Gabriele v. Conagra Foods, Inc.

Filing 57

MEMORANDUM OPINION AND ORDER granting in part and denying in part 30 Motion for Judgment on the Pleadings. Signed by Honorable Timothy L. Brooks on June 25, 2015. (jn)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION

JARED GABRIELE, individually and on
behalf of all others similarly situated
V.

PLAINTIFF

CASE NO. 5:14-CV-05183

CONAGRA FOODS, INC.

DEFENDANT

MEMORANDUM OPINION AND ORDER

Currently before the Court are Defendant ConAgra Foods, Inc’s (“ConAgra”) Motion
for Judgment on the Pleadings (Doc. 30) and brief in support (Doc. 30-1), Plaintiff Jared
Gabriele’s (“Gabriele”) Response in Opposition (Doc. 42), and ConAgra’s Reply (Doc. 54).
Also before the Court are Gabriele’s Memorandum Regarding the Safe Harbor Provision
of the Arkansas Deceptive Trade Practices Act (Doc. 49) and ConAgra’s Supplemental
Memorandum in Support of its Motion for Judgment on the Pleadings (Doc. 50). For the
reasons set forth herein, ConAgra’s Motion for Judgment on the Pleadings (Doc. 30) is
GRANTED IN PART AND DENIED IN PART.
I. BACKGROUND
Gabriele brings this putative class action on behalf of Arkansas consumers pursuant
to the Arkansas Deceptive Trade Practices Act, Ark. Code Ann. § 4-88-101, et seq., and
other state law causes of action, regarding allegedly deceptive and misleading labels on
Hunt’s tomato products.

The Court has original jurisdiction pursuant to 28 U.S.C.

§ 1332(d)(2) as this is a class action in which the matter in controversy exceeds the sum

or value of $5,000,000, at least one member of the class of plaintiffs is a citizen of a
different state than a defendant, and the class has more than 100 members.
The allegations in the Amended Complaint (“Complaint”) stem from labeling used
in marketing and advertising Hunt’s tomato products, which describes those products as
“100% Natural” and “free of artificial ingredients and preservatives.” Gabriele alleges that
ConAgra’s labeling is deceptive because the products actually “contain artificial ingredients
and are not ‘100% Natural.’” (Doc. 5, p. 2). Gabriele contends that ConAgra mislabeled
its tomato products in order to charge a premium for the products. According to Gabriele,
mislabeled products cannot be legally sold or possessed, and misbranded food has no
economic value. He further contends that had he known that the misbranded tomato
products were illegal to sell or possess, he would not have purchased them.
Gabriele alleges violations of the Arkansas, Food, Drug, and Cosmetic Act
(“AFDCA”), Ark. Code Ann. § 20-56-201, et. seq., which serves as the factual predicate for
five causes of action: (1) deceptive trade practices in violation of the Arkansas Deceptive
Trade Practices Act (“ADTPA”), Ark. Code Ann. § 4-88-101, et seq.; (2) unjust enrichment;
(3) breach of implied warranty of merchantability; (4) breach of express warranty; and (5)
negligence.
ConAgra seeks to have the Complaint dismissed due to express preemption by the
federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq. (“FDCA”); failure to allege
facts sufficient to support his claims; and Gabriele’s lack of standing to pursue claims for
products he never purchased.
In response, Gabriele maintains that preemption is not proper since he seeks to
enforce state law food-labeling requirements that are identical to those of the FDCA. He
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contends that his other claims under Arkansas law are properly pled. Gabriele also argues
that he has standing to seek recovery for products substantially similar to those he actually
purchased.
II. LEGAL STANDARD
A motion for judgment on the pleadings made pursuant to Federal Rule of Civil
Procedure 12(c) requires the Court to “accept as true all factual allegations set out in the
complaint” and to “construe the complaint in the light most favorable to the plaintiff[s],
drawing all inferences in [their] favor.” Ashley Co., Ark. v. Pfizer, Inc., 552 F.3d 659, 665
(8th Cir. 2009) (internal citation omitted). “Judgment on the pleadings is appropriate only
when there is no dispute as to any material facts and the moving party is entitled to
judgment as a matter of law, the same standard used to address a motion to dismiss for
failure to state a claim under Rule 12(b)(6).” Id. (internal citation omitted). “[W]ell-pleaded
facts, not legal theories or conclusions, determine [the] adequacy of [t]he complaint.”
Clemons v. Crawford, 585 F.3d 1119, 1124 (8th Cir. 2009) (internal citations omitted). The
facts alleged in the complaint “must be enough to raise a right to relief above the
speculative level.” Id. (citing Drobnak v. Andersen Corp., 561 F.3d 778, 783 (8th Cir. 2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007))). When considering a
motion for judgment on th pleadings, the Court ordinarily does not consider matters outside
the pleadings. Fed. R. Civ. P. 12(d).

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III. DISCUSSION
A. Whether Gabriele’s Claims are Preempted by the FDCA
ConAgra first asserts that this action should be dismissed because Gabriele's
Complaint is preempted by the FDCA as amended by the Nutrition Labeling and Education
Act (“NLEA”). Pub. L. No. 101–535, 104 Stat. 2353 (1990). Gabriele counters that he is
not suing under the FDCA but rather under Arkansas state law for claims arising under the
AFDCA, which Gabriele contends is identical to the food labeling regulations of the Food
and Drug Administration (“FDA”). In support of this contention, he points out that section
20-56-209(7) of the Arkansas Code provides that any food is misbranded if it falls short of
standards prescribed by the FDCA.
The Supreme Court has long recognized that state laws that conflict with federal law
are “without effect.” Maryland v. Louisiana, 451 U.S. 725, 746 (1981) (internal citation
omitted). That is, Congress has the power to preempt state laws. Fid. Fed. Sav. & Loan
Ass'n v. de la Cuesta, 458 U.S. 141, 152–53 (1982). Federal preemption occurs when:
(1) Congress enacts a statute that explicitly preempts state law; (2) state law actually
conflicts with federal law; or (3) federal law occupies a legislative field to such an extent
that it is reasonable to conclude that Congress left no room for state regulation in that field.
See generally In re Aurora Dairy Corp. Organic Milk Mktg. & Sales Practices Litig., 621
F. 3d 781, 791-94 (8th Cir. 2010). Although in the instant case, ConAgra only argues that
Gabriele’s claims are expressly preempted, the Court will also address field preemption,
as the lack of a formal definition of “natural” reveals that the FDA did not intend to occupy
the field as to labels containing the term “100% Natural.”

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Preemption is express where Congress has “explicitly stated [its intent] in the
statute's language . . . .” Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 516 (1992) (internal
quotation marks omitted). Thus, “[t]he critical question in any pre-emption analysis is
whether Congress intended that federal regulation supersede state law.” La. Pub. Serv.
Comm'n v. F.C.C., 476 U.S. 355, 369 (1986). Moreover, in the context of state laws
dealing with matters traditionally within the historic police powers of the states,
congressional intent to preempt such laws must be “clear and manifest.” Medtronic, Inc.
v. Lohr, 518 U.S. 470, 485 (1996) (internal quotation marks omitted). In the absence of
explicit statutory language, state law is preempted where it regulates conduct in a field that
Congress intended to occupy exclusively, English v. Gen. Elec. Co., 496 U.S. 72, 79
(1990), such that the scheme of federal regulation is “so pervasive as to make reasonable
the inference that Congress left no room for the States to supplement it,” Gade v. Nat'l
Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 98 (1992) (internal citation and quotations
omitted).
The FDCA grants the FDA the responsibility to protect public health by ensuring that
“foods are safe, wholesome, sanitary, and properly labeled.” 21 U.S.C. § 393(b)(2). There
is no private right of action under the FDCA. 21 U.S.C. § 337(a). In 1990 Congress passed
the NLEA, amending the FDCA, to specifically address labeling requirements for certain
food and beverage products. The NLEA, codified as part of the FDCA, provides for
national uniform nutrition labeling, and expressly preempts state law that is inconsistent
with its requirements. 21 U.S.C. § 343–1(a). A food is misbranded “[i]f it bears or contains
any artificial flavoring, artificial coloring, or chemical preservative, unless it bears labeling

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stating that fact . . . .” 21 U.S.C. § 343(k). Thus, states may impose labeling requirements
for artificial flavors, colors, or preservatives only if such requirements are identical to those
imposed by the FDCA; any differences are preempted.
Gabriele alleges in his Complaint that Hunt’s tomato products violate Ark. Code Ann.
§ 20-56-209 because they are improperly described as “100% Natural,” and “free of
artificial ingredients and preservatives.” In particular, Gabriele contends the tomato
products are mislabeled because the presence of citric acid and calcium chloride means
that the tomato products contain “artificial and synthetic ingredients which have undergone
substantial processing and which include various artificial chemical preservatives and
coloring agents.” (Doc. 5, p. 9). In response, ConAgra argues that FDA regulations
specifically define calcium chloride and citric acid as “nonsynthetic” and permit its use in
food bearing an organic label pursuant to 7 C.F.R. § 205.605. ConAgra further argues that
the FDA has expressly approved the use of an “all natural” label claim for a food product
containing citric acid, as evidenced by a letter sent to Alexia, a subsidiary of ConAgra,
which provides that the FDA did not object to the use of the “all natural” label if citric acid
was “naturally derived.”1 Although calcium chloride is listed as a nonsynthetic substance

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“Generally, the Court must ignore materials that are outside of the pleadings; however,
district courts ‘may take judicial notice of public records and may thus consider them on a
motion to dismiss.’” Stahl v. United States Dept. of Agric., 327 F.3d 697, 700 (8th Cir.
2003). Matters of public record may include records and reports of administrative bodies.
Accordingly, the Court will take notice of the parties’ exhibits containing the warning letters
from the FDA. However, the Court notes that warning letters are not final agency action.
The FDA Regulatory Procedures Manual explains that a warning letter is “the agency's
principal means of achieving prompt voluntary compliance with the Federal Food, Drug and
Cosmetic Act.” FDA Manual, § 4–1–1 (emphasis added). Although a warning letter
“communicates the agency's position on a matter,” it is only “informal and advisory” and
“does not commit FDA to taking enforcement action.” Id.
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in 7 C.F.R. § 205.605, the statute provides that citric acid is only considered nonsynthetic
if produced by “microbial fermentation of carbohydrate substances.”
Citric acid . . . is the compound 2-hydroxy-1,2,3-propanetricarboxylic acid. It
is a naturally occurring constituent of plant and animal tissues . . . . [and] may
be produced . . . from sources such as lemon or pineapple juice; by
mycological fermentation using Candida spp., described in §§ 173.160 and
173.165 of this chapter; and by the solvent extraction process described in
§ 173.280 of this chapter for the recovery of citric acid from Aspergillus niger
fermentation liquor.
21 C.F.R. § 184.1033. Although ConAgra provides an affidavit from a Northern District
of California case (involving Hunt’s tomato products) attesting to these ingredients being
naturally derived, the Court may not look to documents outside of the Complaint at this
stage in the litigation, without treating the motion as one for summary judgment. See Fed.
R. Civ. P. 12(d). The appropriate time to address these affidavits is on summary judgment.
Gabriele’s allegations—accepted as true—are that the products contain artificially derived
citric acid or calcium chloride, in contravention of federal regulations. Thus, Gabriele’s state
law claims effectively parallel the FDCA, and are therefore not expressly preempted.
In arriving at this conclusion, the Court distinguishes its holding in Craig v. Twinings,
2015 WL 505867 (W.D. Ark. Feb. 5, 2015), where it dismissed similar false labeling claims
based on express preemption. The label in Twinings advertised tea as a “natural source
of antioxidants,” which is expressly permitted by the FDCA because of a regulation that
exempts tea from the nutrient-content requirements under 21 U.S.C. § 343(r). The Court
further found that Twinings’ tea labels did not violate the FDA’s labeling requirements
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because they did not characterize the level of antioxidants. Thus, all of the plaintiff’s statelaw claims were preempted because the plaintiff was seeking to impose liability in a
manner that was expressly inconsistent with the FDCA. The instant case differs from
Twinings because it has nothing to do with special labeling requirements applicable to tea,
and there are no corollary regulations that would be similarly preemptive of the instant
dispute.
The term “natural” is not defined in the FDCA, and the FDA has expressly declined
to define “natural” in any regulation or formal policy statement. The FDA adopted an
informal policy that “natural” means merely that “nothing artificial or synthetic (including
colors regardless of source) is included in, or has been added to, the product that would
not normally be expected to be there.” 58 Fed. Reg. 2302–01 at *2407 (Jan. 6, 1993). In
1991, the FDA solicited comments on a potential rule adopting a definition for the term
“natural,” noting that the use of “natural” on food labels “is of considerable interest to
consumers and industry.” See id. However, the FDA concluded that while “the ambiguity
surrounding the use of this term . . . could be abated” if the term were adequately defined,
the FDA was unwilling at that time to consider defining “natural” because of “resource
limitations and other agency priorities.” Id.
The FDA had opportunities to define “natural” in 2002, when the Center for Science
in the Public Interest asked the FDA to take action against Ben & Jerry's for labeling its
products “all natural”; in 2006, when the Sugar Association petitioned the FDA to define
“natural”; and again in 2010, when a number of United States district courts issued
six-month stays of pending litigation over the use of “natural” in beverages containing

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high-fructose corn syrup. See Janney v. Mills, 944 F.Supp.2d 806, 812 (N.D. Ca. May 10,
2013). Nevertheless, in each instance the FDA declined to becom e involved. Id.
With only an informal policy statement on which to rely for the definition for “natural,”
the FDA has taken little action against companies for improperly using the term, and
instead appears to favor issuing warning letters. For example, the FDA issued warning
letters to Oak Tree Farm Dairy on August 16, 2001; to Hirzel Canning Company on August
29, 2001; and to Alexia Foods on November 16, 2011, stating that although no established
regulatory definition exists for the term “natural,” the FDA discussed its use in the preamble
to the food labeling final regulations. (Docs. 42-1, 42-2, and 42-3). The letters suggest the
addition of calcium chloride and citric acid, among other ingredients, to these products
preclude the use of the term “natural” to describe the product, in contrast to regulations that
suggest that it could be otherwise. However, these letters are advisory and do not signal
final agency action.
Thus, with respect to Gabriele's claims, and unlike the express regulations
discussed in Twinings, there are no federal requirements regarding the term “natural” to
be given preemptive effect.
B. Actual Damages Under the ADTPA
ConAgra contends that Gabriele fails to assert a private cause of action under the
ADTPA because he has alleged a claim for a mere diminution in value of the purchased
product.

Gabriele contends that ConAgra violated the ADTPA when it knowingly

advertised and sold tomato products that were “mislabeled.” Gabriele argues that he
bargained for tomato products that were represented as “100% Natural” and “free of

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artificial ingredients and preservatives,” but that actually contained artificial preservatives.
Gabriele claims he reasonably relied upon these representations, and consequently,
incurred damages defined as the premium price paid for products he otherwise would not
have purchased.
When a person “suffers actual damage or injury as a result of an offense or
violation” of the ADTPA, Ark. Code Ann. § 4–88–113(f), a cause of action for liability may
be brought for any “unconscionable, false, or deceptive act or practice in business,
commerce, or trade.” Ark. Code Ann. § 4–88–107(a)(10). The ADTPA prohibits a variety
of listed practices, including “[k]nowingly making a false representation as to the . . .
characteristics . . . of goods or services” and contains a catchall provision prohibiting “any
other unconscionable, false, or deceptive act or practice in business, commerce, or trade.”
Ark. Code Ann. § 4–88–107(a)(1), (a)(10).
However, the ADTPA has a safe-harbor provision that prohibits a plaintiff from
bringing a suit regarding:
(3) Actions or transactions permitted under laws administered by the
Insurance Commissioner, the Securities Commissioner, the State Highway
Commission, the Bank Commissioner, or other regulatory body or officer
acting under statutory authority of this state or the United States, unless a
director of these divisions specifically requests the Attorney General to
implement the powers of this chapter.
Ark. Code Ann. §4-88-101 (emphasis added).
Although not initially raised by ConAgra, the Court directed the parties to submit
briefs as to whether the safe harbor provision exempts all regulated conduct, regardless
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of whether substantive state law specifically authorizes the conduct. Courts have applied
two rules regarding the construction of safe-harbor provisions to state DTPAs: (1) the
“specific-conduct” rule, which looks to whether state law permits or prohibits the conduct
at issue and only exempts expressly permitted conduct from DTPA claims; and (2) the
“general-activity” rule, which looks to whether a state agency regulates the conduct, in
which case a regulated actor enjoys full exemption from the DTPA.2 See e.g., Skinner v.
Steele, 730 S.W.2d 335, 338 (Tenn. Ct. App. 1987) (finding that the insurance industry is
not exempt from the Tennessee Consumer Protection Act, as the sale of an insurance
policy or annuity does not constitute an act or transaction that is “required or specifically
authorized”); Showpiece Homes Corp. v. Assurance Co. of Am., 38 P.3d 47, 55 (Colo.
2001), as modified on denial of reh'g (Jan. 11, 2002) (finding that Colorado’s Unfair
Claims—Deceptive Practices Act (UCDPA) does not preclude a private cause of action by
an insured against an insurer under the CPA). But see State v. Piedmont Funding Corp.,
119 R.I. 695, 699 (1978) (concluding that the Legislature exempted all activities and
businesses which are subject to monitoring by state or federal regulatory bodies or officers
from the Deceptive Trade Practices Act); Ferguson v. United Ins. Co. of Am., 163 Ga. App.
282, 282 (1982) (finding that insurance transactions are among those types of transactions
which are exempt from the Fair Business Practices Act).
Both ConAgra and Gabriele point to the Arkansas Supreme Court case of DePriest
v. AstraZeneca Pharm., L.P., 2009 Ark. 547 (2009), for the premise that permitted conduct
is exempted from the safe-harbor provision. In that case, the court applied the specific2

Nathan Price Chaney, The Arkansas Deceptive Trade Practices Act: The Arkansas
Supreme Court Should Adopt the Specific Conduct Rule, 67 ARK. L. REV. 299, 300 (2014).
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conduct rule and upheld the trial court’s dismissal of a class action that alleged that
AstraZeneca violated the ADTPA by fraudulently marketing one of its drugs. Id. at *18.
There, the FDA specifically approved the labeling for the drug, and therefore the court
found that the safe-harbor exemption applied because AstraZeneca’s actions were
consistent with the FDA-approved labeling for the drug. Id. at 16-18. Thus, the Arkansas
Supreme Court did not consider the general-activity rule.
Gabriele acknowledges a more recent Arkansas Supreme Court case where the
general-activity rule was applied, although he contends the case should not be read in this
manner. See Arlow Designs, LLC v. Ark. Capital Corp., 2014 Ark. 21 (2014). The
Arkansas Supreme Court upheld the dismissal of the plaintiff’s claim under the ADTPA
because the alleged deceptive conduct of the banks were subject to the control of
regulatory agencies, such as the Arkansas State Board of Finance and the Office of the
Comptroller of Currency and the Federal Deposit Insurance Commission. Id. at *6. The
court found that because banks are “regulated by a regulatory body acting under statutory
authority of Arkansas or of the United States, their actions and transactions are not subject
to claims that can be brought under the ADTPA unless a specific request has been made
to the Attorney General.” Id. Consistent with the plain language of the ADTPA, it appears
that the Arkansas Supreme Court recognizes and applies the so-called general-activity
rule. In other words, the safe-harbor provision exempts regulated conduct by regulated
actors regardless of whether substantive state law explicitly authorizes or prohibits the

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precise conduct at issue.3 Therefore, the ADTPA does not apply to conduct regulated by
a state or federal agency, such as the Arkansas Board of Health and/or the FDA.
The Court finds that because the alleged mislabeling of products is conduct that is
regulated by the FDA and the Arkansas Board of Health,4 the safe-harbor provision
applies, and there is no private right of action. Gabriele’s ADTPA claim is therefore
dismissed with prejudice.
C. Unjust Enrichment
ConAgra argues that Gabriele’s unjust enrichment claim should be dismissed
because he does not allege that ConAgra received a direct benefit, or even had direct
dealings with Gabriele. “[A]n action based on unjust enrichment is maintainable where a
person has received money or its equivalent under such circumstances that, in equity and
good conscience, he or she ought not to retain.” El Paso Prod. Co. v. Blanchard, 371 Ark.
634, 646 (2007). To find unjust enrichment, a party must have received something of
value, to which he or she is not entitled and which he or she must restore. Id. The amount

3

See also Williams v. State Farm Mut. Auto. Ins. Co., 2010 WL 2573196, at *4 (E.D. Ark.
June 22, 2010) (finding that the ADTPA does not apply to insurance activities regulated
under the Insurance Commissioner, as this “would render the exceptions listed in section
4-88-101 meaningless and would doubtless run afoul of the statutory scheme created by
the Arkansas General Assembly. . . . To hold that insurance carriers are subject to private
causes of action brought pursuant to the ADTPA would be contrary to the statutory scheme
established by the Arkansas General Assembly.”); King v. Homeward Residential, Inc.,
2014 WL 6485665, at *1 (E.D. Ark. Nov. 18, 2014) (finding the ADTPA does not apply to
actions or transactions permitted under laws administered by the Arkansas Insurance
Commissioner or by any other officer or regulatory body acting under state or federal
statutory authority).
4

The Arkansas Board of Health regulates this conduct under the AFDCA at Ark. Code Ann.
§ 20-56-201 through § 20-64-1103. The FDA regulates this conduct under the FDCA at
21 U.S.C. § 301 through § 399(f).
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of recovery is measured by the value of the benefit conferred upon the party unjustly
enriched. Sanders v. Bradley Cnty. Human Servs. Pub. Facilities Bd., 330 Ark. 675, 682
(1997). The issue of unjust enrichment is a question of fact. Grisanti v. Zanone, 2010 Ark.
App. 545 at *6-7 (2009).
Gabriele’s unjust enrichment claim was premised on the notion that ConAgra
profited from the sale of mislabeled products. Gabriele has alleged sufficient facts at this
stage in the litigation to survive dismissal, as there remain questions of fact as to whether
a benefit was conferred on ConAgra due to its alleged misrepresentations and whether
Gabriele is entitled to any recovery as a result.
D. Breach of Implied Warranty of Merchantability
To recover for breach of implied warranty of merchantability, Gabriele must prove:
(1) that he has sustained damages; (2) that the product sold to him was not merchantable,
i.e., fit for the ordinary purpose for which such goods are used; (3) that this
unmerchantable condition was a proximate cause of his damages; and (4) that he was a
person whom the defendant might reasonably expect to use or be affected by the product.
E.I. Du Pont de Nemours & Co. v. Dillaha, 280 Ark. 477, 480 (1983). The warranty of
merchantability generally promises that “the goods will conform to the ordinary standards
and are of average grade, quality, and value of like goods which are generally sold in the
stream of commerce.” Rynders v. E.I. Du Pont De Nemours & Co., 21 F.3d 835, 841 (8th
Cir. 1994) (citing Alphonse M. Squillante & John R. Fonseca, Williston on Sales § 18–5 at
67–68 (4th ed. 1974 and 1993 supplement) and U.C.C. § 2-314 Comment 2 (1990) (goods
“must be of a quality comparable to that generally acceptable in that line of trade”)).

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Gabriele argues that the products at issue violate the implied warranty of
merchantability because the products are illegal, misbranded, and economically worthless.
However, Gabriele has not alleged that the products lack even the most basic degree of
fitness for ordinary use, such as the ability to be consumed. His implied warranty claim
therefore fails, and it is dismissed without prejudice.
E. Breach of Express Warranty
Gabriele alleges that ConAgra's product labels constitute express warranties that
became part of the basis of his bargain with ConAgra, such that ConAgra's failure to
deliver an “all natural” product constituted a breach of warranty. “Any affirmation of fact
or promise made by the seller to the buyer which relates to the goods and becomes part
of the basis of the bargain creates an express warranty that the goods shall conform to the
affirmation or promise.” Ciba-Geigy Corp. v. Alter, 309 Ark. 426, 447 (1992) (citing Ark.
Code Ann. § 4-2-313(1)(a)).
ConAgra’s statements that the tomato products are “100% Natural” and “free of
artificial ingredients” are affirmative claims that Gabriele maintains are false. The Court
finds that Gabriele has alleged sufficient facts to make out a claim for breach of express
warranty.
F. Negligence
ConAgra also argues that Gabriele failed to state a claim for negligence. Gabriele
alleges that ConAgra failed to lawfully label its products and disclose material facts in direct
violation of Arkansas statutes, thus constituting negligence per se. To establish a claim
for negligence under Arkansas law, a plaintiff must demonstrate that: (1) a duty of care was

15

owed; (2) the defendant breached that duty of care; and (3) the breach was the proximate
cause of the plaintiff's injuries. Yanner Co., Ltd. v. Slater, 2012 Ark. 36 (2012) (internal
citations omitted). “To constitute negligence, an act must be one from which a reasonably
careful person would foresee such an appreciable risk of harm to others as to cause him
not to do the act, or to do it in a more careful manner.” Wallace v. Broyles, 331 Ark. 58,
67 (1998) (citing AMI Civil 3rd 301).
Because it is unclear at this juncture whether the labels in question violate the
labeling regulations prescribed by the AFDCA, Gabriele has sufficiently alleged that
ConAgra breached a duty of care, which was a proximate cause of his alleged damaegs,
and therefore his negligence claim survives the Motion for Judgment on the Pleadings.
G. Whether Gabriele May Represent the Class for Products He Did Not Purchase
ConAgra contends that Gabriele lacks Article III standing to bring claims related to
products he never purchased, consumed, or possessed. Gabriele counters that he has
standing to assert claims for unnamed class members based on products he did not
purchase so long as the products and alleged misrepresentations are substantially similar.
Those who seek to invoke the power of the federal courts “must allege some
threatened or actual injury resulting from the putatively illegal action before a federal court
may assume jurisdiction.” O'Shea v. Littleton, 414 U.S. 488, 493 (1974). Article III
requires “an injury [to] be concrete, particularized, and actual or imminent.” Wallace v.
ConAgra Foods, Inc., 747 F.3d 1025, 1030 (8th Cir. 2014). In a class action, the plaintiff
seeking to represent a class must establish that he, personally, has standing to bring the

16

cause of action. If the plaintiff cannot maintain the action on his own behalf, he may not
seek such relief on behalf of the class. O'Shea, 414 U.S. at 494.
ConAgra does not allege that Gabriele lacks standing to pursue claims for products
he did purchase. The relevant question thus becomes whether Gabriele can represent
putative class members as to similar products that he did not purchase. ConAgra correctly
notes that several federal courts have dismissed consumer protection claims in class
action complaints based upon products the class representative did not purchase. See,
e.g., Garcia v. Kashi Co., 43 F.Supp.3d 1359, 1393 (S.D. Fla. Sept. 5, 2014) (holding a
named plaintiff in a consumer class action lacked standing to raise claims related to
products he did not purchase); Toback v. GNC Holdings, Inc., 2013 WL 5206103, at *5
(S.D. Fla. Sept. 13, 2013) (same); Pearson v. Target Corp., 2012 WL 7761986 (N.D. Ill.
Nov. 9, 2012) (same). However, other federal courts have held that whether a class
representative has standing to maintain a consumer class action relating to an entire
product line, despite having only purchased a subset of those products, is a question more
appropriate for resolution at the class-certification stage. See, e.g., In re Frito–Lay N. Am.,
Inc. 2013 WL 4647512 (E.D.N.Y. Aug. 29, 2013): Cardenas v. NBTY, Inc., 870 F.Supp.2d
984, 991–92 (E.D.Cal. May 4, 2012).
In a putative class action, “a plaintiff has class standing if he plausibly alleges (1)
that he personally has suffered some actual . . . injury as a result of the putatively illegal
conduct of the defendant, thus satisfying Article III standing requirements, and (2) that such
conduct implicates the same set of concerns as the conduct alleged to have caused injury
to other members of the putative class by the same defendants.” NECA–IBEW Health &

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