Ross v. Sioux Honey Association, Cooperative

Filing 64

ORDER by Judge Edward M. Chen Granting 49 Defendant's Motion to Dismiss. (emcsec, COURT STAFF) (Filed on 1/14/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SORAYA ROSS, individually and on behalf
of all others similarly situated,

No. C-12-1645 EMC

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Plaintiffs,

ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS THIRD
AMENDED COMPLAINT

v.
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For the Northern District of California

United States District Court

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SIOUX HONEY ASSOCIATION,
COOPERATIVE,

(Docket No. 49)

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Defendant.
___________________________________/

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I.

INTRODUCTION

Plaintiff Soraya Ross (“Ross”) has filed a class action lawsuit against Defendant Sioux

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Honey Association, Cooperative (“Sioux Honey”), alleging that it violated federal and state law by

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marketing its “Sue Bee Clover Honey” (“Sue Bee Honey”) in California as “Honey,” despite the fact

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that it did not contain pollen. Plaintiff argues that Sioux Honey’s act of filtering out all naturally

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occurring pollen from Sue Bee Clover Honey requires it to label the product in such a way that

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clearly discloses to the consumer that all pollen has been removed (e.g. by denominating it as

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“Honey - Contains No Pollen,” or “Honey - No Pollen”), instead of simply as “honey.” See Third

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Amended Complaint (“TAC”) (Docket No. 42) ¶¶ 5, 40, 46. Since it was marketed and sold simply

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as ‘honey,’ and not with a disclosure indicating the absence of pollen, Plaintiff argues that Sue Bee

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Honey’s label did not bear the “common or ususal name” appropriate to that product as required

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under the Federal Food, Drug, and Cosmetic Act (“FDCA”), 21 U.S.C. § 301, et. seq.

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Plaintiff alleges that she and other similarly situated California consumers were misled into

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purchasing Sue Bee Honey even though “[a] valuable constituent, pollen, was removed,” and that

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they would not have purchased the product had they known it “did not contain any pollen.” TAC ¶¶

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77, 79. Consequently, Plaintiff argues that she and her proposed class suffered “economic losses”

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insofar as they received a product whose value was “less than what they paid.” TAC ¶¶ 80, 117.

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Ross’s suit advances causes of action for purported violations of California’s Consumers Legal

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Remedies Act, Unfair Competition Law, and False Advertising Law, as well as under California’s

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common law doctrines of unjust enrichment or restitution and implied contract. TAC ¶¶ 67-125.

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Sioux Honey has filed a motion to dismiss the complaint, arguing, inter alia, that the
Plaintiff and potential class members lack standing to sue based on the facts alleged in the

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For the Northern District of California

United States District Court

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complaint, that claims asserted by Ross are preempted by federal food and drug laws, and that

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Plaintiff’s causes of action fail to state a claim under Fed. R. Civ. P. 12(b)(6). Having considered

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the parties’ briefs and accompanying submissions, as well as the oral argument of counsel, the Court

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hereby GRANTS Defendant’s motion to dismiss for the reasons discussed herein.

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II.

FACTUAL & PROCEDURAL BACKGROUND

Plaintiff alleges the following facts in her Third Amended Complaint. On March 4, 2012,

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Soraya Ross bought a bottle of Sue Bee Clover Honey (“Sue Bee Honey”) at a store in Santa

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Monica, California. TAC ¶ 6. She states that she “relied upon the representation that the Sue Bee

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honey was ‘honey’” in making her decision to purchase the product. Id. ¶ 6. Though not explicitly

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stated, Plaintiff’s amended complaint implies that she understood the label “honey” to refer to a

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product that included pollen. See e.g. TAC ¶ 42 (“. . . failing to disclose that Sue Bee Honey does

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not contain pollen and/or misrepresenting the Sue Bee Honey as “honey,” when it is in fact honey

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containing no pollen . . . “).1 At some point after her purchase, Ross learned or had reason to believe

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that all naturally occurring pollen had been filtered out of the bottle of Sue Bee Clover Honey. Her

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Counsel for Plaintiff confirmed at the hearing on Defendant’s motion that the amended
complaint alleges reasonable consumers, including Plaintiff, expect a product denominated as
“honey” to include pollen. See Hearing Transcript (Docket No. 61) at 8:17-21 (“Ms. Tufaro: I think
that, again, even with the omission that the statement “honey” itself implies that it’s pure, that it
contains the constituents that are supposed to be in honey. Pollen is the heart and soul of honey.
Why would anybody think anything else?”).

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attorneys tested the bottle of honey, as well as “various bottles of Sue Bee Honey from various

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regions of California, as well as from other states,” and confirmed that “none of the Sue Bee Honey

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bottles tested, including the bottle purchased by Plaintiff, contained any pollen.” Id. ¶ 7. She

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alleges that Defendant Sioux Honey Association, Cooperative (“Sioux”), admits to removing all

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pollen from Sue Bee Honey during the manufacturing process. Id. ¶32.

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Ross’s complaint lists many of the purported health benefits of consuming bee pollen. See

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TAC ¶¶ 17, 20-22. She alleges that “[f]iltering honey to remove all pollen materially changes the

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composition of the honey, eliminating several of the essential properties that make it honey and

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destroying most of the honey’s nutritional value.” Id. ¶ 18. She also alleges that “[t]he absence of
pollen from honey is material to consumer acceptance because pollen is the most nutritious

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For the Northern District of California

United States District Court

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component of honey,” id. ¶ 18, and that Sioux is aware that “consumers purchase honey for table use

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for its perceived nutritional and health benefits,” id. ¶ 19.

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Ross argues that both federal and state law impose a duty on Sioux Honey to disclose the fact

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that all pollen had been removed from Sue Bee Honey. TAC ¶¶ 34-52. Sioux Honey, however,

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made no such disclosure, which Plaintiff alleges concealed a fact about the product “material to both

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consumer acceptance and price.” Id. ¶¶ 39, 42, 75, 78, 96. Defendant’s omission allegedly misled

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“reasonable consumers, including Plaintiff, . . . into believing that Sue Bee Honey was ‘pure honey’

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as opposed to highly processed, pollenless honey that was stripped of its nutritional value.” Id. ¶

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104. Consequently, Sioux Honey was able to charge a “price premium” for the non-pollen

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containing product. Id. ¶¶ 42, 58, 112. “Had Plaintiff and members of the Class known the Sue Bee

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Honey did not contain any pollen, Plaintiff and members of the Class would not have purchased the

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Sue Bee Honey.” Id. ¶ 56. Plaintiff, therefore, alleges that she and similarly situated California

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consumers “suffered economic losses” that are “directly traceable to the action of Defendant,”

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ranging from “the amount of the entire purchase price that they paid in exchange for the misbranded

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Sue Bee Honey” to the price differential between what they paid and the purportedly lower true

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market value of the product. Id. ¶¶ 57, 59, 80, 98, 116-17.

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On April 2, 2012, Ross filed a class action lawsuit against Sioux Honey in federal court “on
her own behalf and on behalf of any person who purchased a bottle of Sue Bee Honey from any

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store located in California at any time from April 2, 2008 through the present,” claiming jurisdiction

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under the Class Action Fairness Act of 2005, 28 U.S.C. § 1332. TAC ¶¶ 9, 60. This Court related

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Ross’s suit to a similar class action, Brod v. Sioux Honey Association, C-12-1322, by an order dated

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April 25, 2012. See Order Relating Case (Docket No. 8). Since then Defendant has filed two

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motions to dismiss, see Docket Nos. 11, 28, and Plaintiff has twice amended her complaint, see

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Docket Nos. 13, 20. After a hearing on a motion to dismiss in the related Brod matter, Plaintiff

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requested leave to file a Third Amended Complaint, which this Court granted. See Docket No. 41.

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The Third Amended Complaint advances the following five causes of action:

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(1)

That Defendant’s marketing and sale of Sue Bee Clover Honey in California as

“honey” violated the California Consumers Legal Remedies Act, Cal. Civ. Code §§ 1750, et.

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For the Northern District of California

United States District Court

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seq., because the product was mislabeled and misrepresented material facts about its quality,

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characteristics, and ingredients. See TAC ¶¶ 67-85.

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(2)

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“honey” violated California’s Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200, et.

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seq., because the product’s mislabeling constituted an “unlawful, unfair, fraudulent, or

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deceptive business act or practice.” See TAC ¶¶ 86-100.

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(3)

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“honey” violated California’s False Advertising Law, Cal. Bus. & Prof. Code §§ 17500, et.

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seq., in that by failing to label the product as “‘Honey – Contains No Pollen’ or ‘Honey – No

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Pollen,’ or ‘Honey Does Not Contain Pollen,’” Sioux Honey misled reasonable consumers

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into believing that Sue Bee Honey was “pure honey” and not “pollenless honey.” See TAC

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¶¶ 101-108.

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(4)

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“honey” violated “California’s common law doctrine of unjust enrichment/restitution”

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because Sioux Honey unjustly and inequitably “accepted or retained the benefits conferred

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by Plaintiff and other similarly situated Class members despite Defendant’s knowledge of its

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material misrepresentations and omissions of material fact” that resulted from the

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mislabeling of its product. See TAC ¶¶ 109-117.

That Defendant’s marketing and sale of Sue Bee Clover Honey in California as

That Defendant’s marketing and sale of Sue Bee Clover Honey in California as

That Defendant’s marketing and sale of Sue Bee Clover Honey in California as

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(5)

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“honey” violated “California’s common law doctrine of breach of implied contract” because

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Sioux Honey “accepted or retained the benefits conferred by Plaintiff and other similarly

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situated Class members despite Defendant’s knowledge of its material misrepresentations

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and omissions of material fact” that resulted from the mislabeling of its product. See TAC ¶¶

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118-125.

That Defendant’s marketing and sale of Sue Bee Clover Honey in California as

refrain from marketing its Sue Bee Honey as simply ‘honey’ to consumers in the State of

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California,” an order requiring “Defendant to pay Plaintiff and other members of the Class an

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amount of actual and statutory damages, restitution and punitive damages in an amount to be

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For the Northern District of California

Plaintiff seeks “a permanent injunction or other appropriate equitable relief requiring Defendant to

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United States District Court

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determined at trial,” and “reasonable costs and attorneys’ fees.” TAC at 21.

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Sioux Honey filed the now pending Motion to Dismiss on October 9, 2012. Def.’s Mot. to

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Dismiss (Docket No. 49). It argues, among other things, that Ross and similarly situated members

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of the proposed class lack standing to sue under Article III of the U.S. Constitution, that federal food

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and drug laws preempt all of Ross’s state law based causes of action, and that Plaintiff’s causes of

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action otherwise fail to state a claim under Fed. R. Civ. P 12(b)(6).

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III.
A.

DISCUSSION

Constitutional Standing
Sioux Honey’s Motion to Dismiss asks this Court to dismiss Ross’s class action complaint

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under Fed. R. Civ. P 12(b)(1) for lack of subject matter jurisdiction. In its motion, Sioux Honey

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argues that Ross and other similarly situated class members do not have “the required injury-in-fact”

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to assert standing for their claims “under Article III of the United States Constitution.” Def.’s Mot.

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to Dismiss at 5. Under Rule 12(b)(1), a court may dismiss a complaint for lack of subject matter

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jurisdiction if the plaintiff cannot satisfy the standing requirements set by Article III of the U.S.

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Constitution. Chandler v. State Farm Mut. Auto Ins. Co., 598 F.3d 1115, 1121-22 (9th Cir. 2010).

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“Because standing...[pertains] to federal courts’ subject matter jurisdiction, [it is] properly raised in

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a Rule 12(b)(1) motion to dismiss.” Chandler, 598 F.3d at 1121–22. “A jurisdictional challenge

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under Rule 12(b)(1) may be made either on the face of the pleadings or by presenting extrinsic

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evidence.” Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). Here,

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Sioux Honey asserts only a facial challenge; therefore, the Court must accept all allegations of fact

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in the complaint as true. See Warren, 328 F.3d at 1139 (“Where jurisdiction is intertwined with the

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merits, we must assume the truth of the allegations in a complaint unless controverted by undisputed

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facts in the record.”) (citing Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir.1987)) (internal

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quotation marks omitted).

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“Article III of the Constitution limits the ‘judicial power’ of the United States to the

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resolution of ‘cases’ and ‘controversies.’” Valley Forge Christian College v. Americans United for
Separation of Church & State, Inc., 454 U.S. 464, 471 (1982).

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For the Northern District of California

United States District Court

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Legal Standard

To satisfy the “case” or “controversy” requirement of Article III,
which is the “irreducible constitutional minimum” of standing, a
plaintiff must, generally speaking, demonstrate that he has suffered
“injury in fact,” that the injury is “fairly traceable” to the actions of the
defendant, and that the injury will likely be redressed by a favorable
decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112
S. Ct. 2130, 119 L. Ed. 2d 351 (1992); Valley Forge Christian College
v. Americans United for Separation of Church and State, Inc., 454
U.S. 464, 471–72, 102 S. Ct. 752, 70 L. Ed. 2d 700 (1982).

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Bennett v. Spear, 520 U.S. 154, 162 (1997). Although evidence is to be viewed and inferences are

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to be drawn in Plaintiff’s favor (as the nonmoving party), Plaintiff has the burden of proving that she

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has standing to sue under Article III. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)

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(stating that “[t]he party invoking federal jurisdiction bears the burden of establishing [the] elements

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[of constitutional standing]”); Utah Shared Access Alliance v. Carpenter, 463 F.3d 1125, 1137 (10th

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Cir. 2006) (noting that “[t]he burden to establish prudential standing is on the plaintiff bringing the

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action”).

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2.

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This Court has already considered and rejected a very similar standing argument advanced

Injury-In-Fact

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by Sioux Honey in the related Brod case. See Order Granting Defendant’s Motion to Dismiss

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(Docket No. 52) in Brod v. Sioux Honey Association, C-12-1322 EMC, 2012 WL 3987516 (N.D.

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Cal. Sept. 11, 2012). Here, as in Brod, Plaintiff’s claims against Sioux Honey stem solely from the

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fact that it labels and markets its Sue Bee Clover Honey in California stores as “honey,” despite the

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fact that all naturally occurring pollen has been filtered or otherwise removed from the product.

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TAC ¶ 5. Sioux Honey does not seem to contest Plaintiff’s allegation that it removes pollen from

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Sue Bee Clover Honey. See e.g. Def.’s Mot. to Dismiss at 8 (“Honey is a single-ingredient food:

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SHA [Sioux Honey] does not ‘fabricate’ it from multiple ingredients. Bees make honey and SHA

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merely filters out the impurities.”).

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In her complaint, Ross argues that section 343(i)(1) of the Federal Food, Drug, and Cosmetic

Sioux Honey to market Sue Bee Honey with a label clearly indicating that all pollen has been

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removed from the product, such as by denominating it as “‘Honey – Contains No Pollen’ or ‘Honey

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– No Pollen,’ or ‘Honey Does Not Contain Pollen,’” instead of simply as “honey.” TAC ¶ 40. As a

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For the Northern District of California

Act, 21 U.S.C. § 343(i)(1), and its implementing regulations codified at 21 C.F.R. § 102.5, require

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United States District Court

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result of Sioux Honey’s marketing and labeling of Sue Bee Clover Honey as “honey” even though

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all pollen had been filtered out, Ross claims that she and other members of the prospective class

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were either misled into purchasing the product, or were misled about an essential characteristic of

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the product. As described above, by failing to disclose the absence of pollen in Sue Bee Honey,

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Ross argues that Defendant concealed a fact about the product that was “material to both consumer

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acceptance and price.” TAC ¶¶ 39, 42, 75, 78, 96; see also id. ¶ 104 (Defendant’s omission

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allegedly misled “reasonable consumers, including Plaintiff, . . . into believing that Sue Bee Honey

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was ‘pure honey’ as opposed to highly processed, pollenless honey that was stripped of its

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nutritional value.”). Consequently, Sioux Honey was able to charge a “price premium” for the non-

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pollen containing product. Id. ¶¶ 42, 58, 112. “Had Plaintiff and members of the Class known the

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Sue Bee Honey did not contain any pollen, Plaintiff and members of the Class would not have

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purchased the Sue Bee Honey.” Id. ¶ 56. Plaintiff alleges that she and similarly situated California

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consumers “suffered economic losses” that are “directly traceable to the action of Defendant,”

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ranging from “the amount of the entire purchase price that they paid in exchange for the misbranded

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Sue Bee Honey” to the price differential between what they paid and the purportedly lower true

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market value of the product. Id. ¶¶ 57, 59, 80, 98, 116-17.

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Defendant does not challenge, and, indeed, Plaintiff’s complaint seems to satisfy, those
elements of standing that require “a causal connection between the injury and the conduct

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complained of” that is “fairly traceable to the challenged action of the defendant,” and the likelihood

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that Plaintiff’s “injury will be redressed by a favorable decision.” Bennett v. Spear, 520 U.S. at 167.

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Rather, Defendant’s standing challenge focuses on Plaintiff’s ability to demonstrate an “injury-in-

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fact.” See Def.’s Mot. to Dismiss at 6 (“These allegations do not show an injury-in-fact.”). Just as

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this Court found in its Order Granting Defendant’s Motion to Dismiss in Brod v. Sioux Honey

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Association, Ross’s complaint and allegation of “economic injury” satisfy the injury-in-fact

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requirement for Article III standing.

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This Court’s Order in Brod analyzed the California Supreme Court’s holding in Kwikset
Corp. v. Superior Court, 51 Cal. 4th 310 (2011), in which the Supreme Court found that a plaintiff
had standing to bring a suit alleging that “Kwikset falsely marketed and sold locksets labeled as

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For the Northern District of California

United States District Court

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‘Made in U.S.A.’ that in fact contained foreign-made parts or involved foreign manufacture,”

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allegedly in violation of state unfair competition and false advertising laws.2 Kwikset Corp., 51 Cal.

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4th at 317. The Supreme Court analogized the Kwikset plaintiff’s complaint to one “based on a

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fraud theory involving false advertising and misrepresentations to consumers.” Id. at 326. In such

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cases, “a plaintiff must show that the misrepresentation was an immediate cause of the injury-

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producing conduct,” which meant that the plaintiff in Kwikset had to “allege economic injury arising

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from reliance on Kwikset’s misrepresentations” in order to establish standing. Id. at 888-889. The

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Court found that plaintiff’s complaint satisfied these requirements because he specifically alleged

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that “(1) Kwikset labeled certain locksets with ‘Made in U.S.A.’ or a similar designation, (2) these

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representations were false, (3) plaintiffs saw and relied on the labels for their truth in purchasing

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Kwikset’s locksets, and (4) plaintiffs would not have bought the locksets otherwise.” Id. at 327-28.

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“Simply stated,” the Court reasoned, “labels matter . . . the marketing industry is based on the

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The Kwikset Court explicitly noted that its analysis of injury-in-fact for standing purposes
followed the meaning ascribed to that term in federal constitutional law. While the Kwikset case
was “pending on appeal, the [California] electorate enacted Proposition 64 (Gen. Elec.(Nov.2,
2004)), which called into question [plaintiff’s] standing to challenge Kwikset’s country of origin
representations.” Kwikset, 51 Cal. 4th at 316. The text of Proposition 64 expressly adopted the
established federal meaning of the phrase “injury-in-fact,” declaring “It is the intent of the California
voters in enacting this act to prohibit private attorneys from filing lawsuits for unfair competition
where they have no client who has been injured in fact under the standing requirements of the
United States Constitution.” Id., 51 Cal. 4th at 322 (quoting Prop.64, § 1, subd. (e)) (emphasis in
original). Absent binding authority to the contrary, the Court once again finds Kwikset persuasive.

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premise that labels matter, that consumers will choose one product over another similar product

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based on its label and various tangible and intangible qualities they may come to associate with a

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particular source.” Id. at 328. Where, as in Kwikset, a customer relies

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on the truth and accuracy of a label and is deceived by
misrepresentations into making a purchase, the economic harm is the
same: the consumer has purchased a product that he or she paid more
for than he or she otherwise might have been willing to pay if the
product had been labeled accurately. This economic harm – the loss
of real dollars from a consumer’s pocket – is the same whether or not a
court might objectively view the products as functionally equivalent.

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Kwikset, 51 Cal. 4th at 329 (emphasis in original). Thus, the Court held that “a consumer who relies

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on a product label and challenges a misrepresentation contained therein can satisfy the standing

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requirement . . . by alleging, as plaintiffs have here, that he or she would not have bought the

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For the Northern District of California

United States District Court

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product but for the misrepresentation.” Id. at 330.

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As in Kwikset, Ross alleges that Sioux Honey labeled its Sue Bee Clover Honey as “honey,”

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that this representation was false as a matter of law under applicable sections of the Federal Food,

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Drug, and Cosmetics Act, that consumers saw and relied on the product’s label for its truth in

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purchasing Sioux Honey’s “honey,” and that plaintiff and her proposed class members would not

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have bought the “honey” had they known the product did not contain pollen. As in Brod, Plaintiff’s

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allegations match precisely with the standard laid out by the Kwikset Court for establishing injury-

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in-fact. This Court held in Brod that “under Kwikset, California law recognizes an injury when a

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product is mislabeled in violation of the law and consumers rely on that labeling in purchasing the

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product or paying more than they otherwise would have. That injury, defined and established by

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California law, satisfies the injury-in-fact requirement of Article III.” Brod v. Sioux Honey Ass’n

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Co-op., 2012 WL 3987516 at *6. Following both Kwikset and Brod, this Court finds that Ross’s

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complaint satisfies the injury-in-fact requirement for standing under Article III.

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3.

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As it did in Brod, Sioux Honey cites to a number of “benefit of the bargain” cases in support

Sioux Honey’s Objections

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of its argument that Plaintiff lacks Article III standing to sue, including Rivera v. Wyeth-Ayerst

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Laboratories, 283 F.3d 315 (5th Cir. 2002). In Rivera, the Fifth Circuit found that a group of

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plaintiffs lacked standing to sue Wyeth for its role in distributing Duract, a non-steroidal

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anti-inflammatory drug prescribed for short-term management of acute pain, because they could

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demonstrate no concrete injury flowing from their use of the drug. Plaintiffs had sued Wyeth on the

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theory that it had failed to adequately warn of the drug’s dangers in violation of the Texas Deceptive

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Trade Practices Act, the implied warranty of merchantability, and common law unjust enrichment.

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Rivera, 283 F.3d at 317. The Rivera court found that “[b]y plaintiffs’ own admission, Rivera paid

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for an effective pain killer, and she received just that-the benefit of her bargain.” Id. at 320. Despite

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plaintiffs’ claims to the contrary, “[h]ad Wyeth provided additional warnings or made Duract safer,

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the plaintiffs would be in the same position they occupy now,” and as such “they cannot have a

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legally protected contract interest.” Id. Defendant also cites in support of its argument the
following: Medley v. Johnson & Johnson, 2011 WL 159674 (D.N.J. Jan.18, 2011) (finding that

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For the Northern District of California

United States District Court

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plaintiffs lacked standing where the economic injury for which they sought redress was the price

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they paid for shampoo and no adverse health consequences were pled), Young v. Johnson &

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Johnson, 2012 WL 1372286 (D.N.J. Apr. 19, 2012) (finding that plaintiff’s complaint amounts to no

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more than subjective allegations that the presence of any amount of trans fat and partially

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hydrogenated oils renders Defendant’s product unhealthy, and, as such, is insufficient to establish

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injury-in-fact), Boysen v. Walgreen Co., C 11-06262 SI, 2012 WL 2953069 (N.D. Cal. July 19,

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2012) (finding that plaintiff’s complaint regarding defendant’s alleged failure to disclose the

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presence of “material and significant” levels of arsenic and lead in its “100% Apple Juice” and

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“100% Grape Juice did not satisfy injury-in-fact standing requirements), and Koronthaly v. L’Oreal

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USA, Inc., 374 Fed. Appx. 257 (3rd Cir. 2010) (finding no standing to assert claims related to the

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presence of lead in lipstick at an amount exceeding that permitted in candy under federal law).

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These cases are insufficient to render Kwikset inapposite. With the exception of Rivera, each

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of these cases addresses an alleged failure to disclose the presence of a substance that made a

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product indiscernibly dissimilar from what a consumer thought they were purchasing. Ross’s

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complaint, in contrast, alleges that Sioux Honey failed to disclose the absence of a substance that

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allegedly “materially alters the essential composition of honey by eliminating many of honey’s

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natural benefits,” and that “affected the consumer acceptance and purchase price” of its product.

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TAC ¶¶ 23, 78. In Guerrero v. Target Corp., 12-21115-CIV, 2012 WL 3812324 (S.D. Fla. Sept. 4,

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2012), a Florida district court drew a similar distinction in an analogous honey labeling case. That

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court distinguished Medley v. Johnson & Johnson Consumer Cos., 2011 WL 159674, and rejected

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defendant’s argument that plaintiff lacked standing, noting “[i]n the present case, the issue is not

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whether the honey Plaintiff purchased contained an unsafe substance, but rather that the honey

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lacked an ingredient, pollen, that Plaintiff contends is an essential element of honey under Florida

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law.” Id., 2012 WL 3812324 at *3. Unlike Medley, Boysen v. Walgreen Co., 2012 WL 2953069,

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and Koronthaly v. L’Oreal USA, Inc., 374 Fed. Appx. 257, the plaintiff in Guerrero “alleged that the

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honey she purchased did not contain the health benefits of pollen that she expected, was less

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valuable than honey that contained pollen and that she would not have purchased the honey if she
knew it did not contain pollen,” and thus “contends that the product she purchased was not what she

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For the Northern District of California

United States District Court

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expected.” Id. at * 3 and Fn. 4. Under those circumstances, the Guerrero court held that “Plaintiff

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has adequately plead an injury in fact.” Id. at * 3.

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Where, as here, the absence of a putatively valuable component is alleged to affect consumer

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acceptance and the price consumers are willing to pay, there is injury-in-fact sufficient to confer

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Article III standing. In contrast, in Riviera, the Fifth Circuit found the plaintiffs received a product

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that performed the medical benefits they expected, and thus there was no allegation that consumers

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paid more for the product than they otherwise would have had the warning been disclosed. See

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Rivera v. Wyeth-Ayerst Laboratories, 283 F.3d at 320 (“Duract worked. Had Wyeth provided

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additional warnings or made Duract safer, the plaintiffs would be in the same position they occupy

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now. Accordingly, they cannot have a legally protected contract interest.”).

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Finally, Sioux Honey asserts that Ross’s complaint ought to be dismissed in light of this

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Court’s decision in Brod because “[Sioux Honey] properly labeled its honey as honey and therefore

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there was no misrepresentation under federal law and the contrary California law was preempted.”

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Def.’s Mot. to Dismiss at 6. Defendant apparently argues that because Ross cannot prove her case

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in chief, neither can she show that she suffered an injury-in-fact, and therefore lacks standing under

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Article III. Sioux Honey’s argument misconstrues the scope of assessing constitutional standing.

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For the purpose of evaluating Ross’s standing to sue, it is enough that she alleges Sioux
Honey had a duty to label Sue Bee Honey in a way that discloses the removal of pollen to potential

11

1

consumers. Whether or not her claim properly construes controlling federal and state law to

2

demonstrate the existence of that duty on the merits will be examined infra, not here. See Flast v.

3

Cohen, 392 U.S. 83, 99 (1968) (“The fundamental aspect of standing is that it focuses on the party

4

seeking to get his complaint before a federal court and not on the issues he wishes to have

5

adjudicated. The ‘gist of the question of standing’ is whether the party seeking relief has ‘alleged

6

such a personal stake in the outcome of the controversy as to assure that concrete adverseness which

7

sharpens the presentation of issues upon which the court so largely depends for illumination of

8

difficult constitutional questions.’”) (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)). Whether

9

Ross’s complaint properly construes the FDCA and its regulations and whether Sioux Honey’s
alleged conduct violated those provisions are merits question which cannot be conflated with the

11
For the Northern District of California

United States District Court

10

inquiry into Plaintiff’s Article III standing. See Whitmore v. Arkansas, 495 U.S. 149, 154 (1990)

12

(“It is well established, however, that before a federal court can consider the merits of a legal claim,

13

the person seeking to invoke the jurisdiction of the court must establish the requisite standing to

14

sue.”) (emphasis added); see also Warth v. Seldin, 422 U.S. 490, 500 (1975) (a court’s threshold

15

inquiry into “standing in no way depends on the merits of the plaintiff’s contention that particular

16

conduct is illegal”). Thus, the Court rejects Sioux Honey’s invitation to dismiss Ross’s complaint

17

on standing grounds.

18

B.

19

Federal Labeling Requirements
Sioux Honey’s motion to dismiss next challenges Plaintiff’s interpretation of controlling

20

federal labeling laws, and argues that because Sioux Honey complied with applicable federal law,

21

Plaintiff’s five state law causes of action fail to state a viable claim. This aspect of the Defendant’s

22

motion is brought pursuant to Rule 12(b)(6). The Court finds that, to the extent Plaintiff’s state law

23

claims are premised on Sue Honey being mislabeled under federal law, those claims are legally

24

insufficient and must be dismissed as a matter of law.

25

1.

26

Federal Rule of Civil Procedure 8(a) requires a plaintiff to plead a claim with enough

27

specificity to “give the defendant fair notice of what the . . . claim is and the grounds upon which it

28

rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007) (quoting Conley v. Gibson, 355 U.S.

Legal Standard

12

1

41, 47 (1957)). Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss based

2

on the failure to state a claim upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6). A

3

motion to dismiss based on Rule 12(b)(6) challenges the legal sufficiency of the claims alleged. See

4

Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). In considering such a motion,

5

a court must take all allegations of material fact as true and construe them in the light most favorable

6

to the nonmoving party, although “conclusory allegations of law and unwarranted inferences are

7

insufficient to avoid a Rule 12(b)(6) dismissal.” Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir.

8

2009). While “a complaint need not contain detailed factual allegations . . . it must plead ‘enough

9

facts to state a claim to relief that is plausible on its face.’” Id. “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable inference that the

11
For the Northern District of California

United States District Court

10

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009); see

12

also Bell Atl. Corp. v. Twombly, 550 U.S. at 556. “The plausibility standard is not akin to a

13

‘probability requirement,’ but it asks for more than sheer possibility that a defendant acted

14

unlawfully.” Iqbal, 129 S. Ct. at 1949.

15

2.

16

The Federal Food, Drug, and Cosmetic Act (“FDCA”), 21 U.S.C. § 301, et. seq., establishes

Federal Food, Drug, and Cosmetic Act

17

national uniform food labeling requirements, including those governing the labeling of honey.

18

Congress amended the FDCA in 1990 by enacting the Nutrition Labeling and Education Act

19

(“NLEA”), whose stated purpose was, among other things, to “clarify and to strengthen [the FDA’s]

20

authority to require nutrition labeling on foods.” National Council for Improved Health v. Shalala,

21

122 F.3d 878, 880 (10th Cir. 1997) (quoting H.R. Rep. No. 101-538, at 7 (1990), reprinted in 1990

22

U.S.C.C.A.N. 3336, 3337). As part of the NLEA, Congress added a preemption provision to the

23

FDCA that expressly preempts state laws addressing certain subjects covered by the FDCA,

24

including food labeling requirements. See 21 U.S.C. § 343-1(a). That section provides in relevant

25

part as follows:

26
27

[N]o State or political subdivision of a State may directly or indirectly
establish under any authority or continue in effect as to any food in
interstate commerce –

28

...

13

1

(3)

2

any requirement for the labeling of food of the type required by
section . . . 343(i)...that is not identical to the requirement of
such section.

3

21 U.S.C. § 343-1(a)(3). Thus, when confronted with conflicting state labeling requirements,

4

federal law controls how a food must be labeled.

5

Section 343 of the FDCA, codified at 21 U.S.C. § 343, provides that where federal law has

6

prescribed a “standard of identity” to a food, the label affixed to that food must “bear[] the name of

7

the food specified in the definition and standard, and, insofar as may be required by other

8

regulations, the common names of optional ingredients . . .” 21 U.S.C. § 343(g). Neither party

9

asserts that honey is “a food for which a definition and standard of identity has been prescribed by
regulations.” 21 U.S.C. § 343(g). See Def.’s Mot. to Dismiss at 2; TAC ¶ 35.

11
For the Northern District of California

United States District Court

10

Where no “standard of identity” exists, the FDCA states that “a food shall be deemed to be

12

misbranded . . . [u]nless its label bears (1) the common or usual name of the food, if any there be,

13

and (2) in case it is fabricated from two or more ingredients, the common or usual name of each such

14

ingredient . . .” 21 U.S.C. § 343(I). The Food and Drug Administration (“FDA”), which has

15

responsibility under the FDCA to protect the public health by ensuring that “foods are safe,

16

wholesome, sanitary, and properly labeled,” 21 U.S.C. § 393(b)(2)(A), has promulgated a number of

17

regulations concerning food safety and labeling. See 21 C.F.R. § 101.1, et seq. These regulations

18

include, in relevant part, the following provisions for discerning the “common or usual name” of a

19

food:

20
21

(a) The common or usual name of a food, which may be a coined term,
shall accurately identify or describe, in as simple and direct terms as
possible, the basic nature of the food or its characterizing properties or
ingredients . . .

22
23
24
25

(b) The common or usual name of a food shall include the
percentage(s) of any characterizing ingredient(s) or component(s)
when the proportion of such ingredient(s) or component(s) in the food
has a material bearing on price or consumer acceptance or when the
labeling or the appearance of the food may otherwise create an
erroneous impression that such ingredient(s) or component(s) is
present in an amount greater than is actually the case . . .

26
27
28

(c) The common or usual name of a food shall include a statement of
the presence or absence of any characterizing ingredient(s) or
component(s) and/or the need for the user to add any characterizing
ingredient(s) or component(s) when the presence or absence of such

14

1
2
3

ingredient(s) or component(s) in the food has a material bearing on
price or consumer acceptance or when the labeling or the appearance
of the food may otherwise create an erroneous impression that such
ingredient(s) or component(s) is present when it is not, and consumers
may otherwise be misled about the presence or absence of the
ingredient(s) or component(s) in the food . . .

4
(1) The presence or absence of a characterizing
ingredient or component shall be declared by the words
“containing (or contains) ______” or “containing (or
contains) no ______” or “no ______” or “does not
contain ______”, with the blank being filled in with the
common or usual name of the ingredient or component
...

5
6
7
8
9

11
For the Northern District of California

United States District Court

10

12

(d) A common or usual name of a food may be established by common
usage or by establishment of a regulation in subpart B of this part, in
part 104 of this chapter, in a standard of identity, or in other
regulations in this chapter.
21 C.F.R. § 102.5.
The gravamen of Ross’s complaint is that pollen is a “characterizing component” of honey.

13

TAC ¶¶ 39-43. However, the FDA’s regulations do not define the term “characterizing component.”

14

Ross cites no authority denoting pollen as a “characterizing component” of honey. See Pl.’s Opp. at

15

9-11. As Sioux Honey points out in its motion papers, nor can Ross “cite a single state or federal

16

statute or regulation, case authority, legal treatise, dictionary definition, food industry publication, or

17

any other source for this proposition.” Def.’s Reply. Br. (Docket No. 54) at 8. While Plaintiff’s

18

complaint includes numerous citations to scientific and medical publications that discuss the

19

nutritional and economic benefits of bee pollen, see TAC ¶¶ 17-25, these citations do not, in

20

themselves, demonstrate that pollen is a “characterizing component” of the product commonly

21

known as “honey.” See also 21 C.F.R. § 102.5(d) (“A common or usual name of a food may be

22

established by common usage . . .”).

23

In Brod, this Court concluded that the “common or usual name” of Sue Bee Clover Honey

24

was “honey,” and that §343(i) of the FDCA required it to be labeled as such. Brod v. Sioux Honey

25

Ass’n Co-op., 2012 WL 3987516 at * 12. In reaching this conclusion, the Court noted that Sue Bee

26

Honey met “the typical definition of honey found in dictionaries,” despite the fact that it contained

27

no pollen. Id., 2012 WL 3987516 at * 11-12. This Court also considered a number of statutory

28

definitions of honey compiled from “states throughout this nation,” and found that “[n]one of these

15

1

definitions require that honey contain non-filtered pollen.” Id. at * 12. Further, the Court took

2

judicial notice of prior U.S. Department of Agriculture regulations that established varying grades of

3

honey, and found that those regulations supported a finding that “the common or usual name for Sue

4

Bee Clover Honey is ‘honey.’” Id; see U.S. Department of Agriculture “United States Standards for

5

Grades of Extracted Honey,” 16 Fed. Reg. 2463 (March 16, 1951). These former regulations

6

established a voluntary grading metric for determining the quality of honey sold within the U.S.

7

That metric assigned “Grade A,” the highest grade, to honey that, among other things, achieved a

8

clarity score of “not less than 90 points . . .,” with clarity being scored based on a honey’s “degree

9

of freedom from air bubbles, pollen grains, or fine particles of any material which might be
suspended in the product.” 16 Fed. Reg. 2465-66 (emphasis added). Although the Department of

11
For the Northern District of California

United States District Court

10

Agriculture removed these standards from the Code of Federal Regulations on December 4, 1995, as

12

part of a “National Performance Review program to eliminate unnecessary regulations and improve

13

those that remain in force,” see Removal of U.S. Grade Standards and Other Selected Regulations,

14

60 Fed. Reg. 62172-01 (December 4, 1995), the standards support a finding that, at least for much of

15

the latter twentieth century, pollen was not considered a material or “characterizing component” of

16

honey. Plaintiff has cited no authority indicating that either the honey industry or American

17

consumers of honey have deviated from that longstanding position.

18

Ross has not pled facts sufficient to make her interpretation of the applicable federal laws

19

facially plausible. She has not demonstrated that pollen is a “characterizing component” of honey

20

such that its removal must be noted on an affixed label. See 21 C.F.R. § 102.5(c).

21

Ross also alleges that Sue Honey ought to be considered “adulterated” under the FDCA

22

because “Defendant removed a valuable constituent, pollen, from the Sue Bee Honey, which

23

degraded the honey’s quality.” TAC ¶ 76, 95. 21 U.S.C. § 342(b)(1) declares that “[a] food shall be

24

deemed to be adulterated” when “any valuable constituent has been in whole or in part omitted or

25

abstracted therefrom.” As with Ross’s claim that pollen is a “characterizing component” of honey,

26

Plaintiff’s complaint offers no legal support that pollen is considered a “valuable constituent” of

27

honey under the FDCA. Again, Plaintiff fails to meet the “facial plausibility” standard of Iqbal and

28

Twombly. See Ashcroft v. Iqbal, 129 S. Ct. at 1949; Bell Atl. Corp. v. Twombly, 550 U.S. at 678.

16

1
2
3

Plaintiff’s claim based on federal law is dismissed with prejudice.
C.

California Labeling Requirements
In the alternative, Ross argues that provisions of the California Food and Agriculture code

4

require Sioux Honey to disclose that its Sue Bee Clover Honey is “pollen free.” Pl.’s Opp. (Docket

5

No. 53) at 6; see also id. at 5 (“Defendant’s arguments, however, are erroneous because: (1)

6

California is free to regulate disclosures regarding the absence of pollen from honey, as this Court

7

has recognized . . . (4) the California Honey Standard and relevant California statues are identical to

8

or consistent with 21 U.S.C. § 102.5(c), which requires Sue Bee Honey to be labeled as ‘Honey –

9

No Pollen,’ and not simply ‘honey.’”).
In Brod, this Court held that the California Food and Agriculture code provisions relied on

11
For the Northern District of California

United States District Court

10

by Ross were preempted by the FDCA to the extent that they required Sue Bee Clover Honey to be

12

sold as something other than ‘honey’ in California. See Brod v. Sioux Honey Ass’n Co-op., 2012

13

WL 3987516 at * 10 (“The Court thus concludes that the California laws invoked by Plaintiff in his

14

complaint impose a labeling requirement that squarely conflicts with federal labeling law. It is

15

therefore preempted.”). The Court explicitly noted that its

16
17
18

finding of preemption does not imply that California is powerless to
act in this arena. For instance, if California required disclosure on its
labels that the honey was e.g., “filtered” or “pollen free,” that would
appear not to conflict expressly with § 343(i). California simply
cannot under § 343(i) ban the use of the label “honey” for products
which are commonly and usually called honey.

19
20
21

Brod v. Sioux Honey, 2012 WL 3987516 at * 9.
Ross attempts to pick up where Brod left off, and argues that these very same provisions of

22

California’s Food and Agriculture Code require the sort of disclosure contemplated by the Court.

23

However, simply because California may be able to prescribe a supplementary label requirement

24

such as “filtered” or “pollen free” does not mean that California has done so. The text of the code

25

provisions Ross relies on to establish such a requirement does not support her assertion.

26

Section 29413(e) of the California Food and Agriculture Code provides:

27
28

Honey sold as described in subdivision (d) shall not have added to it
any food ingredient, including food additives, nor shall any other
additions be made other than honey. Honey shall not have any

17

1

objectionable matter, flavor, aroma, or taint absorbed from foreign
matter during its processing and storage. Honey shall not have begun
to ferment or effervesce and no pollen or constituent particular to
honey may be removed except where unavoidable in the removal of
foreign inorganic or organic matter.

2
3
4

Cal. Food & Agric. Code § 29413(e) (emphasis added). Section 29671 in turn provides “it is
5
unlawful for any person to . . . sell any honey, adulterated honey or any product which is marked,
6
labeled, or designated as honey, which does not conform to the provisions of this chapter.” Cal.
7
Food & Agric. Code § 29617 (emphasis added). Additionally, § 29673 makes it “unlawful for any
8
person to mislabel any container or subcontainer of honey or place any false or misleading statement
9
on any wrapper, label, or lining of any container of honey, or on any placard which is used in
connection with or which has reference to any honey.” Cal. Food & Agric. Code § 29673 (emphasis
11
For the Northern District of California

United States District Court

10
added).
12
As this Court noted in Brod, these provisions, by their terms, require that any product labeled
13
as honey must contain pollen to be lawfully sold in California. Brod v. Sioux Honey, 2012 WL
14
3987516 at * 9-10. While the law appears to prohibit the sale of such honey, it does not purport to
15

impose a labeling requirement when such honey is sold.3 California law does not, as Plaintiff

16
suggests, require Sioux Honey “to disclose that the Sue Bee Honey is pollen-free – in an area of its
17
label other than where the common or ususal name appears . . .” Pl.’s Opp at 6. The California
18
Legislature has been quite clear in declaring when honey products require additional labeling and
19
disclosures. Since at least 1967, California has imposed a labeling requirement on honey merchants
20
to disclose when honey sold in the state has been imported from a foreign country. See Cal. Food &
21
Agric. Code § 29643 (“Every container and subcontainer of imported honey shall be labeled with
22
the name of the territory or foreign country from which it is imported . . .”). Similarly, California
23
law directs honey merchants to “conspicuously mark” each container of honey with “[o]ne of the
24
United States grades which are established for honey by the United States Department of
25
Agriculture.” Cal. Food & Agric. Code § 29611(c). Indeed, the very same section of the Food and
26
Agricultural Code requires merchants to disclose the addition of pollen. See id § 29611(c) (“This
27
28

3

Plaintiff does not seek to enjoin the sale of Sue Bee Honey in California under § 29413(e).

18

1

subdivision does not, however, apply to honey to which pollen has been added, if the amount of

2

pollen added is visible and each such container is plainly and conspicuously labeled with the words

3

‘pollen added.’”).

4

Plaintiff’s argument that § 29413(e) implicitly requires merchants to disclose the removal of

5

pollen from honey is neither supported by the text of statute, nor is it in harmony with the many

6

explicit disclosure requirements found in California’s statutory scheme addressing honey

7

production, manufacture, and sale. Nor can Ross cite to a single case or administrative decision that

8

construes § 29413(e) in the manner advanced by Plaintiff.

already held that federal law requires that Sue Bee Honey be labeled as “honey,” its common name,

11
For the Northern District of California

While § 29673 makes it unlawful to “mislabel” any container of honey, this Court has

10

United States District Court

9

regardless of its pollen content. Moreover, as noted above, California law (Food & Agric. Code §

12

29611(c)) requires that honey be marked with one of the U.S. grades; in this case Sue Bee Honey is

13

marked “Grade A,” defined by former federal regulations as honey from which pollen has been

14

filtered. Plaintiff has failed to demonstrate how Sue Bee Honey, the labeling of which complies

15

with federal law and § 29611(a), can be deemed “mislabeled” under § 29673.

16

D.

State Law Claims

17

Plaintiff confirmed at oral argument that her amended complaint advances two claims that

18

are not premised on, or derived from, a finding that Sioux Honey violated federal or state labeling

19

requirements. See Hearing Trans. at 11:19-22. First, Ross argues that, independent of federal and

20

state labeling requirements, Sioux Honey’s act of removing all naturally-occurring pollen from Sue

21

Bee Honey constituted unlawful “adulteration” under California’s Sherman Food, Drug, and

22

Cosmetic Law (“Sherman Act”), Cal. Health & Safety Code § 109875, et. seq. See TAC ¶¶ 77, 96.

23

Second, Plaintiff argues that Sioux Honey’s failure to disclose the fact that all pollen had been

24

removed from a product denominated as ‘Honey’ amounted to a misrepresentation as to the

25

product’s “quality, characteristics, and/or ingredients,” also in violation of the Sherman Act. See

26

TAC ¶¶ 73, 104.

27
28

19

1

1.

2

Section 110585 of the Sherman Act declares a food to be adulterated “if any valuable

3

constituent has been in whole or in part omitted or abstracted therefrom” or “if damage or inferiority

4

has been concealed in any manner.” See Cal. Health & Safety Code § 110585(a) and (c). Section

5

110620 makes it “unlawful for any person to manufacture, sell, deliver, hold, or offer for sale any

6

food that is adulterated.” Ross argues that Sioux Honey ‘adulterated’ Sue Bee Honey when “a

7

valuable constituent, pollen, was removed from the Sue Bee Honey, which degraded the honey’s

8

quality.” TAC ¶ 76. The Sherman Act does not further define ‘adulteration’ or ‘valuable

9

constituent.’4 Nor does Cal. Penal Code § 383, a parallel provision from 1905 that also criminalizes

Adulteration

the adulteration of food, shed any light on how these terms are to be interpreted. See Cal. Penal

11
For the Northern District of California

United States District Court

10

Code § 383(b)(3) (stating that adulteration of food occurs when “any valuable or necessary

12

constituent or ingredient has been wholly or in part abstracted from it”). Indeed, counsel for both

13

parties admitted at the hearing on this matter that they have been unable to locate any case,

14

regulation, or other material construing these seemingly crucial terms of § 110585. See Hearing

15

Trans. 6:9-14,17:25-18:18.

16

Ross’s amended complaint avers that Sioux Honey is ultimately liable to Plaintiff and her

17

putative class for ‘adulterating’ Sue Bee Honey under the remedies provisions of the California

18

Consumers Legal Remedies Act (“CLRA”), Cal. Civ. Code §§ 1750, et. seq., and the California

19

Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code § 17200, et. seq. See TAC ¶¶ 67-100.

20

The CLRA makes unlawful the act of “[r]epresenting that goods or services are of a particular

21

standard, quality, or grade, or that goods are of a particular style or model, if they are of another,”

22

Cal. Civ. Code § 1770(a)(7), as well as “[r]epresenting that goods or services have sponsorship,

23

approval, characteristics, ingredients, uses, benefits, or quantities which they do not have or that a

24

person has a sponsorship, approval, status, affiliation, or connection which he or she does not have.”

25

Id. §1770(a)(5).

26
4

27
28

The lack of an established or accepted definition of “valuable constituent” is particularly
troubling because “[t]he word ‘valuable’ is a relative term susceptible of many interpretations and of
no definite or absolute meaning. That which is considered valuable by one court or jury might not
be considered so by another.” U. S. v. Fabro, Inc., 206 F. Supp. 523, 526 (M.D. Ga. 1962).

20

1

The UCL prohibits any “unlawful, unfair[,] or fraudulent business act or practice,” including

2

engaging in “unfair, deceptive, untrue or misleading advertising.” Cal. Bus. & Prof. Code § 17200.

3

Under the UCL, “unfair” business practices exist when (1) the harm to the consumer outweighs the

4

utility of a practice to the defendant, or (2) when a business practice violates public policy as

5

declared by “specific constitutional statutory or regulatory provisions.” Rubio v. Capital One Bank,

6

613 F.3d 1195, 1205 (9th Cir. 2010) (citing Lozano v. AT & T Wireless Servs., Inc., 504 F.3d 718,

7

735 (9th Cir. 2007) and Gregory v. Albertson’s, Inc., 104 Cal. App. 4th 845, 854 (2002)). “The

8

UCL’s scope is broad. By defining unfair competition to include any unlawful business act or

9

practice, the UCL permits violations of other laws to be treated as unfair competition that is
independently actionable.” Kasky v. Nike, Inc., 27 Cal. 4th 939, 949 (2002) (emphasis in original)

11
For the Northern District of California

United States District Court

10

(citations and internal quotation marks omitted).

12

The Ninth Circuit has held that, in the context of a false or misleading advertising claim,

13

“these California statutes are governed by the ‘reasonable consumer’ test.” Williams v. Gerber

14

Products Co., 552 F.3d 934, 938 (9th Cir. 2008). See also Freeman v. Time, Inc., 68 F.3d 285, 289

15

(9th Cir.1995) (under the UCL, a “false or misleading advertising and unfair business practices

16

claim must be evaluated from the vantage of a reasonable consumer”) (citation omitted). To be sure,

17

a claim that a product has been unlawfully adulterated is not synonymous with a claim that a product

18

was advertised or marketed in a false or misleading manner. However, as discussed infra, this Court

19

finds that the “reasonable consumer” standard is nonetheless the appropriate standard for

20

determining what constitutes a “valuable constituent” under the Sherman Act, and, by extension,

21

whether its removal amounts to “adulteration.”

22

American law is replete with references to “the archetypal reasonable person.” Ford Dealers

23

Assn. v. Dep’t of Motor Vehicles, 32 Cal. 3d 347, 369 (1982). A number of areas of law resolve

24

linguistic ambiguity with reference to the standards and practices of the “average citizen.” See e.g.

25

Miller v. California, 413 U.S. 15, 24 (1973) (defining ‘obscenity’ as “whether ‘the average person,

26

applying contemporary community standards’ would find that [a] work, taken as a whole, appeals to

27

the prurient interest”) (citations omitted); Cf. People v. Newble, 120 Cal. App. 3d 444, 452 (Cal. Ct.

28

App. 1981) (procedural due process requires a criminal statute to be “so definite and certain that it

21

ordinary or average intelligence, of what acts or omissions it declares to be prohibited and

3

punishable”). Tort law in this and many other states invokes the “standard of a ‘reasonable prudent

4

person under the circumstances’ [as] the general standard of care” to which citizens are expected to

5

adhere in carrying out their duties to one another. Kentucky Fried Chicken of Cal., Inc. v. Superior

6

Court, 14 Cal. 4th 814, 824 (1997). Indeed, the “reasonable person” of American law is no less than

7

“a personification of a community ideal of reasonable behavior.” Prosser & Keeton on Torts, § 32 at

8

p. 175 (5th ed. 1984). Closer to the case at bar, the ‘reasonable person’ standard “is well ensconced

9

in the law in a variety of legal contexts in which a claim of deception is brought. It is the standard

10

for false advertising and unfair competition under the Lanham Act, for securities fraud, for deceit

11
For the Northern District of California

gives fair warning, not necessarily with mathematical exactitude, but sufficient to inform a person of

2

United States District Court

1

and misrepresentation and for common law unfair competition.” Freeman v. Time, Inc., 68 F.3d

12

285, 289 (9th Cir. 1995) (quoting Haskell v. Time, Inc., 857 F. Supp. 1392, 1398 (E.D. Cal. 1994)).

13

The standard is also employed in various California food and product safety laws. See Mexicali

14

Rose v. Superior Court, 1 Cal. 4th 617, 633 (1992) (where the California Supreme Court expressly

15

adopted a “reasonable expectation of the consumer” test for determining when a restaurateur is

16

liable in tort for injuries caused by harmful substances in food);5 Soule v. Gen. Motors Corp., 8 Cal.

17

4th 548, 567 (1994) (reasonable consumer test used in certain product liability cases “in which the

18

everyday experience of the product’s users permits a conclusion that the product’s design violated

19

minimum safety assumptions”) (emphasis in original).

20

The Sherman Act does not set out an explicit rule or test for judging what constitutes a

21

“valuable constituent” of a food such that its removal would amount to “adulteration” under

22

California law. However, neither does it contain language that “expressly departs from the

23
24
25
26
27
28

5

The Mexicali Rose Court held, in part, that “in deciding the liability of a restaurateur for
injuries caused by harmful substances in food, the proper test[] to be used by the trier of fact” is as
follows:
If the injury-causing substance is foreign to the food served, then the
injured patron may also state a cause of action in implied warranty and
strict liability, and the trier of fact will determine whether the
substance (i) could be reasonably expected by the average consumer
and (ii) rendered the food unfit or defective.
Mexicali Rose v. Superior Court, 1 Cal. 4th at 633 (emphasis added).

22

This Court will not infer a departure from such a widely accepted standard in the absence of express

3

language indicating that something other than the viewpoint of an ordinary or average consumer

4

should inform what qualifies as a “valuable constituent” under the Act. Cf. Haskell v. Time, Inc.,

5

857 F. Supp. at 1398 (“In the absence of language indicating that the statute does depart, the court

6

will not infer such a departure” from “the reasonable person standard.”). As with the concept of

7

negligence in tort law, statutory terms like “adulteration” and “valuable constituent” in the Act

8

should be construed in light of a “uniform standard” that is “external” and “objective,” rather than

9

one based on “the individual judgment, good or bad,” of a particular consumer, “and it must be, so

10

far as possible, the same for all persons, since the law can have no favorites.” Prosser & Keeton on

11
For the Northern District of California

‘reasonable person’ standard so well rooted in the law.” Haskell v. Time, Inc., 857 F. Supp. at 1398.

2

United States District Court

1

Torts, § 32 at p. 173-74. Therefore, the Court adopts the “reasonable person” or “reasonable

12

consumer” test for determining when a food has been “adulterated” through the removal of a

13

“valuable constituent” under the Sherman Act.6

14

The “reasonable consumer” standard adopts the perspective of the “ordinary consumer acting

15

reasonably under the circumstances.” Lavie v. Procter & Gamble Co., 105 Cal. App. 4th 496, 512

16

(2003). The reasonable consumer need not be “exceptionally acute and sophisticated.” Donaldson

17

v. Read Magazine, 333 U.S. 178, 189 (1948); Lavie v. Procter & Gamble Co., 105 Cal. App. 4th at

18

509. Rather, questions of judgment calling for the perspective of a reasonable consumer are

19

“determined in the light of the effect [such a question] would most probably produce on ordinary

20

minds.” Donaldson v. Read Magazine, 333 U.S. at 189.

21

Under the reasonable consumer standard, Plaintiff has not pled sufficient facts to establish

22

that pollen is a valuable constituent of honey. Her amended complaint fails to allege any factual

23

support for her belief that an ordinary consumer would consider pollen to be a constituent of honey,

24

let alone a “valuable constituent.” As with her assertion that pollen should be considered a

25

“characterizing component” of honey under the FDA’s FDCA regulations, Ross cannot cite a single

26

source stating that ordinary consumers consider pollen to be the “heart and soul of honey.” Hearing

27
6

28

Plaintiff has also proposed adoption of a “reasonable consumer” standard for assessing
whether pollen constitutes a “valuable constituent” of honey. See Hearing Trans. 6:13-14.

23

1

Trans. 8:17-21. To be sure, the amended complaint cites numerous scientific and medical

2

publications that discuss the nutritional and economic benefits of bee pollen. See TAC ¶¶ 17-25. It

3

is certainly not implausible that a particularly sophisticated consumer might consider pollen to be a

4

valuable constituent of honey. But this does not establish that the reasonable consumer would

5

expect honey to contain pollen. Plaintiff’s amended complaint is silent on this except for threadbare

6

conclusory recitals that state the “absence of pollen from honey is material to consumer acceptance.”

7

TAC ¶ 18. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory

8

statements,” however, “do not suffice” to state a plausible claim. Ashcroft v. Iqbal, 556 U.S. at 678.

9

Indeed, this Court has previously catalogued a number of state statutes and dictionary
definitions of “honey,” and noted that none identify pollen as a constituent. See Brod v. Sioux

11
For the Northern District of California

United States District Court

10

Honey Ass’n Co-op., 2012 WL 3987516 at * 11-12. California’s own statutory definition of honey

12

omits any reference to pollen, and has done so since at least 1967. See Cal. Food & Ag. Code §

13

29413(a).7 In fact, as noted above, California’s honey statutes specifically require merchants to

14

disclose when pollen is added to honey. See Cal. Food & Ag. Code § 29611(c). There is no parallel

15

labeling provision regulating the removal of pollen. And the fact that the Department of

16

Agriculture’s “United States Standards for Grades of Extracted Honey” assigned “Grade A” to

17

honey characterized by its “freedom from air bubbles, pollen grains, or fine particles of any material

18

which might be suspended in the product” for much of the latter twentieth century, combined with

19

the statutory and dictionary definitions referenced above, strongly suggests that pollen is not, in the

20
7

21
22
23
24
25
26
27
28

California currently defines “honey” as “the natural sweet substance produced by
honeybees from the nectar of plants or from secretions of living parts of plants or excretions of plant
sucking insects on the living parts of plants, which the bees collect, transform by combining with
specific substances of their own, deposit, dehydrate, store, and leave in the honeycomb to ripen and
mature.” Cal. Food & Agric. Code § 29413(a). Prior to its amendment in 2009, the statutory
definition of “honey” was as follows:
“Honey” means the nectar of floral exudations of plants gathered and
stored in the comb by honeybees. It is a levorotatory, contains not
more than 20 percent of water, not more than 25 one hundredths of 1
percent of ash, not more than 8 percent of sucrose, its specific gravity
is not less than 1.412, its weight not less than 11 pounds, 12 ounces
per standard gallon of 231 cubic inches at 68 degrees Fahrenheit.
Cal. Food & Agric. Code § 29413 (amended by Stats. 2009, c. 388 (A.B.1216), § 1). Neither
definition makes any reference to pollen.

24

1

mind of the ordinary consumer, a “valuable constituent” of honey. See 16 Fed. Reg. 2465-66

2

(emphasis added).

3

2.

4

Ross argues that Sioux Honey’s failure to disclose the fact that all pollen has been removed

Misleading

5

from a product denominated as “honey” amounts to a misrepresentation as to the product’s “quality,

6

characteristics, and/or ingredients,” irrespective of state and federal labeling requirements. See TAC

7

¶¶ 73, 104. Plaintiff alleges that Sioux Honey’s nondisclosure of this fact subjects it to liability

8

under the CLRA, the UCL, and California’s False Advertising Law (“FAL”), Cal. Bus. & Prof.

9

Code § 17500, et. seq.8 As a group, “these laws prohibit ‘not only advertising which is false, but
also advertising which[,] although true, is either actually misleading or which has a capacity,

11
For the Northern District of California

United States District Court

10

likelihood or tendency to deceive or confuse the public.’” Kasky v. Nike, Inc., 27 Cal. 4th at 951

12

(quoting Leoni v. State Bar, 39 Cal. 3d 609, 626 (1985)). In order to establish liability under these

13

statutes, the omission or affirmative misrepresentation contained within an allegedly misleading

14

advertisement must be “material” to a customer’s evaluation of a product. See In re Tobacco II

15

Cases, 46 Cal. 4th 298, 326-27 (2009) (“It is not necessary that the plaintiff’s reliance upon the truth

16

of the fraudulent misrepresentation be the sole or even the predominant or decisive factor

17

influencing his conduct. It is enough that the representation has played a substantial part, and so had

18

been a substantial factor, in influencing his decision.”) (internal quotation marks and citations

19

omitted); Glenn K. Jackson Inc. v. Roe, 273 F.3d 1192, 1201 Fn. 2 (9th Cir. 2001) (materiality is a

20

required element of fraud claims based on affirmative misrepresentation and omission). “A

21

misrepresentation is judged to be ‘material’ if ‘a reasonable man would attach importance to its

22

existence or nonexistence in determining his choice of action in the transaction in question.’” In re

23
8

24
25
26
27
28

A similar claim could be advanced under § 110660 of the Sherman Act. That section states
that “[a]ny food is misbranded if its labeling is false or misleading in any particular.” Cal. Health &
Safety Code § 110660. Section 110770 of the Act prohibits the “misbranding” of food, stating that
“[i]t is unlawful for any person to receive in commerce any food that is misbranded or to deliver or
proffer for delivery any such food.” Id. § 110770. At the hearing on this motion, Plaintiff’s counsel
stated that her “nondisclosure” claim was a “standalone claim[] . . . not necessarily predicated on the
Sherman law or the California Agricultural Code.” Hearing Trans. 10:1-4. Even if Plaintiff had
advanced her nondisclosure claim under § 110660, the fact that she failed to plead any facts
supporting her contention that the absence of pollen in Sue Bee Honey was “material” to the
ordinary consumer would warrant dismissal under Rule 12(b)(6).

25

1

Tobacco II Cases, 46 Cal. 4th 298 at 327 (quoting Engalla v. Permanente Medical Group, Inc. 15

2

Cal. 4th 951, 976–977 (1997)) (internal citations omitted).

3

California courts have expressly adopted the “reasonable consumer” standard for

Gerber Products Co., 552 F.3d at 938 (“Appellants’ claims under these California statutes are

6

governed by the ‘reasonable consumer’ test.”). “Under the reasonable consumer standard,

7

Appellants must show that members of the public are likely to be deceived.” Id. (quoting Freeman

8

v. Time, Inc., 68 F.3d at 289, and Bank of West v. Superior Court, 2 Cal. 4th 1254, 1267 (1992)).

9

For the reasons already discussed, Plaintiff has failed to allege facts giving “facial plausibility” to

10

her claim that pollen (and its removal from honey) is of material concern to the ordinary consumer.

11
For the Northern District of California

adjudicating misrepresentation claims advanced under the CLRA, UCL, and FAL. See Williams v.

5

United States District Court

4

The amended complaint provides no indication that the presence or absence of pollen “play[s] a

12

substantial part” in the reasonable consumer’s decision to purchase honey. In re Tobacco II Cases,

13

46 Cal. 4th 298 at 326. Rather, the record before the Court suggests a “jury could not reasonably

14

find that a reasonable man would have been influenced by” the failure to disclose the filtration of

15

pollen. Id. at 327. As such, Plaintiff’s CLRA, UCL, and FAL causes of action premised on

16

nondisclosure of a material fact do not state a viable claim under Rule 12(b)(6).9

17
18
19
20
21
22
23
24
25
26
27
28

9

Plaintiff’s counsel noted at the hearing that Judge Brick of the Alameda County Superior
Court recently overruled a demurrer dismissing similar claims in Strobridge v. Safeway, Inc., RG12-611078 (Super. Ct., Alameda Cty.). Judge Brick’s tentative ruling, which Plaintiff’s counsel
provided to this Court, states the following:
Plaintiffs allege that they would not have bought or would not have
paid as much for the Safeway Honey had they known that pollen had
been removed. Their theory thus appears to be that the presence of
pollen is so important to them and other purchasers of honey that its
removal without disclosure is unlawful, unfair, deceptive and
fraudulent, as well as a breach of an implied contract. Because the
Court must accept as true for purposes of this demurrer Plaintiffs’
well-pleaded factual allegations and the Court cannot say as a matter
of law that none of Plaintiffs’ claims are properly stated, the demurrer
must be OVERRULED.
Under California law, “[w]hether a practice is deceptive, fraudulent, or unfair is generally a question
of fact which requires consideration and weighing of evidence from both sides and which usually
cannot be made on demurrer.” Linear Tech. Corp. v. Applied Materials, Inc., 152 Cal. App. 4th 115,
134-35 (2007) (citation and internal quotation marks omitted). However, in federal civil practice
“[t]he tenet that a court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. at 678. As noted above, threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, such as

26

1

3.

2

Ross advances two additional common law claims in her amended complaint; the first is

Common Law Unjust Enrichment and Breach of Implied Contract

3

premised on the doctrine of unjust enrichment or restitution, and the second on breach of implied

4

contract. See TAC ¶¶ 109-125. Regarding first claim, “California courts appear to be split as to

5

whether there is an independent cause of action for unjust enrichment.” Clerkin v. MyLife.com, Inc.,

6

C 11-00527 CW, 2011 WL 3607496 at * 8 (N.D. Cal. Aug. 16, 2011). “To the extent a claim for

7

unjust enrichment is available, it generally requires proof of ‘receipt of a benefit and unjust retention

8

of the benefit at the expense of another.’” Mattel, Inc. v. MGA Entm’t, Inc., 782 F. Supp. 2d 911,

9

1014 (C.D. Cal. 2011) (quoting Herrington v. Johnson & Johnson Consumer Companies, Inc., C 091597 CW, 2010 WL 3448531 at * 13 (N.D. Cal. Sept. 1, 2010). As with her other claims, Plaintiff

11
For the Northern District of California

United States District Court

10

has not pled sufficient factual matter to establish the facial plausibility of her allegation that

12

Defendant made “material misrepresentations and omissions of material fact” by its failure to

13

disclose that all pollen had been removed from Sue Bee Honey. TAC ¶ 114. Absent such, the Court

14

does not discern any viable claim for unjust enrichment.

15

On Plaintiff’s second common law claim for breach of implied contract, the Court finds that

16

Ross’s complaint fails to adequately plead the required elements of the implied contract that

17

allegedly existed between Sioux Honey and purchasers of Sue Bee Clover Honey. Under California

18

law, “a cause of action for breach of implied contract has the same elements as does a cause of

19

action for breach of contract, except that the promise is not expressed in words but is implied from

20

the promisor’s conduct.” Yari v. Producers Guild of Am., Inc., 161 Cal. App. 4th 172, 182 (2008).

21

Section 1621 of the California Civil Code defines “an implied contract” as a contract where “the

22

existence and terms of which are manifested by conduct.” Cal. Civ. Code § 1621. The amended

23

complaint does not include any specific allegations suggesting that the conduct of the parties here

24

manifested an intent to create a contract, nor what the terms of that contract might be. Rather, it

25

simply states that “Plaintiff and other similarly situated Class members conferred upon Defendant

26

benefits that were non-gratuitous . . .”, and that “Defendant accepted or retained the benefits

27
28

Ross’s assertions concerning the materiality of pollen to ordinary consumers, do not suffice to state
a plausible claim in federal court under Ashcroft v. Iqbal, 556 U.S. at 678.

27

1

conferred by Plaintiff and other similarly situated Class members despite Defendant’s knowledge of

2

its material misrepresentations and omissions of material fact.” TAC ¶¶ 122-123. It does not

3

describe the “bargained-for exchange” at the core of the implied contract, nor does it illuminate any

4

contractual terms. To the extent Plaintiff asserts that Defendant contracted for the sale and purchase

5

of Sue Bee Honey between consumers and Sioux Honey, and that their sale contract contained an

6

implied term that the honey contain pollen, for the reasons stated above why there is no viable claim

7

of mislabeling or adulteration, no such term may reasonably be implied by contract here. As such,

8

Plaintiff’s breach of implied contract claim fails to state a viable cause of action against Defendant

9

under Rule 12(b)(6).

11
For the Northern District of California

United States District Court

10

IV.

CONCLUSION

For the reasons discussed above, the Court hereby GRANTS Sioux Honey’s motion to

12

dismiss. While Plaintiff has standing to assert her claims under Article III, she has not shown that

13

Sioux Honey has a duty under federal or state law to disclose to purchasers of Sue Bee Honey that

14

all naturally occurring pollen has been removed from the product. Nor has Plaintiff alleged

15

sufficient facts to support her state law claims that Defendant’s nondisclosure exposes it to liability

16

under the statutory and common law causes of action advanced in the amended complaint. This

17

dismissal is with prejudice. The Court concludes that any further amendment to the complaint

18

would be futile. The Clerk shall enter judgment and close the file.

19
20

IT IS SO ORDERED.

21
22

Dated: January 14, 2013

23

_________________________
EDWARD M. CHEN
United States District Judge

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