Delacruz v. Cytosport, Inc.

Filing 48

ORDER by Judge Claudia Wilken GRANTING IN PART AND DENYING IN PART DEFENDANTS 36 MOTION TO DISMISS SECOND AMENDED COMPLAINT. (ndr, COURT STAFF) (Filed on 6/28/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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CLAIRE DELACRUZ, individually,
and on behalf of other members of
the general public similarly
situated,
Plaintiff,

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v.

No. C 11-3532 CW
ORDER GRANTING IN
PART AND DENYING
IN PART
DEFENDANT’S MOTION
TO DISMISS SECOND
AMENDED COMPLAINT
(Docket No. 36)

CYTOSPORT, INC., a California
Corporation,
Defendant.
________________________________/

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After the Court dismissed in part Plaintiff Claire Delacruz’s
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First Amended Complaint (1AC) with leave to amend, she filed her
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Second Amended Complaint (2AC).

Like the 1AC, the 2AC alleges a

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putative consumer class action based on certain representations
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made about Defendant Cytosport’s products, “Muscle Milk® Ready-To22
Drink” (RTD) and “Muscle Milk® Bars.”

In the 2AC Plaintiff

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continues to allege claims under the California Consumer Legal
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Remedies Act (CLRA), the Unfair Competition Law (UCL), and the
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False Advertising Law (FAL), as well as common law claims for
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fraud, negligent misrepresentation and unjust enrichment.
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Defendant moves to dismiss the 2AC under Federal Rules of Civil

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Procedure 8(a)(2), 9(b) and 12(b)(6).1

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Having considered all of the parties’ submissions and oral

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argument, the Court grants in part Defendant’s motion to dismiss

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and denies it in part.

Docket No. 36.

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BACKGROUND
The Court granted Defendant’s motion to dismiss Plaintiff’s

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First Amended Complaint, except to the extent that the claims were

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based on statements made on the fourteen ounce Muscle Milk® RTD

United States District Court
For the Northern District of California

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packaging, specifically, the representation that the product

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contained “health fats” in connection with the assertion that it

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was a “nutritional” drink.

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Sustained Energy” claim on the RTD label was not actionable

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because the term “healthy” is difficult to define and Plaintiff

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had not alleged that the drink contained unhealthy amounts of fat,

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saturated fat or calories from fat, based on any objective

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criteria.

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SUSTAINED ENERGY” was not a cognizable misrepresentation because

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Plaintiff did not claim that the bars did not contain that amount

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of protein.

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label was not misleading because Plaintiff had not alleged that

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the bars actually contained trans fats.

The Court found that the “Healthy,

The Court also found that the “25g protein FOR HEALTHY,

Furthermore, the “0g Trans Fat” statement on the

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The title page and notice for Defendants’ motion to dismiss
cites Federal Rule of Civil Procedure 12(b)(1), as an additional
basis for their request for dismissal. However, because the legal
standard for dismissal for lack of subject matter jurisdiction was
not recited in the memorandum of points and authorities and
Defendants did not otherwise argue the issue in its brief, the
Court does not address it. The Court’s order on Defendants’ first
motion to dismiss addressed Article III standing.
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The Court authorized Plaintiff to amend her complaint,

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remedying the defects identified, provided that she was able to do

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so truthfully without contradicting the allegations in her

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original complaint.

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not permitted to add any additional causes of action without leave

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of the Court.

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dismiss or stay the proceedings based on the primary jurisdiction

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doctrine.

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United States District Court
For the Northern District of California

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The Court further stated that Plaintiff was

Finally, the Court denied Defendant’s request to

In her 2AC, Plaintiff alleges the following.

She claims that

by prominently featuring, on the front of the package,
the claim “Healthy, Sustained Energy” in connection
with the statements “Protein Nutrition Shake” and “25g
PROTEIN” on Muscle Milk® Ready-To-Drink (RTD), and the
claims “25g PROTEIN for Healthy, Sustained Energy” and
“0g Trans Fat” on Muscle Milk® Bars, Cytosport falsely
represents the healthy and nutritious nature of the
Products, and misleads consumers. Such claims, along
with phrases like “healthy fats” and “good
carbohydrates,” draw consumer attention away from
unhealthy ingredients, including fat, saturated fat,
and added sugars. . .
The central message of these claims is that the
Products are not loaded with unhealthy fats and added
sugars, and that consuming them provides a wide range
of significant nutritional benefits. This message,
however, is false, misleading, deceptive, and unfair.
2AC at ¶ 5 and 6.
Unlike the 1AC, the 2AC shows two different versions of the
front of the fourteen ounce RTD bottle.

The first version shows

the bottle, as represented in the 1AC, which includes the
statements “HEALTHY, SUSTAINED ENERGY,” “protein nutrition shake”
and “25g PROTEIN.”

This version was phased out of production

starting in February 2011.

The front of second version of the RTD

bottle, first placed into the stream of commerce in February 2011,

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does not include the statement “HEALTHY, SUSTAINED ENERGY,” but

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includes the statements “protein nutrition shake” and “25g

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PROTEIN.”

MUSCLE MILK IS AN IDEAL BLEND
OF PROTEIN, HEALTHY FATS,
GOOD CARBOHYDRATES
AND 20 VITAMINS AND MINERALS
TO PROVIDE SUSTAINED ENERGY,
SPUR LEAN MUSCLE GROWTH AND HELP PROVIDE RECOVERY
FROM TOUGH DAYS
AND TOUGHER WORKOUTS.

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United States District Court
For the Northern District of California

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Both versions of the RTD bottle state on the back,

The 2AC does not include allegations concerning the seventeen
ounce bottle.
Plaintiff claims that the misrepresentations on the product

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labels are compounded by false statements on Defendant’s website.

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2AC at ¶¶ 28 and 42 (noting that the RTD product website claims

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that the drink “promotes healthy sustained energy,” and that it

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provides “healthy fats” and “good carbohydrates,” and the website

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for the bars states that “there’s no question [consumers are]

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getting a nutritious snack” and that the bars deliver “healthy

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sustained energy”).

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advertising allegedly features images of the label from the

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fourteen ounce RTD bottle, including its claim, “Healthy,

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Sustained Energy.”

Furthermore, Defendant’s television

2AC at ¶ 30.

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Plaintiff further alleges that Defendant’s product labeling,
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including the “use of the healthy sounding ‘Muscle Milk’ name and
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its false and misleading nutrient content claims” are a violation
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of law.

2AC at ¶ 7.

She continues to claim that the fourteen

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ounce RTD product contains “bad fats,” such as saturated fat,
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despite the label’s and website’s representation that it provides
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“healthy fats.”
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Plaintiff further alleges that, contrary to Defendant’s “good

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carbohydrates” representation on the RTD labeling and website, the

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drink contains simple sugar fructose, which has been linked to

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“lipid dysregulation, increased visceral adiposity, and decreased

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insulin sensitivity, all of which have been linked to

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cardiovascular disease and type 2 diabetes.”

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Furthermore, the RTD product contains acesulfame potassium (a/k/a

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Acesulfame K) and sucralose, which have been identified by Whole

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Foods, a retailer specializing in healthy and organic foods, as

United States District Court
For the Northern District of California

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“Unacceptable Ingredients for Food.”

2AC at ¶ 25.

2AC at ¶ 25.

With respect to the Muscle Milk® Bars, Plaintiff claims that

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these seventy-three gram bars are less healthy than a similarly-

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sized 58.7 gram Snickers® bar because they contain as many

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calories, as much sugar, and more grams of saturated fat and

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sodium than the candy.

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Citing certain studies, Plaintiff claims that

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Muscle Milk® Bars also contain unhealthy ingredients
like fractionated palm kernel oil, and partially
hydrogenated palm oil, a trans fat. Plaintiff is
informed and believes, and on that basis, alleges that
palm oil is high in saturated fat and is often used as
a substitute for partially hydrogenated vegetable oil
(i.e., trans fat). Plaintiff is informed and
believes, and on that basis, alleges that studies,
however, have suggested that palm oil may be just as
unhealthy as partially hydrogenated vegetable oil.
Additionally, Plaintiff is informed and believes, and
on that basis, alleges that the World Health
Organization has convincingly linked palmitic acid,
which is present in palm oil, to increased risk of
cardiovascular disease.

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Plaintiff is informed and believes, and on that basis,
alleges that palm oil can be processed to create
variants, including palm kernel oil and fractionated
palm kernel oil. Plaintiff is informed and believes,
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and on that basis, alleges that the healthful aspects
of natural palm oil, if any, are largely lost in the
processing. Indeed, of all the varieties of palm oil,
Plaintiff is informed and believes, and on that basis,
alleges that the form that is used in Muscle Milk®
Bars, fractionated palm kernel oil, is the least
healthy. Plaintiff is informed and believes, and on
that basis, alleges that palm kernel oil is a cheap,
unhealthy fat, and unlike ordinary palm oil, palm
kernel oil cannot be obtained organically. Instead,
Plaintiff is informed and believes, and on that basis,
alleges that palm kernel oil must be extracted from
the pit with a gasoline-like hydrocarbon solvent.
Plaintiff is informed and believes, and on that basis,
alleges that fractionation is a further phase of palm
oil processing, designed to extract and concentrate
specific fatty acid fractions. Plaintiff is informed
and believes, and on that basis, alleges that
fractionated palm oil, as found in food products, has
a higher concentration of saturated fat than regular
palm oil and is used for the convenience of
manufacturers like Cytosport who like its stability
and melting characteristics.

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2AC at ¶¶ 37-38.

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These passages mirror the allegations in Plaintiff’s 1AC,

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United States District Court
For the Northern District of California

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except that Plaintiff now directly claims that partially

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hydrogenated palm oil is a trans fat.

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Plaintiff newly alleges that the “Vanilla Toffee Crunch”

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flavored bars contain thirteen grams of fat and ten grams of

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saturated fat, despite their labeling, which represents that they

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have ten grams of fat and eight grams of saturated fat.

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The 2AC, unlike the 1AC, borrows from regulations established

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by the Food and Drug Administration (FDA) to allege that certain

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nutrient claims on the products are false and misleading.

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Plaintiff claims that California law, specifically the Sherman

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Food, Drug and Cosmetic Law, California Health and Safety Code

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section 109875 et seq., adopted the requirements of federal food

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labeling regulations.

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Under § 403 of the Federal Food, Drug and Cosmetic Act

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(FDCA), a statement that characterizes the level of a nutrient in

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a food is a “nutrient content claim,” and such claims can only be

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made if they comply with FDA regulations concerning those claims.

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21 U.S.C. § 343(r)(1)(A).

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defined as “any direct statement about the level (or range) of a

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nutrient in the food, e.g., ‘low sodium’ or ‘contains 100

An “expressed nutrient claim” is

United States District Court
For the Northern District of California

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calories.’”

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content claim” is defined as any claim that

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21 C.F.R. § 101.13(b)(1).

An “implied nutrient

(i) Describes the food or an ingredient therein in a
manner that suggests that a nutrient is absent or
present in a certain amount (e.g., “high in oat
bran”); or

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(ii) Suggests that the food, because of its nutrient
content, may be useful in maintaining healthy dietary
practices and is made in association with an explicit
claim or statement about a nutrient (e.g., “healthy,
contains 3 grams (g) of fat”).

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21 C.F.R. § 101.13(b)(2)(i)-(ii).

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Section 101.65(d)(2) provides that food labeling “may use the

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term ‘healthy’ or related terms (e.g., ‘health,’ ‘healthful,’

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‘healthfully,’ ‘healthfulness,’ ‘healthier,’ healthiest,’

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healthily,’ and ‘healthiness’) as an implied nutrient content

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claim if, among other things, the food meets the regulatory

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definitions for low fat and low in saturated fat, and contains a

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certain minimum amount of nutrients.2

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Specifically, Plaintiff claims that the label and website for

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the fourteen ounce RTD product are misleading because the drink

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exceeds the amount of fat permitted to qualify as a “low fat”

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product under FDA regulations.

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complaint, as a result of the drink’s failure to meet the standard

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for a “low fat” product, the RTD label may not, under

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§ 101.65(d)(2), use the term “healthy” or related terms.

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For the Northern District of California

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2AC at ¶ 69.

According to the

2AC at

¶ 69.

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Similarly, Plaintiff asserts that the label and website for

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the bars falsely represent the healthfulness of the food and its

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ingredients, because the fat content exceeds the amount permitted

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by FDA regulations setting the standard for products labeled “low

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fat,” 21 C.F.R. § 101.62(b)(2), and the saturated fat content

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exceeds the amount permitted by the regulation setting the

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standard for foods labeled as “low in saturated fat.”

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§ 101.62(c)(2).

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bars did not meet the regulatory standard under § 101.65(d)(2) for

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a product labeled with the word “healthy” or related terms.

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at ¶¶ 70-71.

2AC at ¶¶ 70-71.

21 C.F.R.

As a result, the Muscle Milk®

2AC

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Section 101.65(d)(2)(i) provides a matrix listing
categories of food and, according to each category of food, the
standards for fat, saturated fat, cholesterol and other nutrients.
The standards cross-reference the levels set forth in
§ 101.62(b)(2) and (c)(2), among others, which identify when a
product may be labeled with the express nutrient claims “low fat,”
“low saturated fat” or similar terms.
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Finally, Plaintiff also alleges that, to prevent companies
from making misleading claims that distract consumers from

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unhealthy levels of fats, saturated fats, or sodium contained in

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products, 21 C.F.R. § 101.13 prohibits companies from making

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unqualified nutrient content claims if their products exceed

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specified levels of those unhealthy substances.

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the products exceed those levels, their labeling must contain a

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disclosure statement, referring to the nutrition information.

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Plaintiff claims that, in light of these regulations, the bars’

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United States District Court
For the Northern District of California

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label is misleading because it states “0g Trans Fat,” while the

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product contains more than four grams of saturated fat and its

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label omits the disclosure statement, “See nutrition information

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for saturated fat content.”

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Defendant “misdirects consumers to a nutrient in Muscle Milk® Bars

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that purportedly is low, while failing to draw consumers’

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attention to the harmful levels of the saturated fat that they are

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obligated to disclose.”

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2AC at ¶ 64.

2AC at ¶ 63.

If

Plaintiff claims that

Id.

Plaintiff has added certain allegations concerning the extent
of Defendant’s advertising campaign for the products.

She claims,

According to the Declaration of Roberta White,
Cytosport's Vice President of Corporate
Development . . . filed in [other litigation] . . .
"Cytosport has spent tens of millions of dollars
promoting and advertising the MUSCLE MILK® ready-todrink product . . . and has spent over $100 million
dollars promoting the MUSCLE MILK® brand generally."
Additionally, according to Ms. White's declaration,
“Cytosport advertises the MUSCLE MILK® ready-to-drink
product over the Internet, in magazines, on
billboards, through paid professional endorsements,
agreements with academic institutions, at tradeshows,
sporting events, bodybuilding competitions, and
through other media outlets.”

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Finally, Plaintiff newly alleges, “In deciding to purchase

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the Products, Plaintiff saw and relied on the representations on

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the false, misleading, and misbranded packaging of Cytosport's

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Muscle Milk® Ready-To-Drink (RTD) and Muscle Milk® Bars products,”

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including the specifically alleged misrepresentations on the

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products.

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and relied” on the alleged misrepresentations provided on the

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website and in Defendant’s television advertisements.

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¶ 76.

2AC at ¶ 74.

Plaintiff further alleges that she “saw

United States District Court
For the Northern District of California

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2AC at

LEGAL STANDARD
I. Sufficiency of Claim under Rule 12(b)(6)
A complaint must contain a “short and plain statement of the

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claim showing that the pleader is entitled to relief.”

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Civ. P. 8(a).

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state a claim, dismissal is appropriate only when the complaint

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does not give the defendant fair notice of a legally cognizable

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claim and the grounds on which it rests.

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

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complaint is sufficient to state a claim, the court will take all

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material allegations as true and construe them in the light most

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favorable to the plaintiff.

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896, 898 (9th Cir. 1986).

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to legal conclusions; “threadbare recitals of the elements of a

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cause of action, supported by mere conclusory statements,” are not

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taken as true.

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(citing Twombly, 550 U.S. at 555).

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II. Federal Rule of Civil Procedure 9(b)

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Fed. R.

On a motion under Rule 12(b)(6) for failure to

Bell Atl. Corp. v.

In considering whether the

NL Indus., Inc. v. Kaplan, 792 F.2d

However, this principle is inapplicable

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009)

“In all averments of fraud or mistake, the circumstances
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constituting fraud or mistake shall be stated with particularity.”

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Fed. R. Civ. P. 9(b).

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of Civil Procedure apply in federal court, ‘irrespective of the

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source of the subject matter jurisdiction, and irrespective of

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whether the substantive law at issue is state or federal.’”

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Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir. 2009)

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(citing Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1102 (9th

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Cir. 2003).

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defendants notice of the particular misconduct which is alleged to

“It is well-settled that the Federal Rules

The allegations must be “specific enough to give

United States District Court
For the Northern District of California

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constitute the fraud charged so that they can defend against the

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charge and not just deny that they have done anything wrong.”

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Semegen v. Weidner, 780 F.2d 727, 731 (9th Cir. 1985).

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of the time, place and nature of the alleged fraudulent activities

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are sufficient, id. at 735, provided the plaintiff sets forth

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“what is false or misleading about a statement, and why it is

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false.”

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(9th Cir. 1994).

In re GlenFed, Inc., Secs. Litig., 42 F.3d 1541, 1548

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Statements

DISCUSSION
I. Allegations of False and Misleading Statements

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Defendant does not request that the Court reconsider its

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prior ruling that Plaintiff alleged a cognizable misrepresentation

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based on its labeling and advertising that the products contain

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“healthy fats.”

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failed to allege any additional false or misleading statement

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under the UCL, CLRA and FAL or her common law claims for fraud or

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negligent misrepresentation.

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However, Defendant argues that Plaintiff has

Claims of deceptive labeling under these California statutes
are evaluated by whether a “reasonable consumer” would be likely
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to be deceived.

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(9th Cir. 2008) (citing Freeman v. Time, Inc., 68 F.3d 285, 289

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(9th Cir. 1995)).

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misrepresentation similarly require that the consumer justifiably

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rely on a representation that is false or subject to a misleading

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omission.

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4th 979, 990 (2004) (common law fraud); Century Sur. Co. v. Crosby

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Ins., Inc., 124 Cal. App. 4th 116, 129 (2004) (negligent

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misrepresentation).

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

Common law claims for fraud and negligent

Robinson Helicopter Co., Inc. v. Dana Corp., 34 Cal.

Federal Rule of Civil Procedure 9(b) applies

United States District Court
For the Northern District of California

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to claims sounding in fraud under the common law and statutory

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law, requiring particularized pleading of alleged false

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statements, and the basis for the claim of falsity.

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A. Federal Food Labeling Regulations

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Defendant argues that Plaintiff should not be permitted to

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add allegations that rely on the FDCA and the FDA’s regulations

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promulgated thereunder.

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allegations violate the Court’s prior order granting limited leave

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to amend.

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federal regulations in her 1AC, they do not contradict any facts

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alleged in the previous complaint.

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no new legal claims.

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identified “good carbohydrates” as a purported misrepresentation,

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this statement was included in her 1AC.

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allegations are beyond the scope authorized by the Court in its

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prior order.

Defendant first argues that such

Although Plaintiff did not include allegations based on

Moreover, Plaintiff has added

Although in her opposition she has

None of Plaintiff’s

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Defendant also argues that, based on the doctrine of judicial

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estoppel, Plaintiff should be barred from amending her allegations

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to include the FDA regulations.

Judicial estoppel “‘is an
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equitable doctrine invoked by a court at its discretion.’”

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Hampshire v. Maine, 532 U.S. 742, 750 (2001) (quoting Russell v.

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Rolfs, 893 F.2d 1033, 1037 (9th Cir. 1990)).

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whether to apply the doctrine, we typically consider (1) whether a

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party's later position is ‘clearly inconsistent’ with its original

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position; (2) whether the party has successfully persuaded the

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court of the earlier position, and (3) whether allowing the

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inconsistent position would allow the party to ‘derive an unfair

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advantage or impose an unfair detriment on the opposing party.’”

New

“In determining

United States District Court
For the Northern District of California

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United States v. Ibrahim, 522 F.3d 1003, 1009 (9th Cir. 2008)

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(citing New Hampshire, 532 U.S. at 750-51).

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Ninth Circuit has stated that judicial estoppel “seeks to prevent

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the deliberate manipulation of the courts,” and therefore should

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not apply “when a party's prior position was based on inadvertence

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or mistake.”

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In addition, the

Id.

Plaintiff’s original position was that her claims did not

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rely on FDA regulations.

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regulations setting general requirements for certain expressed and

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implied nutrient content claims.

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allegations were not included in the previous complaint, they are

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not inconsistent in the sense that they do not contradict any

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prior allegations.

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ruling that certain words and phrases failed to support a claim

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for fraud or negligent misrepresentation because they were

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difficult to define and not clearly false.

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may lend objective criteria by which to determine whether certain

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words and phrases used on the labels are misleading.

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the new allegations do not impose on Defendant any unfair

In contrast, the 2AC borrows from FDA

As noted earlier, although these

Rather, the allegations respond to the Court’s

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The FDA regulations

Moreover,

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detriment.

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would add allegations based on the FDA regulations, it would have

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requested a determination on the FDA’s primary jurisdiction in the

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first instance.

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jurisdiction doctrine in its first motion to dismiss.

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Furthermore, the issue of the FDA regulations is not a surprise

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because Plaintiff submitted an FDA warning letter in her

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opposition to the first motion to dismiss.

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letter was issued pursuant to the regulations Plaintiff now cites

Defendant argues that, had it known that Plaintiff

Defendant, however, did assert the primary

The FDA’s warning

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For the Northern District of California

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in her 2AC.

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allegations in light of the Court’s ruling that her allegations as

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to the falsity of the product labeling were inadequate.

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estoppel is unwarranted.

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Plaintiff cannot be faulted for adding these

Judicial

Defendant also argues that the allegations based on the FDA

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warning letter do not support Plaintiff’s claims that certain

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words and phrases were misleading.

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Plaintiff’s 1AC did not state a claim for fraud or negligent

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misrepresentation because the asserted terms were difficult to

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define and Plaintiff failed to allege that the statements were

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false based on some objective criteria.

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citations to FDA regulations provide objective criteria that may

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support her contention that certain representations on the product

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labeling are misleading.

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labels and website claim are false and misleading because they

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represent that the products are “healthy” when, in fact, they

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contain unhealthy ingredients or contain certain ingredients in

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unhealthy amounts.

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for determining whether products contain unhealthy ingredients or

In certain instances,

Thus, Plaintiff’s

Plaintiff’s theory is that the product

The FDA regulations provide objective criteria

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certain ingredients in unhealthy amounts and, thus, whether a

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cognizable misrepresentation has been alleged.

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may support the falsity of the labels.

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The allegations

Finally, Defendant argues in a footnote that Plaintiff’s

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claims that make reference to FDA regulations are preempted by

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federal law.

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enforced by a private action.

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enforcement of FDA regulations interferes with and obstructs the

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agency’s interest in nationally uniform food labeling regulations.

Defendant argues that FDA regulations may not be
It contends that permitting private

United States District Court
For the Northern District of California

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In support of its argument, Defendant cites 21 U.S.C. § 337(a),

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which provides that all proceedings to enforce, or to restrain

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violations under, the FDCA, “shall be by and in the name of the

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United States,” except for those actions brought by a state

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pursuant to subsection (b).

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enforcement of FDA regulations, but it does not expressly preclude

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all claims under state law that may involve food product labeling.

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Indeed, § 343-1 of the FDCA, 21 U.S.C. § 343-1, authorizes states

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to establish laws that are “identical to” federal labeling

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requirements.

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(2008), the California Supreme Court held, “While Congress clearly

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stated its intent to allow states to establish their own identical

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laws, it said absolutely nothing about proscribing the range of

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available remedies states might choose to provide for the

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violation of those laws, such as private actions.”

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the court held that § 337 of the FDCA did not impliedly preempt

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the plaintiffs’ state law claims, including their claims for

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negligent misrepresentation and UCL violations, based on the

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defendants’ failure to disclose the addition of artificial food

This provision preempts private

In Farm Raised Salmon Cases, 42 Cal. 4th 1077, 1090

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Accordingly,

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coloring, as required by the FDCA and by the state’s Sherman Law.

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Id. at 1099.

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Sales Practices Litigation, 2009 WL 1703285 (C.D. Cal.), a case

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upon which Defendant relies, is not persuasive because the Epogen

5

court did not address the elements of the doctrine of federal

6

preemption or § 343-1 in its decision or its order on the prior

7

motion to dismiss in the case, and the case did not concern food

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product labeling.

9

these factors.3

United States District Court
For the Northern District of California

10
11

In re Epogen and Aranesp Off-Label Marketing and

Farm Raised Salmon Cases, however, did address

In sum, Plaintiff’s new allegations referring to FDA
regulations will not be dismissed.

12

B. The Asserted Statements

13

Plaintiff alleges that the statement, “Healthy, Sustained

14

Energy,” made on the fourteen-ounce RTD label in production prior

15

to February 2011, and on the product website and its television

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ad, is misleading because it represents that the product is

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healthy, implying that the drink does not contain an unhealthy

18

amount of fat.

19

difficult to define, Plaintiff now provides objective standards,

20

such as the requirements identified by the FDA, which could

21

evidence that certain contents in a product are not healthful.

Although, as has been noted, a healthy product is

A

22
3

23
24
25
26
27
28

Defendant also relies on Pom Wonderful, LLC v. Coca-Cola
Co., 2012 WL 1739704 (9th Cir.), but the case is not applicable.
There, the Ninth Circuit did not rule on whether the FDCA
expressly preempted Pom’s state law claims under the UCL and FAL.
See id. at *6-7. Instead, after reversing the district court’s
ruling that Pom lacked standing under the UCL, the Ninth Circuit
remanded the case for the district court to resolve whether the
FDCA preempted state law claims. Id. The Ninth Circuit’s
preemption ruling was limited to a finding that the FDCA preempted
Pom’s claims under the Lanham Act.
16

1

representation that a product is “healthy” could reasonably lead a

2

consumer to believe that certain unhealthy contents are absent

3

from the product.

4

“Healthy, Sustained Energy” statement on the RTD labels is a

5

cognizable mirepresentation.

6

For the purpose of this motion to dismiss, the

For similar reasons, the Court now finds that the statement,
“25g PROTEIN for Healthy, Sustained Energy,” contained in the

8

label for the bars is also actionable.

9

the bars are a healthy source of energy and, thus, may imply that

10
United States District Court
For the Northern District of California

7

they do not contain an unhealthy amount of fat and saturated fat.

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Plaintiff alleges that the bars contain excessive amounts of fat

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and saturated fat, according to FDA standards.

13

The statement conveys that

In contrast, the term “good carbohydrates” contained on the

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fourteen-ounce RTD label, is not actionable.

15

provided any objective criteria for determining that the added

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sweeteners and sugars are in fact not good carbohydrates.

17

Foods is a commercial retailer that markets expensive, purportedly

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healthy, organic food, but Plaintiff has not alleged that its

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scientific expertise or review process qualify the company to

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identify objectively good or bad carbohydrates.

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Plaintiff has not

Whole

Plaintiff further alleges that the bars’ label is misleading

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because it contains the claim “0g Trans Fat.”

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Plaintiff clarified that she does not claim that the statement

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misrepresents the amount of trans fat in the bars.

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alleges that the “0g Trans Fat” statement distracts consumers from

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the product’s unhealthy fat and saturated fat content.

27

alleged distraction, however, does not amount to a false statement

28

or misrepresentation and, thus, is not an actionable claim.
17

At the hearing,

Rather, she

The

1

Finally, Plaintiff claims that the Vanilla Toffee Crunch bars

2

contain amounts of fat and saturated fat that exceed the amounts

3

indicated on the product labeling.

4

stated that she was not suing based on misrepresentations as to

5

the amounts of fat and saturated fat but, instead, claims that the

6

statements as to fat and saturated fat content compound the

7

misleading nature of the product labeling.

8

Court found that the “Healthy, Sustained Energy” statement

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contained on the label for the bars is actionable because it

At the hearing, Plaintiff

As noted earlier, the

United States District Court
For the Northern District of California

10

conveys that the bars are a healthy source of energy and, thus,

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may imply that they are free of unhealthy amounts of fat and

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saturated fat.

13

and saturated fat indicated on the labeling for the Vanilla Toffee

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Crunch bars indicate healthy amounts of the substances or somehow

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create a deceptive context for the “Healthy, Sustained Energy”

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statement.

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allegations add nothing to her claim.

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II. Reliance

Plaintiff has not plead that the amounts of fat

Thus, Plaintiff’s Vanilla Toffee Crunch bar

19

A plaintiff seeking to prosecute a UCL and FAL claim is

20

required to demonstrate actual reliance on the allegedly deceptive

21

or misleading statements.

Kwikset Corp. v. Superior Court, 51

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Cal. 4th 310, 326 (2011).

The CLRA imposes a requirement that a

23

violation “caus[e] or result[] in some sort of damage.”

24

Sprint Spectrum L.P., 45 Cal. 4th 634, 641 (2009).

25

fraud requires that the victim show reasonable reliance on the

26

allegedly deceptive representation.

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Cal. 4th 298, 312 (2009).

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18

Meyer v.

Common law

In re Tobacco II Cases, 46

1

The Court previously found that Plaintiff’s allegation that

2

she was “exposed to” the product labels supported a weak inference

3

that she relied on them.

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“saw and relied” on the product packaging amount to stronger

5

allegations of reliance.

6

Plaintiff’s claims in the 2AC that she

Plaintiff’s claims of reliance on misrepresentations on the

7

website are now adequate.

8

on the alleged misrepresentations on the website in deciding to

9

purchase the products.

She has plead that she “saw and relied”

She also alleges that she saw and relied

United States District Court
For the Northern District of California

10

on television ads.

11

Healthcare, 183 Cal. App. 4th 1350, 1363-64 (2010), where the

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plaintiff did not claim that he ever visited the defendant’s

13

website, containing the purported misrepresentations, and Kearns,

14

567 F.3d at 1125-26, where the plaintiff did not allege what the

15

television advertisements or sales material at issue specifically

16

stated, and did not allege when he was exposed to them or which he

17

found material.

18

Thus, this case differs from Durell v. Sharp

With respect to Defendant’s alleged long-term advertising

19

campaign, the Court previously held that Plaintiff inadequately

20

plead reliance on any elements of it other than those she saw.

21

The additional allegations regarding the scope of the advertising

22

campaign do not establish that the advertising campaign was as

23

lengthy or pervasive as the tobacco campaign.

24

Cases, 46 Cal. 4th at 327-28.

25

in connection with the advertising campaign because she has not

26

claimed that she saw and relied on any of the advertising, apart

27

from the product websites and television ads.

Cf. Tobacco II

Plaintiff has not alleged reliance

28
19

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Dismissal of Plaintiff’s claims based on her failure to

2

allege reliance is denied; she adequately alleges reliance on the

3

product labels and websites, and the television advertisements.

4

III. Preemption

5

Defendant again seeks dismissal of this action, or, in the

6

alternative, a stay of the proceedings based on the primary

7

jurisdiction doctrine.

8

courts to stay proceedings or to dismiss a complaint without

9

prejudice pending the resolution of an issue within the special

“The primary jurisdiction doctrine allows

United States District Court
For the Northern District of California

10

competence of an administrative agency.”

11

Cable, 523 F.3d 1110, 1114 (9th Cir. 2008).

12

‘prudential’ one,” rather than one that indicates that the court

13

lacks jurisdiction.

14

the doctrine of primary jurisdiction.

15

Ninth Circuit has traditionally examined the following factors:

16

“(1) a need to resolve an issue that (2) has been placed by

17

Congress within the jurisdiction of an administrative body having

18

regulatory authority (3) pursuant to a statute that subjects an

19

industry or activity to a comprehensive regulatory authority that

20

(4) requires expertise or uniformity in administration.”

21

(internal alteration and quotation marks omitted).

22

Id.

Clark v. Time Warner
“[T]he doctrine is a

No “fixed formula” exists for applying
Id. at 1115.

However, the

Id.

Dismissal and a stay are unwarranted in this case because

23

Defendant has failed to demonstrate that Plaintiff’s claims under

24

California law require the FDA’s scientific or technical

25

expertise.

26

regulations, but only to the extent that they may provide criteria

27

by which to judge whether certain nutrient content claims are

28

misleading.

Certain of Plaintiff’s claims now allude to FDA

These criteria are available in established federal
20

1

regulations.

2

determine whether the labels are misleading.

3

consumer determination and other issues involved in Plaintiff’s

4

lawsuit are within the expertise of the courts to resolve.

5

Application of the primary jurisdiction doctrine is not warranted.

6

CONCLUSION

7

The FDA’s expertise, however, is not necessary to
The reasonable-

Defendant’s second motion to dismiss is granted in part and

8

denied in part.

9

based the “good carbohydrates” statement, the allegation that the

The claim in the 2AC as to misrepresentations

United States District Court
For the Northern District of California

10

“0g Trans Fat” statement distracts consumers from the product’s

11

unhealthy fat and saturated fat content, and the claim that a

12

long-standing advertising campaign misled the public are not

13

actionable.

14

Defendants’ motion is otherwise denied.

Plaintiff shall notice any motion for class certification for

15

hearing on November 8, 2012 at 2:00 pm.

16

conference will also be held that day, whether or not a motion for

17

class certification is filed.

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A case management

IT IS SO ORDERED.
Dated:

6/28/2012

CLAUDIA WILKEN
United States District Judge

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