Samet v. Proctor and Gamble Company
Filing
89
ORDER GRANTING-IN-PART MOTION TO DISMISS by Judge Paul S. Grewal granting in part and denying in part 41 Motion to Dismiss; granting in part and denying in part 43 Motion to Dismiss (psglc1, COURT STAFF) (Filed on 6/18/2013)
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United States District Court
For the Northern District of California
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
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SARAH SAMET and JAY PETERS,
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individually and on behalf of all others similarly )
situated,
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Plaintiffs,
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v.
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PROCTER & GAMBLE COMPANY,
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KELLOGG COMPANY and KELLOGG
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SALES COMPANY,
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Defendants.
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Case No.: 5:12-CV-01891 PSG
ORDER GRANTING-IN-PART
DEFENDANTS’ MOTION TO
DISMISS
(Re: Docket Nos. 41, 43)
As the latest crest in the recent wave of food mislabeling suits in this district, Plaintiffs
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Sarah Samet and Jay Peters (collectively, “Plaintiffs”) bring a representative class action against
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Defendants Procter & Gamble Company (“Procter & Gamble”) and Kellogg Company and Kellogg
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Sales Company (“Kellogg”) (collectively, “Defendants”). Plaintiffs assert nine causes of action
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relating to the alleged misbranding of Defendants’ products. On November 26, 2012, Procter &
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Gamble and Kellogg each moved to dismiss Plaintiffs’ complaint. After reassignment to the
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Case No.: 5:12-cv-01891-PSG
ORDER GRANTING-IN-PART MOTION TO DISMISS PLAINTIFFS’ COMPLAINT
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undersigned, the parties appeared for oral argument. Having reviewed the papers, and considered
the arguments and evidence presented, the court GRANTS-IN-PART Defendants’ motion.
I.
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BACKGROUND
Except where otherwise noted, the court draws the following facts, taken as true for the
purposes of a motion to dismiss, from Plaintiffs’ complaint.1
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Procter & Gamble is a multinational company that manufactures and sells a variety of
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United States District Court
For the Northern District of California
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packaged food products, including Pringles potato chip snacks. Kellogg also sells packaged food
products. Since the initial filing of this suit, on June 1, 2012, Kellogg acquired the Pringles brand
and business from Procter & Gamble.
Plaintiffs are self-described “health-conscious” California consumers who purchased all of
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Defendants’ allegedly misbranded food products, “including Pringles snack chips, Kellogg’s
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MorningStar Farms Hickory BBQ Riblets (10 oz box) and Kellogg’s Fruity Snacks Mixed Berry (8
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oz box).”2 Plaintiffs allege that in purchasing the above products, they reasonably relied on various
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nutritional content claims on Defendants’ website and packaging labels, and had they known the
“truth” about these products, Plaintiffs would not have purchased them.
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On August 24, 2012, Plaintiffs filed an amended class action complaint on behalf of
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consumers who purchased products in the following categories (the “misbranded food products”):3
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(1) Potato chip snacks labeled “0 Grams Trans Fat,” but containing more than 13 grams of
fat per 50 grams;
(2) Products labeled with the ingredient “evaporated cane juice;”
(3) Products labeled or advertised as “healthy” despite disqualifying under 21 C.F.R.
101.65;
(4) Fruit and fruit-flavored snacks; and
(5) Products sold in a slack-filled container.
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Plaintiffs filed an amended complaint on August 24, 2012. See Docket No. 25.
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Docket No. 25 ¶ 25.
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See Docket No. 25 at 1-2.
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Case No.: 5:12-cv-01891-PSG
ORDER GRANTING-IN-PART MOTION TO DISMISS PLAINTIFFS’ COMPLAINT
Plaintiffs assert the following claims against Defendants: violations of California Unfair
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Competition Law (“UCL”);4 violations of Fair Advertising Law (“FAL”);5 violations of Consumer
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Legal Remedies Act (“CLRA”);6 restitution based on unjust enrichment/quasi-contract; violations
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of the Beverly-Song Act; and violations of the Magnuson-Moss Act.
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II.
A.
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Rule 12(b)(6)
A complaint must contain “a short and plain statement of the claim showing that the pleader
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LEGAL STANDARDS
is entitled to relief.”7 If a plaintiff fails to proffer “enough facts to state a claim to relief that is
United States District Court
For the Northern District of California
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plausible on its face,” the complaint may be dismissed for failure to state a claim upon which relief
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may be granted.8 A claim is facially plausible “when the pleaded factual content allows the court
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to draw the reasonable inference that the defendant is liable for the misconduct alleged.”9
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Accordingly, under Fed. R. Civ. P. 12(b)(6), which tests the legal sufficiency of the claims alleged
in the complaint, “[d]ismissal can be based on the lack of a cognizable legal theory or the absence
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of sufficient facts alleged under a cognizable legal theory.”10
On a motion to dismiss, the court must accept all material allegations in the complaint as
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true and construe them in the light most favorable to the non-moving party.11 The court’s review is
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See Cal. Bus. & Prof. Code §§ 17200 et. seq. The UCL “borrows” violations of other laws as
unlawful practices and then provides an independent action. See Farmers Ins. Exch. v. Superior
Court, 2 Cal. 4th 377, 383, 826 P.2d 730 (1992).
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Cal. Bus. & Prof. Code §§ 17500 et. seq.
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Cal. Civ. Code §§ 1750 et. seq.
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Fed. R. Civ. P. 8(a)(2).
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Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
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Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009).
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Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1990).
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See Metzler Inv. GMBH v. Corinthian Colls., Inc., 540 F.3d 1049, 1061 (9th Cir. 2008).
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Case No.: 5:12-cv-01891-PSG
ORDER GRANTING-IN-PART MOTION TO DISMISS PLAINTIFFS’ COMPLAINT
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limited to the face of the complaint, materials incorporated into the complaint by reference, and
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matters of which the court may take judicial notice.12 However, the court need not accept as true
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allegations that are conclusory, unwarranted deductions of fact, or unreasonable inferences.13
“Dismissal with prejudice and without leave to amend is not appropriate unless it is clear…
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that the complaint could not be saved by amendment.”14
B.
Rule 9(b)
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Claims sounding in fraud or mistake must comply with the heightened pleading
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requirements of Fed. R. Civ. P. 9(b) by pleading with particularity the circumstances surrounding
United States District Court
For the Northern District of California
10
the fraud or mistake. Rule 9(b) applies to the state claims at issue here as they involve allegations
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that consumers were misled.15 The allegations must be “specific enough to give defendants notice
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of the particular misconduct which is alleged to constitute the fraud charged so that they can defend
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against the charge.”16 This includes “the who, what, when, where, and how of the misconduct
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charged.”17
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III.
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A.
Requests for Judicial Notice
As a preliminary matter, both parties have requested that the court take judicial notice of
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DISCUSSION
documents pursuant to Fed. R. Evid. 201. Defendants ask that the court take judicial notice of
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See id. at 1061.
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See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001); see also Twombly,
550 U.S. at 561 (“a wholly conclusory statement of [a] claim” will not survive a motion to
dismiss).
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Eminence Capital, LLC v. Asopeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).
See Jones v. ConAgra Foods, Inc., Case No. 12-01633 CRB, 2012 WL 6569383 (N.D. Cal. Dec
17, 2012).
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Semegen v. Weidner, 780 F.2d 727, 731 (9th Cir. 1985).
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Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003).
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Case No.: 5:12-cv-01891-PSG
ORDER GRANTING-IN-PART MOTION TO DISMISS PLAINTIFFS’ COMPLAINT
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packaging labels for Pringles, Fruity Snacks Mixed Berry, and MorningStar Farms Hickory BBQ
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Riblets.18 Plaintiffs do not object, but also ask that the court take notice of packaging labels for the
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same products; screenshots of Defendants’ websites; and the websites “Kelloggs.com,”
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“pringles.com,” and “morningstarfarms.com” generally.19 A court may take judicial notice of a
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document on which the complaint “necessarily relies” if: (1) “the complaint refers to the
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document,” (2) “the document is central to the plaintiff’s claim,” and (3) “no party questions the
authenticity of the copy attached to the 12(b)(6) motion.”20 The packaging labels and website
screenshots satisfies these requirements.21 However, the court will not take judicial notice of
United States District Court
For the Northern District of California
10
Defendants’ websites generally, because Plaintiffs’ have not shown which pages are specifically
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“central” to their claim or referred to by the complaint.
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B.
Standing
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Defendants first challenge Plaintiffs’ standing to bring their claims. To establish Article III
standing, a plaintiff must plead facts showing (1) injury-in-fact, (2) causation, and (3)
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redressability.22 Injury-in-fact requires that the plaintiff suffer harm to “a legally protected interest
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which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or
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hypothetical.”23 In a class action, at least one named plaintiff must have suffered an injury-in-
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fact.24
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See Docket Nos. 40, 44.
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See Docket Nos. 59, 60.
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Daniels-Hall v. Natl. Educ. Assn., 629 F.3d 992, 998 (9th Cir. 2010).
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Courts often take judicial notice of packaging labels in false advertising suits when neither party
objects to the authenticity of the labels and the labels are central to the plaintiff’s complaint. See,
e.g., Anderson v. Jamba Juice Co., 888 F. Supp. 2d 1000, 1003 (N.D. Cal. 2012).
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See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
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Id.
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See Lierboe v. State Farm Mut. Auto Ins. Co., 350 F.3d 1018, 1022 (9th Cir. 2002).
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Case No.: 5:12-cv-01891-PSG
ORDER GRANTING-IN-PART MOTION TO DISMISS PLAINTIFFS’ COMPLAINT
The UCL, FAL, and CLRA additionally require the plaintiff to specifically allege that she
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suffered an economic injury.25 A plaintiff has suffered economic injury when she has either: “(1)
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expended money due to the defendants' acts of unfair competition; (2) lost money or property; or
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(3) been denied money to which he or she has a cognizable claim.”26
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Defendants argue that Plaintiffs lack standing under both Article III and the economic
injury requirements of the California statutes because none of the products are alleged to have been
“tainted, spoiled, adulterated, or contaminated.”27 Defendants cite Boysen v. Walgreen Co. in
support of this contention, where Judge Illston held that because the plaintiff “paid for fruit juice, []
United States District Court
For the Northern District of California
10
received fruit juice, [and] consumed [it] without suffering harm,” he could not establish economic
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injury by alleging the fruit juice contained unlawful amounts of lead and arsenic.28 Notably,
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however, Judge Illston based her decision on the fact that the plaintiff did “not allege that had
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defendant's juice been differently labeled, he would have purchased an alternative juice.”29 He only
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argued that he had purchased and consumed fruit juice, but later found out that the lead and arsenic
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levels in the juice were unsatisfactory to him.30
Consequently, it cannot be said that a plaintiff suffers sufficient injury under deceptive
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advertising and unfair competition statutes only when the product received is polluted, as
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Defendants suggest. Unlike in Boysen, Plaintiffs here allege that as health-conscious consumers,
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See Cal. Bus. & Prof. Code § 17204; Kwikset Corp. v. Superior Court, 51 Cal. 4th 310, 323, 326
(2011).
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Ivie v. Kraft, Case No. 12-2554 RMW, 2013 WL 685372, at *4 (February 25, 2013) (quoting
Chacanaca v. Quaker Oats Co., 752 F.Supp.2d 1111, 1125 (N.D. Cal. 2010)).
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See Docket No. 43 at 19.
See Boysen v. Walgreen Co., Case No. 11-06262 SI, 2012 WL 2953069, at *4-5 (N.D. Cal. July
19, 2012) (finding that plaintiff suffered no economic injury when he “paid for fruit juice, []
received fruit juice, [and] consumed [it] without suffering harm”).
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Id. at *7.
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30
See id.
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Case No.: 5:12-cv-01891-PSG
ORDER GRANTING-IN-PART MOTION TO DISMISS PLAINTIFFS’ COMPLAINT
1
they relied on the misleading product labels in purchasing the products, and had they known the
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truth, they would not have purchased the products at the premium price paid.31 Accepting as true
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these allegations for the purpose of a motion to dismiss, Plaintiffs spent money they otherwise would
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have saved but for defendants' acts of unfair competition. Courts in this district have overwhelmingly
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found that such allegations are sufficient to establish economic injury.32 Whether Plaintiffs
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actually did pay a premium price as a result of false and misleading labeling remains to be
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determined at a later stage in this litigation. As alleged, however, the injury of paying a higher
price for a falsely advertised product is enough to show Plaintiffs suffered particularized harm to a
United States District Court
For the Northern District of California
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legally protectable interest in the form of an economic loss.33
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C.
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Statutory Framework
Before considering the issue of preemption, a brief summary of the applicable statutory
framework is warranted. Congress passed the Federal Food, Drug, and Cosmetic Act (“FDCA”),
and in so doing established the Federal Food and Drug Administration (“FDA”) to “promote the
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public health” by ensuring that “foods are safe, wholesome, sanitary, and properly labeled.”34 The
FDA has implemented regulations to achieve this objective.35 The FDA enforces the FDCA and
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See Docket No. 25 ¶¶ 8, 86.
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See Kosta v. Del Monte Corp., 12-CV-01722-YGR, 2013 WL 2147413, at *11-12 (N.D. Cal.
May 15, 2013); Ivie, 2013 WL 685372, at *4; Lanovaz v. Twinings N. Am., Inc., Case No. 1202646-RMW, 2013 WL 675929, at *6 (N.D. Cal. Feb. 25, 2013); Jones, 2012 WL 6569393, at *9;
Chacanana, 752 F.Supp.2d at 1125; Chavez v. Blue Sky Natural Beverage Co., 340 Fed. App’x
359, 360-61 (9th Cir. 2009); Khasin v. Hershey Co., Case No. 12-CV-01862 EJD, 2012 WL
5471153, at *6 (N.D. Cal. Nov. 9, 2012).
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See Khasin, 2012 WL 5471153, at *6; Carrea v. Dreyer’s Grand Ice Cream, Inc., Case No. 1001044 JSW, 2011 WL 159381, at *2-3 (N.D. Cal. Jan. 10, 2011); Ries v. Arizona Beverages USA
LLC, 287 F.R.D. 523, 532 (N.D. Cal. 2012) (holding that the plaintiff’s allegations that they paid a
premium price for the mislabeled beverages was sufficient to establish economic injury); Colgan v.
Leatherman Tool Grp., Inc., 135 Cal. App. 4th 663, 700 (2006) (ruling that for purposes of the
FAL, UCL, and CLRA, restitution for products falsely labeled “Made in U.S.A.” was the price
differential between the falsely labeled products and similar products without that label).
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See 21 U.S.C. § 393.
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See, e.g., 21 C.F.R. § 101.1 et. seq.
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Case No.: 5:12-cv-01891-PSG
ORDER GRANTING-IN-PART MOTION TO DISMISS PLAINTIFFS’ COMPLAINT
1
accompanying regulations; “[t]here is no private right of action under the FDCA.”36 In 1990,
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Congress passed an amendment to the FDCA, the Nutrition Labeling and Education Act
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(“NLEA”), which imposed a number of requirements specifically governing food nutritional
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content labeling.37 The NLEA adds an express preemption provision, which provides that
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“[e]xcept as provided in subsection (b) of this section, no State or political subdivision of a State
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may directly or indirectly establish… any requirement” for the labeling of a container for food, or
for nutrition labeling, or for nutrient content claims, “that is not identical” to the requirements of
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that section.38 In other words, states may not adopt food labeling requirements governed by the
United States District Court
For the Northern District of California
10
NLEA that are different from, or additional to those imposed by the federal statutory scheme.39
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The NLEA is clear, however, that preemption does not extend further than “the plain language of
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the statute itself.”40
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Plaintiffs are not suing under the FDCA, but under California state law. The Sherman
Food, Drug, and Cosmetic Act (“Sherman Law”)41 has adopted wholesale the food labeling
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requirements of the FDCA and NLEA as “the food regulations of this state.”42 The Sherman Law
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Ivie, 2013 WL 685372, at *1 (internal citations omitted).
See, e.g., 21 U.S.C. § 343 et. seq. While the NLEA and FDA stand guard over labeling of most
food and nonalcoholic beverages, the United States Department of Agriculture (“USDA”) regulates
the labeling of meat, poultry, and certain egg products pursuant to the Federal Meat Inspection Act
and the Poultry Products Inspection Act. An important distinction between the two schemes is that
while USDA labels are pre-approved, FDA labels are not.
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21 U.S.C. § 343-1(a).
See In re Pepsico, Inc., Bottled Water Mktg. & Sales Practices Litig., 588 F.Supp.2d 527, 532
S.D. N.Y. 2008). See Riegel v.Medtronic, Inc., 552 U.S. 312, 330 (2008).
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In re Farm Raised Salmon Cases, 42 Cal. 4th 1077, 1091 (2008) (discussing § 6(c)(1) of the
NLEA, which states that the NLEA “shall not be construed to preempt any provision of State law,
unless such provision is expressly preempted under section 403A of the FDCA”).
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See Cal. Health & Safety Code §§ 109875 et. seq.
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Cal. Health & Safety Code § 110100.
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Case No.: 5:12-cv-01891-PSG
ORDER GRANTING-IN-PART MOTION TO DISMISS PLAINTIFFS’ COMPLAINT
1
declares any food to be “misbranded” if it is “false or misleading in any particular,” if the labeling
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“does not conform with the requirements for nutrition labeling” set forth in certain provisions of
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the NLEA.43 The UCL prohibits “any unlawful, unfair… or fraudulent business act or practice.”44
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“The FAL makes it unlawful to induce the public to enter into any obligation through the
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dissemination of ‘untrue or misleading’ statements.”45 The CLRA prohibits certain “unfair
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methods of competition and unfair or deceptive acts or practices” in connection with a sale of
goods.46
D.
Preemption
United States District Court
For the Northern District of California
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Defendants argue that Plaintiffs’ state law claims are preempted by the FDCA. Under the
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Supremacy Clause, federal law is the “supreme law of the land,” so where state law is contrary to
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valid federal law, federal law will control.
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Federal preemption applies under three circumstances: (1) the federal law expressly
preempts the state law, (2) the federal law conflicts with the state law, or (3) the federal law was
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intended to occupy the entire field.47 Express preemption applies where Congress has specifically
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stated in the statutory language that its enactments preempt state law.48 Conflict preemption occurs
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“where it is impossible for a private party to comply with both state and federal requirements.”49
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Implied or field preemption arises when federal law “regulates conduct in a field that Congress
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Cal. Health & Safety Code §§ 110660, 110665, 110670.
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Cal. Bus. & Prof. Code § 17200.
45
Lam v. Gen. Mills, Inc., 859 F.Supp.2d 1097, 1103 (N.D. Cal. 2012).
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Cal. Civ. Code § 1770.
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See English v. General Electric Co., 496 U.S. 72, 78-79 (1990).
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Id. at 79.
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Id.
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Case No.: 5:12-cv-01891-PSG
ORDER GRANTING-IN-PART MOTION TO DISMISS PLAINTIFFS’ COMPLAINT
1
intended the Federal Government to occupy exclusively.”50 Such intent may be inferred from the
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scope of the federal regulation – where the statutory scheme is “so pervasive as to make reasonable
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the inference that Congress left no room for the States to supplement it,” or it covers “a field in
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which the federal interest is so dominant that the federal system will be assumed to preclude
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enforcement of state laws on the same subject.”51
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“[T]he purpose of Congress is the ultimate touchstone in every pre-emption case.”52 There
is generally a presumption against preemption, the rationale being that “the historic police powers
of the States were not to be superseded by the Federal Act unless that was the clear and manifest
United States District Court
For the Northern District of California
10
purpose of Congress.”53 This presumption applies with particular force where, as here, Congress
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has legislated in an area which the states have “traditionally occupied.”54 States have historically
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had strong local interests in protecting the health and safety of their citizens, which is covered by
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the FDCA.55
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As noted above, the NLEA contains an express preemption provision: “[e]xcept as provided
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in subsection (b) of this section, no State or political subdivision of a State may directly or
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indirectly establish… any requirement for a food” which is not identical to the requirements of the
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FDCA.56 In Lohr v. Medtronic, the Supreme Court considered the nearly identical express
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preemption provision in the Medical Devices Amendment (“MDA”) to the FDCA, 21 U.S.C. §
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50
Id.
51
Id.
52
Wyeth v. Levine, 555 U.S. 555, 565 (2009).
53
Id.
54
Id.
55
See Medtronic, Inc. v. Lohr, 518 U.S. 470, 475 (1996).
56
21 U.S.C. § 343-1(a).
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Case No.: 5:12-cv-01891-PSG
ORDER GRANTING-IN-PART MOTION TO DISMISS PLAINTIFFS’ COMPLAINT
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360k(a).57 The Supreme Court held that Section 360k(a) did not bar the plaintiff’s negligence and
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strict-liability claims because they were based on the defendant’s failure to use reasonable care.58
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Further, nothing in that provision “denies [states] the right to provide a traditional damages remedy
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for violations of common-law duties when those duties parallel federal requirements.”59
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The Supreme Court later considered the implied preemption effect of another provision of
the FDCA, Section 337(a), which provides that “[e]xcept as provided in subsection, all such
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proceedings for the enforcement, or to restrain violations, of this chapter shall be by and in the
name of the United States.” The effect of this provision is that there is no private right of action to
United States District Court
For the Northern District of California
10
enforce the FDCA. In Buckman Co. v. Plaintiffs’ Legal Comm., the Supreme Court held that the
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plaintiffs’ claims that defendant made fraudulent representations to the FDA in securing approval
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for its orthopedic bone screws were impliedly preempted by Section 337(a).60 Although the
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plaintiff characterized his claims as state law tort claims (if defendant had not deceived the FDA,
the product would not have been approved, and plaintiffs would not have sustained the injury), his
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suit was deemed to be an improper attempt to privately enforce the FDCA.61 The plaintiff’s claim
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depended on enforcing provisions of the FDCA, and so the suit conflicted with the federal
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government’s power to “punish and deter fraud against its agencies.”62
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57
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Section 360k(a) provides the following:
“Except as provided in subsection (b) of this section, no State or political subdivision of a State
may establish or continue in effect with respect to a device intended for human use any
requirement –
(1) which is different from, or in addition to, any requirement applicable under this chapter to the
device…”
58
Lohr, 518 U.S. at 495.
59
Id.
60
Buckman Co. v. Plaintiffs' Legal Comm., 531 U.S. 341, 348 (2001).
61
See id. at 343, 353.
62
See id. at 348.
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Case No.: 5:12-cv-01891-PSG
ORDER GRANTING-IN-PART MOTION TO DISMISS PLAINTIFFS’ COMPLAINT
In Perez v. Nidek, the Ninth Circuit recently came to a similar conclusion. Perez alleged
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that the doctors that performed his LASIK eye surgery failed to disclose that the eye surgery was
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not yet approved by the FDA for hyperopic use, but the MDA did not require the defendant to give
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such notice, so the claims were expressly preempted.63 Perez’s claims also were impliedly
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preempted under Section 337(a).64 Although the section does not preempt all fraud or false
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advertising claims related to the surgeries, Perez could not bring suit solely on the basis that the
defendants did not disclose lack of FDA approval.65
The rule that emerges from these cases is that “the plaintiff must be suing for conduct that
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United States District Court
For the Northern District of California
10
violates the FDCA (or else his claim is expressly preempted by [Section] 360k(a)), but the plaintiff
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must not be suing because the conduct violates the FDCA (such a claim would be impliedly
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preempted under Buckman).”66 The same hurdles apply to the FDCA’s preemptive force in the
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food labeling context. First, the plaintiff must be suing for conduct that violates the FDCA’s food
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labeling requirements, else the claim is expressly preempted under Section 343-1(a), the NLEA’s
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counterpart to Section 360k(a)’s express preemption provision. Second, the plaintiff must not be
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suing to enforce provisions of the FDCA, which would be impliedly preempted under Section
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337(a) of the FDCA, but rather to vindicate an independent right under state law.
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1.
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Plaintiffs’ claims must first overcome express preemption under Section 343-1(a), which as
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Express Preemption
noted above prohibits any requirements that are different from, or additional to the federal statutes
and regulations.67 Express preemption is especially appropriate where the practice identified by the
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63
See Perez v. Nidek Co., Ltd., 711 F.3d 1109, 1112 (9th Cir. 2013).
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64
See id. at 1119.
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65
Id. at 1120.
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66
Id. (emphasis in original).
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67
See Riegel, 552 U.S. at 330.
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Case No.: 5:12-cv-01891-PSG
ORDER GRANTING-IN-PART MOTION TO DISMISS PLAINTIFFS’ COMPLAINT
1
2
plaintiff is explicitly governed by either the FDCA or its regulations, and the defendant is in
compliance with those requirements.68
One of Plaintiffs’ claims is that Fruity Snacks product packaging is misleading because it
3
4
displays pictures of strawberries, blueberries, and raspberries next to the statement “made with real
5
fruit,” which implies that the product contains the fruits pictured. In actuality, the only fruit
6
ingredient in the product is apple puree concentrate.69 Defendants contend that this claim is
7
8
9
expressly preempted because certain provisions of the FDCA and accompanying regulations allow
manufacturers to use the name and image of fruit on a product’s packaging to describe the flavor of
United States District Court
For the Northern District of California
10
the product, even if that product does not actually contain any of that particular fruit.70 Regulation
11
101.22(i) states that the label or advertising may contain words or vignettes (including depictions
12
of the fruit) describing the product’s flavor even “if none of the natural flavor used in the food is
13
derived from the product whose flavor is simulated,” so long as the product is labeled “artificially
14
flavored.” Defendants’ Fruity Snacks packaging, which has been judicially noticed by the court,
15
16
complies with these requirements – along with the “Mixed Berry” label and depictions of various
17
berry-shaped snacks, the label also contains the words “artificially flavored.”71 The complaint
18
essentially argues that even though the Fruity Snacks packaging complies with Section 101.22(i), it
19
is misleading because it is placed in close proximity to the statement, “Made with Real Fruit.”
20
21
22
68
23
24
Cf. Lam, 859 F.Supp.2d at 1103 (holding that the plaintiff’s “natural” and “all natural” claims
were expressly preempted because defendant’s labeling was expressly permitted by FDA
regulations).
69
See Docket No. 25 ¶¶ 102-109.
70
See 21 U.S.C. § 343(j), (k); See also 21 C.F.R. § 101.22(i).
25
26
71
27
28
See Docket No. 44, Ex. 1. While the packaging also contains the words “naturally… flavored,”
which might violate other regulations, Plaintiffs’ complaint is not centered around this potential
violation.
13
Case No.: 5:12-cv-01891-PSG
ORDER GRANTING-IN-PART MOTION TO DISMISS PLAINTIFFS’ COMPLAINT
1
2
This requirement of Plaintiffs’ claim goes beyond what is required by the FDCA and therefore is
expressly preempted.72
Defendants also argue that the slack-fill claims against Pringles snack chips and Fruity
3
4
Snacks are expressly preempted. Slack-fill is governed by 21 C.F.R. 100.100(a), which prohibits
5
“nonfunctional” slack-fill which does not exist for permissible purposes such as “[p]rotection of
6
the contents of the package,” “[u]navoidable product settling during shipping and handling,” and
7
8
9
the like. Plaintiffs do not expressly plead any nonfunctionality. Although Defendants characterize
Plaintiffs’ complaint improper attempt to impose an additional requirement, i.e., prohibition of
United States District Court
For the Northern District of California
10
slack-fill regardless of its purpose, this is more properly construed as a less-than-perfect recitation
11
of the elements of the claim. Nevertheless, the complaint expressly references the regulation
12
governing slack-fill, including the functional exceptions to the rule, and states that Defendants had
13
“no lawful justification” for using slack-fill. Drawing all inferences in favor of Plaintiffs, as
14
required for purposes of a motion to dismiss, the court finds Plaintiffs have alleged that Defendants
15
16
violated the FDA regulation governing slack-fill and thus the claim is not preempted.73
17
2.
18
The court next considers Defendants’ arguments that Plaintiffs’ case should be barred
19
Field preemption
because it is an improper attempt to enforce the FDCA. Relying on Perez and Buckman,74
20
72
21
22
See Lam, 859 F.Supp.2d at 1097 (holding that claim challenging the label “strawberry natural
flavored” when the product contained no strawberry ingredients was preempted because of the
same provision, 21 C.F.R. § 101.22(i)).
73
23
24
See Ivie, 2013 WL 685372, at *11 (holding that the slack-fill claims were not preempted because
plaintiff quoted the FDA regulation and alleged that defendants lacked any legal justification for
employing unlawful slack fill packaging).
74
25
26
27
28
Defendants also rely on Pom Wonderful LLC v. Coca-Cola Co., 679 F.3d 1170 (9th Cir. 2012),
which they briefed before the Ninth Circuit’s Perez decision was published. The court in Pom
Wonderful LLC held that the FDCA and its regulations barred the “name and labeling aspects” of
the plaintiff’s federal Lanham Act claim. See id. However, courts in this district have rejected
Defendants’ argument that Pom Wonderful LLC applies equally to preclude state law claims. See,
e.g., Brazil v. Dole Food Co., Inc., Case No. 12-CV-01831-LHK, 2013 WL 1209955, at *7 (N.D.
Cal. Mar. 25, 2013); Delacruz, 2012 WL 2563857, *7 n. 3; Khasin v. Hershey Co., 2012 WL
5471153, *5.
14
Case No.: 5:12-cv-01891-PSG
ORDER GRANTING-IN-PART MOTION TO DISMISS PLAINTIFFS’ COMPLAINT
1
Defendants contend that because Plaintiffs’ claims “exist solely by virtue of the FDCA
2
requirements,” they are preempted. But Defendants read these cases too broadly. Unlike those
3
brought in Perez and Buckman, Plaintiffs’ claims here do not rest on violations of the FDCA, but
4
on the UCL, CAL, FLRA, and Sherman Law. Plaintiffs’ claims vindicate the separate and
5
independent right to be free from deceptive and misleading advertising. Although Defendants
6
argue Plaintiffs should not be allowed to “circumvent” the FDCA’s bar on private enforcement,
7
8
9
this argument falls flat in light of the ample evidence that Congress and the FDA intended that the
states would be free to adopt a statutory scheme paralleling the FDCA and offer a private suit of
United States District Court
For the Northern District of California
10
enforcement of those parallel state regulations.75 Further, there is simply “no indication from the
11
text of the NLEA or its legislative history that Congress intended a sweeping preemption of private
12
actions predicated on requirements contained in state laws.”76 Both the legislative history and the
13
14
text of the statute itself makes clear that Congress did not intent to prevent private citizens from
bringing unfair competition or other state-law claims, so long as they did not impose different or
15
16
additional requirements from those set forth in the FDCA.77
Moreover, Plaintiffs’ claims are factually distinct from those brought in Perez and
17
18
Buckman, which were found to be impliedly preempted “because they conflicted with the statutory
19
scheme, which amply empowers the FDA to punish and deter fraud against the Administration.”78
20
In those cases, the plaintiff sought only to punish the defendant’s fraud against the federal
21
agencies, rather than any wrongdoing directed at the plaintiff. By contrast, Plaintiffs in this case
22
75
24
See Lohr, 518 U.S. at 495 (holding that the FDCA does not deny states “the right to provide a
traditional damages remedy for violations of common-law duties when those duties parallel federal
requirements”).
25
76
23
26
Brazil, 2013 WL 1209955, at *7 (quoting In re Farm Raised Salmon Cases, 42 Cal. 4th 1077,
1090 (2008)).
77
See id.
78
Perez, 711 F.3d at 1119.
27
28
15
Case No.: 5:12-cv-01891-PSG
ORDER GRANTING-IN-PART MOTION TO DISMISS PLAINTIFFS’ COMPLAINT
1
are suing because the claims are misleading and deceptive under California law, not merely
2
because Defendants’ products violate the FDCA, or because Defendants committed fraud on the
3
FDA. Plaintiffs’ claims for damages arise from state-made common law duties that also happen to
4
coincide with the federal statutory scheme, which ensures that these claims will not conflict with or
5
impair the FDA’s regulatory power. As a result, Plaintiffs’ claims fit through the “narrow gap”
6
contemplated by the Ninth Circuit.79
7
8
E.
Primary Jurisdiction Doctrine
Defendants also argue that the court should “refer” this dispute to the FDA under the
9
United States District Court
For the Northern District of California
10
primary jurisdiction doctrine. “In practice, this means that the court either stays proceedings or
11
dismisses the case without prejudice, so that the parties may seek an administrative ruling” with the
12
relevant administrative agency.80 Although there is no set rule for determining when to apply the
13
doctrine, it is generally applied when there is “(1) a need to resolve an issue that (2) has been
14
placed by Congress within the jurisdiction of an administrative body having regulatory authority
15
16
(3) pursuant to a statute that subjects an industry or activity to a comprehensive regulatory
17
authority that (4) requires expertise or uniformity in administration.”81 This referral should not be
18
applied to every that might be within the “ambit” of a federal agency, but should only be used
19
when the issue is one of first impression, or is particularly complicated and has been committed by
20
Congress to a particular regulatory agency.82
21
The court is not convinced that the primary jurisdiction doctrine should apply to all matters
22
of food labeling. Allegations of deceptive labeling do not require consultation of the expertise of
23
24
25
79
Id. at 1120.
26
80
Clark v. Time Warner Cable, 523 F.3d 1110, 1114 (9th Cir. 2008).
27
81
See id. at 1115.
28
82
See id. at 1114.
16
Case No.: 5:12-cv-01891-PSG
ORDER GRANTING-IN-PART MOTION TO DISMISS PLAINTIFFS’ COMPLAINT
1
the FDA as “every day courts decide whether conduct is misleading.”83 Defendants also argue that
2
Congress has determined that the FDA shall have primary jurisdiction over all matters of food
3
labeling, which is not only incorrect but appears to conflate primary jurisdiction with field
4
preemption. As discussed at length above, although Congress has given the FDA regulatory power
5
over food labeling, it cannot be said that this amounts to exclusive jurisdiction over the entire area
6
of food false advertising and deceptive labeling. While nutrition labeling requires a certain level of
7
8
9
uniformity, the FDCA does not prohibit separate state-law actions touching upon this field, so long
as they do not require more than the FDCA and accompanying regulations.
Regarding the “evaporated cane juice” claim, Defendants more specifically argue that the
United States District Court
For the Northern District of California
10
11
primary jurisdiction should apply because the FDA does not currently have a final position on this
12
issue, and is in the process of developing one. In 2009, the FDA issued a Draft Guidance on the
13
use of the term “evaporated cane juice” specified the document was “nonbinding,” “do[es] not
14
establish legally enforceable responsibilities,” and was circulated for the purpose of soliciting
15
16
comments only.84 While it may be true that the FDA is developing a specific regulation on this
17
issue, there is already an FDA regulation governing the use of evaporated cane juice as an
18
ingredient. 21 C.F.R. 168.130 requires that “[t]he common or usual name of a food” shall be used
19
to “identify or describe, in as simple and direct terms as possible, the basic nature of the food or its
20
characterizing properties or ingredients.” As alleged, Defendants’ products contain “sugar,” which
21
should be cited by its “common or usual name” under the FDA regulations. This is sufficient to
22
proceed no matter what final guidance may be issued by the agency.
23
24
25
83
26
Jones, 2012 WL 6569393, at *6.
84
27
28
FDA, Draft Guidance for Industry, 2009 WL 3288507, at *1. See also 74 Fed. Reg. 51610-01
(Oct. 7, 2009) (explaining that draft guidance documents do not “create or confer any rights for or
on any person and does not operate to bind FDA or the public”).
17
Case No.: 5:12-cv-01891-PSG
ORDER GRANTING-IN-PART MOTION TO DISMISS PLAINTIFFS’ COMPLAINT
1
F.
Failure to state a claim
The court next considers whether Plaintiffs have satisfied their burden of pleading their
2
3
UCL, FAL, and CLRA claims with particularity. To state a claim under each of these statutes, the
4
plaintiff must show that a reasonable consumer would be deceived by the packaging and that
5
plaintiff actually relied on the packaging and was deceived.85 Because factual allegations must
6
7
8
reach beyond a merely speculative level, Plaintiffs must show that members of the public are
“likely to be deceived.”86 Defendants contend that Plaintiffs did not do so for the following claims.
1.
9
Pringles – 0g Trans Fat Claim
United States District Court
For the Northern District of California
10
Plaintiffs claim that the Pringles packaging contains the claim “0g Trans Fat,” in violation
11
of 21 U.S.C. § 343(r) and 21 C.F.R. 101.13(h). The statute provides that when a “nutrient content
12
claim” is made, and the product contains more than the maximum levels of total fat, saturated fat,
13
sodium, or cholesterol prescribed by the regulations,87 then the nutrient content claim must be
14
accompanied by the statement “See nutrition information for [the exceeding ingredient] content.”
15
16
In essence, the statute requires that “whenever an express nutrient content claim is made on a food
17
label, that label must bear further disclosures about ingredients that the FDA has found pose diet-
18
related health risks.”88 Plaintiffs allege that although Pringles contains more than the specified
19
threshold of total fat set by the FDA, the Pringles label does not include the required disclosure.
20
21
Defendants urge the court to hold as a matter of law that the statement “0g Trans Fat”
would not mislead a reasonable consumer. In Delacruz v. Cytosport, the court ruled that a similar
22
23
85
See Xybersound Records, Inc. v. UAV Corp., 517 F.3d 1137, 1152 (9th Cir. 2008).
86
Williams v. Gerber Products Co., 552 F.3d 934, 938 (9th Cir. 2008).
24
25
87
26
27
21 C.F.R. 101.13(h)(1) sets the maximum levels at “13.0 g of fat, 4.0 g of saturated fat, 60
milligrams (mg) of cholesterol, or 480 mg of sodium per reference amount customarily consumed,
per labeled serving.”
88
28
Wilson v. Frito-Lay N. Am., Inc., 12-1586 SC, 2013 WL 1320468, at *7 (N.D. Cal. Apr. 1,
2013).
18
Case No.: 5:12-cv-01891-PSG
ORDER GRANTING-IN-PART MOTION TO DISMISS PLAINTIFFS’ COMPLAINT
1
“0g Trans Fat” claim was not actionable because the “alleged distraction” from the product’s
2
unhealthy fat and saturated fat content did not amount to a “false statement or misrepresentation.”89
3
But the California statutes in question prohibit not merely false statements, but also misleading
4
ones.90 For example, a label could disclose all truthful information, but hide the most relevant
5
information in infinitesimal print, and thus as a whole be misleading to the reader. The FDA
6
regulations in question were created to address such concerns.91 Furthermore, other courts have
7
8
9
held that the statement “0g Trans Fat” could mislead a reasonable consumer.92 The same may be
true here, but Plaintiffs have not alleged in the detail required by Rule 9(b) how Plaintiffs were
United States District Court
For the Northern District of California
10
actually misled. Plaintiffs must offer more than their legal conclusion that they were “unaware”
11
that the products were “misbranded” and contained fat content in excess of the amounts set forth in
12
FDA regulations.93
13
2.
14
Pringles and Fruity Snacks – Slack-Fill Claim
For the Pringles and Fruity Snacks products, Plaintiffs allege facts showing that they were
15
16
17
deceived by the slack-fill packaging and thought they were receiving more of the product than they
actually received.94 Defendants argue that as a matter of law a reasonable consumer would know
18
89
19
Delacruz, 2012 WL 2563857, at *8.
90
20
21
22
23
Williams, 552 F.3d at 938 (“The California Supreme Court has recognized that these laws
prohibit not only advertising which is false, but also advertising which although true, is either
actually misleading or which has a capacity, likelihood or tendency to deceive or confuse the
public”) (internal quotations omitted).
91
Chacanaca, 752 F.Supp.2d at 1122 (“This is because the Agency has reasoned that the
beneficent claim, standing alone, would be misleading”).
92
24
25
See, e.g., Wilson, 2013 WL 1320468, at *13 (“the Court cannot conclude as a matter of law that
Plaintiffs’ ‘0 Grams Trans Fat’ claims would not be misleading or deceptive to a reasonable
consumer”).
93
26
Docket No. 25 ¶ 80.
94
27
28
See id. ¶¶ 111-116 (“Defendants routinely employed slack filled packaging to mislead consumers
into believing they were receiving more than they actually were” and “Plaintiffs… were deceived
by Defendants’ misleading slack filled packaging.”).
19
Case No.: 5:12-cv-01891-PSG
ORDER GRANTING-IN-PART MOTION TO DISMISS PLAINTIFFS’ COMPLAINT
1
that there is extra air in a bag of snacks. While this may be true, the amount of slack-fill expected
2
by the reasonable consumer is a debatable factual question that is inappropriate to resolve at the
3
motion to dismiss stage.95
“Healthy” and “Wholesome” Claims
4
3.
5
Plaintiffs also bring claims that Defendants used the words “healthy” and “wholesome” in
6
7
8
9
connection with certain goods in violation of 21 C.F.R. 101.65(d)(2). Plaintiffs’ allegations falls
far short of the pleading requirements of Rule 9(b). Although Plaintiffs refer to “healthy” and
“wholesome” claims in statements made on Defendants’ labeling and website, they do not provide
United States District Court
For the Northern District of California
10
the entire statement, nor do they attach the relevant label. 96 They also fail to clarify which
11
products are specifically at issue, where the statements were found, and how Plaintiffs were
12
actually misled. “[A] single out-of-context phrase” does not provide Defendants with sufficient
13
notice of Plaintiffs’ claims on this issue.97
14
Further, Plaintiffs have not alleged facts supporting their claim that the website constitutes
15
16
“labeling,” which is defined as “all labels and other written, printed, or graphic matter (1) upon any
17
article or any of its containers or wrappers, or (2) accompanying such article.”98 Only if the
18
plaintiff establishes that the label contains a specific statement referring the consumer to a specific
19
20
21
22
23
24
25
95
See Williams, 552 F.3d at 938-39 (holding the district court erred in determining as a matter of
law that Gerber Fruit Juice Snacks packaging was not deceptive because “whether a business
practice is deceptive will usually be a question of fact not appropriate for decision on demurrer”);
Cf. Werbel ex rel. v. Pepsico, Inc., Case No. 09-04456 SBA, 2010 WL 2673860 (N.D. Cal. July 2,
2010) (ruling that as a matter of law, no reasonable consumer would believe that Cap’n Crunch
Crunch Berries derives any nutritional value from berries).
96
26
See Docket No. 25 ¶¶ 81-90.
97
27
Hairston v. S. Beach Beverage Co., Inc., CV 12-1429-JFW DTBX, 2012 WL 1893818, at *4
(C.D. Cal. May 18, 2012).
28
98
21 U.S.C. § 321(k) (emphasis added).
20
Case No.: 5:12-cv-01891-PSG
ORDER GRANTING-IN-PART MOTION TO DISMISS PLAINTIFFS’ COMPLAINT
1
2
website for information about the claim in question can the website be considered to be
“accompanying” the article as “labeling.”99
3
4.
4
Plaintiffs’ “evaporated cane juice” claims allege that this term is used as a “false and
5
misleading name” for what is commonly known as sugar or dried cane syrup.100 But Plaintiffs fail
6
Evaporated Cane Juice
to allege any facts to support this claim. They do not specify which products and labels deceived
7
8
9
Plaintiffs, how Plaintiffs relied on the labels, and why a reasonable consumer would be likely to be
deceived. It is not enough to allege that the products are “misbranded” under the FDCA, which
United States District Court
For the Northern District of California
10
only allows Plaintiffs to avoid express preemption. Plaintiffs also must allege with particularity the
11
facts supporting their claims under California consumer protection statutes.
12
5.
13
Plaintiffs’ complaint charges that Fruity Snacks packaging deceptively uses the term
14
Fruity Snacks – “Fortified” with Vitamin C Claims
“fortified” in violation of 21 C.F.R. § 101.54. Defendants point out that in the Fruity Snacks label
15
16
they submitted to the court, there is no claim that the snacks are “fortified” with Vitamin C. As
17
this label may be but one label of many distributed during the relevant period, the court is not
18
persuaded that this warrants dismissal with prejudice. However, Defendants are entitled to notice
19
of the specific allegations against them in order to form a defense. Under Rule 9(b), Plaintiffs
20
should “identify[] or attach[] representative samples of [the] misleading materials” in order to
21
22
23
24
25
26
27
99
See Wilson, 2013 WL 1320468, at *14 (N.D. Cal. Apr. 1, 2013) (holding that even though the
product label referred the plaintiffs to the defendant’s website, the label did not direct the reader to
visit the website for further nutritional information, and so the website did not constitute
“labeling”).
100
28
Docket No. 25 ¶ 91.
21
Case No.: 5:12-cv-01891-PSG
ORDER GRANTING-IN-PART MOTION TO DISMISS PLAINTIFFS’ COMPLAINT
1
sufficiently make out a claim.101 Without any such samples, neither the court nor the Defendants
2
have information as to the “what, when, where” of Plaintiffs’ claims sounding in fraud.
3
G.
Safe Harbor
Defendants further argue that Plaintiffs’ claims are barred by the “safe harbor doctrine,”
4
5
which provides that where the legislature has determined certain conduct to be permissible,
6
plaintiffs should not be allowed to use general unfair competition law to “assault” that harbor.102
7
8
9
United States District Court
For the Northern District of California
10
As these arguments regarding safe harbor cover the same ground as those regarding federal express
preemption that were discussed above, the court need not discuss this issue further.
H.
Defendants challenge that Plaintiffs’ restitution claim should be dismissed because they are
11
12
13
14
Restitution based on Unjust Enrichment/Quasi-Contract
duplicative of Plaintiffs’ other claims. Restitution is typically applied as a remedy to a “quasicontractual claim in order to avoid unjustly conferring a benefit upon a defendant where there is no
valid contract.”103 But as an equitable remedy, restitution requires that the plaintiff show that
15
16
remedies at law are inadequate to redress her injury.104 The complaint alleges no facts not already
17
covered by the UCL, FAL, and CLRA claims, which already provide for restitution as a remedy.
18
As courts have dismissed unjust enrichment claims “that are merely duplicative of statutory or tort
19
claims,”105 the claims here also must be dismissed.
20
21
22
23
101
Ries v. Hornell Brewing Co., Inc., 5:10-CV-01139-JF/PSG, 2011 WL 1299286 (N.D. Cal. Apr.
4, 2011).
102
Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co., 20 Cal. 4th 163 (1999).
103
Rosal v. First Fed. Bank of Cal., 671 F.Supp.2d 1111, 1113 (N.D. Cal. 2009).
104
See Ramona Manor Convalescent Hosp. v. Care Enters., 177 Cal. App. 3d 1120, 1140 (1986).
24
25
26
105
27
28
See, e.g., In re Apple & AT&T iPad Unlimited Data Plan Litig., 802 F.Supp.2d 1070, 1077
(N.D. Cal. 2011); Diacakis v. Comcast Corp., Case No. C-11-3002 SBA, 2012 WL 43649, at *6
(N.D. Cal. Jan. 9, 2012).
22
Case No.: 5:12-cv-01891-PSG
ORDER GRANTING-IN-PART MOTION TO DISMISS PLAINTIFFS’ COMPLAINT
1
I.
Violations of Song-Beverly Act and Magnuson-Moss Act
Plaintiffs’ complaint alleges violations of the California Beverly-Song Act and the federal
2
3
Magnuson-Moss Act. It is clear that the Magnuson-Moss Act, aimed at written warranties
4
governed by the FDCA, does not apply here because the statements at issue are not “warranties” as
5
defined by the Act. A warranty is defined as a “written affirmation of fact” that the product is
6
“defect free or will meet a specified level of performance over a specified period of time.”106 None
7
8
of the statements challenged by Plaintiffs qualify as such an affirmation.
Plaintiffs’ claims under the Song-Beverly Act are also inapposite. The Act permits a cause
9
United States District Court
For the Northern District of California
10
of action for damages for a buyer of “consumer goods” who is injured by a breach of warranty. 107
11
However, the statute expressly does not apply to “consumables,” or “any product that is intended
12
for consumption by individuals.”108 The products here are clearly products intended for
13
consumption, and Plaintiffs admit as much in their complaint.109
14
In any event, Plaintiffs have not refuted these arguments in their opposition, and so these
15
16
claims are deemed abandoned.
IV.
17
CONCLUSION
Plaintiffs’ claims under the Magnuson-Moss Act, the Song-Beverly Act, and
18
19
restitution/unjust enrichment are DISMISSED with prejudice and without leave to amend.
20
Plaintiffs’ claims against Fruity Snacks for use of the fruit vignettes and “Made with Real Fruit”
21
22
are DISMISSED with prejudice and without leave to amend because it is expressly preempted.
Plaintiffs’ claims against Pringles for “0g Trans Fat;” the “healthy” and “wholesome” claims;
23
24
“evaporated cane juice” claims; and Fruity Snacks “fortified” claims are DISMISSED without
25
106
15 U.S.C. § 2301(6)(A).
26
107
Cal. Civ. Code § 1794.
27
108
Cal. Civ. Code § 1791(a), (d).
28
109
See Docket No. 25 ¶ 220.
23
Case No.: 5:12-cv-01891-PSG
ORDER GRANTING-IN-PART MOTION TO DISMISS PLAINTIFFS’ COMPLAINT
1
prejudice and with leave to amend. The motion to dismiss the slack-fill claims is DENIED. Any
2
amended complaint shall be filed no later than July 3, 2013.
3
IT IS SO ORDERED.
4
Dated: June 18, 2013
5
_________________________________
PAUL S. GREWAL
United States Magistrate Judge
6
7
8
9
United States District Court
For the Northern District of California
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13
14
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19
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Case No.: 5:12-cv-01891-PSG
ORDER GRANTING-IN-PART MOTION TO DISMISS PLAINTIFFS’ COMPLAINT
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