STACIE SOMERS, On Behalf of Herself and All Others Similarly Situated v. BEIERSDORF, INC., a Delaware corporation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STACIE SOMERS, On Behalf of Herself
and All Others Similarly Situated,
Plaintiff-Appellant,
v.
BEIERSDORF, INC., a Delaware
corporation,
Defendant-Appellee.
No. 20-55541
D.C. No.
3:14-cv-02241-LAB-AGS
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted March 3, 2021
Pasadena, California
Before: GRABER, MILLER, and LEE, Circuit Judges.
Stacie Somers sued Beiersdorf, Inc., alleging that its Nivea CoQ10 Lotion is
a drug that was sold without receiving federal approval under the Food, Drug, and
Cosmetic Act (“FDCA”). The district court entered summary judgment in favor of
Beiersdorf, ruling that Somers’ claim was impliedly preempted. Somers now
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
MAR 25 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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appeals. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we hold that
Somers has failed to state a claim.
1. We review de novo the grant of summary judgment. Branch Banking &
Tr. Co. v. D.M.S.I., LLC, 871 F.3d 751, 759 (9th Cir. 2017). We “may affirm
summary judgment on any ground supported by the record.” Video Software
Dealers Ass’n v. Schwarzenegger, 556 F.3d 950, 956 (9th Cir. 2009) (citation
omitted).
2. Somers’ theory is as follows: Under California Health & Safety Code
§ 111550(a), it is unlawful to sell a drug in California unless it has obtained
approval from the Food and Drug Administration (“FDA”) through the New Drug
Application (“NDA”) process. Beiersdorf’s product, according to Somers, is a
“drug” as defined in the federal Food, Drug, and Cosmetic Act, but it never
received an approved NDA. Therefore, according to Somers, Beiersdorf is selling
its product unlawfully.
But Somers’ theory fails to state a claim. Under California Health & Safety
Code § 111550, it is unlawful for a manufacturer to sell a drug unless “either” of
the following two conditions is met. Cal. Health & Safety Code § 111550
(emphasis added). The first condition is that the product has obtained an approved
NDA from the FDA. § 111550(a). The second condition is that the product has
obtained new drug approval from the state of California. § 111550(b). Because a

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manufacturer acts lawfully so long as it meets either condition, it acts unlawfully
only when it fails to meet both conditions. Yet Somers disclaimed any allegations
about Beiersdorf’s failure to obtain new drug approval from the state of California
as required under section 111550(b). Somers has thus failed to state a claim.
AFFIRMED.

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