is entitled “Preemption for labeling or packaging of cosmetics.” Id. § 379s. It specifically provides that: [N]o State or political subdivision of a State may establish or continue in effect 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 requirement specifically applicable to a particular cosmetic or class of cosmetics under this chapter, the Poison Prevention Packaging Act of 1970 (15 U.S.C. 1471 et seq.), or the Fair Packaging and Labeling Act (15 U.S.C. 1451 et seq.). Id. § 379s(a).1 In the face of this federal law and regulation, California‟s false advertising laws require that labels on cosmetics, among other products, be neither false nor misleading: It is unlawful for any person, firm, corporation or association, or any employee thereof with intent directly or indirectly to dispose of real or personal property or to perform services, professional or otherwise, or anything of any nature whatsoever or to induce the public to enter into any obligation relating thereto, to make or disseminate or cause to be made or disseminated before the public in this state, or to make or disseminate or cause to be made or disseminated from this state before the public in any state, in any newspaper or other publication, or any advertising device, or by public outcry or proclamation, or in any other manner or means whatever, including over the Internet, any statement, concerning that real or personal property or those services, professional or otherwise, or concerning any circumstance or matter of fact connected with the proposed performance or disposition thereof, which is untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading, or for any person, firm, or corporation to so make or disseminate or cause to be so made or disseminated any such statement as part of a plan or scheme with the intent not to sell that personal property or those services, professional or otherwise, so advertised at the price stated therein, or as so advertised.

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Section 379s provides for several express exemptions from the general preemption provision, in subsections b, d, and e. Subsection b requires that, in order to be exempted from federal preemption in this area, states must first petition, and gain approval from the Secretary of Health and Human Services, for additional or different labeling or packaging that: (1) [would] protect[] an important public interest that would otherwise be unprotected; (2) would not cause a cosmetic to be in violation of any applicable requirement or prohibition under Federal law; and (3) would not unduly burden interstate commerce. 21 U.S.C. § 379s(b). The exemptions in subsections d and e deal with product liability law and State requirements effected prior to September 1, 1997, respectively. Id. §§ 379s(d), (e). Because no facts that would support any of these exemptions were argued in Appellant‟s complaint, the exemptions not discussed in Respondent‟s Brief.

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Cal. Bus. & Prof. Code § 17500 (West 1998). Section 379s expressly prohibits any requirement for the labeling of a cosmetic that is not identical to the federal requirements. Here, the California statute is not “identical to” the regulations found in federal statutes and regulations on cosmetics. See 21 U.S.C. §§ 321, 362; 21 C.F.R. § 701.1 (2004). Additionally, the California statute includes additional requirements that are not found in the federal cosmetic labeling scheme: not only must the labels be in compliance with the state statute, but advertising and any other dissemination of the cosmetic to the public must comply with it. Federal cosmetic labeling prohibits only false or misleading labels. See 21 U.S.C. § 362. Comparison of the § 379s preemption provisions with other preemption provisions further supports express preemption. The § 379s preemption provisions are similar to those of the Medical Device Amendments (“MDA”), Pub. L. No. 94-295, 90 Stat. 539 (1976), which were enacted to balance federal regulation with encouragement of product research and development. S. Rep. No. 33, 94th Cong., 2d Sess. 1-2 (1976), reprinted in 1976 U.S.C.C.A.N. 1070, 171. The preemption provision provides in pertinent part that: [N]o State or political subdivision may establish or continue in effect with respect to a device intended for human use any requirement (1) which is different from, or in addition to, any requirement under this Act to the device, and (2) which relates to the safety or effectiveness of the device or to any other matter included in a requirement applicable to the device under this Act. Pub. L. No. 94-295, § 521, 90 Stat. at 574, codified at 21 U.S.C. § 360k. Congress “sought to prevent medical devices manufacturers from being exposed to conflicting requirements by the states and the federal government” through the preemption provision. Michael K. Carrier, Federal Preemption of Common Law Tort Awards by the Federal Food, Drug, and Cosmetic Act, 51 Food & Drug L.J. 509, 551 (1996). It was specifically tailored to expressly exclude state

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regulation in the area. H.R. Rep. No. 853, 94th Cong., 2d Sess. 45 (1976). Here, Congress similarly tailored § 379s to expressly exclude state regulation in the labeling of cosmetics. The specific differences between the MDA § 521 and the § 379s preemption provisions are important and indicate that Congress intended § 379s to preempt state action as much, if not more, than the §521 provisions. First, § 379s prohibits “any requirement for labeling or packaging of a cosmetic that is different from or in addition to, or that is otherwise not identical with” an FDCA regulation, 21 U.S.C. § 379s, whereas § 521 prohibits only those requirements that are “different from, or in addition to, any requirement under this Act to the device” and “relate[] to the safety or effectiveness of the device.” Id. § 360k. The § 521 prohibited requirements are broader than those in § 379s, allowing requirements that are not identical as long as they are not different from or in addition to federal regulations. The § 379s provisions are more narrowly tailored than those of § 521, indicating a Congressional intent to further define the types of regulations prohibited by the section. Furthermore, the conjunctive “and” found in § 521, but absent in § 379s, if present, would place a further limitation on federal regulation. The coupling requirement represented in “and” allows state regulation where the regulations would be different from federal regulations, but would not relate to the safety or effectiveness of the devices, thereby allowing more potential state regulation in the medical device area. Section 379s contains no such conjunctive requirement: regulations which differ in any manner from federal regulations are expressly preempted without consideration of a second condition. By not including a conjunctive requirement in the § 379s provisions, Congress makes it a broader provision and intends it as a greater express preemption. The § 521 provisions were meant to allow states to regulate only certain parts of the medical device field, by narrowly describing the few areas in which state

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regulation was allowed. In contrast, the § 379s provisions close both of the “loopholes” that Congress left open for states in § 521: the broader definition of prohibited regulation and the conjunctive requirement. Appellant‟s claims under the California statutes are expressly preempted by the FDCA. Section 379s‟s preemption provisions prohibit any regulation in any manner different from or not identical to the federal regulations; California‟s laws are not identical to the federal regulations, thus violating the express preemption provision. Furthermore, comparison with the MDA preemption provision indicates that Congress intended § 379s to completely and expressly preempt state action in cosmetic labeling. b. Appellant’s Claims are Preempted Because Congress Intended to Fill the Entire Field of Cosmetic Labeling with a Comprehensive Statutory and Regulatory Scheme. Even if the California statute is not expressly preempted by § 379s of the FDCA, it is preempted by Congress‟ intent to fill the entire field of cosmetic labeling. The federal regulation scheme of cosmetic labeling is “sufficiently comprehensive to make reasonable the inference that Congress left no room for supplementary state regulation.” Automated Med. Labs., 471 U.S. at 713. Three federal statutes and two federal agencies are involved in the cosmetic labeling scheme: the Appellant‟s claims involve not only the FDCA and the Food and Drug Administration (“FDA”), but also the Animal Welfare Act (“AWA”), 7 U.S.C. §§ 2131-59 (1994), and the Department of Agriculture (“USDA”), through the Animal and Plant Health Inspection Service (“APHIS”), and the Humane Slaughter Act (“HSA”). 7 U.S.C. §§ 1901-07 (1958), as amended by Humane Methods of Slaughter Act, Pub. L. No. 94-445, 92 Stat. 1069 (1978). These statutes and regulations describe a comprehensive scheme of federal regulation which preempts state law in the area of cosmetic labeling.

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The several cosmetic labeling statutes and regulations paint a broad regulation scheme, from definition to explanation of prohibited labels to dictating the methods of determining violation. The term “label” means: [A] display of written, printed, or graphic matter upon the immediate container of any article; and a requirement made by or under authority of this chapter that any word, statement, or other information appear on the label shall not be considered to be complied with unless such word, statement, or other information also appears on the outside container or wrapper, if any there be, of the retail package of such article, or is easily legible through the outside container or wrapper. Id. § 321(k). Labeling refers to “all labels and other written, printed, or graphic matter (1) upon any article or any of its containers or wrappers, or (2) accompanying such article.” Id. § 321(m). Furthermore, the FDCA specifies methods of determining misbranding based on misleading labeling or advertising: If an article is alleged to be misbranded because the labeling or advertising is misleading, then in determining whether the labeling or advertising is misleading there shall be taken into account (among other things) not only representations made or suggested by statement, word, design, device, or any combination thereof, but also the extent to which the labeling or advertising fails to reveal facts material in the light of such representations or material with respect to consequences which may result from the use of the article to which the labeling or advertising relates under the conditions of use prescribed in the labeling or advertising thereof or under such conditions of use as are customary or usual. Id. § 321(n). According to the FDCA, a cosmetic is deemed misbranded: (a) If its labeling is false or misleading in any particular. (b) If in package form unless it bears a label containing (1) the name and place of business of the manufacturer, packer, or distributor; and (2) an accurate statement of the quantity of the contents in terms of weight, measure, or numerical count: Provided, That under clause (2) of this paragraph reasonable variations shall be permitted, and exemptions as to small packages shall be established, by regulations prescribed by the Secretary. (c) If any word, statement, or other information required by or under authority of this chapter to appear on the label or labeling is not prominently placed thereon with such conspicuousness (as compared with other words, statements, designs, or devices, in the labeling) and in such terms as to render it likely to be read and

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understood by the ordinary individual under customary conditions of purchase and use. (d) If its container is so made, formed, or filled as to be misleading. (e) If it is a color additive, unless its packaging and labeling are in conformity with such packaging and labeling requirements, applicable to such color additive, as may be contained in regulations issued under section 379e of this title. This paragraph shall not apply to packages of color additives which, with respect to their use for cosmetics, are marketed and intended for use only in or on hair dyes (as defined in the last sentence of section 361(a) of this title). (f) If its packaging or labeling is in violation of an applicable regulation issued pursuant to section 1472 or 1473 of Title 15. Id. § 362. Federal regulations further define cosmetic misbranding: (a) Among representations in labeling of a cosmetic which render such cosmetic misbranded is a false or misleading representation with respect to another cosmetic or a food, drug, or device. (b) The labeling of a cosmetic which contains two or more ingredients may be misleading by reason (among other reasons) of the designation of such cosmetic in such labeling by a name which includes or suggests the name of one or more but not all such ingredients, even though the names of all such ingredients are stated elsewhere in the labeling. 21 C. F. R. § 701.1. The AWA regulates the use of animals in research, including cosmetic research. 7 U.S.C. § 2131 (providing that the purposes of the AWA include ensuring “that animals intended for use in research facilities or for exhibition purposes or for use as pets are provided humane care and treatment”). The HSA regulates the treatment of animals raised for slaughter as well as the methods of slaughter. 7 U.S.C. § 1901. Combined, the AWA and FDCA form a comprehensive regulatory scheme that is designed to protect human (consumer) interests and health and animal health, similar to the combination of the FDCA and FMIA in Provimi Veal, 626 F. Supp.at 283, which was intended to “protect the health and welfare of consumers and to prevent and eliminate burdens on commerce by assuring that meat and poultry products are wholesome and properly labeled.” Id. (internal quotations omitted) (citing Am. Pub. Health Ass’n. v. Butz, 511 F.2d 331, 332 (D.C. Cir.

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1974); Nat’l Pork Producers Council v. Bergland, 631 F.2d 1353, 1361 (8th Cir. 1980), cert. denied, 450 U.S. 912 (1981)). Even without conflict between the federal regulations and the California regulations, this comprehensive regulatory scheme fills the entire field of cosmetic labeling and thereby preempts concurrent state regulation. II. Even if its Claims are Not Preempted by Federal Law, Appellant has Nonetheless Failed to State a Cause of Action for False Advertising under the California Business and Professions Code. Even if Appellant‟s claim is not preempted by federal law, Appellant has nevertheless failed to state a cause of action under the California unfair competition laws for false advertising because Respondent‟s use of the phrase “Cruelty Free” on its products is mere sales puffery, which cannot be objectively verified. Specifically, Respondent‟s use of the term “Cruelty Free” is not a statement upon which reasonable consumers would rely. This finding is supported by the text, structure and policies behind the California Business and Professions Code, as well as other cases interpreting such law. Moreover, Respondent‟s use of the phrase “Cruelty Free” represents mere puffery under the Federal Trade Commission Act, upon which the California Unfair Competition Law is based. Even if Respondent‟s use of the term “Cruelty Free” constitutes an objectively verifiable statement subject to the California false advertising and unfair competition laws, Respondent‟s statements are neither false nor misleading. Indeed, Respondent‟s interpretation of the phrase as used on its Hey, Girl! products is consistent with both state and federal laws governing treatment of research animals as well as animals raised for slaughter. Further, the legislative history behind these laws indicate that Congress and the California legislature did not intend to prohibit the tests and practices utilized by Respondent in manufacturing its Hey, Girl! products. Thus, even assuming all facts well-pleaded by Appellant are true, Appellant has nonetheless presented

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insufficient evidence to state a cause of action, and this Court should affirm the judgment of the lower court sustaining Respondent‟s demurrer. a. Respondent’s Use of the Phrase “Cruelty Free” Constitutes Non-Actionable Puffery under the California Unfair Competition Laws. The term “Cruelty Free,” as used in Respondent‟s Hey, Girl! products is merely unverifiable sales puffery, and therefore non-actionable under California unfair competition laws. Under section 17200 of the California Business and Professions Code, unfair competition is defined as “any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue, or misleading advertising and any act prohibited by Chapter 1 (commencing with Section 17500) of Part 3 of Division 7 of the Business and Professions Code.” Cal. Bus. & Prof. Code § 17200 (West 1997). Further, section 17500 of the Code, in relevant part, defines false advertising as a statement made in connection with the sale of personal property, which is untrue or misleading, and which is known, or by the exercise of reasonable care should be known, to be untrue or misleading. Id. § 17500 (West 1998). As accurately noted by the court below, to find that Respondent violated the unfair competition or false advertising laws, it is not necessary to prove that it intended to harm anyone. Rather, the proper inquiry is whether a reasonable consumer would be misled. See generally Lavie v. Proctor & Gamble Co., 129 Cal. Rptr. 2d 486 (Ct. App. 1 Dist. 2003). However, nonfactual claims about an advertised item that express vague and subjective opinions may constitute puffery, which is a complete defense to a claim of false advertising. Indeed, sellers are likely to express favorable opinions regarding their products, and when such statements are in general terms, without specific content or reference to facts, reasonable consumers are expected to understand that they should not rely literally on these words. See, e.g., Hauter v. Zogarts, 534 P.2d 377, 381 (Cal. 1975). If the descriptive term used is unquantifiable, it is considered an

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opinion, but if it may be objectively verified, it may constitute a statement of fact subject to liability for false advertising. Compare Pizza Hut, Inc. v. Papa John’s Int’l., Inc., 227 F.3d 489, 497 (5th Cir. 2000), with Presidio Enters. v. Warner Bros. Distrib., 784 F.2d 674, 679 (5th Cir. 1986). Therefore, such statements of opinions are known as “puffing,” and are non-actionable. Hauter, 534 P.2d at 681. Here, Respondent has expressed no more than a favorable opinion regarding its Hey, Girl! products, and has not indicated on its packaging or otherwise that the term “Cruelty Free” refers to specific factual representations. Indeed, Respondent has not defined the phrase “Cruelty Free” anywhere on its Hey, Girl! products, and does not specifically refer to facts. Thus, buyers should understand that they may not rely literally on this term, but rather should consider Respondent‟s use of “Cruelty Free” to be merely a statement of opinion regarding its Hey, Girl! products. Further, the term “Cruelty Free” is not legally defined in the California Business and Professions Code or the federal law governing false advertising. See generally Cal. Bus. & Prof. Code § 17200 et seq. (West 1998). As the lower court found, the “Cruelty Free” statement made by Respondent does not constitute a factual representation that a given standard is met, and Appellant has presented no evidence that it was required to meet an independently verified standard in order to advertise its product as “Cruelty Free.” (See R. at 6.) Because this term cannot be objectively verified and has no specific legal definition as used in advertising or product labeling, Respondent‟s use of “Cruelty Free” on its Hey, Girl! products constitutes mere sales puffery. See generally Consumer Advocates v. Echostar Satellite Corp., 8 Cal. Rptr. 3d 22 (Ct. App. 2 Dist. 2003).

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b. Appellant has Failed to Prove that a Reasonable Consumer would be Misled into Believing that Respondent’s Products Meet the Same Standard for “Cruelty Free” as Appellant’s Products. As accurately noted by the court below, to find that Respondent violated the unfair competition or false advertising laws, Appellant must prove that a reasonable consumer would be misled. See generally Lavie, 129 Cal. Rptr. 2d at 486. In applying this standard, courts look to what an ordinarily intelligent person would imply from advertisements. See generally People v. Cole, 7 Cal. Rptr. 3d 333 (Cal. App. 4 Dist. 2003). Moreover, “„a reasonable consumer may be unwary or trusting,‟ and is not required „to investigate the merits of advertising claims.‟” Id. (quoting Lavie, 129 Cal. Rptr. 2d at 491-94). Here, even if Respondent made a “statement” within the meaning of the false advertising laws, its use of the term “Cruelty Free” on its Hey, Girl! products does not constitute false advertising because Appellant has not proven that reasonable consumers would be misled into believing that this term indicates the same standard as that which Appellant‟s products meet. It is unclear whether a reasonable consumer would be misled into believing that the phrase “Cruelty Free” should be interpreted as affirmatively avoiding any cruelty to animals any more than it should be interpreted as verifying that no cruelty laws are violated. Indeed, Appellant and Respondent differ on the meaning of the term “Cruelty Free,” and there is no codified legal definition as it pertains to product advertising and labeling. Although Appellant interprets the term “Cruelty Free” to mean avoiding any cruelty to animals, Respondent interprets the same term as a representation that the laws prohibiting cruelty to animals have not been violated. (See R. at 5); see also Cal. Penal Code § 597 (West 1999). As the lower court determined, “[n]either of these positions as to the meaning of „cruelty free‟ can be reasonably be [sic] characterized as wrong. Instead, they simply constitute different

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opinions as to what is cruel.” (R. at 6.) Further, as noted above, a reasonable consumer is not required to investigate the validity of advertising claims, and it cannot be assumed that one who investigates the validity of Respondent‟s “Cruelty Free” advertising on its Hey, Girl! products would feel misled after discovering that Respondent has not violated the laws prohibiting cruelty to animals. Although the California false advertising statute requires a statement “which is known, or by the exercise of reasonable care should be known, to be untrue or misleading,” Cal. Bus. & Prof. Code § 17500 (West 1998), Appellant has not proven that Respondent‟s statements are clearly untrue or misleading, rather than mere puffery about its Hey, Girl! products. As a result, Respondent‟s use of the term “Cruelty Free” is consistent with the textual requirements of section 17500, because Appellant has not proven that reasonable consumer would necessarily be misled by this usage. Thus, Appellant has failed to state a cause of action for false advertising and this Court should affirm the lower court‟s judgment for Respondent. c. Respondent’s Use of the Term “Cruelty Free” as Puffery Also Serves the Policies Behind the California Unfair Competition Laws. This finding is consistent with the policies behind consumer protection laws. Specifically, these laws “are designed to protect such individuals as „unwary targets of false advertising, innocent youths corrupted by lawbreaking retailers, . . . or a “singularly dense” group of consumers who fall prey to misleading advertising . . . .‟” Cole, 7 Cal. Rptr. 3d at 353 (quoting Rosenbluth Int’l, Inc. v. Super. Ct., 124 Cal. Rptr. 2d 844, 847 (Ct. App. 2 Dist. 2002)) (internal citations omitted). Here, Appellant has not proven that consumers of their “Cruelty Free” products are similar to a dense group of consumers which are susceptible to misleading advertising, or unwary targets of false advertising. Moreover, one of the primary purposes of the California Unfair Competition Laws is to “preserve fair competition among competitors,” see,

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e.g., Wells v. One 2 One Learning Found., 10 Cal. Rptr. 3d 456 (Ct. App. 3 Dist. 2004), and this legislative intent is served by permitting open competition between Appellant and Respondent, within the confines of the California laws. Because Respondent has not violated the false advertising laws with its “Cruelty Free” labeling on its Hey, Girl! products as mere sales puffery, this Court should follow the policies behind section 17500 by affirming the trial court‟s judgment for Respondent. d. The Trial Court’s Finding of Non-Actionable Puffery is Consistent with Other California Cases Interpreting the State’s False Advertising Laws. Moreover, other cases have found puffery in similar situations. For example, California courts have found puffery when a cable service provider claimed that its satellite system would provide “„crystal clear digital‟ video, or „CD quality‟ audio,” see Consumer Advocates, 8 Cal. Rptr. 3d at 29-30; when a health insurance provider represented that a health plan would provide “„high standards‟ of medical service,” Pulvers v. Kaiser Found. Health Plan, Inc., 160 Cal. Rptr. 392, 393-94 (Ct. App. 2 Dist. 1979); and when a marina was advertised as a “„first class harbor‟” and „„the best berthing facility in Northern California. See Schonfield v. City of Vallejo, 57 Cal. Rptr. 2d 798, 816-17 (Ct. App. 2 Dist. 1994). Federal courts interpreting California law have also found puffery when a pizza restaurant chain compared its products with that of a competitor in its advertising phrase, “„Better Ingredients, Better Pizza.‟” Pizza Hut, 227 F.3d at 499. Similarly, Respondent‟s use of the term “Cruelty Free” in its Hey, Girl! products comprises a vague and subjective statement of opinion, and not a statement of fact which may be adjudged true or false with empirical verification. See Presidio Enters., 784 F.2d at 679. In labeling its Hey, Girl! products “Cruelty Free,” Respondent merely claims that they are “„distinguished by some unusual quality,‟ „in some way superior,‟ or „unique.‟” Webster‟s Dictionary, Puffery, available at http://www.merriam-webster.com (last accessed Jan. 25, 2004).

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Because Appellant has presented no evidence that the term “Cruelty Free” is objectively verifiable and may be adjudged true or false with empirical evidence, rather than representing a difference of opinion as to what practices are considered cruel to animals, as the lower court found, this Court must affirm the judgment in favor of Respondent. e. Respondent’s Use of “Cruelty Free” is also puffery under the Federal Trade Commission Act. Moreover, this interpretation of “Cruelty Free” also constitutes puffery under the Federal Trade Commission Act, upon which the California Unfair Competition Laws are based. This federal law is relevant to this Court‟s interpretation of puffery because the California Unfair Competition Laws comprise one of the so-called “little FTC Acts” enacted in the 1930s to extend the Federal Trade Commission‟s regulatory jurisdiction over harm of the general public, not merely business competitors. See Lavie, 129 Cal. Rptr. 2d at 505 (quoting Rubin v. Green, 847 P.2d 1044 (Cal. 1993)). Thus, interpretations of the federal act have persuasive force. See Southwest Sunsites, Inc. v. F.T.C., 785 F.2d 1431, 1436 (9th Cir. 1986). Federal law also applies the reasonable consumer standard to determine whether a statement constitutes false advertising; an advertisement is deceptive if it contains a representation or omission that is likely to mislead consumers acting reasonable under the circumstances. See, e.g., Carter Dillard, False Advertising, Animals, and Ethical Consumption, 10 Animal L. 25, 46 (2004) (citing Federal Trade Commission, FTC Policy Statement Regarding Advertising Substantiation, available at http://www.ftc.gov/bcp/guides/ad3subst.htm (last accessed Feb. 22, 2004)). Specifically, the Federal Trade Commission (“FTC”) defines puffery as “claims [that] are either vague or highly subjective,” including claims that are not capable of independent measurement. See Sterling Drug, Inc. v. F.T.C., 741 F.2d 1146, 1150 (9th Cir. 1984); see also In re Bristol-Myers Co., 102 F.T.C. 21, 321 (1983), aff’d, 738 F.2d 554 (2d Cir.

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1984), cert. denied 469 U.S. 1189 (1985). Similar to its definition under state law, puffery has been defined in an FTC case as an expression of opinion not made as representation of fact. In re Wilmington Chem. Corp., 69 F.T.C. 826, 865 (1966). As noted by Professor Ivan Preston, “the term „puffery‟ as used by the Commission here generally includes [1] representations that ordinary consumers do not take literally, [2] expressions of opinion not made as a representation of fact, [3] subjective claims . . . and hyperbole that are not capable of objective measurement.” Ivan L. Preston, Puffery and Other “Loophole” Claims: How the Law’s “Don’t Ask, Don’t Tell” Policy Condones Fraudulent Falsity in Advertising, 18 J.L. & Com. 49, 59 (1998) (referring to In re Cal. & Haw. Sugar Co., 119 F.T.C. 39, 44 (1995)). Here, Respondent made a subjective and vague claim by including the phrase “Cruelty Free” on its Hey, Girl! products. Respondent‟s statement that its Hey, Girl! products are “Cruelty Free” is not capable of objective measurement because this term is not otherwise defined, either by Respondent on its packaging, or in any California or federal law. Further, this interpretation is consistent with the purpose behind the federal puffery exception to liability for false advertising. Indeed, as described by Judge Learned Hand: There are some kinds of talk which no sensible man takes seriously, and if he does he suffers from his credulity. If we were all scrupulously honest, it would not so; but, as it is, neither party usually believes what the seller says about his own opinions, and each knows it. Vulcan Metals Co. v. Simmons Mfg. Co., 248 F. 853, 856 (2d Cir. 1918). Thus, Respondent should not be expected to be scrupulously honest in advertising its product, but rather may make subjective and vague statements of opinion upon which reasonable consumers should not rely. As under California law, Respondent‟s advertising use of the term “Cruelty Free” constitutes puffery, and therefore is lawful under federal as well as state law.

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f. Even if Respondent’s Use of the Term “Cruelty Free” on its Hey, Girl! Products are Subject to California’s Unfair Competition Laws, This Usage is Neither False Nor Misleading. Even if Respondent‟s “Cruelty Free” labeling is not puffery but a statement regulated under the California Business and Professions Code, it is nonetheless truthful and consistent with the laws governing treatment of research animals as well as animals raised for slaughter. Specifically, California‟s law exempts animals used for research purposes from its prohibition on cruelty to animals.2 See Cal. Penal Code § 597 (West 1999) (“Mandatory seizure and impoundment shall not apply to animals in properly conducted scientific experiments or investigations performed under the authority of the facility of a regularly incorporated medical college or university of this state.”). Moreover, although the federal Animal Welfare Act also regulates the use of animals in research, researchers retain full control over how to design and conduct an experiment, as well as how to use the animals that are in it. See generally 7 U.S.C. §§ 2131-39 (1994). Therefore, the Animal Welfare Act does not prohibit the use of animal bred and raised for research purposes in research experiments such as the Draize eye irritancy and skin irritancy tests. Id. In addition, although the Public Health Service‟s Policy on Humane Care and Use of Laboratory Animals provides more significant regulations of the treatment of research animals, this federal law only applies to federally funded projects and is not a legal mandate with which all research facilities must comply. See generally Office for Protection From Research Risks, National Institutes of Health, Public Health Service Policy on Humane Care and Use of Laboratory Animals § II (rev. ed. 1986). Overall, Respondent‟s use of research animals in
2

Although California Civil Code section 1834, enacted by Chapter 476, requires cosmetic manufacturers and contract testing facilities to conduct alternative testing when certain conditions are met, and provides injunctive measures and fines against business entities found in violation of this law, the statute mandates that only the Attorney General, district attorney, or city attorney may bring a cause of action. See generally Cal. Civ. Code § 1834.9 (2001).

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experiments such as the Draize eye irritancy and skin irritancy tests is consistent with both California and federal laws governing the humane treatment of animals used for research purposes. Indeed, Appellant does not allege that Respondent has violated any laws requiring the humane treatment of research animals pursuant to the Animal Welfare Act, but rather claims that the use of animals bred and raised for research in these experiments is cruel in itself. (R. at 3, 6.) Because Respondent has violated neither the state nor federal laws governing treatment of research animals and prohibitions on cruelty to animals, its practices are, in fact, “Cruelty Free” under the applicable legal definitions of the term. Respondent‟s practices are also consistent with the laws governing treatment of animals raised for slaughter, as Appellant has presented no evidence that Respondent has violated the Humane Slaughter Act, which regulates the treatment and methods of slaughter for animals raised for food production. See 7 U.S.C. §§ 1901-07 (1958), as amended by Humane Methods of Slaughter Act, Pub. L. No. 94-445, 92 Stat. 1069 (1978). Similarly, Appellant has not alleged that Respondent has violated the California laws regarding slaughter of animals, see Cal. Food & Agric. Code §§ 19501-03 (1967), but only claims that many of the practices involved in the raising and slaughtering of animals for food are cruel. Without a specific claim against Respondent for violating these laws, Appellant fails to state a cause of action pursuant to these regulations. g. Respondent’s utilization of animal testing also serves general research purposes and policy goals. Further, the testing of ingredients in Respondent‟s Hey, Girl! products on animals serves the general policies for permitting animal research. For example, animals are used in research to learn about living things as well as how illnesses and exposure to certain ingredients affect living systems. See Vasanth R. Shenai, If Animal Rights Activists Could Write Federal Research

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Policy, 4 Animal L. 211, 221 (1998); see also Committee on the Use of Animals in Research, Science, Medicine, and Animals, at *4 (1991). Because many test animals have biological systems similar to humans, results of animal research experiments can be very useful in human applications. Id. at 222. Moreover, although alternatives such as computer models and tissue cultures may be useful, they often cannot duplicate the detailed reactions of a complex organism such as a living animal. Id. Indeed, animal research has led to advances in fields such as nutrition, surgical techniques, pharmacology, and veterinary science. Lorna A. Walker, Cages and Codes: The Debate Over the Use of Laboratory Animals, 11 J. Energy Nat. Resources & Envtl. L. 319, *4 (1991). Finally, researchers have an incentive to treat laboratory animals humanely to minimize variance in results, since experiments may be affected by the way an animal is treated during an experiment. Id. Here, Respondent‟s use of research animals serves these purposes because it tests ingredients from its Hey, Girl! products on animals to discover and avoid harm to human consumers, and Appellant has presented no evidence of alternative testing methods that sufficiently provide this information without using research animals Because Respondent‟s utilization of animal testing serve the policies of detecting and preventing harm to human consumers, and neither the state nor federal laws prohibit these practices, Appellant has not stated a cause of action for false advertising based on Respondent‟s testing of its Hey, Girl! products on animals. Therefore, this Court should affirm the lower court‟s judgment for Respondent.

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h. Congress Did Not Intend to Prohibit Animal Testing or Slaughter of Animals or Respondent’s Utilization of These Practices in Manufacturing Ingredients for its Hey, Girl! Products. Finally, although the above Acts governing treatment of animals for research and slaughter have been amended after their original enactments, Congress chose not to prohibit the practices Appellant alleges that Respondent uses in manufacturing its Hey, Girl! products. For example, although the Animal Welfare Act of August 24, 1966, Pub. L. No. 89-544, was amended in 1970, Pub. L. No. 91-579, and 1976, Pub. L. No. 94-279, and also amended by the Food Security Act of 1985, Pub. L. No. 99-198, and the Food, Agriculture, Conservation, and Trade Act of 1990, Pub. L. No. 101-624, Congress chose not to prohibit the Draize eye irritancy and skin irritancy tests in any of those amendments. Moreover, Congress chose not to increase the regulation of animal research and testing, but instead continues to allow researchers to retain substantial control over their experiments involving animals. Similarly, the Humane Slaughter Act was amended in 1978 by the Humane Methods of Slaughter Act, Pub. L. No. 94-445, 92 Stat. 1069, but Congress chose not to prohibit the raising and slaughtering of animals as cruel, as Appellant desires. Thus, Congress has chosen not to adopt the opinions of Appellant into the federal law governing treatment of animals in research and slaughter. Because Appellant‟s views on animal testing and slaughter practices are not codified in any law, and Congress has not chosen to amend the applicable laws to include these opinions, Respondent cannot be deemed to have inflicted cruelty on animals in manufacturing its Hey, Girl! products. Thus, Respondent‟s use of animal testing and slaughter byproducts are not considered cruel under California or federal laws, and its use of the term “Cruelty Free” on these products do not constitute false advertising. Therefore, this Court should affirm the lower court‟s judgment for Respondent.

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CONCLUSION For the reasons stated above, and any other adduced at a hearing on these issues, You Go Girl!, Inc. respectfully requests that this Court affirm the judgment of the Superior Court of San Francisco County sustaining its demurrer.

Respectfully Submitted,

Dated: ___________________

_____________________________ Kristie Blase _____________________________ Lynn Deavers Attorneys for Respondents

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