Wilson v. Frito-Lay North America, Inc. et al

Filing 46

ORDER by Judge Samuel Conti granting in part and denying in part 27 Defendants' Motion to Dismiss (sclc2, COURT STAFF) (Filed on 4/1/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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United States District Court

For the Northern District of California

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MARKUS WILSON and DOUG CAMPEN,
individually and on behalf of
all others similarly situated,
Plaintiffs,

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v.

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FRITO-LAY NORTH AMERICA, INC.
and PEPSICO, INC.,

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Defendants.

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Case No. 12-1586 SC
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS'
MOTION TO DISMISS PLAINTIFFS'
FIRST AMENDED COMPLAINT

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I.

INTRODUCTION

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Now before the Court is Defendants Frito-Lay North America,

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Inc. ("Frito-Lay") and PepsiCo, Inc.'s ("PepsiCo") (collectively

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"Defendants") motion to dismiss Plaintiffs Markus Wilson and Doug

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Campen's ("Plaintiffs") first amended complaint.

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("FAC"), 27 ("MTD").

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("Opp'n"),1 38 ("Reply"), and suitable for decision without oral

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argument, Civ. L.R. 7-1(b).

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Court GRANTS in part and DENIES in part Defendants' motion.

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1

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ECF Nos. 18

The motion is fully briefed, ECF Nos. 34

For the reasons explained below, the

Plaintiffs are instructed to review Civil Local Rule 3-4(c)(2),
as the Court will strike portions of future filings that do not
adhere to length limits or type size restrictions.

1 II.

BACKGROUND

2

The following facts are taken from Plaintiffs' FAC.

3

Defendants are producers of retail food products.

4

Plaintiffs are two California consumers who purchased a variety of

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Defendants' food products between March 29, 2012 and March 29, 2008

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(the "Class Period").

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"Lay's Classic Potato Chips" and Plaintiff Campen bought "Lay's

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Classic Potato Chips, Lay's Honey Barbeque Potato Chips, Lay's

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Kettle Cooked Mesquite BBQ Potato Chips, Cheetos Puffs, and Fritos

Id. ¶¶ 16-17.

FAC ¶ 19.

Plaintiff Wilson bought

United States District Court

For the Northern District of California

10

Original Corn Chips" (collectively the "Named Products").

Id. ¶

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17.

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Defendants during the Class Period, but they do not specify what

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these other products were.

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themselves and others similarly situated, filed this putative class

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action against Defendants, alleging that Defendants' website,

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advertisements, and products contain deceptive and misleading

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labeling information, in violation of state and federal law.

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¶¶ 1-15.

Plaintiffs allege that they bought other food products from

See id.

Plaintiffs, on behalf of

Id.

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The crucial factual background in this case concerns the

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specific labeling practices that Plaintiffs claim are misleading.2

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The only labels actually put before the Court -- described further

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below -- are two versions of a Lay's Classic Potato Chips bag and

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labels for the Named Products as they appeared at the time

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2

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26
27
28

Defendants filed a Request for Judicial Notice in this matter,
per Federal Rule of Evidence 201. ECF No. 28 ("Def.'s RJN"). The
Court GRANTS Defendants' request as to Exhibits B-F, per the
incorporation by reference doctrine, and DENIES Defendants' request
as to Exhibits A and G, because those exhibits are irrelevant per
Federal Rule of Evidence 402. The Court notes that Defendants' RJN
shows only the labels as they appeared at the time of Defendants'
RJN's filing, not the labels as they appeared to Plaintiffs before
or at the time of their filing the FAC.
2

1

Defendants filed their RJN.

Plaintiffs' allegations that

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Defendants' labels are misleading and deceptive are based on

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Defendants' labeling and advertising of their food products (1) as

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being "All Natural" despite containing artificial or unnatural

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ingredients, flavoring, coloring, or preservatives; (2) as having

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"0 Grams Trans Fat" content despite having more than thirteen grams

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of fat per fifty grams of food product; (3) as having "No MSG"

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despite containing MSG; (4) as being "low sodium" despite having

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more than 140 milligrams of sodium per serving size and per fifty

United States District Court

For the Northern District of California

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grams of food product; (5) as being "healthy despite containing

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disqualifying nutrient levels"; and (6) as including assertions

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about other unauthorized health claims.

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See id. ¶ 2.

Plaintiffs assert that they "care about the nutritional

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content of food and seek to maintain a healthy diet."

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They also allege that they bought Defendants' Named Products and

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other products throughout the Class Period, that they relied on

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Defendants' labeling and other statements in making their

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purchases, and that they would not have purchased Defendants'

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products had they known the truth about them.

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150-157.

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Id. ¶ 149.

See, e.g., id. ¶¶

Based on these facts, Plaintiffs assert nine causes of action

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against Defendants: (1-3) violations of the "unlawful," "unfair,"

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and "fraudulent" prongs of California's Unfair Competition Law's

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("UCL"), Cal. Bus. & Prof. Code § 17200, et seq.; (4-5) violations

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of the "misleading and deceptive" and "untrue" prongs of

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California's False Advertising Law ("FAL"), Cal. Bus. & Prof. Code

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§ 17500, et seq.; (6) violations of California's Consumers Legal

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Remedies Act, Cal. Civ. Code § 1750, et seq.; (7) restitution based

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on unjust enrichment or quasi-contract; (8) breach of warranty

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under California's Song-Beverly Act, Cal. Civ. Code § 1790, et

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seq.; and (9) breach of warranty under the federal Magnuson-Moss

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Act, 15 U.S.C. § 2301, et seq.

5
6 III.

LEGAL STANDARD

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A.

A motion to dismiss under Federal Rule of Civil Procedure

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9

Motions to Dismiss

12(b)(6) "tests the legal sufficiency of a claim."

Navarro v.

United States District Court

For the Northern District of California

10

Block, 250 F.3d 729, 732 (9th Cir. 2001).

11

on the lack of a cognizable legal theory or the absence of

12

sufficient facts alleged under a cognizable legal theory."

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Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.

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1988).

15

should assume their veracity and then determine whether they

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plausibly give rise to an entitlement to relief."

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Iqbal, 556 U.S. 662, 679 (2009).

18

must accept as true all of the allegations contained in a complaint

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is inapplicable to legal conclusions.

20

elements of a cause of action, supported by mere conclusory

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statements, do not suffice."

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Twombly, 550 U.S. 544, 555 (2007)).

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generally "limited to the complaint, materials incorporated into

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the complaint by reference, and matters of which the court may take

25

judicial notice."

26

540 F.3d 1049, 1061 (9th Cir. 2008) (citing Tellabs, Inc. v. Makor

27

Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)).

28

"Dismissal can be based

"When there are well-pleaded factual allegations, a court

Ashcroft v.

However, "the tenet that a court

Threadbare recitals of the

Id. (citing Bell Atl. Corp. v.
The court's review is

Metzler Inv. GMBH v. Corinthian Colls., Inc.,

When a motion to dismiss is granted, a district court must

4

1

decide whether to grant leave to amend.

2

Circuit has a liberal policy favoring amendments and, thus, leave

3

to amend should be freely granted.

4

Freight System, Inc., 957 F.2d 655, 658 (9th Cir. 1992).

5

a court does not need to grant leave to amend in cases where the

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court determines that permitting a plaintiff to amend would be an

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exercise in futility.

8

Winery, 829 F.2d 729, 738 (9th Cir. 1987) ("Denial of leave to

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amend is not an abuse of discretion where the pleadings before the

United States District Court

For the Northern District of California

10

Generally, the Ninth

See, e.g., DeSoto v. Yellow
However,

See, e.g., Rutman Wine Co. v. E. & J. Gallo

court demonstrate that further amendment would be futile.").

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B.

Rule 9(b)

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Claims sounding in fraud are subject to the heightened

13

pleading requirements of Federal Rule of Civil Procedure 9(b),

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which requires that a plaintiff alleging fraud "must state with

15

particularity the circumstances constituting fraud."

See Kearns v.

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Ford Motor Co., 567 F. 3d 1120, 1124 (9th Cir. 2009).

"To satisfy

17

Rule 9(b), a pleading must identify the who, what, when, where, and

18

how of the misconduct charged, as well as what is false or

19

misleading about [the purportedly fraudulent] statement, and why it

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is false."

21

Inc., 637 F.3d 1047, 1055 (9th Cir. 2011) (internal quotation marks

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and citations omitted).

United States ex rel Cafasso v. Gen. Dynamics C4 Sys.,

23
24 IV.

DISCUSSION

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Defendants make six arguments about why Plaintiffs' FAC should

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be dismissed: (1) Plaintiffs did not sufficiently plead why PepsiCo

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can be held liable for Frito-Lay's actions; (2) Plaintiffs lack

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standing as to products they do not claim to have purchased; (3)

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1

Plaintiffs fail to state claims for all of their causes of action

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because no reasonable consumer is likely to be harmed or deceived

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by the labels at issue, and because Plaintiffs' claims fail to meet

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Rule 9(b)'s heightened pleading standard; (4) Plaintiffs' unjust

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enrichment and quasi-contract claims fail as a matter of law; (5)

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Plaintiffs fail to state a claim under the Magnuson-Moss Warranty

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Act ("MMWA"); and (6) Plaintiffs fail to state a claim under the

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Song-Beverly Consumer Warranty Act ("Song-Beverly").

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MTD.

See generally

United States District Court

For the Northern District of California

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A.

The Statutory Framework

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The Food, Drug, and Cosmetic Act ("FDCA"), 21 U.S.C. § 301 et

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seq., as amended by the Nutrition Labeling and Education Act of

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1990 ("NLEA"), 21 U.S.C. § 343(r), et seq., is the operative

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statute in this matter.

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The many subsections of 21 U.S.C. § 343 establish the

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conditions under which food is considered "misbranded."

Generally,

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food is misbranded under 21 U.S.C. § 343(a)(1) if "its labeling is

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false or misleading in any particular."

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regulate the information that must be included in all packed

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products' "nutrition box," as well as all other nutrient content

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claims that appear elsewhere on the label.

Sections 343(q) and (r)

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Section 343(q) governs information that must be disclosed

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about certain nutrients in food products -- principally in the

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nutrition box area.

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health-related claims" about food products made anywhere on their

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labels.

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content or health information that a manufacturer includes on the

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food label or packaging.

Section 343(r) discusses "nutrition levels and

It governs all voluntary statements about nutrition

The Food and Drug Administration ("FDA")

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calories"), "implied" (e.g., "high in oat bran"), and "health

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claims," which "characteriz[e] the relationship of any substance to

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a disease or health-related condition."

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101.14; see also Chacanaca v. Quaker Oats Co., 752 F. Supp. 2d

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1111, 1116-17 (N.D. Cal. 2010) (describing the statutory scheme).

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Section 343(r) clarifies that it does not govern nutrition content

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claims made under Section 343(q) (i.e., inside the nutrition box),

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though an accompanying regulation, 21 C.F.R. § 101.13, clarifies

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United States District Court

has classified these nutrient claims as "express" (e.g., "100

2

For the Northern District of California

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that "[i]f such information is declared elsewhere on the label or

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in labeling, it is a nutrition content claim and is subject to the

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requirements for nutrient content claims [under Section 343(r)]."

13

See Chacanaca, 752 F. Supp. 2d at 1117.

21 C.F.R. §§ 101.13,

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B.

Plaintiffs' Claims Against PepsiCo

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Plaintiffs name PepsiCo as a defendant, but they never explain

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exactly how PepsiCo, as Frito-Lay's parent company, is liable for

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Frito-Lay's activity.

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Court to take judicial notice of a website purported to be

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published by PepsiCo, on which PepsiCo allegedly directs consumers

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to Frito-Lay's website.

See ECF No. 35 (Pl.'s Response to Def.'s

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RJN) at 1-2, Exs. 2-3.

Plaintiffs also claim in their opposition

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brief that they alleged PepsiCo to have jointly and unlawfully

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labeled the misbranded products.

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To cure this problem, Plaintiffs ask the

Opp'n at 4-5 (citing FAC ¶¶ 2-4).

The Court DENIES Plaintiffs' request for judicial notice of

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these documents, made in response to Defendants' RJN, as an

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impermissible attempt to amend the pleadings.

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plead anything about these particular websites in their FAC.

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Rather, they now attempt to supply new facts in their opposition

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Plaintiffs did not

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brief and their response to Defendants' RJN.

The Court declines to

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allow this practice.

3

Corrections, 151 F.3d 1194, 1197 n.1 (9th Cir. 1998) ("[A] court

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may not look beyond the complaint to . . . a memorandum in

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opposition to a defendant's motion to dismiss.").

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Court takes judicial notice of the exhibits attached to Plaintiff's

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opposition, which Defendants did not oppose, since those documents

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-- FDA complaint letters, part of an FDA brochure, and a Lay's

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Classic Potato Chips label -- are all either part of the public

See, e.g., Schneider v. Cal. Dep't of

United States District Court

For the Northern District of California

10

record or incorporated by reference into the FAC.

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However, the

1-7.

12

See Opp'n Exs.

Plaintiffs' actual allegations are plainly that "Defendants"

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made false claims about their products in a SEC filing and on an

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unidentified website.

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above "threadbare recitals" of legal conclusions even when the

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Court construes them most liberally.

17

The Court finds these pleadings insufficient to show that PepsiCo

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is properly named as a defendant in this case.

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against PepsiCo are DISMISSED with leave to amend.

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amend to plead how PepsiCo is responsible for the allegedly

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actionable conduct at issue here.

FAC ¶¶ 2-4.

These allegations fail to rise

See Iqbal, 556 U.S. at 678.

Plaintiffs' claims
Plaintiffs may

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C.

Standing

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Plaintiffs plead that they bought five different Frito-Lay

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products, but their claims appear to be based on a much wider

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variety of products that they do not specify in their complaint,

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including "other varieties of potato chips, corn-based snacks like

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Cheetos and Fritos, and other types of salty snacks."

28

see also FAC ¶ 1 (challenging "potato chips and other snack food

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Opp'n at 4;

1

products . . . sold by [Frito-Lay]").

Defendants argue that

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"Plaintiffs' standing arguments sweep far too broadly," because

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Plaintiffs allege that they have standing to bring their case based

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on an array of products that they do not even name.

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At this point, however, it is unnecessary for the Court to address

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the issue of standing for these products: as discussed infra,

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Plaintiffs' claims as to the unidentified products fail for lack of

8

specificity under Rule 9(b).

9

Inc., -- F. Supp. 2d --, 2012 WL 6569393, at *11 (N.D. Cal. Dec.

Reply at 1-2.

See, e.g., Jones v. Conagra Foods,

United States District Court

For the Northern District of California

10

17, 2012) (dismissing plaintiffs' claims against defendant for

11

failure to meet Rule 9(b)'s specificity standard because plaintiffs

12

did not provide details about "exactly which products they

13

purchased").

14

D.

15

Defendants argue that the entire FAC sounds in fraud and must

Plausibility and Specificity

16

therefore meet the heightened pleading standard of Rule 9(b)

17

because it alleges a continuous course of false, deceptive, and

18

misleading activity.

19

respond that the FAC complies with Rule 9(b) because it is specific

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enough to give defendants notice of their alleged misconduct, and,

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separately, that their unlawful business practices claim under the

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UCL need not comply with Rule 9(b) because it does not sound in

23

fraud.

See Opp'n at 24-25; MTD at 19-20.

Plaintiffs

Opp'n at 24.

24

Regarding Plaintiffs' latter point, the rule is that

25

plaintiffs need not satisfy Rule 9(b) as to the UCL's unlawful

26

prong when the basis of their claim does not sound in fraud.

27

Vess v. Ciba-Geigy Corp., 317 F.3d 1097, 1105-06 (9th Cir. 2003).

28

However, when it does, and especially when a plaintiff alleges a

9

See

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unified course of fraudulent conduct that forms the basis of their

2

UCL claims, plaintiffs must plead the UCL claims with specificity.

3

Id.

4

claims on Defendants' alleged violations of underlying laws by way

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of allegedly fraudulent or deceptive labeling and advertising

6

practices.

7

FAC, including its unlawful business practices claim, sounds in

8

fraud and must meet Rule 9(b)'s heightened pleading standards.

9

Kearns, 567 F.3d at 1125; Vess, 317 F.3d at 1103-04.

In this case, Plaintiffs base their unlawful business practice

See FAC ¶¶ 176-79.

Consequently Plaintiffs' entire

See

It is true

United States District Court

For the Northern District of California

10

that, as discussed below, the actual likelihood of deception in

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UCL, FAL, and CLRA cases is judged by a "reasonable consumer"

12

standard.

13

(9th Cir. 2008); Colucci v. ZonePerfect Nutrition Co., No. 12-2907

14

SC, 2012 WL 6737800, at *7 (N.D. Cal. Dec. 28, 2012).

15

whether a plaintiff even reaches that point at the pleading stage

16

is governed in part by Rules 8 and 9(b).

17

WL 6737800, at *7; Jones, 2012 WL 6569393, at *11.

18

See Williams v. Gerber Prods. Co., 552 F.3d 934, 938-40

However,

See, e.g., Colucci, 2012

Many of Plaintiffs' allegations fail to meet Rule 9(b)'s

19

heightened pleading standard because Plaintiffs simply fail to

20

provide underlying factual details that give Defendant notice and

21

explain to the Court "the who, what, when, where, and how" of the

22

misconduct charged.

23

that Defendants made false and misleading statements about a

24

variety of their products, but at no point in their 53-page, 252-

25

paragraph FAC do Plaintiffs provide details about those products,

26

or about the advertisements and websites they frequently quote to

27

support their claims.

Nor does Plaintiffs' opposition brief

28

clarify these issues.

Plaintiffs simply have not pled which

Vess, 317 F.3d at 1106.

10

Plaintiffs allege

1

products they purchased in a way sufficient for Defendants to be on

2

notice of the products that are actually at issue.

3

WL 6569393, at *11.

4

See Jones, 2012

Further, as to Rule 8, "[t]o survive a motion to dismiss, a

5

complaint must contain sufficient factual matter, accepted as true,

6

to 'state a claim to relief that is plausible on its face,'" Iqbal,

7

556 U.S. at 663 (quoting Twombly, 550 U.S. at 370), and the

8

critical facts must be pled as part of the "short and plain

9

statement of the claim showing that the pleader is entitled to

United States District Court

For the Northern District of California

10

relief," Fed. R. Civ. P. 8.

11

or unnamed products do not rise to this level: given the variation

12

in food labeling even among the Named Products, the Court cannot

13

assume that all of the products at issue are mislabeled even if

14

Plantiffs' pleadings are taken as true.

15

Plaintiffs' claims about unpurchased

Despite Plaintiffs' pleading defects, Defendants gamely

16

address Plaintiffs' claims, supplying the labels toward which

17

Defendants assume Plaintiffs' allegations are addressed.

18

at 7-21; Reply at 5-12; Def.'s RJN Exs. B-F.

19

object to the Court's taking notice of these current labels: they

20

appear to agree that the labels Defendants supply are at least some

21

of the labels at issue in their case.

22

Response to Def.'s RJN) at 1.

23

packaging in Defendants' RJN -- the Named Products' packaging -- is

24

essentially the same packaging that Plaintiffs claim is misleading.

25

As for the one instance in which Plaintiffs argue that there is a

26

material difference in the labels before the Court -- the Lay's

27

Classic Potato Chips labeling and advertisement Plaintiffs include

28

in their FAC at paragraph five, versus different labeling for the

See MTD

Plaintiffs do not

See ECF No. 35 (Pl.'s

The Court therefore assumes that the

11

1

same product included in Defendants' RJN -- the Court's analysis

2

below will address both labels, since Plaintiffs claim that both

3

are misleading.

4

See Opp'n at 7.

Plaintiffs' claims as to the Named Products are undisturbed.

5

Plaintiffs' claims as to all other products, as well as the

6

unidentified advertisements and web pages, are DISMISSED without

7

prejudice for failure to comply with Rules 8 and 9(b).

8

has leave to amend these claims if it can provide details on what

9

the unnamed but allegedly purchased products, advertisements, or

Plaintiff

United States District Court

For the Northern District of California

10

websites were, when they were purchased or viewed, where the

11

allegedly actionable statements appeared, how the statements were

12

misleading, who made the statements, and so forth.

13

E.

Whether Websites Mentioned on Product Labels Constitute
Labeling

14
15

The parties dispute whether statements Defendants make on the

16

www.fritolay.com website can constitute "labeling" of the Named

17

Products under the FDCA.

18

claim that 21 U.S.C. § 321(m) renders the content on the website

19

"labeling," even though none of the website's content actually

20

appears on the labels at issue here, asserting that the FDA has

21

confirmed that "websites are indeed part of a product['s]

22

labeling."

23

point.

24

Opp'n at 19.

See Opp'n at 19; Reply at 11.

Plaintiffs

Plaintiffs cite no authority for this

See id.

Section 321(m) defines "labeling" as "all labels and other

25

written, printed, or graphic matter (1) upon any article or any of

26

its containers or wrappers, or (2) accompanying such article."

27

issue here is whether statements made on the www.fritolay.com

28

website "accompany" the Named Products such that they can be

12

The

1
2

classified as "labeling" under the FDCA.
It is true that statements not actually printed on a label

3

itself can constitute "labeling" for FDCA purposes.

What matters

4

is whether the separate material serves the purpose of labeling,

5

which is to supplement or explain the product.

6

States, 335 U.S. 345, 349-350 (1950) ("One article or thing is

7

accompanied by another when it supplements or explains it . . . No

8

physical attachment one to the other is necessary.

9

textual relationship that is significant."); Alberty Food Prods.

Kordel v. United

It is the

United States District Court

For the Northern District of California

10

Co. v. United States, 185 F.3d 321, 324-25 (9th Cir. 1950) (citing

11

Kordel for this proposition); see also United States v. Harkonen,

12

No. C 08-0164 MHP, 2009 WL 1578712, at *9 (N.D. Cal. June 4, 2009)

13

(Kordel " remains the leading Supreme Court authority on the scope

14

of the labeling provision.").

15

their claims on the fact that some of the Named Products include

16

the words "Visit our website @ fritolay.com" in tiny print at the

17

bottom of their back labels.

18

Plaintiffs claim that Defendants' marketing language on the

19

www.fritolay.com website constitute mislabeling under the FDCA.

20

See, e.g., FAC ¶¶ 42, 60, 102, 127, 129, 152-53.

21

In this matter, Plaintiffs base

See Def.'s RJN Exs. B-F.

From this

The Court does not find that the language on the

22

www.fritolay.com website constitutes labeling under the FDCA,

23

because as cited by Plaintiffs, none of the website language

24

explains or supplements the individual Named Products such that the

25

website could generally be found to "accompany" the Named Products.

26

See Kordel, 335 U.S. at 349-50.

27

labels ask consumers to visit the website, they do not state that

28

the website will inform consumers of the details of the Named

Even though the Named Products'

13

1

Products' nutritional facts, and none of the language Plaintiffs

2

cite is drawn closely enough to the Named Products themselves to

3

merit the website's being found to constitute "labeling."

4

extent that any of Plaintiffs' claims are based on language from

5

the www.fritolay.com website, those claims are DISMISSED with leave

6

to amend if Plaintiffs are able to provide or describe labels or

7

website language constituting "labeling," per above.

To the

8

F.

Defendants' Preemption Arguments

9

Defendants maintain that Plaintiffs' state law claims as to

United States District Court

For the Northern District of California

10

Defendants' statements that their products contain "No MSG" and "0

11

Grams Trans Fat" are preempted by federal law.

12

The FDCA, as amended by the NLEA, contains an express

13

preemption provision, making clear that state laws imposing

14

labeling requirements not identical to FDA mandates are preempted.

15

See 21 U.S.C. § 343-1(a).

16

law effectively parallels or mirrors the relevant sections of the

17

NLEA, courts have repeatedly refused to find preemption."

18

Chacanaca, 752 F. Supp. 2d at 1118 (citing N.Y. State Restaurant

19

Ass'n v. N.Y.C. Bd. of Health, 556 F.3d 114, 123 (2d Cir. 2009);

20

Chavez v. Blue Sky Natural Beverage Co., 268 F.R.D. 365, 370 (N.D.

21

Cal. 2010)).

22

stating: "[I]f the State requirement does the same thing that the

23

Federal law does . . . then it is effectively the same requirement

24

as the Federal requirement . . . [T]he only State requirements that

25

are subject to preemption are those that are affirmatively

26

different from the Federal requirements on matters that are covered

27

by Section 403A(a) of the Act."

28

57120 (Nov. 13, 1995).

"Where a requirement imposed by state

The FDA itself appears to endorse this approach,

Final Rule, 60 Fed. Reg. 57076,

14

1

"This means that plaintiffs' claims need not fail on

2

preemption grounds if the requirements they seek to impose are

3

either identical to those imposed by the FDCA and the NLEA

4

amendments or do not involve claims or labeling information of the

5

sort described in [21 U.S.C.] sections 343(r) and 343(q)."

6

Chacanaca, 752 F. Supp. 2d at 1119.

7

issue are nutrient content claims as contemplated by [21 U.S.C. §

8

343(r)], plaintiffs' deception claims may only go forward if they

9

can show that the statements would also be 'misbranded' under the

United States District Court

For the Northern District of California

10
11
12

terms of [the FDCA and NLEA]."
i.

"That is, if the statements at

Id.

"0 Grams Trans Fat" Claims Are Not Preempted

Plaintiffs' claims as to Defendants' "0 Grams Trans Fat"

13

labels are based on a theory that while the claim itself is

14

accurate as to the products' trans fat content, those labels are

15

nevertheless unlawful under 21 C.F.R. § 101.13(h)(1), which states

16

that whenever an express nutrient content claim is made on a food

17

label, that label must bear further disclosures about ingredients

18

that the FDA has found pose diet-related health risks:

19
20
21
22
23
24
25
26
27
28

If a food . . . contains more than 13.0 g of
fat, 4.0 g of saturated fat, 60 milligrams
(mg) of cholesterol, or 480 mg of sodium per
reference amount customarily consumed, per
labeled serving, or, for a food with a
reference amount customarily consumed of 30
g or less . . . per 50 g . . . then that
food must bear a statement disclosing that
the nutrient exceeding the specified level
is present in the food as follows: "See
nutrition information for ___ content" with
the blank filled in with the identity of the
nutrient exceeding
the specified level,
e.g., "See nutrition information for fat
content."
Plaintiffs clarify that Defendants violate this provision by
making "0 Grams Trans Fat" claims even though their products

15

1

contain more than 13 grams of fat.

FAC ¶ 84.

2

allege, Defendants' labeling "bears a statement telling consumers

3

to 'see nutrition facts for saturated fat info,'" even though the

4

total fat level is also high, "thus misdirecting consumers to a

5

nutrient in which the product is low, while failing to draw their

6

attention to the harmful levels of the nutrient (total fat) they

7

are mandated by law to disclose."

8

theory, whenever Defendants label a food product with "0 Grams

9

Trans Fat," the accompanying statement under 21 C.F.R. § 101(h)(1)

Id.

As Plaintiffs

According to Plaintiffs'

United States District Court

For the Northern District of California

10

should say something like "See nutrition facts for saturated fat

11

and total fat info," thereby including all of the nutrients that

12

would be required per 21 C.F.R. § 101(h)(1).

13

at 7-16.

14

See FAC ¶ 84; Opp'n

Defendants argue that all claims based on such "0 Grams Trans

15

Fat" statements are preempted by the FDCA.

16

at 8-9.

17

from this Court: Carrea v. Dreyer's Grand Ice Cream, Inc., No. 10-

18

1044 JSW, 2011 WL 159380 (N.D. Cal. Jan. 10, 2011), aff'd, 475 Fed.

19

App'x 113 (9th Cir. 2012), and Delacruz v. Cytosport, No. 11-3532

20

CW, 2012 WL 2563857 (N.D. Cal. June 28, 2012).

21

distinguishable and inapposite to the preemption discussion.

22

See MTD at 11-13; Reply

They base this argument primarily on two recent decisions

Both cases are

In Carrea, the plaintiff's "0 Grams Trans Fat" claim was based

23

on the theory that, since the product in question actually

24

contained more than zero but less than half a gram of trans fat,

25

the defendants could not label the food product as "0g Trans Fat."

26

See Carrea, 2011 WL 159380, at *3.

27

explicitly stated that "If the serving [in question] contains less

28

than 0.5 gram, the content, when declared, shall be expressed as

16

However, FDA regulations

1

zero."

Id. (citing 21 C.F.R. § 101.9(c)(2)(ii)).

Since

2

plaintiff's state law claims in Carrea imposed labeling

3

requirements not identical to the FDA's promulgations, this Court

4

found that they were preempted per the FDCA as amended by the NLEA.

5

See id. at *3-4.

6

tried to impose an obligation that was explicitly disclaimed by FDA

7

regulations, and so its imposition through state law was held to be

8

preempted.

In other words, in Carrea, the plaintiffs had

See id.

In Delacruz, the plaintiff claimed that a nutrition bar's

9

United States District Court

For the Northern District of California

10

statement of "0g Trans Fat" was actionable because the bar

11

contained "more than four grams of saturated fat and its label

12

omits the disclosure statement 'See nutrition information for

13

saturated fat content.'"

14

that the "0g Trans Fat" statement, while an "alleged distraction,"

15

did not "amount to a false statement or misrepresentation and,

16

thus, [was] not an actionable claim."

17

nothing to do with federal preemption: it concerned whether the

18

plaintiff had adequately pled one of her claims.

2012 WL 2563857, at *4.

Id.

This Court found

That holding had

The Court finds that Plaintiffs' claims are in line with

19
20

federal law and regulations.

21

rely on statutes that explicitly incorporate federal law and

22

regulations without modification,3 and since those claims also do

23

not attempt to impose stricter requirements than those laws or

24

regulations, Plaintiffs' state law claims are not preempted.

25

claims are all based on the theory that by not complying with the

26

relevant federal laws and regulations, Defendants' labels mislead

27

3

28

Since Plaintiffs' state law claims

These

Plaintiffs' state law claims are based on California's Sherman
Food, Drug, and Cosmetic Act ("Sherman Act"), Cal. Health & Safety
Code § 109875 et seq., which adopts and incorporates the FDCA.
17

1

and deceive consumers.

2

Rule 12(b)(6) motion below.

3
4

ii.

The Court evaluates whether they survive a

Plaintiffs' "No MSG" Claims Are Not Preempted

Plaintiffs' "No MSG" allegations are based on the fact that

5

some of the Named Products -- apparently just Lay's Honey Barbecue

6

Potato Chips and Lay's Mesquite BBQ Potato Chips -- contain

7

ingredients like torula yeast and yeast extract, which are sources

8

of monosodium glutamate ("MSG") despite not technically being MSG.

9

See FAC ¶¶ 59-72.

United States District Court

For the Northern District of California

10

Defendants argue that the FDA's formal regulation on MSG

11

labeling provides that "[a]ny monosodium glutamate used as an

12

ingredient in food shall be declared by its common or usual name

13

'monosodium glutamate,'" 21 C.F.R. § 101.22(h)(5), while "sources

14

of MSG," like yeast extract, must be labeled according to their

15

common names, like "yeast extract" or "hydrolyzed protein," see,

16

e.g., id. §§ 101.22(h)(7) (protein hydrolysates), 184.1983 (baker's

17

yeast extract).

18

therefore proper: Named Products like Cheetos that contain MSG are

19

not labeled as having "No MSG," Def.'s RJN Ex. E, while Named

20

Products like Lay's Kettle Cooked Mesquite BBQ Potato Chips, Def.'s

21

RJN Ex. D, which contain yeast extract and torula yeast, state

22

those ingredients' common names in the nutrition box and include a

23

"No MSG" statement on the label.

Defendants conclude that their labels are

24

However, Plaintiffs' opposition brief cites a November 19,

25

2012 FDA statement, made on the FDA's website section regarding

26

MSG, that purportedly clarifies the FDA's regulations here:

27
28

FDA requires that foods containing added MSG
list it in the ingredient panel on the
packaging as monosodium glutamate. However,

18

1
2
3
4
5
6
7

MSG occurs naturally in ingredients such as
hydrolyzed
vegetable
protein,
autolyzed
yeast, hydrolyzed yeast, yeast extract, soy
extracts, and protein isolate, as well as in
tomatoes and cheeses.
While FDA requires
that these products be listed on the
ingredient
panel,
the
agency
does
not
require the label to also specify that they
naturally contain MSG.
However, foods with
any ingredient that naturally contains MSG
cannot claim "No MSG" or "No added MSG" on
their packaging.
MSG also cannot be listed
as "spices and flavoring."

8

Opp'n Ex. B.

This statement, made several months after Defendants

9

filed their motion to dismiss, could save Plaintiffs' state law

United States District Court

For the Northern District of California

10

claims from preemption if it is a binding regulation, since in that

11

case Plaintiffs' claims would be in line with federal law.

12

issue here is whether the above statement is binding and entitled

13

to deference by the Court.

The

14

Defendants claim that because the above FDA statement is a

15

"nonbinding, informal guidance that does not alter the FDA's formal

16

regulatory scheme," because it was not preceded by notice,

17

opportunity for public comment, or expert testimony.

18

(citing Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000) for

19

the principal that some agency action that is not the product of

20

formal adjudication or rulemaking lacks the force of law).

21

Defendants argue that the Court owes the FDA's statement no

22

deference under Auer v. Robbins, 519 U.S. 452, 461 (1997), because

23

the language of the regulation was not ambiguous and the FDA's

24

statement on its website "does not purport to interpret any

25

regulation."

26

statement on its website] does not purport to interpret any

27

regulation," but the Court finds that it does: the regulations in

28

question are the FDA's labeling requirements for MSG as a

Reply at 13 n.10.

Reply at 13

Defendants state that "the [FDA's

19

1

particular ingredient and ingredients that are sources of MSG.

2

"[W]here an agency interprets its own regulation, even if

3

through an informal process, its interpretation of an ambiguous

4

regulation is controlling under Auer unless 'plainly erroneous or

5

inconsistent with the regulation.'"

6

F.3d 927, 930 (9th Cir. 2006) (quoting Auer, 519 U.S. at 461).

7

threshold question is whether the FDA's regulation on MSG and

8

sources of MSG was ambiguous.

9

Circuit addressed whether a Department of Labor regulation was

Bassiri v. Xerox Corp., 463

Id. at 931.

The

In Bassiri, the Ninth

United States District Court

For the Northern District of California

10

ambiguous and found that it was, because the term at issue there,

11

"normal rate of compensation," "was left open to . . . various

12

interpretations" by the agency, the district court, and the

13

parties.

14

Id.

In this case, the regulations have at least two possible

15

interpretations.

16

requires each type of ingredient to be listed with its proper name,

17

a "No MSG" statement would not be misleading under the regulations

18

because "MSG" means only "MSG" as an individually named ingredient.

19

Alternatively, the regulations might be interpreted to forbid such

20

a statement because they clearly acknowledge that MSG is just one

21

type of free glutamate, meaning that "No MSG" would be misleading

22

if the product contained another type of free glutamate other than

23

MSG despite properly providing that ingredient's name.

24

The regulations might suggest that since the FDA

Under these circumstances, the FDA's statement on its website

25

appears to be its own interpretation of an ambiguous regulatory

26

scheme, and the Court finds that it owes the FDA's statement

27

deference under Auer, since the FDA's clarifying statements do not

28

appear "plainly erroneous or inconsistent with the regulation," nor

20

1

are they based on impermissible constructions of the governing

2

statute.

3

though MSG and ingredients that are sources of MSG must be labeled

4

by their proper names, a manufacturer cannot say that a product

5

containing an ingredient that is a source of MSG, like torula

6

yeast, therefore contains "No MSG."

therefore not preempted by federal law.4
G.

9

United States District Court

Plaintiffs' Surviving Claims as to Plaintiffs' UCL, FAL,
and CLRA Actions

10
For the Northern District of California

The FDA made clear that even

Plaintiffs' state law claims about "No MSG" statements are

7
8

Auer, 519 U.S. at 457, 461.

Plaintiffs' claims as to their purchases of the Named Products

11
12

remain in the case.

Defendants were cognizant enough of these

13

products and their labels to respond to Plaintiffs' claims about

14

them in detail, and in any event, Plaintiffs meet the "who, what,

15

when, where, and how" standard as to those products per Rule 9(b).

16

The Court first considers Plaintiffs' allegations about each type

17

of allegedly actionable statement and whether Plaintiffs have

18

sufficiently pled their UCL, CLRA, and FAL claims based on these

19

statements.

20

falsity, reliance, or injury: their contentions are essentially

21

that none of the statements in question are misleading as a matter

22

of law.

Defendants do not argue that Plaintiffs fail to plead

The CLRA, FAL, and UCL, which are the basis of Plaintiff's

23
24

first through sixth causes of action, are California consumer

25

protection statutes. The UCL makes actionable any "unlawful, unfair

26

4

27
28

While the Court finds that the regulatory statement addressed in
this Section is binding and entitled to deference, the parties have
yet to address the issue of how, if at all, such a clarification
should apply retroactively to Defendants' statements made during
the Class Period, prior to the FDA's statements.
21

1

or fraudulent business act or practice."

2

17200.

3

statement concerning property or services that is "untrue or

4

misleading."

5

of competition and unfair or deceptive acts or practices."

6

Civ. Code § 1770.

7

Cal. Bus. & Prof. Code §

The FAL makes it unlawful to make or disseminate any

Id. § 17500.

The CLRA also prohibits "unfair methods
Cal.

False advertising and unfair or fraudulent business practices

8

claims under the UCL, FAL or CLRA are governed by the "reasonable

9

consumer" test.

Williams, 552 F.3d at 938 (citing Freeman v. Time,

United States District Court

For the Northern District of California

10

Inc., 68 F.3d 285, 289 (9th Cir. 1995)).

11

consumer standard, a plaintiff must "show that members of the

12

public are likely to be deceived."

13

citations omitted).

14

"that these laws prohibit not only advertising which is false, but

15

also advertising which[,] although true, is either actually

16

misleading or which has a capacity, likelihood, or tendency to

17

deceive or confuse the public."

18

Inc., 45 P.3d 243, 250 (Cal. 2002)) (internal quotations omitted).

19

Under the reasonable

Id. (quotation marks and

The California Supreme Court has recognized

Id. at 938 (quoting Kasky v. Nike,

Generally, the question of whether a business practice is

20

deceptive presents a question of fact not suited for resolution on

21

a motion to dismiss.

22

circumstances consider the viability of the alleged consumer law

23

claims based on its review of the product packaging.

24

Pepsico, Inc., No. C 09–04456 SBA, 2010 WL 2673860, at *3 (N.D.

25

Cal. July 2, 2010).

26

of law that members of the public are not likely to be deceived by

27

the product packaging, dismissal is appropriate."

28

Sugawara v. Pepsico, Inc., No. 2:08-CV-01335–MCE-JFM, 2009 WL

See id.

However, the court may in certain

See Werbel v.

"Thus, where a court can conclude as a matter

22

Id. (citing

1

1439115, at *3–4 (E.D. Cal. May 21, 2009) (finding that the

2

packaging for Cap'n Crunch cereal and its use [of] the term "Crunch

3

Berries" was not misleading); see also, e.g., Videtto v. Kellogg

4

USA, No. 2:08–cv–01324–MCE–DAD, 2009 WL 1439086, at *2 (E.D. Cal.

5

May 21, 2009) (dismissing UCL, FAL and CLRA claims based on

6

allegations that consumers were misled into believing that "Froot

7

Loops" cereal contained "real, nutritious fruit").

8
9

United States District Court

For the Northern District of California

10
11

This Order addresses Plaintiffs' unjust enrichment and
warranty claims separately.
i.

"All Natural" Claims

The following products bear a seal stating "Made with ALL

12

NATURAL Ingredients," according to the labels supplied in

13

Defendants' RJN: Lay's Classic Potato Chips, Lay's Kettle Cooked

14

Mesquite BBQ Potato Chips, and Fritos Original Corn Chips.

15

other Named Products do not include that seal and are therefore

16

excluded from this discussion.

The

17

Plaintiffs explain that they base their "All Natural"

18

allegations largely on the FDA's interpretation of "natural" as

19

being truthful and not misleading when "nothing artificial or

20

synthetic . . . has been included in, or has been added to, a food

21

that would not normally be expected to be in the food."

22

Reg. 2302, 2407 (Jan. 6, 1993).

23

some of Defendants' products contain "artificial and unnatural

24

maltodextrin, ascorbic acid[,] citric acid, and caramel color in

25

the products," Defendants' use of "All Natural" language is

26

unlawful.

27

"All Natural" in a vacuum, since the full phrase is indeed "Made

28

with ALL NATURAL Ingredients."

Opp'n at 23-24.

58 Fed.

Plaintiffs allege that because

Defendants respond that they do not use

Reply at 8-11.

23

Defendants assert

1

that no reasonable consumer would be misled by the phrase because,

2

in context -- including the "made with . . ." language and the

3

nutrition box -- the label only states that the product includes

4

some all-natural ingredients, in this case potatoes and natural

5

oils.

6

matter of law, would read the statement in that context and sate

7

any further curiosity by reading the nutrition box.

8
9

United States District Court

For the Northern District of California

10
11
12
13
14
15
16
17
18
19

See id.

Defendants assert that a reasonable consumer, as a

See id.

The Ninth Circuit provides guidance on how district courts
should approach claims like this one:
We disagree . . . that reasonable consumers
should be expected to look beyond misleading
representations on the front of the box to
discover the truth from the ingredient list
in small print on the side of the box
. . . . We do not think that the FDA
requires
an
ingredient
list
so
that
manufacturers can mislead consumers and then
rely on the ingredient list to correct those
misinterpretations and provide a shield for
liability for the deception.
Instead,
reasonable
consumers
expect
that
the
ingredient
list
contains
more
detailed
information about the product that confirms
other representations on the packaging.
Williams, 552 F.3d at 939.
In light of Williams, Defendants' argument fails.

The label

20

is ambiguous because the phrase "all natural," lacking a hyphen,

21

could suggest either that the labeled product is exclusively

22

natural or that the product simply includes some all-natural

23

ingredients.

24

could find that a reasonable consumer would ascribe significance to

25

the "made with . . ." qualifier and not be misled by the label, but

26

the Court does not find the choice so obvious as a matter of law,

27

and none of Defendants' cases are precisely on point.

28

Red v. Kraft Foods, Inc., No. CV 10-1028-GW(AGRx), 2012 WL 5504011,

Defendants urge otherwise, stating that the Court

24

See, e.g.,

1

at *4 (C.D. Cal. Oct. 25, 2012) (obvious as a matter of law that no

2

reasonable consumer would think that a box of crackers would not be

3

composed primarily of fresh vegetables); Hairston v. South Beach

4

Beverages Co., Inc., No. CV 12-1429-JFW(DTBx), 2012 WL 1893818, at

5

*5 (C.D. Cal. May 18, 2012) (preempted statements about fruit names

6

and vitamins had been removed from the "All Natural," phrases at

7

issue making it "impossible for Plaintiff to allege how the 'all

8

natural' language is deceptive without relying on the preempted

9

statements regarding fruit names and vitamins").

United States District Court

For the Northern District of California

10

While courts may have found it obvious as a matter of law,

11

under the reasonable consumer standard, that crackers are not

12

primarily made of fresh vegetables, Red, 2012 WL 5504011, at *4, or

13

that "Froot Loops" do not contain "real, nutritious fruit,"

14

Videtto, 2009 WL 1439086, at *3, the Court finds that Plaintiffs

15

have adequately pled that a reasonable consumer could interpret a

16

bag of chips claiming to have been "Made with ALL NATURAL

17

Ingredients" to consist exclusively of natural ingredients,

18

contrary to the reality described in the nutrition box.

19

Williams, 552 F.3d at 939.

20

resolve any ambiguity, the Court cannot conclude as a matter of

21

law, in the context of a Rule 12(b)(6) motion, that no reasonable

22

consumer would be deceived by the "Made with ALL NATURAL

23

Ingredients" labels.

24

See

Even though the nutrition box could

Plaintiffs' "All Natural" claims under the UCL, FAL, and CLRA

25

survive as to the Named Products whose labels bear that statement

26

and include non-natural ingredients.

27

before the Court, this is limited to Lay's Kettle Cooked Mesquite

28

BBQ Potato Chips, since neither Lay's Classic Potato Chips nor

25

According to the labels

1

Fritos Original Corn Chips appear to contain any of the "non-

2

natural" or synthetic ingredients on which Plaintiffs' claims here

3

are premised.

4

leave to amend as to all of the Named Products except Lay's Kettle

5

Cooked Mesquite BBQ Potato Chips.

6
7

ii.

Plaintiffs' "All Natural" claims are DISMISSED with

"No MSG" Claims

This Order explains Plaintiffs' "No MSG" claims in Section

8

IV.F.ii, supra.

FDA regulations support Plaintiffs' theory as to

9

why the Named Products featuring "No MSG" labels are actionably

United States District Court

For the Northern District of California

10

misbranded: manufacturers are forbidden from claiming that a

11

product made with an ingredient that contains MSG therefore "No

12

MSG," rendering it both a violation of the underlying regulation

13

and, as Plaintiffs claim, confusing to consumers for some of the

14

Named Products' packaging to state that the product includes "No

15

MSG" when, in fact, it does.

16

sufficiently stated claims under the UCL, FAL, and CLRA as to the

17

Named Products that are actually labeled with the "No MSG" phrase

18

despite including what the FDA has indicated to be sources of MSG.

19
20

iii.

Therefore Plaintiffs have

"0 Grams Trans Fat" Claims

Plaintiffs' "0 Grams Trans Fat" claims are explained in

21

Section IV.F.i, supra.

Plaintiffs argue that the "0 Grams Trans

22

Fat" labels are misleading when they were not, per FDA regulations,

23

accompanied with a statement directing consumers to the amount of

24

the product's fat content that exceeds the levels described in the

25

pertinent regulation, 21 C.F.R. § 101.13(h)(1).

26

Plaintiffs state that they relied on these claims and were harmed

27

because they would not have purchased the product had they known

28

that the products also included levels of ingredients that should

26

See FAC ¶¶ 84-99.

1

have been noticed on the front of the label, per 21 C.F.R. §

2

101.13(h)(1), but were omitted.

See id.

Defendants' response relies mainly on this Court's decision in

3

dismissed a plaintiff's claims as to a "0 Grams Trans Fat"

6

statement on a nutrition bar, holding that even though that

7

statement was not accompanied by a 21 C.F.R. § 101.13(h)(1)

8

disclosure of any sort, the statement was true, and the distraction

9

the statement posed relative to fat and saturated fat contents

10

United States District Court

Delacruz, 2012 WL 2563857, at *8.

5

For the Northern District of California

4

In Delacruz, this Court

constituted neither a false statement nor a misrepresentation.

11

id. at *8-10.

See

Considering a motion to dismiss in this case, which has a

12
13

similar but ultimately distinct fact pattern from Delacruz, the

14

Court cannot conclude as a matter of law that Plaintiffs' "0 Grams

15

Trans Fat" claims would not be misleading or deceptive to a

16

reasonable consumer.

17

considered the FAC, as well as the properly noticed FDA letters and

18

regulations, the Court finds that Plaintiffs have sufficiently

19

alleged that the "0 Grams Trans Fat" statement was deceptive

20

because, accompanied by a disclosure of at least one of the

21

ingredients that 21 C.F.R. § 101.13(h)(1) requires to be disclosed,

22

they and other reasonable consumers would think that the statements

23

on the labels make accurate claims about the labeled products'

24

nutritional content when, in fact, they do not.

25

Accordingly, all Named Products whose "0 Grams Trans Fat" statement

26

is not accompanied by statements that are fully compliant with 21

27

C.F.R. § 101.13(h)(1) remain in the case.

28

///

See Williams, 552 F.3d at 939.

27

Having

See FAC ¶¶ 82-99.

iv.

1

"Low Sodium," "Healthy," and Other Nutrient Claims

It is undisputed that none of the Named Products include "low

2
3

in sodium," "healthy," or beneficial nutrient labels on their

4

packaging.

5

on uncited websites or advertisements, which the Court has already

6

found are either not specified under Rules 8 or 9(b), not

7

judicially noticeable in this matter, or are not "labeling" for any

8

product as a matter of law.

9

have therefore not pled a cause of action based on any of these

FAC ¶¶ 100-34.

Plaintiffs' allegations are all based

See id.; Opp'n at 19-22.

Plaintiffs

United States District Court

For the Northern District of California

10

claims.

These claims are DISMISSED with leave to amend.

11

H.

12

Plaintiffs asserted breaches of warranty under the federal

Plaintiffs' Warranty Claims

13

Magnuson-Moss Warranty Act ("MMWA") and California's Song-Beverly

14

Consumer Warranty Act ("Song-Beverly").

15

these claims fail as a matter of law.

16

right.

17

"All Natural," "No MSG," and other health and nutrient content

18

claims constitute express written warranties, which MMWA defines

19

as:

20
21
22
23

Defendants argue that

MTD at 22-23.

They are

Under their MMWA claim, Plaintiffs allege that Defendants'

any written affirmation of fact or written
promise made in connection with the sale of
a consumer product by a supplier to a buyer
which relates to the nature of the material
or workmanship and affirms or promises that
such material or workmanship is defect free
or
will
meet
a
specified
level
of
performance over a specified period of time.

24

15 U.S.C. § 2301(6)(A) (emphasis added).

The MMWA's disjunctive

25

language ("or") identifies two kinds of written warranties, the

26

first warranting a "defect free" product and the second warranting

27

a product that will "meet a specified level of performance over a

28

specified period of time."

Plaintiffs also allege that Defendants

28

1

breached their implied warranties under the MMWA.

While Defendants

2

argue that Plaintiffs simply have not pled claims under the MMWA,

3

Plaintiffs make no more than a conclusory defense of these claims

4

in their opposition brief.

See Opp'n at 25 n.13.

The Court finds that Plaintiffs' claim fails as a matter of

5
6

law.

Plaintiffs allege that Defendants' package labels are

7

warranties that Defendants breached by selling, at premium prices,

8

food products whose labels do not comply with federal or California

9

labeling requirements.

FAC ¶¶ 247-49.

This Court has held

United States District Court

For the Northern District of California

10

repeatedly that such arguments are meritless, since product

11

descriptions like "All Natural" labels "do not constitute

12

warranties against a product defect."

13

Ice Cream, Inc., No. C 11-2910 EMC, 2012 WL 2990766, at *3 (N.D.

14

Cal. July 20, 2012), mot. to certify appeal denied, No. C 11-2910

15

EMC, 2012 WL 3892391 (Oct. 12, 2012); see also, e.g., Colucci, 2012

16

WL 6737800, at *5-6; Jones, 2012 WL 6569393, at *12-13 (citing

17

cases).

18

meet a specified level of performance over a specified period of

19

time."

20

Plaintiffs' MMWA claims are DISMISSED WITH PREJUDICE.

21

could not save these claims and would be prejudicial to Defendants.

22

Astiana v. Dreyer's Grand

Further, none of the labels promise that the product "will

The labels were, at most, product descriptions.

Plaintiffs' Song-Beverly claims also fail.

Amendment

Plaintiffs allege

23

that Defendants' products contain express and implied warranties

24

under Song-Beverly, which Defendants breached by selling misbranded

25

products at premium prices.

26

an "express warranty" as "[a] written statement arising out of a

27

sale to consumer of a consumer good pursuant to which the

28

manufacturer, distributor, or retailer undertakes to preserve or

FAC ¶¶ 237-40.

29

Song-Beverly defines

1

maintain the utility or performance of the consumer good or provide

2

compensation if there is a failure in utility or performance."

3

Cal. Civ. Code § 1791.2 (emphasis added).

4

Song-Beverly likewise attach to "consumer goods."

5

"consumer good" is "any new product or part thereof that is used,

6

bought, or leased primarily for personal, family, or household

7

purposes, except for . . . consumables."

Implied warranties under
Id. § 1791.1.

A

Id. § 1791(a).

matter of law: Song-Beverly does not provide for express or implied

10

United States District Court

Plaintiffs' claims under Song-Beverly are deficient as a

9
For the Northern District of California

8

warranties as to consumables, and so by definition Plaintiff cannot

11

plead breaches of those warranties under Song-Beverly as to any of

12

Defendants' food products.

13

DISMISSED WITH PREJUDICE for the same reason Plaintiffs' MMWA

14

claims were.

15

I.

16

Defendants argue that Plaintiffs' cause of action for

17

restitution based on unjust enrichment fails as a matter of law

18

because (1) "there is no cause of action in California for unjust

19

enrichment," (2) Plaintiffs have not identified an unjustly

20

conferred benefit warranting redress, (3) Plaintiffs cannot allege

21

a quasi-contractual remedy because they alleged that their

22

relationship with Defendants was governed by binding express

23

warranties, and (4) Plaintiffs' request for equitable relief is

24

improper because there is an adequate remedy at law under the

25

statutes Plaintiffs cite.

26

they have properly pled an unjust enrichment claim because they

27

alleged that Defendants were enriched by means of "unlawful,

28

fraudulent, and misleading labeling."

Plaintiffs' Song-Beverly claims are

Plaintiffs' Restitution Based on Unjust Enrichment Claim

MTD at 21-22.

30

Plaintiffs respond that

Opp'n at 25 (citing FAC ¶¶

1

239, 246-49).

In support of this response Plaintiffs cite Colucci,

2

in which this Court held that unjust enrichment had been properly

3

pled because those plaintiffs pled it in the alternative.

4

6737800, at *10.

2012 WL

Plaintiffs did not plead that their unjust enrichment claim is

5
6

based on quasi-contract or pled in the alternative.

7

228-31.

8

correctly, they are entitled to the claim.

9

wrong.

See FAC ¶¶

They simply assert that because they pled the elements
Opp'n at 25.

This is

Cf. Colucci, 2012 WL 6737800, at *10 ("[C]laims for

United States District Court

For the Northern District of California

10

restitution or unjust enrichment may survive the pleading stage

11

when pled as an alternative avenue of relief, though the claims, as

12

alternatives, may not afford relief if other claims do.").

13

claim is DISMISSED with leave to amend if Plaintiffs wish to plead

14

it in the alternative.

This

15
16
17

V.

CONCLUSION
For the reasons explained above, Defendants Frito-Lay North

18

America, Inc. and PepsiCo, Inc.'s motion to dismiss Plaintiffs

19

Markus Wilson and Doug Campen's first amended complaint is GRANTED

20

in part and DENIED in part.

The Court orders as follows:

21

Plaintiffs' claims as to PepsiCo are DISMISSED with leave

22

to amend.

23

Plaintiffs' claims as to all products except the products

24

named and described in the complaint, Lay's Classic

25

Potato Chips, Lay's Honey Barbeque Potato Chips, Lay's

26

Kettle Cooked Mesquite BBQ Potato Chips, Cheetos Puffs,

27

and Fritos Original Corn Chips (collectively the "Named

28

Products"), are DISMISSED with leave to amend.

31

1

As to the Named Products and Defendant Frito-Lay,

2

Plaintiffs' UCL, CLRA, and FAL claims based on all

3

statements except the "All Natural," "No MSG," and "0

4

Grams Trans Fat" statements are DISMISSED with leave to

5

amend.

6

are undisturbed.

7

based on content appearing on websites or advertisements,

8

including the "low sodium," health claims, and "other"

9

claims, are DISMISSED with leave to amend.

Plaintiffs' claims as to those three statements
Claims as to these statutes that are

United States District Court

For the Northern District of California

10

Plaintiffs' claim for breaches of warranties under the

11

Magnuson-Moss Warranty Act and the Song-Beverly Consumer

12

Warranty Act are DISMISSED WITH PREJUDICE.

13

Plaintiffs' claim for restitution based on unjust

14

enrichment is DISMISSED with leave to amend.

15

Plaintiffs may amend these claims if they can specify exactly which

16

products, regulations or laws, and other relevant elements are at

17

issue, and otherwise correct the deficiencies described above.

18

Plaintiffs are instructed to keep their pleadings short, plain, and

19

plausible.

Boilerplate pleadings are strongly discouraged.

20

Plaintiffs have thirty (30) days from this Order's signature

21

date to file an amended complaint, or the deficient claims may be

22

dismissed with prejudice.

23
24

IT IS SO ORDERED.

25
26

Dated: April 1, 2013

27

UNITED STATES DISTRICT JUDGE

28

32