Major v. Ocean Spray Cranberries, Inc

Filing 89

ORDER denying 50 Second Motion to Certify Class; granting 55 Motion for Partial Summary Judgment. Signed by Judge Edward J. Davila on 2/26/2015. (ejdlc1S, COURT STAFF) (Filed on 2/26/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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NOELLE MAJOR, individually and on
behalf of all others similarly situated,

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Plaintiff,
v.

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OCEAN SPRAY CRANBERRIES, INC.,

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United States District Court
Northern District of California

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Defendant.

Case No. 5:12-cv-03067-EJD
ORDER GRANTING DEFENDANT’S
MOTION FOR PARTIAL SUMMARY
JUDGMENT; DENYING PLAINTIFF’S
MOTION FOR CLASS
CERTIFICATION
Re: Dkt. No. 50, 55

Plaintiff Noelle Major (“Plaintiff”) filed this putative class action against Defendant Ocean

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Spray Cranberries, Inc. (“Defendant”). Plaintiff has alleged that several of Defendant’s food

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products have been improperly labeled so as to amount to misbranding and deception in violation

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of several California and federal law. Presently before the Court are two matters: (1) Plaintiff’s

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second Motion for Class Certification filed pursuant to Rule 23 of the Federal Rules of Civil

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Procedure, and (2) Defendant’s Motion for Partial Summary Judgment. See Docket Item Nos. 50,

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55. Having fully reviewed the parties’ papers, and for the reasons explained below, the Court

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GRANTS Defendant’s Motion for Partial Summary Judgment and DENIES Plaintiff’s Motion for

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Class Certification as moot.

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I.

BACKGROUND

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Plaintiff, a resident of California, alleges that she purchased several of Defendant’s

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products in her home state. The Amended Complaint states that Plaintiff purchased “Ocean Spray

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juices and drinks” that were allegedly “unlawfully labeled ‘No Sugar Added’ or bearing improper

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nutrient content claims, or false representations that the products are free from artificial colors,

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flavors or preservatives.” Am. Compl., Docket Item No. 37, at ¶ 1. The Amended Complaint also

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Case No.: 5:12-cv-03067-EJD
ORDER GRANTING DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT;
DENYING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION

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states that she purchased Defendant’s products with the following labels: (1) Blueberry Juice

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Cocktail, (2) 100% Juice Cranberry & Pomegranate, (3) Diet Sparkling Pomegranate Blueberry,

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(4) Light Cranberry, and (5) Ruby Cherry. Id. at ¶¶ 156–57. Plaintiff purchased the Diet

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Sparkling Pomegranate Blueberry drink and the Light Cranberry drink once each. Decl. of Daniell

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K. Newman, Ex. A, Noelle Major Deposition (“Major Depo.”) at 48:7-12, 59:21-60:3. Plaintiff

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purchased the Ruby Cherry drink, the Blueberry Juice Cocktail drink, and the 100% Juice

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Cranberry & Pomegranate on multiple occasions. Id. at 68:7-69:2, 80:10–25, 94:24-95:6.
On March 29, 2013, Plaintiff filed her first Motion for Class Certification, appointment of

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class representative, and appointment of class counsel. See Docket Item No. 23. Defendant
opposed the motion. See Docket Item No. 33. On June 10, 2013, the Court denied Plaintiff’s

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Northern District of California

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Motion because she did not satisfy the typicality requirement of Rule 23(a)(3). See Docket Item

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No. 44.

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On November 1, 2013, Plaintiff filed a second motion for class certification, appointment

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of class representative, and appointment of class counsel, presently before the Court. See Docket

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Item No. 50. Mindful of the Court’s June 10, 2013 order denying class certification, Plaintiff

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narrowed her class definition by seeking coverage of only Defendant’s 100% Juice products. She

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alleges that Defendant’s 100% Juice products contained packaging and labeling that were

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unlawful, false, or misleading. In addition, Plaintiff contends that because Defendant labels its

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100% Juice products identically with respect to the “No Sugar Added” claim, the different flavors

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do not, at least for purposes of this motion, distinguish them as different products. In contrast to

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the class definition contained in the Amended Complaint, Plaintiff’s second motion seeks

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certification of the following putative class: “All persons in the state of California who, from June

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14, 2008, until the date of notice, purchased Defendant’s 100% Juice product labeled ‘No Sugar

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Added.’” In addition, Plaintiff moves for an order appointing her as class representative and

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appointing her attorneys as counsel for the class.

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Defendant filed its Motion for Partial Summary Judgment on January 3, 2014. There,
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Case No.: 5:12-cv-03067-EJD
ORDER GRANTING DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT;
DENYING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION

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Defendant limitd its arguments to the 100% Juice products that are the subject of Plaintiff’s

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motion for class certification. See Docket Item No. 55.

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II.

LEGAL STANDARD
As described above, these motions overlap since Defendant moves for partial summary

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judgment on the same claims that form the basis of Plaintiff’s class certification motion. Under

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these circumstances, Defendant’s motion must be decided first because, if that motion is granted

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and summary judgment on the 100% Juice products claims is entered in favor of Defendant, the

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certification motion is rendered moot. Accordingly, the Court begins with the standard applied to

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motions for summary judgment.
A motion for summary judgment should be granted if “there is no genuine dispute as to

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Northern District of California

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any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a);

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Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). The moving party bears the

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initial burden of informing the court of the basis for the motion and identifying the portions of the

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pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the

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absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

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If the moving party meets this initial burden, the burden then shifts to the non-moving party to go

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beyond the pleadings and designate specific materials in the record to show that there is a

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genuinely disputed fact. Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 324. The court must draw all

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reasonable inferences in favor of the party against whom summary judgment is sought.

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Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
However, the mere suggestion that facts are in controversy, as well as conclusory or

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speculative testimony in affidavits and moving papers, is not sufficient to defeat summary

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judgment. See Thornhill Publ’g Co. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979). Instead,

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the non-moving party must come forward with admissible evidence to satisfy the burden. Fed. R.

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Civ. P. 56(c); see Hal Roach Studios, Inc. v. Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th Cir.

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1990).

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Case No.: 5:12-cv-03067-EJD
ORDER GRANTING DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT;
DENYING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION

A genuine issue for trial exists if the non-moving party presents evidence from which a

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reasonable jury, viewing the evidence in the light most favorable to that party, could resolve the

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material issue in his or her favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986);

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Barlow v. Ground, 943 F.2d 1132, 1134-36 (9th Cir. 1991). Conversely, summary judgment must

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be granted where a party “fails to make a showing sufficient to establish the existence of an

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element essential to that party’s case, on which that party will bear the burden of proof at trial.”

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Celotex, 477 U.S. at 322.

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III.

DISCUSSION
Plaintiff argues that Defendant’s 100% Juice labels violate California’s Unfair

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Competition Law (“UCL”), false advertising laws, and the Consumers Legal Remedies Act

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(“CLRA”) because the labels were deceptive since they contained the “No Sugar Added”

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messaging without the required disclaimer language.1 Am. Compl. at ¶¶ 65-82. Because of

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Defendant’s alleged false and misleading labeling practices, Plaintiff argues she relied on the

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misbranded labels and was deceived into purchasing Defendant’s 100% Juice products. Id. As a

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result of Defendant’s allegedly unlawful, fraudulent, and misleading labeling, Plaintiff argues

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Defendant was enriched at the expense of Plaintiff and the Class. Id. ¶ 234. She seeks damages

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and injunctive relief in her seventh cause of action.

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Defendant posits a number of reasons why the 100% Juice products claims should be

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summarily adjudicated. First, Defendant argues that Plaintiff’s claims under the UCL, CLRA and

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the false advertising laws fail because Plaintiff correctly understood that 100% juice products are

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not low-calorie foods and, therefore, cannot produce evidence showing that she relied on the

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challenged statements. Second, Defendant argues that because Plaintiff’s testimony indicates that

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she knew what the term “No Sugar Added” meant, and since her understanding is factually

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The disclaimer language from 21 C.F.R § 101.60(c)(2) provides, in pertinent part, that unless a
product also meets the requirements to be labeled as a reduced or low calorie food, products that
are labeled as “no sugar added” must also bear “a statement that the food is not ‘low calorie’ or
‘calorie reduced’ . . . and that directs consumers’ attention to the nutrition panel for further
information on sugar and calorie content.”
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Case No.: 5:12-cv-03067-EJD
ORDER GRANTING DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT;
DENYING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION

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consistent with Ocean Spray’s juice-making process, the term is neither false nor deceptive.

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Finally, Defendant argues that Plaintiff’s claims fail because Plaintiff did not suffer any “injury in

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fact” since she did not pay a premium for Ocean Spray products as a result of the alleged labeling

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issues. The Court agrees with Defendant’s first two arguments.

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A.

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Plaintiff’s theory is set forth in the Amended Complaint at paragraphs 75 and 76, which

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Northern District of California

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Plaintiff Correctly Understood Defendant’s Products Were Not Low Calorie
and Did Not Rely On Challenged Statements

allege:
[b]ecause consumers may reasonably be expected to regard terms
that represent that the food contains ‘no sugar added’ or sweeteners
as indicating a product which is low in calories or significantly
reduced in calories, consumers are misled when foods that are not
low-calorie . . . are falsely misrepresented.” And “[f]or these
reasons, Defendant’s ‘no sugar added’ claims at issue in this
Complaint are misleading and in violation of 21 C.F.R. §
101.60(c)(2) and California law. . . .
In order for Plaintiff to prevail on this theory, California law requires she prove reliance, or

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that the alleged misrepresentations - here, that consumers were misled because foods not low in

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calories were falsely represented - motivated her purchasing decision. See In re Tobacco II Cases,

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46 Cal. 4th 298, 306 (2009) (plaintiff “must demonstrate actual reliance on the allegedly deceptive

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or misleading statements, in accordance with well-settled principles regarding the element of

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reliance in ordinary fraud actions”); Marolda v. Symantec Corp., 672 F. Supp. 2d 992, 1002-1003

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(N.D. Cal 2009) (reliance is essential element of CLRA claim); Kwikset Corp. v. Super. Ct., 51

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Cal. 4th 310, 330 (Cal. 2011) (plaintiff establishes reliance by showing that “he or she would not

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have bought the product but for the misrepresentation”); Sateriale v. R.J. Reynolds Tobacco Co.,

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697 F.3d 777 (9th Cir. 2012) (affirming dismissal of UCL and CLRA claims where plaintiffs had

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not relied on the defendant’s alleged misrepresentations).

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Defendant argues that Plaintiff could not have been deceived or misled by the lack of a §

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101.60(c)(2) disclaimer along with the “No Sugar Added” labeling because the evidence shows

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“she never believed the products were reduced calorie.” In support of this argument, Defendant

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ORDER GRANTING DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT;
DENYING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION

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points to Plaintiff’s deposition testimony where, when asked whether she purchased Defendant’s

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100% Juice product because she thought it was a reduced calorie product, she answered “no.”

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Major Depo. at 108:3-16. Similarly, when Plaintiff was asked by Defendant whether she thought

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Defendant’s 100% Juice products were low calorie products at the time she purchased them, she

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again answered “no.” Id. Thus, based on Plaintiff’s own testimony, Defendant argues that the

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absence of the disclaimer informing consumers the products were not low-calorie did not

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influence Plaintiff’s decision to purchase Defendant’s products. In other words, Defendant argues

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that, at deposition, Plaintiff admitted she did not rely to her detriment on the absence of the

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disclaimer language because she knew Defendant’s products were not low-calorie, and further

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admitted that calorie content was not a motivating factor for her purchase in any event.
In response, Plaintiff argues that her claims relating to the “No Sugar Added” messaging

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do not “hinge on whether the Plaintiff thought the beverage was low calorie or not.” She believes

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that her labeling claim survives summary judgment because other portions of her testimony

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establish that she was drawn to Defendant’s products because of the “No Sugar Added” messaging

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on the label. Major Depo. at 102-103. Furthermore, Plaintiff argues her claim survives summary

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judgment because she thought Defendant’s products were “better and healthier” because of the

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alleged mislabeling of Defendant’s 100% Juice products.

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The Court first addresses Plaintiff’s argument that her claim based on the mislabeling

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survives because she thought Defendant’s product was “better” or “healthier.” Irrespective of

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whether or not, as Defendant argues, Plaintiff is attempting to change the theory disclosed in her

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Amended Complaint - which she is - or amend her Complaint “on the fly” in response to

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potentially dispositive arguments, this argument is unpersuasive. As stated above, Plaintiff’s

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theory requires her to show that she relied on allegedly deceptive or misleading statements (or

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ommissions) on labels when she decided to purchase Defendant’s 100% Juice products. Although

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Plaintiff’s Amended Complaint alleges that Defendant misbranded its products as “being healthy,”

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she has not identified any statements on Defendant’s label that proclaims its products as “better”

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ORDER GRANTING DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT;
DENYING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION

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or “healthier.” Similarly, this argument fails to the extent Plaintiff proffers it as a way to

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demonstrate a disputed issue of material fact because she has not presented any evidence which

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shows that Defendant’s 100% Juice labels make any comparative claim regarding the “health” or

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“healthiness” of the product. Nor was any evidence presented indicating that the labels purport the

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100% Juice products to be “better” than any competitor product. Thus, the Court concludes that

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Plaintiff cannot meet her burden in opposition simply by raising allegations or theories which are

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unsupported by any actual evidence, particularly when (1) the theory differs from the one

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disclosed in the Amended Complaint, and (2) there is specific testimony from Plaintiff

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demonstrating that a § 101.60(c)(2) disclaimer would not have factored into her decision to

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purchase the 100% Juice products. Her argument is rejected for these reasons.2
Next, the Court analyzes whether Plaintiff’s testimony that she relied on the “No Sugar

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Added” message is sufficient to preclude summary judgment to Defendant on her claims.

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Looking at the record, there is at least reasonable dispute on the issue of whether Defendant’s

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100% Juice products should have contained a § 101.60(c)(2) disclaimer in conjunction with the

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“No Sugar Added” message. Assuming, arguendo, this would also create a genuine issue of

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material fact does as to whether this omission rendered the “No Sugar Added” message false or

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misleading for consumers, Plaintiff still does not escape the effect of the evidence. Here,

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Plaintiff’s own deposition testimony establishes that she never believed Defendant’s products

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were low-calorie. Again, in order for Plaintiff to prevail on her theory of mislabeling due to an

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absence of the § 101.60(c)(2) disclaimer, Plaintiff must have relied on the “No Sugar Added”

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message, not to mean some general level of healthiness, but to mean that the 100% Juice products

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were low-calorie or low in calories.

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It is also worth noting that Plaintiff’s Amended Complaint relates any “healthy” claims to
Defendant’s alleged violations of the minimum nutrient requirements of 21 C.F.R. § 101.65, not
her claims relating to the “No Sugar Added” messaging and the lack of a § 101.60(c)(2)
disclaimer. See Am. Compl. ¶¶ 110, 113 (“Defendant violated these rules by claiming its
Misbranded Food Products were “healthy” when they failed to meet the minimum nutritional
requirements of 21 C.F.R. § 101.65”). This adds further support to the conclusion that Plaintiff
cannot defeat this motion by producting deposition testimony addressing a separate theory.
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ORDER GRANTING DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT;
DENYING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION

Since the undisputed material facts demonstrate that Plaintiff cannot prove that the lack of

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a § 101.60(c)(2) disclaimer factored into her purchasing decision, the Court will grant Defendant’s

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motion on Plaintiff’s claims that the 100% Juice products are misbranded because they contained

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the “No Sugar Added” messaging without a § 101.60(c)(2) disclaimer.

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B.

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The “No Sugar Added” Messaging is Factually Accurate and Conforms to
Plaintiff’s Understanding

In addition to the theory discussed above, Plaintiff also alleges that Defendant misbranded
its 100% Juice products, in violation of both Federal and California labeling requirements, because

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the products contained an ingredient of “concentrated fruit juice” despite the “No Sugar Added”

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message on the label. Am. Compl. ¶¶ 65-82. In support of this allegation, Plaintiff relies on 21

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C.F.R. § 101.60(c)(2)(ii) and California Health and Safety Code § 110100,3 both of which prohibit

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use of a “No Sugar Added” message on the label of a food “containing added sugars such as jam,

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jelly, or concentrated fruit juice.” She contends she was motivated to purchase Defendant’s 100%

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Juice products based on the “No Sugar Added” message because “it seems like it’s healthier” for

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her children. Major Depo., pp. 24, 100-103. Plaintiff’s testimony reveals she was concerned

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about her children’s sugar intake. Id.

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Defendant argues that the “No Sugar Added” message was not false, misleading, or

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deceptive because it “literally was true,” and comported with the Plaintiff’s own understanding of

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the message. Defendant points to other portions of Plaintiff’s deposition testimony, where

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Plaintiff, when asked by Defendant what the “No Sugar Added” message meant to her, she stated,

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“[t]hat there’s literally nothing containing sugar that’s added to this other than the natural sugar

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from the fruit.” Defendant argues that Plaintiff’s understanding is entirely accurate and directly

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contradicts her own legal theory.

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Defendant also submitted a declaration from Kathryn Kaufman, Defendant’s principal food

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Health and Safety Code § 110100 incorporates into California law “[a]ll food labeling
regulations and any amendments to those regulations adopted pursuant to the federal act.”
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ORDER GRANTING DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT;
DENYING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION

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scientist responsible for developing the formula of Ocean Spray’s 100% Juice Cranberry and

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Pomegranate flavored blend of 5 juices, which expounded on the difference between “fruit juice

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from concentrate” and “fruit juice concentrate.” Her declaration states that juices from

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concentrate, such as Defendant’s products, contain the same ratio of water to sugar solids and

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other compounds that exist naturally. See Declaration of Kathryn Kaufman (“Kaufman Decl.”),

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Docket Item No. 55, at ¶ 9. This is in contrast to products containing fruit juice concentrate,

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which do contain a higher level of sugar than would exist naturally. Defendant argues this

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evidence demonstrates that its 100% Juice products correctly carried the “No Sugar Added”

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message.
The difference between “fruit juice from concentrate” and “fruit juice concentrate” is

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important because the precise language of § 10160(c)(2)(ii) (and by extension, Health and Safety

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Code § 110100) prohibits the use of the term “No Sugar Added” only when the products contain

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an ingredient containing added sugars “such as concentrated fruit juice.” Defendant’s labels at

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issue all contain an ingredient list which clearly disclose that the 100% Juice products “contain[]

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various juices from concentrate.” Accordingly, the evidence produced by Defendant supports its

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contention that the “No Sugar Added” message was properly applied to its products, at least with

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respect to § 101.60(c)(2)(ii) for the purposes of this motion.
Thus, it becomes Plaintiff’s burden to show, in spite of Defendant’s evidence

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demonstrating otherwise, that there is a material factual dispute as to whether the use of the “No

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Sugar Added” message was false, misleading or deceptive when the ingredients contain “various

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juices from concentrate.” She has not done so. Plaintiff’s legal theory is based on an overbroad

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application of § 10160(c)(2)(ii) because it does not account for the difference between “fruit juice

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from concentrate” and “fruit juice concentrate.” As the plain language of the regulation makes

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clear, only “ingredients containing added sugars” are prohibited from carrying the “No Sugar

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Added” label. Since the undisputed evidence4 establishes that Defendant’s 100% Juice products,

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Plaintiff did submit a declaration from her own expert, Edward Scarborough. His declaration,
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ORDER GRANTING DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT;
DENYING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION

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made with juice from concentrate, contain the same amount of sugar that would have existed

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naturally, the products cannot be said to contain “added sugars.” Thus, Defendant met its burden

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to show that application of the “No Sugar Added” message to the products’ labels does not violate

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§ 10160(c)(2)(ii), and Plaintiff’s theory of liability fails as result.
For these reasons, the court will grant Defendant’s motion on Plaintiff’s claims that the

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100% Juice products are misbranded because they contain “concentrated fruit juice” despite the

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“No Sugar Added” message on the label.

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C.

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Because Defendant’s motion will be granted with respect to all theories of liability related

Conclusion

to the 100% Juice products, the court need not address Defendants’ additional argument with

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respect to damages. In addition, this result renders moot Plaintiff’s Motion for Class Certification

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on these same theories.

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IV.

ORDER

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Based on the foregoing, Defendant’s Motion for Partial Summary Judgment (Docket Item

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No. 55) is GRANTED. Plaintiff’s second Motion for Class Certification (Docket Item No. 50) is

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DENIED AS MOOT.

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IT IS SO ORDERED.
Dated: February 26, 2015
______________________________________
EDWARD J. DAVILA
United States District Judge

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however, does not directly address the distinction between “fruit juice from concentrate” and “fruit
juice concentrate.” Instead, Scarborough states only that “[t]he primary component, by far, of
both grape and juice concentrates is sugar.” That statement does not create a dispute as to whether
Defendant’s labels violate § 10160(c)(2)(ii) because the regulation focuses on “added sugars,” not
sugar content.
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ORDER GRANTING DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT;
DENYING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION