Lam v. General Mills, Inc.

Filing 47

Order by Hon. Samuel Conti granting in part and denying in part 33 Motion to Dismiss.(sclc1, COURT STAFF) (Filed on 5/10/2012)

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1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 United States District Court For the Northern District of California 9 ANNIE LAM, on behalf of herself, and all others similarly situated, 10 ) ) ) ) ) ) ) ) ) ) ) ) Plaintiff, 11 v. 12 GENERAL MILLS, INC., 13 Defendant. 14 15 I. Case No. 11-5056-SC ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS INTRODUCTION Plaintiff Annie Lam ("Lam") brings this putative class action 16 17 against Defendant General Mills, Inc. ("General Mills") for 18 allegedly misleading consumers about the nutritional qualities of 19 its fruit snacks, specifically Fruit Roll-Ups, Fruit by the Foot, 20 and other, unidentified "similar products." 21 44. 22 Rule of Civil Procedure 12(b)(6) for failure to state a claim. 23 No. 33 ("MTD"). 24 ("Opp'n"), 45 ("Reply"). 25 finds the matter suitable for resolution without oral argument. 26 detailed below, the Court GRANTS in part and DENIES in part General 27 Mills's motion to dismiss. 28 /// ECF No. 27 ("FAC") ¶ General Mills now moves to dismiss the action under Federal The motion is fully briefed. ECF ECF Nos. 44 Having reviewed the papers, the Court As 1 II. 2 BACKGROUND As it must on a Rule 12(b)(6) motion to dismiss, the Court 3 takes all well-pleaded facts in Lam's First Amended Complaint 4 ("FAC"), the operative pleading, as true. 5 Fortune 500 company primarily concerned with food products and the 6 marketing of many well-known brands, such as Betty Crocker. 7 14. 8 products. 9 Fruit by the Foot as well as other similar products" (the "Fruit United States District Court FAC ¶ The General Mills portfolio includes more than one hundred Id. Of these products, Lam targets "Fruit Roll-Ups and 10 For the Northern District of California General Mills is a Snacks"). 11 these "other similar products" might be. 12 Id. ¶ 1. The FAC does not specifically identify what The Court takes judicial notice of the packaging of Fruit 13 Roll-Ups and Fruit by the Foot, examples of which were filed with 14 the Court by General Mills. 15 of the Fruit Roll-Ups and Fruit by the Foot packaging contains a 16 fanciful depiction of the products, which resemble fruit leather, 17 along with a statement identifying the product as a "fruit flavored 18 snack" and "strawberry natural flavored." 19 right corner of the front panel states the "calories per serving," 20 and describes the products as "a good source of vitamin C," "low 21 fat," and "gluten free." 22 "made with real fruit," along with a nutrition facts box which 23 lists the products' nutritional content and ingredients in much 24 smaller type. Id. Mand Decl. Ex. A, B.1 Id. Id. The front panel A box in the bottom The side panel contains the label The ingredients of strawberry-flavored Fruit 25 26 27 28 1 Benjamin Mand ("Mand"), the Marketing Manager for General Mills Fruit Flavored Snacks, filed a declaration in support of General Mills's motion, attaching pictures of the Fruit Snacks' packaging. ECF No. 35 ("Mand Decl."). 2 1 Roll-Ups, listed in descending order based on the amount of the 2 particular ingredient contained in the product, are: 3 Pears from Concentrate, Corn Syrup, Dried Corn Syrup, Sugar, Partially Hydrogenated Cottonseed Oil, Citric Acid, Acetylated Monoglycerides, Fruit Pectin, Dextrose, Malic Acid, Vitamin C (ascorbic acid), Natural Flavor, Color (red 40, yellows 5 & 6, blue 1). 4 5 6 Strawberry-flavored Fruit by the Foot contains almost 7 Id. 8 identical ingredients. Id. United States District Court Lam, who purchased the Fruit Snacks for herself and her 10 For the Northern District of California 9 children, alleges that the packaging misleads consumers into 11 believing that the Fruit Snacks are healthful. 12 alleges that General Mills fails to properly disclose that the 13 Fruit Snacks contain partially hydrogenated oil, an artificial 14 substance containing "trans fats" which has been known to cause 15 coronary disease, heart attacks, and death. 16 alleges that the Fruit Snacks contain large amounts of added 17 sugars; contain artificial food dyes; have no significant amounts 18 of real fruit; and have no dietary fiber. 19 that the statement "made with real fruit" incorrectly describes the 20 ingredients, which include "pears from concentrate," rather than 21 the fruit indicated by the name of the product. 22 example, strawberry-flavored Fruit Roll-Ups contain no 23 strawberries. 24 "fruit flavored snacks," "naturally flavored," and "gluten free."2 25 Id. ¶ 17. Id. ¶¶ 22-23. FAC ¶¶ 7, 13. Id. ¶ 7. Id. ¶ 21. Lam Lam also Lam alleges Id. ¶ 22. For Lam also takes aim at the labels: 26 27 28 2 In the FAC, Lam also targets the statements "good source of Vitamin C," "[low number] of calories," and "low fat," id. ¶ 17; however, she withdraws these claims in her opposition brief, Opp'n at 13. 3 1 Lam's FAC asserts claims for: (1) unfair and deceptive acts 2 and practices in violation of Section 1750 of the California 3 Consumer Legal Remedies Act ("CLRA"); (2) unlawful business acts 4 and practices in violation of the California Unfair Competition Law 5 ("UCL"); (3) fraudulent business acts and practices in violation of 6 the California UCL; (4) misleading and deceptive practices in 7 violation of California Business and Professions Code § 17500 et 8 seq., aka California's False Advertising Law ("FAL"); (5) breach of 9 express warranty; (6) breach of implied warranty of United States District Court For the Northern District of California 10 merchantability; and (7) unjust enrichment.3 11 other things, Lam seeks restitution, disgorgement, monetary 12 damages, and an order enjoining General Mills's allegedly unlawful 13 and deceptive acts and practices. Id. ¶¶ 34-83. Among 14 15 III. LEGAL STANDARD 16 A motion to dismiss under Federal Rule of Civil Procedure 17 12(b)(6) "tests the legal sufficiency of a claim." 18 Block, 250 F.3d 729, 732 (9th Cir. 2001). 19 on the lack of a cognizable legal theory or the absence of 20 sufficient facts alleged under a cognizable legal theory." 21 Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 22 1988). 23 should assume their veracity and then determine whether they 24 plausibly give rise to an entitlement to relief." 25 Iqbal, 556 U.S. 662, 664 (2009). 26 must accept as true all of the allegations contained in a complaint Navarro v. "Dismissal can be based "When there are well-pleaded factual allegations, a court Ashcroft v. However, "the tenet that a court 27 28 3 The FAC also asserts a claim for violation of the Minnesota Uniform Deceptive Practices Act, FAC ¶¶ 34-40, but this claim has been withdrawn, Opp'n at 19. 4 1 is inapplicable to legal conclusions. 2 elements of a cause of action, supported by mere conclusory 3 statements, do not suffice." 4 v. Twombly, 550 U.S. 544, 555 (2007)). 5 complaint must be both "sufficiently detailed to give fair notice 6 to the opposing party of the nature of the claim so that the party 7 may effectively defend against it" and "sufficiently plausible" 8 such that "it is not unfair to require the opposing party to be 9 subjected to the expense of discovery." United States District Court For the Northern District of California 10 Threadbare recitals of the Id. at 663. (citing Bell Atl. Corp. The allegations made in a Starr v. Baca, 633 F.3d 1191, 1204 (9th Cir. 2011). 11 12 IV. DISCUSSION 13 A. 14 Lam's claims are predicated on allegedly false and misleading 15 statements that appear on the packaging of the Fruit Snacks, which 16 are defined as "Fruit Roll-Ups and Fruit by the Foot as well as 17 other similar products." 18 these "other similar products" are. 19 portfolio includes more than 100 leading U.S. brands." 20 The company should not have to guess at which of these other brands 21 are the subject of this suit. 22 FAC WITH LEAVE TO AMEND to the extent that it is predicated on 23 statements made concerning "other similar products." 24 amend the FAC to specifically identify the particular General Mills 25 products that she intends to target. Definition of the Fruit Snacks FAC ¶ 1. It is entirely unclear what General Mills's "brand Id. ¶ 14. Accordingly, the Court DISMISSES the Plaintiff may 26 B. 27 General Mills argues that Lam's claims are preempted by the 28 NLEA Preemption Nutrition Labeling and Education Act ("NLEA"), 21 U.S.C. § 343-1, 5 1 to the extent they are predicated on the "fruit flavored" and 2 "naturally flavored" labels which appear on the Fruit Snacks' 3 packaging. 4 preempted because she is seeking to enforce federal regulations 5 prohibiting false and misleading statements. 6 MTD at 6. Lam responds that her claims are not Opp'n at 6. Understanding the United States Food and Drug Administration's dispute. 9 the FDA with the authority to "protect the public health by 10 United States District Court ("FDA") regulatory scheme is central to addressing the parties' 8 For the Northern District of California 7 ensuring that . . . foods are safe, wholesome, sanitary, and 11 properly labeled." 12 the FDCA requires proper labeling of foods containing artificial 13 flavoring. 14 the FDA has promulgated a comprehensive set of regulations 15 pertaining to labeling requirements. The Federal Food, Drug, and Cosmetic Act ("FDCA") vests 21 U.S.C. § 393(b)(2)(A). See 21 U.S.C. § 343(k). Among other things, Pursuant to this authority, See 21 C.F.R. § 101.1 et seq. 16 In 1990, Congress amended the FDCA by enacting the NLEA. 17 NLEA was intended to "establish uniform national standards for the 18 nutritional claims and the required nutrient information displayed 19 on food labels." 20 amended the FDCA by adding a preemption provision, codified at 21 21 U.S.C. § 343-1. 22 addressing certain subjects that are "not identical to" various 23 standards set forth by the FDCA, including the labeling 24 requirements set forth in 21 U.S.C. § 343(k). 25 1(a)(3). 26 means that the State requirement directly or indirectly imposes 27 obligations or contains provisions concerning the composition of 1990 U.S.C.C.A.N. 3336, 3342. The The NLEA also This provision expressly preempts state laws 21 U.S.C. § 343- Under FDA regulations, the term "not identical to . . . 28 6 1 labeling" that are "not imposed or contained in the applicable 2 provision[s]." 3 21 C.F.R. § 100.1(c)(4). General Mills contends that Lam's claims are preempted because 4 statements that the Fruit Snacks are "fruit flavored" and 5 "naturally flavored" are expressly permitted by FDA regulations 6 promulgated under 21 U.S.C. § 343(k). 7 specifically points to 21 C.F.R § 101.22(i), which provides, in 8 relevant part: 9 United States District Court General Mills 14 If the label, labeling, or advertising of a food makes any direct or indirect representations with respect to the primary recognizable flavor(s), by word, vignette, e.g., depiction of a fruit, or other means, or if for any other reason the manufacturer or distributor of a food wishes to designate the type of flavor in the food other than through the statement of ingredients, such flavor shall be considered the characterizing flavor and shall be declared in the following way: 15 . . . 10 For the Northern District of California MTD at 8. 11 12 13 16 17 18 19 20 21 22 23 24 (i) If the food is one that is commonly expected to contain a characterizing food ingredient, e.g., strawberries in "strawberry shortcake", and the food contains natural flavor derived from such ingredient and an amount of characterizing ingredient insufficient to independently characterize the food, or the food contains no such ingredient, the name of the characterizing flavor may be immediately preceded by the word "natural" and shall be immediately followed by the word "flavored" in letters not less than one-half the height of the letters in the name of the characterizing flavor, e.g., "natural strawberry flavored shortcake," or "strawberry flavored shortcake". 25 Thus, the regulation allows a producer to label a product as 26 "natural strawberry flavored," even if that product contains no 27 strawberries. 28 is bound to apply it. While the regulation's logic is troubling, the Court 7 1 Lam argues that her claims are not preempted because she is 2 seeking to enforce the regulatory scheme. 3 which provides that a food is misbranded "[i]f it bears or contains 4 any artificial flavoring, artificial coloring, or chemical 5 preservative, unless it bears labeling stating that fact." 6 at 6 (citing 21 U.S.C. § 343(k)). 7 flavored" and "naturally flavored" labels are false and misleading 8 because the Fruit Snacks are flavored with "unnatural, non-fruit 9 ingredients." United States District Court For the Northern District of California 10 Lam points to the FDCA, Opp'n Lam also argues that the "fruit Id. Lam's arguments are unavailing. The crux of the FAC is that 11 the Fruit Snacks' labeling is deceptive because the products' 12 ingredients, not their flavors, are unnatural. 13 7, 23. 14 as "fruit flavored" or "naturally flavored," even if it does not 15 contain fruit or natural ingredients. 16 "contains natural flavor" which is "derived from" the 17 "characterizing food ingredient," it will not run afoul of the 18 regulation. 19 21 C.F.R. § 1022(i) or 21 U.S.C. § 343(k) because their flavors are 20 artificial, then she must allege as much in her complaint. 21 not. 22 preempted by the FDCA.4 23 24 See, e.g., FAC ¶¶ However, under 21 C.F.R § 1022(i), a product may be labeled So long as that product If Lam means to assert that the Fruit Snacks violate She has Accordingly, her claims concerning the flavoring labels are Lam points to a number of cases concerning the use of the labels "natural" and "all natural" to describe a product's 25 26 27 28 4 In her opposition brief, Lam argues that the Fruit Snacks are flavored with "corn syrup, maltodextrin, and partially hydrogenated oil." Opp'n at 6. It is unclear whether this list is exhaustive. In any event, the FAC does not specifically allege that the Fruit Snacks are artificially flavored, and Rule 8 requires that Lam set forth her allegations in the pleadings, not her briefing. 8 Opp'n at 7-10.5 1 ingredients. 2 they deal with the labeling of a product's ingredients, not the 3 labeling of its flavors. 4 which is related to the Fruit Snacks flavor -- is expressly 5 permitted by FDA regulations. This was not the case in the 6 authority relied upon by Lam. See Holk, 575 F.3d at 340 ("[T]he 7 FDA declined to adopt a formal definition of the term 'natural' . . 8 . '[b]ecause of resource limitations and other agency 9 priorities'"); Hitt, 2009 WL 449190, at *4 (same); Lockwood, 597 F. United States District Court For the Northern District of California 10 These cases are inapposite since Here, the labeling challenged by Lam -- Supp. 2d at 1033-34 (same). 11 For these reasons, the Court finds that Lam's claims are 12 preempted to the extent they are predicated on the "naturally 13 flavored" and "fruit flavored" labels. 14 C. 15 The Court next addresses whether Lam's allegations regarding 16 the labels "gluten free" and "made with real fruit" can support a 17 claim under the UCL, CLRA, or FAL. 18 "unlawful, unfair[,] or fraudulent business act or practice." 19 Bus. & Prof. Code § 17200. 20 competition and unfair or deceptive acts or practices." 21 Code § 1770(a). 22 enter into any obligation through the dissemination of "untrue or 23 misleading" statements. 24 to state a claim under the UCL, CLRA, or FAL, Lam must allege that 25 the Fruit Snacks' labels are likely to deceive a reasonable Lam's UCL, CLRA, and FAL Claims The UCL prohibits any Cal. The CLRA prohibits "unfair methods of Cal. Civ. The FAL makes it unlawful to induce the public to Cal. Bus. & Prof. Code § 17500. In order 26 27 28 5 Citing Holk v. Snapple Beverage Corp., 575 F.3d 329 (3rd Cir. 2009); Hitt v. Arizona Beverage Co., No. 08 CV 809 WQH, 2009 WL 449190 (S.D. Cal. Feb. 4, 2009); Lockwood v. Conagra Foods, Inc., 597 F. Supp. 2d 1028 (N.D. Cal. 2009). 9 1995). 3 false, but also advertising which[,] although true, is either 4 actually misleading or which has a capacity, likelihood or tendency 5 to deceive or confuse the public.'" 6 4th 939, 951 (Cal. 2002) (quoting Leoni v. State Bar, 39 Cal. 3d 7 609, 626 (Cal. 1985)). 8 will usually be a question of fact not appropriate for decision on 9 demurrer." 10 United States District Court consumer. 2 For the Northern District of California 1 Cir. 2008). 11 See Freeman v. Time, Inc., 68 F.3d 285, 289 (9th Cir. "[T]hese laws prohibit 'not only advertising which is Kasky v. Nike, Inc., 27 Cal. "[W]hether a business practice is deceptive Williams v. Gerber Prods. Co., 552, F.3d 934, 938 (9th The Court finds that the statement "gluten free" cannot 12 support Plaintiff's claims under the UCL, CLRA, or FAL. 13 statement is objectively true and communicates nothing more than 14 the absence of gluten in the product -- a message used to convey 15 the suitability of the Fruit Snacks to consumers with celiac 16 disease and others who may wish to avoid gluten. 17 consumer is unlikely to interpret the statement "gluten free" to 18 mean that the Fruit Snacks contain no partially hydrogenated oils, 19 low amounts of sugar or corn-syrup, or that the Fruit Snacks are 20 otherwise healthful. 21 The A reasonable The Court reaches a different conclusion with respect to the 22 statement "made with real fruit." 23 "incorrectly describes the ingredients, which include partially 24 hydrogenated oil, sugars in quantities amounting to approximately 25 half of each serving, and 'pears from concentrate' rather than the 26 fruit indicated by the name of the Product." 27 argues that the challenged statements, along with the depiction of 28 imitation fruit leather on the packaging, are likely to deceive 10 Lam alleges that the statement FAC ¶ 22. Lam also 1 consumers into thinking the Fruit Snacks are healthful, natural, 2 pressed-and-dried fruit products, when, in fact, they are an 3 amalgamation of artificial, non-fruit ingredients. 4 General Mills argues that the statement "made with real fruit" is 5 objectively true and that a reasonable consumer would not interpret 6 the statement to mean that certain fruits were present in a 7 particular quantity or that a specific fruit was present in the 8 product. 9 Opp'n at 15. MTD at 16-17. The Court agrees with Lam. A reasonable consumer might make United States District Court For the Northern District of California 10 certain assumptions about the type and quantity of fruit in the 11 Fruit Snacks based on the statement "made with real fruit," along 12 with other statements prominently featured on the products' 13 packaging. 14 appears in large and colorful letters on the side panel of the 15 packaging of strawberry Fruit Roll-Ups. 16 "strawberry" appears in large letters on the front, back, top, and 17 bottom panels. 18 reasonable consumer to believe that product is made with real 19 strawberries, not pears from concentrate. 20 Ups" and "Fruit by the Foot," along with the fanciful depiction of 21 the products, which resemble fruit leather, may lead to further 22 confusion about the Fruit Snacks' ingredients. 23 prominent aspects of the packaging, a reasonable consumer might be 24 surprised to learn that a substantial portion of each serving of 25 the Fruit Snacks consists of partially hydrogenated oil and sugars. 26 It is true that General Mills lists the ingredients of the Fruit 27 Snacks in small print on the bottom of the side panel. 28 the pleading stage, the Court cannot conclude that a reasonable For example, the statement "made with real fruit" Additionally, the word Taken together, these statements might lead a 11 The names "Fruit Roll- After seeing these However, at 1 consumer should be expected to look beyond "made with real fruit" 2 in order to discover the truth in the small print. 3 The Court's conclusion is supported by the Ninth Circuit's 4 opinion in Gerber. 5 juice snacks for toddlers were made with "fruit juice and other all 6 natural ingredients." 7 found that these statements "could easily be interpreted by 8 consumers as a claim that all the ingredients in the product were 9 natural, which appears to be false." In that case, Gerber had stated that its fruit Gerber, 552 F.3d at 939. Id. The Ninth Circuit The products' packaging United States District Court For the Northern District of California 10 also juxtaposed the words "Fruit Juice" with images of fruits such 11 as oranges, peaches, strawberries, and cherries, even though the 12 product contained no fruit juice from any of the fruits pictured. 13 Id. at 936. 14 reasonable consumer would not be deceived by such labeling because 15 the packaging specifically identified the products' ingredients. 16 Id. at 939. 17 requires an ingredient list so that manufacturers can mislead 18 consumers and then rely on the ingredient list to correct those 19 misinterpretations and provide a shield for liability for the 20 deception." 21 list cannot be used to correct the message that reasonable 22 consumers may take from the rest of the packaging: that the Fruit 23 Snacks are made with a particular type and quantity of fruit.6 24 6 25 26 27 28 The Ninth Circuit rejected the notion that a The court explained: "We do not think that the FDA Id. Likewise, here, the Fruit Snacks' ingredients General Mills argues that Gerber is distinguishable since the case also involved nutrition claims that are not present here. MTD at 18-19. Specifically, the Ninth Circuit noted that "the claim that Snacks is 'just one of a variety of nutritious Gerber Graduates foods and juices that have been specifically designed to help toddlers grow up strong and healthy' adds to the potential deception." 552 F.3d at 939. While there is no indication that General Mills has expressly represented that the Fruit Snacks are "nutritious," that is hardly dispositive. As noted above, Gerber involved a number of other potentially deceptive statements. 12 1 General Mills relies on two district court opinions decided 2 before Gerber, which dismissed UCL, CLRA, and FAL claims concerning 3 the labeling of food and beverage products. 4 (citing McKinniss v. Sunny Delight Beverages Co., CV0702034-RGKJCX 5 ("Sunny Delight"), 2007 WL 4766525 (C.D. Cal. Sept. 4, 2007); 6 McKinniss v. Gen. Mills, Inc., CV 07-2521GAFFMOX ("McKinnis"), 2007 7 WL 4762172 (C.D. Cal. Sept. 18, 2007)). 8 held that a reasonable consumer should be expected to peruse the 9 FDA-mandated ingredients list to determine the true contents of a See MTD at 16-17 In both cases, the courts United States District Court For the Northern District of California 10 product. 11 2007 WL 4762172, at *3. 12 opinions to the extent that they are inconsistent with Gerber. 13 General Mills also cites to a number of post-Gerber cases See Sunny Delight, 2007 WL 4766525, at *4; McKinniss, The Court declines to follow these MTD at 19.7 14 involving sugary cereals or ice cream. 15 these cases did the defendants claim that their products were made 16 with real fruit. 17 which involved the cereal "Froot Loops," the court found that "the 18 fanciful use of a nonsensical word ['Froot'] cannot reasonably be 19 interpreted to imply that the Product contains or is made from 20 actual fruit." 21 that no reasonable consumer could mistake "cereal balls with a 22 rough, textured surface in hues of deep purple, teal, chartreuse 23 green and bright red" for natural fruit and noted that the 24 defendant did not represent that cereal was made with real fruit. As such, they are distinguishable. 2009 WL 1439086, at *3. In none of In Videtto, In Werbel, the court found 25 26 27 28 7 Citing Videtto v. Kellogg USA, 2:08CV01324-MCEDAD, 2009 WL 1439086 (E.D. Cal. May 21, 2009); Werbel v. Pepsico, Inc., C 0904456 SBA, 2010 WL 2673860 (N.D. Cal. July 2, 2010); Carrea v. Dreyer's Grand Ice Cream, Inc., C 10-01044 JSW, 2011 WL 159380 (N.D. Cal. Jan. 10, 2011); Dvora v. Gen. Mills, Inc., CV 11-1074-GW PLAX, 2011 WL 1897349 (C.D. Cal. May 16, 2011) 13 1 2010 WL 2673860, at *3-4. 2 reasonable consumer would be deceived into thinking that ice cream 3 was wholesome or otherwise healthy by labels such as "original" or 4 "classic." 5 found that no reasonable consumer would believe that the cereal at 6 issue contained real fruit when "there are no pictures of any 7 fruits on the packaging, and there is no statement that the cereal 8 was made with actual fruit." 9 In Carrea, the court found that no 2011 WL 159380, at *5. Finally, in Dvora, the court 2011 WL 1897349, at *7. Accordingly, the Court DENIES General Mills's motion to United States District Court For the Northern District of California 10 dismiss with respect to Lam's UCL, CLRA, and FAL claims. 11 claims may proceed to the extent they are predicated on the 12 statement "made with real fruit." These 13 D. 14 For the reasons set forth below, the Court finds that Lam has 15 failed to state a claim for breach of express or implied warranty. 16 "Any description of the goods which is made part of the basis Lam's Claims for Breach of Express and Implied Warranty 17 of the bargain creates an express warranty that the goods shall 18 conform to the description." 19 plead a cause of action for breach of express warranty, a plaintiff 20 must "allege the exact terms of the warranty, plaintiff's 21 reasonable reliance thereon, and a breach of that warranty which 22 proximately causes plaintiff['s] injury." 23 Nutrition Corp., 185 Cal. App. 3d 135, 142 (Cal. Ct. App. 1986). 24 plaintiff may satisfy these requirements where she shows that the 25 defendant "utilized the advertising media to urge the use and 26 application of [the subject product] and expressly warranted to the 27 general public including plaintiff herein, that said product was Cal. Comm. Code § 2313(1)(b). 28 14 To Williams v. Beechnut A 1 effective, proper and safe for its intended use." 2 quotation marks omitted). Id. (internal 3 As to implied warranties, the California Commercial Code 4 provides that "a warranty that the goods shall be merchantable is 5 implied in a contract for their sale." 6 To be merchantable, a product must "[c]onform to the promises or 7 affirmations made on the container or label and must be fit for the 8 ordinary purposes for which such goods are used." 9 Zogarts, 14 Cal. 3d 104, 117-18 (1975) (internal quotations and United States District Court For the Northern District of California 10 Cal. Comm. Code § 2314(1). Hauter v. citations omitted). 11 Lam's claim for breach of express warranty is based on the 12 allegation that General Mills warranted that its "Fruit Snacks were 13 healthful and had particular healthful characteristics." 14 Likewise, Lam's claim for breach of implied warranty is predicated 15 on the allegation that the Fruit Snacks were "promoted, marketed, 16 advertised, packaged, and labeled as healthful and having 17 particular health characteristics." 18 to point to any affirmative statement, whether it be in General 19 Mills's advertising or the Fruit Snacks' packaging, indicating that 20 the Fruit Snacks are healthful. 21 Fruit Snacks' packaging contains a number of statements concerning 22 the Fruit Snacks' ingredients and flavoring. 23 challenge the truth of any of these statements. 24 allege that the Fruit Snacks are not proper or safe for consumption 25 as food. 26 27 Id. ¶ 78. FAC ¶ 74. However, Lam fails As set forth more fully above, the Lam does not Nor does she Accordingly, the Court DISMISSES Lam's claims for breach of express and implied warranty. 28 15 1 V. CONCLUSION 2 For the reasons set forth above, the Court GRANTS in part and 3 DENIES in part General Mills's motion to dismiss Lam's FAC. 4 Specifically: 5 • 6 7 The FAC is DISMISSED WITH LEAVE TO AMEND to the extent that it is predicated on unidentified General Mills products. • The FAC is DISMISSED WITH PREJUDICE to the extent that it is 8 predicated on statements that the Fruit Snacks are "fruit 9 flavored," "naturally flavored," and "gluten free." United States District Court For the Northern District of California 10 • 11 12 13 Lam's claims for breach of express and implied warranty are DISMISSED WITH PREJUDICE. • Lam's claims remain undisturbed in all other respects. Lam may amend her complaint within thirty (30) days of this Order. 14 15 IT IS SO ORDERED. 16 17 18 Dated: May 10, 2012 UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28 16

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