Parker v. J.M. Smucker Co.

Filing 29

Order by Hon. Samuel Conti denying 20 Motion to Dismiss.(sclc2, COURT STAFF) (Filed on 8/23/2013)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 United States District Court For the Northern District of California 9 10 11 DIANA PARKER, individually and on behalf of all others similarly situated, Plaintiff, 12 v. 13 14 J.M. SMUCKER CO., Defendant. 15 16 ) Case No. C 13-0690 SC ) ) ORDER DENYING MOTION TO DISMISS ) ) ) ) ) ) ) ) ) ) ) ) ) 17 18 19 I. 20 INTRODUCTION Now before the Court is Defendant J.M. Smucker Co.'s 21 ("Defendant") motion to dismiss Plaintiff Diana Parker's 22 ("Plaintiff") amended class action complaint. 23 20 ("MTD"). 24 ("Reply"), and appropriate for decision without oral argument, Civ. 25 L.R. 7-1(b). 26 Defendant's motion. 27 /// 28 /// ECF Nos. 16 ("FAC"), The motion is fully briefed, ECF Nos. 22 ("Opp'n"), 24 For the reasons explained below, the Court DENIES 1 II. BACKGROUND 2 Defendant is an Ohio corporation that manufactures a variety 3 of food products, including the four types of Crisco cooking oil at 4 issue in this case: Crisco Pure Vegetable Oil, made from soybean 5 oil; Crisco Pure Canola Oil, made from rapeseed oil; Crisco Pure 6 Corn Oil, made from corn oil; and Crisco Natural Blend Oil, made 7 from combined rapeseed, sunflower, and soybean oil. 8 (collectively, these products are the "Oils"). 9 California resident who purchased Crisco Pure Vegetable Oil. United States District Court For the Northern District of California 10 8. 11 have purchased the Oils. FAC ¶¶ 9-14 Plaintiff is a Id. ¶ She brings this suit on behalf of herself and other people who Id. ¶ 3. Plaintiff's claims are based on a single fact: all of the Oils 12 13 include the label "All Natural" next to the Oil's name on the 14 packaging. 15 not "natural" at all, because they are made with genetically 16 modified ("GM" or "bioengineered") crops, and are also "so heavily 17 processed that they bear no chemical resemblance to the ingredients 18 from which they were derived." 19 consumers like her are drawn to "All Natural" products because 20 those products are perceived to be "better, healthier, and more 21 wholesome." 22 consumers into buying products they otherwise would have avoided, 23 whether due to health concerns or mere preference. 24 8. 25 See id. ¶¶ 11-14. Id. ¶ 2. Plaintiff claims that the Oils are Id. ¶ 1. As Plaintiff alleges, Labels like Defendant's therefore trick See id. ¶¶ 2, Plaintiff's first basis for her suit, that food derived from 26 GM crops cannot be natural, is based on an array of definitions 27 from industry, government, and health organizations. 28 These definitions all characterize bioengineered crops as having 2 Id. ¶¶ 16-20. with another's in ways that do not occur naturally. 3 20. 4 U.S. soy, and over 80% of U.S. canola crops are GM," and that 5 Defendant sources its ingredients from U.S. commodity suppliers who 6 supply GM crops. 7 factual statement from Defendant itself about GM crops, taken from 8 its "Statement Regarding Genetic Modification": "Due to expanding 9 use of biotechnology by farmers and commingling of ingredients in 10 United States District Court been scientifically altered to combine one plant's genetic material 2 For the Northern District of California 1 storage and shipment, it is possible that some of our products may 11 contain ingredients derived from biotechnology." 12 Plaintiff links these facts together to conclude that Defendant 13 must be using non-natural GM crops in its Oils, and therefore that 14 the "All Natural" statement that appears on Defendant's Oils is 15 actionably false, misleading, or unfair. See id. ¶¶ 16- She also asserts that "[o]ver 70% of U.S. corn, over 90% of Id. ¶ 21. Plaintiff's claims include only one Id. ¶ 22. Id. ¶ 23. Plaintiff's second, separate factual ground for this suit -- 16 17 that the Oils are not natural because they are highly processed and 18 no longer retain their source-plants' original chemical properties 19 -- is based on distinctions among oil-manufacturing processes. 20 ¶ 24. 21 pressing, which she says "allow the oils to retain the chemical 22 composition occurring in nature." 23 this process with the less mechanical, more chemical methods she 24 says Defendant uses to make its Oils. 25 Plaintiff, Defendant begins its manufacturing process by physically 26 extracting oil from vegetables, but after that, the raw oil becomes 27 unrecognizably modified. 28 steps to this process: alkali-neutralization, meant to separate Id. Plaintiff first describes extraction methods like cold- Id. ¶ 25. See id. ¶ 26. See id. ¶¶ 27-30. 3 She then contrasts According to There are several 1 free fatty acids from the neutralized oil; bleaching and 2 deodorizing, meant to lighten the oil's color and minimize its 3 odor; and conditioning. 4 all of these steps, Defendant treats the Oils with harsh, 5 potentially harmful chemicals that render the Oils less like 6 natural oils extracted mechanically and more like unnatural 7 chemical composites. Id. ¶¶ 28-30. Plaintiff alleges that in See id. action against Defendant: (i) violation of California's Consumer 10 United States District Court Based on the above facts, Plaintiff asserts three causes of 9 For the Northern District of California 8 Legal Remedies Act ("CLRA"), Cal. Civ. Code § 1750, et seq.; (ii) 11 violations of California's Unfair Competition Law ("UCL"), Cal. 12 Bus. & Prof. Code § 17200, et seq.; and (iii) breach of express 13 warranty. 14 that (i) Plaintiff's FAC fails to meet federal pleading standards; 15 (ii) federal law preempts Plaintiff's claims; (iii) the Court 16 should dismiss the FAC under the primary jurisdiction doctrine; 17 (iv) and Plaintiff fails to state claims under each cause of action 18 she pleads. FAC ¶¶ 39-62. Defendant now moves to dismiss, arguing See MTD at 2-4. 19 20 21 III. LEGAL STANDARD A motion to dismiss under Federal Rule of Civil Procedure 22 12(b)(6) "tests the legal sufficiency of a claim." Navarro v. 23 Block, 250 F.3d 729, 732 (9th Cir. 2001). 24 on the lack of a cognizable legal theory or the absence of 25 sufficient facts alleged under a cognizable legal theory." 26 Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 27 1988). 28 should assume their veracity and then determine whether they "Dismissal can be based "When there are well-pleaded factual allegations, a court 4 1 plausibly give rise to an entitlement to relief." Ashcroft v. 2 Iqbal, 556 U.S. 662, 679 (2009). 3 must accept as true all of the allegations contained in a complaint 4 is inapplicable to legal conclusions. 5 elements of a cause of action, supported by mere conclusory 6 statements, do not suffice." 7 Twombly, 550 U.S. 544, 555 (2007)). 8 complaint must be both "sufficiently detailed to give fair notice 9 to the opposing party of the nature of the claim so that the party However, "the tenet that a court Threadbare recitals of the Id. at 678 (citing Bell Atl. Corp. v. The allegations made in a United States District Court For the Northern District of California 10 may effectively defend against it" and "sufficiently plausible" 11 such that "it is not unfair to require the opposing party to be 12 subjected to the expense of discovery." 13 1202, 1216 (9th Cir. 2011). Starr v. Baca, 652 F.3d 14 Additionally, allegations of fraud must meet the heightened 15 pleading standard of Federal Rule of Civil Procedure 9(b), which 16 requires that plaintiffs alleging fraud "must state with 17 particularity the circumstances constituting fraud." 18 Ford Motor Co., 567 F.3d 1120, 1125-27 (9th Cir. 2009). 19 satisfy Rule 9(b), a pleading must identify the who, what, when, 20 where, and how of the misconduct charged, as well as what is false 21 or misleading about the purportedly fraudulent statement, and why 22 it is false." 23 Sys., 637 F.3d 1047, 1055 (9th Cir. 2011) (internal quotation marks 24 and citations omitted). 25 /// 26 /// 27 /// 28 /// Kearns v. "To United States ex rel Cafasso v. Gen. Dynamics c$ 5 1 IV. DISCUSSION 2 A. 3 Defendant argues that Plaintiff's FAC fails to plead with Pleading Issues 4 particularity or plausibility either that the Oils contain GM 5 ingredients or that Defendant's processing makes the Oils otherwise 6 non-natural. 7 MTD at 9-12. As to the first theory, Defendant argues that Plaintiff fails 8 to allege that the Oils actually contain non-natural ingredients -- 9 only that it is highly likely that they are, given the percentage United States District Court For the Northern District of California 10 of GM crops in the U.S. and the fact that Defendant admits the 11 possibility of using such crops. 12 correct that Plaintiff must provide "more than a sheer possibility" 13 that the Oils contain GM ingredients, see Iqbal, 556 U.S. at 678, 14 but the Court finds Plaintiff's pleadings sufficiently plausible on 15 this point. 16 See id. at 9-10. Defendant is As to Plaintiff's second theory, Defendant claims that 17 Plaintiff does not allege with sufficient specificity that the Oils 18 contain trace chemicals, and that Plaintiff does not explain how 19 the process she describes render the Oils "chemically altered." 20 MTD at 11-12. 21 FDA regulations and policy -- discussed further below -- such that 22 her allegations are implausible under Twombly and Iqbal. 23 Court finds that Plaintiff pleads this theory with sufficient 24 specificity to satisfy Rule 9(b). 25 out scientifically precise descriptions of how the Oils' chemical 26 makeup changes. 27 where, and how of the allegedly misleading conduct, which she has 28 done: Plaintiff's FAC describes Defendant's chemical processing of Defendant adds that Plaintiff's claims contravene Id. The Plaintiff does not need to set She only needs to describe the who, what, when, 6 1 the Oils, states that this renders them non-natural, and concludes 2 that if the Oils are non-natural then the "All Natural" tag is 3 false or misleading. 4 this theory remains to be litigated, but it cannot be dismissed on 5 the pleadings. See Cafasso, 637 F.3d at 1055. The truth of 6 B. Standing 7 Since Plaintiff pleads that she only purchased Crisco Pure 8 Vegetable Oil, not any of the other three Oils, Defendant concludes 9 that Plaintiff lacks standing to sue based on the other three Oils. United States District Court For the Northern District of California 10 MTD at 24. Plaintiff responds that she has standing not just based 11 on the purchases, but on Defendant's business practices, and that 12 since the Oils are substantially similar, Plaintiff has standing to 13 represent purchasers of all four Oils. 14 is correct. 15 on standing issues like this one. 16 Ice Cream, Inc., No. C-11-2910 EMC, 2012 WL 2990766, at *11 (N.D. 17 Cal. July 20, 2012). 18 there is sufficient similarity between the products purchased and 19 not purchased," such as whether the products are of the same kind, 20 whether they are comprised of largely the same ingredients, and 21 whether each of the challenged products bears the same alleged 22 mislabeling. 23 Co., No. 12-2907 SC, 2012 WL 6737800, at *4 (N.D. Cal. Dec. 28, 24 2012). Opp'n at 22-23. Plaintiff It is true that "there is authority going both ways" See Astiana v. Dreyer's Grand But "the critical inquiry seems to be whether Id. at *13; see also Colucci v. ZonePerfect Nutrition 25 The Court finds that there is sufficient similarity between 26 Crisco Pure Vegetable Oil and the other three Oils identified in 27 Plaintiff's FAC. 28 have highly similar labels. They are all the same kind of product. They all Plaintiff alleges the same actionable 7 1 conduct as to each of them. This is enough for the Court to 2 conclude that Plaintiff has standing to sue for alleged mislabeling 3 of all four Oils. 4 C. Preemption 5 Defendant argues that Plaintiff's claims are preempted because 6 they conflict with both FDA policies on bioengineered foods and 7 federal food labeling regulations. MTD at 12-17. 8 First, Defendant claims that FDA policies make clear that the 9 FDA has, for years, rejected the argument that bioengineered foods United States District Court For the Northern District of California 10 must be labeled differently, since the FDA has determined that 11 there is no material difference (for labeling purposes) between 12 bioengineered foods and non-bioengineered foods. Id. at 12-13. For example, in 1992, the FDA declared that it would regulate 13 14 bioengineered foods under its existing regulatory framework, 15 "utilizing an approach identical in principle to that applied to 16 foods developed by traditional plant breeding." 17 Policy: Foods Derived from New Plant Varieties, 57 F.R. 22984-01 18 (May 29, 1992) (the "1992 Policy").1 19 bioengineered foods need not be labeled differently from non- 20 bioengineered foods unless they differ so much that the "common or 21 usual name" no longer applies to the bioengineered food." 22 22991. 23 information about the labeling of bioengineered foods, but 24 afterward stated again that the use of bioengineered food was not Statement of The FDA concluded that Id. at In 1993, the FDA issued a public request for more data and 25 26 27 28 1 This and other FDA documents cited in this Order appear as exhibits to Defendant's Request for Judicial Notice, ECF No. 21 ("Def.'s RJN"), which the Court GRANTS under Federal Rule of Evidence 201 because they are public, government documents. The Court cites to the Federal Register for documents that appear there, and to Defendant's RJN for those that do not. 8 1 "material" and did not need to be specially disclosed. 2 Labeling: Foods Derived from New Plant Varieties, 58 F.R. 25837-03, 3 25839 (Apr. 28, 1993). 4 Food The FDA has reiterated as recently as 2001 and 2005 that it 5 finds no basis for requiring special labeling of bioengineered 6 foods. 7 voluntary bioengineering labeling), 5 (FDA statement before the 8 Senate on bioengineering labeling). 9 that at no point has the FDA stated any intention to alter its See MTD at 5-6; Def.'s RJN Exs. 4 (FDA guidance on This Court has also confirmed United States District Court For the Northern District of California 10 longstanding position not to adopt any regulations governing the 11 term "natural," regardless of consumers being misled. 12 Lockwood v. Conagra Foods, Inc., 597 F. Supp. 2d 1028, 1033-34 13 (N.D. Cal. 2009). 14 See, e.g., Based on these numerous instances of FDA refusal to adopt 15 regulations requiring the disclosure of bioengineered ingredients 16 or further defining the term "natural," Defendant concludes that 17 Plaintiff's lawsuit "seeks to impose new and different labeling 18 standards for products that may have bioengineered ingredients." 19 MTD at 13. 20 case concerns. 21 false or misleading since the Oils are not, in fact, 100 percent 22 natural. 23 Plaintiff responds that this is not really what her She alleges that the "All Natural" statement is See Opp'n at 13-15. Defendant replies by arguing that whatever the basis of 24 Plaintiff's claim, her goal is ultimately to require that 25 bioengineered foods be labeled differently from non-bioengineered 26 foods in a way preempted by federal law. 27 not an accurate statement of Plaintiff's argument. 28 Plaintiff's theory, Defendant could have simply left "All Natural" 9 Reply at 11-12. This is Under 1 off the labels. But because they included the phrase, Plaintiff 2 claims that the labels are misleading. 3 theory. 4 its use of bioengineered ingredients (if any exist at all), but 5 Plaintiff is only alleging that the "All Natural" claim might be 6 untrue and misleading if Defendant in fact does use bioengineered 7 ingredients or processing techniques that render a natural 8 ingredient non-natural. 9 preempted on these grounds. This is not a preempted Defendant may not affirmatively be required to disclose Plaintiff's claim is therefore not United States District Court For the Northern District of California 10 Defendant also argues that FDA regulations governing the 11 identification of common ingredients preempts Plaintiff's state law 12 claims. 13 the Nutrition Labeling and Education Act ("NLEA"), is the operative 14 statute in this case, establishes a regulatory scheme for food 15 labeling. 16 Drug Administration (the "FDA") regulatory authority over food 17 labeling due to the need for expertise and uniformity in that 18 field, and has also stated that federal law preempts state law on 19 food labeling: "[N]o State . . . may directly or indirectly 20 establish . . . any requirement for the labeling of food that is 21 not identical to the [FDCA]." 22 The Food, Drug, and Cosmetics Act ("FDCA), as amended by 21 U.S.C. § 341 et seq. Congress has given the Food and Id. § 343-1(a). On this point, Defendant essentially argues that because the 23 FDA requires food producers to label ingredients according to their 24 common or usual names, and the FDA does not require bioengineered 25 ingredients to be so labeled, Defendant would violate FDA 26 regulations if it referred to the Oils' ingredients as, for 27 example, "bioengineered soy." 28 102.5(a) (setting out this regulation)). MTD at 14-17 (citing 21 C.F.R. § 10 According to Defendant, 1 Plaintiff's theory would require food labeling that is not 2 identical to the FDCA and is therefore preempted. 3 Defendant's argument fails. Id. Again, Plaintiff is not demanding 4 that Defendant label its products differently, even though she 5 alleges that she would not have bought any of the Oils had they 6 been labeled as including bioengineered ingredients, for example. 7 And this is not a case in which a plaintiff sued a food producer 8 for not disclosing its use of bioengineered ingredients. 9 Plaintiff sued Defendant for allegedly making a false or misleading Rather, United States District Court For the Northern District of California 10 statement on its products. 11 theory that Defendant should have labeled the product differently, 12 just that it should not have included a certain label that is 13 allegedly false or misleading. 14 It is not even implied in Plaintiff's This theory is not preempted. Accordingly, the Court finds that Plaintiff's claims are not 15 preempted by FDA regulations or federal food labeling laws. 16 Defendant's motion is DENIED on this point. 17 18 19 D. Plaintiff's State Law Claims i. UCL, CLRA, and FAL claims Defendant moves to dismiss Plaintiff's state law causes of 20 action for failure to state a claim. 21 of action are for violations of the CLRA and UCL, respectively, 22 though the latter claim is predicated on alleged violations of the 23 CLRA and California's False Advertising Law ("FAL"), Cal. Bus. & 24 Prof. Code § 17500, et seq. 25 Plaintiff's first two causes The CLRA prohibits "unfair methods of competition and unfair 26 or deceptive acts or practices." Cal. Civ. Code § 1770. 27 relies on sections of the CLRA that prohibit the following: 28 misrepresenting the source of a product, id. § 1770(a)(2); 11 Plaintiff 1 misrepresenting the characteristics, ingredients, or benefits of a 2 product, id. § 1770(a)(5); misrepresenting the standard, quality, 3 or grade of a product, id. § 1770(a)(7); advertising a product 4 without intent to sell it as advertised, id. § 1770(a)(9); and 5 misrepresenting that a product has been supplied in accordance with 6 previous representations, id. § 1770(a)(16). 7 because Defendant represented that the Oils were "all natural" when 8 they were not, it violated the CLRA. 9 Plaintiff claims that The UCL prohibits all unlawful, unfair, or fraudulent conduct. United States District Court For the Northern District of California 10 See Cal. Bus. & Prof. Code § 17200. Each prong can be a separate 11 cause of action. 12 App. 4th 1544, 1554 (Cal. Ct. App. 2007). 13 claim under the unlawfulness prong by pleading that a business 14 practice violates a predicate law. 15 L.A. Cellular Tel. Co., 20 Cal. 4th 163, 180 (Cal. 1999). 16 Unfairness claims can be based on business practices that violate 17 established public policy or are immoral, unethical, oppressive, or 18 unscrupulous, which cause injury to consumers outweighing the 19 practice's benefits. 20 4th 1457, 1473 (Cal. Ct. App. 2006). 21 under the fraudulent prong by pleading that a defendant's business 22 practices are likely to deceive members of the public. 23 AT&T Wireless Servs., Inc., 177 Cal. App. 4th 1235, 1254 (Cal. Ct. 24 App. 2009). 25 unlawful prong by violating the CLRA and FAL, since the "All 26 Natural" label is allegedly false; (2) that Defendant's conduct is 27 unfair because it undermines the UCL and CLRA, and is offensive or 28 injurious to the public without countervailing beneficial effects; Berryman v. Merit Prop. Mgmt., Inc., 152 Cal. A plaintiff can state a See Cel-Tech Commc'ns, Inc. v. McKell v. Wash. Mutual, Inc., 142 Cal. App. Plaintiffs can state claims Morgan v. Plaintiff alleges (1) that Defendant violated the 12 1 and (3) that Defendant's practices are fraudulent because they are 2 likely to deceive reasonable consumers. 3 Defendant's only argument as to these claims is that, as a 4 matter of law, Plaintiff fails to allege that Defendant's "All 5 Natural" statements would be likely to deceive a reasonable 6 consumer. 7 289 (9th Cir. 1995); see also Williams v. Gerber Prods. Co., 552 8 F.3d 934, 938 (9th Cir. 2008) ("reasonable consumer" standard 9 applies to UCL, CLRA, and FAL claims). United States District Court For the Northern District of California 10 MTD at 21 (citing Freeman v. Time, Inc., 68 F.3d 285, Under the reasonable consumer standard, Appellants must "show 11 that 'members of the public are likely to be deceived.'" 12 68 F.3d at 289 (quoting Bank of West v. Super. Ct., 2 Cal. 4th 13 1254, 1267 (Cal. Ct. App. 1992)). "Likely to be deceived" implies 14 more than a mere possibility of misunderstanding -- "likelihood" 15 here is measured in terms of whether a significant portion of the 16 general consuming public might be misled. 17 Gamble Co., 105 Cal. App. 4th 496, 508 (Cal. Ct. App. 2003). 18 California Supreme Court has recognized "that these laws prohibit 19 'not only advertising which is false, but also advertising which[,] 20 although true, is either actually misleading or which has a 21 capacity, likelihood or tendency to deceive or confuse the 22 public.'" 23 Freeman, Lavie v. Procter & The Kasky v. Nike, Inc., 27 Cal. 4th 939, 951 (Cal. 2002). According to Defendant, the Court should dismiss Plaintiff's 24 state law claims as a matter of law because Plaintiff has not 25 articulated, in plausible terms, why any alleged presence of 26 bioengineered ingredients in the Oils would render the "All 27 Natural" statement misleading in light of FDA policy on 28 bioengineered ingredients and the term "natural." 13 See MTD at 22- 1 2 24. The Court cannot make such a finding at this time. While 3 Defendant is right that this Court and others have dismissed claims 4 like these at the pleading stage for not being plausibly misleading 5 to a reasonable consumer, Defendant's argument is too attenuated 6 and relies on mischaracterizations of Plaintiff's claims, as noted 7 above. 8 matter of law conclude, as Defendant urges, that reasonable 9 consumers would all understand that packaged, non-organic foods may See supra, Section IV.C. Moreover, the Court cannot as a United States District Court For the Northern District of California 10 contain bioengineered ingredients and that the only way to avoid 11 such ingredients completely is to buy only certified organic 12 products. 13 that, and it does not depend on a conflation of "natural" with 14 "organic." 15 consumer would read the "All Natural" label, assume that such a 16 product contains no bioengineered or chemically altered 17 ingredients, and would then be misled if the product did in fact 18 contain such things. 19 MTD at 23. Plaintiff's argument is much simpler than Rather, Plaintiff has alleged that a reasonable Since the reasonable consumer issue cannot be resolved as a 20 matter of law at this point, the Court finds that Plaintiff has 21 sufficiently stated claims under the UCL and CLRA. 22 Williams, 552 F.3d at 938-39 (whether practices are deceptive, 23 fraudulent, or unfair is generally a question of fact not 24 resolvable at the pleading stage). 25 point is DENIED. 26 ii. 27 28 See also Defendant's motion on this Express Warranty Plaintiff alleges that Defendant's product labels constitute express warranties that became part of the basis of Plaintiff's 14 1 bargain with Defendant, such that Defendant's failure to deliver an 2 "All Natural" product constituted a breach of warranty. 3 62. 4 be dismissed because the "All Natural" label is mere puffery, not 5 an affirmation of fact; and that Plaintiff lacks privity with 6 Defendant. 7 statements can constitute express warranties, that Defendant's 8 label is not non-actionable puffery, and that California warranty 9 law includes an exception to the general rule requiring privity in FAC ¶¶ 57- Defendant argues that Plaintiff's express warranty claim must MTD at 25. Plaintiff responds that advertising United States District Court For the Northern District of California 10 warranty actions, permitting breach of express warranty claims 11 arising from affirmations of fact made by manufacturers in labels 12 or advertisements. 13 Opp'n at 24-25. The Court finds that Plaintiff has alleged sufficient facts to 14 make out a claim for breach of express warranty. "All Natural" is 15 an affirmative claim about a product's qualities, and it does not 16 amount to mere puffery because it is not outrageous and 17 generalized. 18 Servs., Inc., 911 F.2d 242, 246 (9th Cir. 199) (puffery is 19 "outrageous generalized statements"); Keith v. Buchanan, 173 Cal. 20 App. 3d 13, 22 (Cal. Ct. App. 1985) (advertising statements can be 21 construed as warranties). 22 California law provides an exception in express warranty claims 23 arising from affirmative representations made in labels. 24 Sherwin Williams Co., 42 Cal. 2d 682, 696 (Cal. 1954) (affirming 25 exception). 26 Magnuson-Moss Act governing express warranties, which concerns 27 defects -- therefore the line of cases addressing warranty claims 28 under that statute does not apply here. See Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Moreover, Plaintiff is correct that Burr v. Moreover, this case is not based on the California 15 See, e.g., Dreyer's Grand, 1 2012 WL 2990766, at *3. 2 Defendant's motion on this point is therefore DENIED. 3 E. Primary Jurisdiction 4 "The primary jurisdiction doctrine allows courts to stay 5 proceedings or to dismiss a complaint without prejudice pending the 6 resolution of an issue within the special competence of an 7 administrative agency." 8 1114 (9th Cir. 2008). 9 which a court determines that an otherwise cognizable claim Clark v. Time Warner Cable, 523 F.3d 1110, "[T]he doctrine is a 'prudential' one, under United States District Court For the Northern District of California 10 implicates technical and policy questions that should be addressed 11 in the first instance by the agency with regulatory authority over 12 the relevant industry rather than by the judicial branch." Id. The Court does not find that primary jurisdiction is 13 14 appropriate here. As noted above and in other cases, various 15 parties have repeatedly asked the FDA to rule on "natural" 16 labeling, and the FDA has declined to do so because of its limited 17 resources and preference to focus on other priorities. 18 Janney v. General Mills, No. C 12-3919 PJH, 2013 WL 1962360, at *6 19 (N.D. Cal. May 10, 2013) (noting that the FDA generally refers 20 parties to its policy statements on "natural," as described above, 21 and that the FDA appears to have little interest in addressing the 22 issue anew); Lockwood, 597 F. Supp. 2d at 1035 (same). 23 Court found that the primary jurisdiction doctrine applied to this 24 case, referring the matter to the FDA would do little more than 25 protract matters. 26 /// 27 /// 28 /// See, e.g., Even if the Defendant's motion is DENIED on this point. 16 1 2 V. CONCLUSION As explained above, Defendant J.M. Smucker Co.'s motion to 3 dismiss Plaintiff Diana Parker's amended class action complaint is 4 DENIED. 5 6 IT IS SO ORDERED. 7 8 Dated: August 23, 2013 9 UNITED STATES DISTRICT JUDGE United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17

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