Hohenberg v. Ferrero USA, Inc

Filing 42

REPLY to Response to Motion re 30 MOTION to Dismiss Consolidated Complaint filed by Ferrero USA, Inc. (Bish, Dale) (ag).

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1 2 3 4 5 KEITH E. EGGLETON, State Bar No. 159842 COLLEEN BAL, State Bar No. 167637 DALE R. BISH, State Bar No. 235390 AMIR STEINHART, State Bar No. 275037 WILSON SONSINI GOODRICH & ROSATI Professional Corporation 650 Page Mill Road Palo Alto, CA 94304-1050 Telephone: (650) 493-9300 Facsimile: (650) 565-5100 6 7 Attorneys for Defendant FERRERO U.S.A, INC. 8 UNITED STATES DISTRICT COURT 9 FOR THE SOUTHERN DISTRICT OF CALIFORNIA 10 11 In re FERRERO LITIGATION 12 13 14 15 16 17 ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO.: 11 CV 0205 H (CAB) REPLY MEMORANDUM IN SUPPORT OF DEFENDANT FERRERO U.S.A., INC.’S MOTION TO DISMISS CONSOLIDATED COMPLAINT Before: Hon. Marilyn L. Huff 18 19 20 21 22 23 24 25 26 27 28 FERRERO U.S.A., INC.’S REPLY ISO MOTION TO DISMISS 11 CV 0205 H 1 2 INTRODUCTION Unable to oppose Ferrero’s motion to dismiss on the merits, plaintiffs have changed their 3 allegations and legal theories in their Opposition Brief. The Court should therefore dismiss the 4 complaint. Tietworth v. Sears, 720 F. Supp. 2d 1123, 1145 (N.D. Cal. 2010) (“‘It is axiomatic 5 that the complaint may not be amended by briefs in opposition to a motion to dismiss.’”). 6 The core of plaintiffs’ theory of deception, as set forth in the Master Consolidated 7 Complaint (Dkt. No. 14), is that by touting certain ingredients, Ferrero implies that Nutella® is a 8 “healthy” product and that consumers are surprised to learn that it contains “high” levels of 9 “unhealthy” nutrients – i.e., saturated fat and sugar. As plaintiffs acknowledge, however, federal 10 law preempts state law claims directed to food labeling statements about a product’s ingredients 11 that suggest the absence or low level of nutrients, including sugar and saturated fat. To avoid 12 preemption, and in contrast to their complaint, plaintiffs now argue that Ferrero’s statements 13 concerning the ingredients in Nutella® do not suggest anything about the amount of nutrients in 14 the product. Plaintiffs cannot have it both ways. Either they are alleging that Ferrero’s 15 marketing practices imply that Nutella® contains little or no sugar and fat – in which case their 16 claims are largely preempted – or, if there is no such implication, then plaintiffs have abandoned 17 their original theory of consumer deception and their claims must be dismissed. 18 Similarly, plaintiffs have changed their theory of consumer deception with respect to the 19 “tasty yet balanced breakfast” statement and depictions of Nutella® being served as part of a 20 balanced breakfast. In the Consolidated Complaint, plaintiffs do not allege that the depicted 21 breakfast is unbalanced; rather, they allege that consumers were deceived into thinking “that 22 Nutella® is the key element that makes the depicted breakfast ‘balanced’ or nutritious.” Compl. 23 ¶ 77. As explained in its Opening Brief, Ferrero never said anything of the sort. Rather than 24 defend their original “key element” theory, plaintiffs now argue that it is deceptive to suggest 25 that Nutella® “contributes to a ‘balanced breakfast.’” Plaintiffs’ Opposition to Motion to 26 Dismiss (“Opp.”) at 2-4, 16, 19, 23-24 (emphasis added). But plaintiffs have not pled any facts 27 or identified any guidelines suggesting that Nutella® – containing 3.5 grams of saturated fat (i.e., 28 18% of the daily recommended value), 22 grams of carbohydrates (i.e., 7% of the daily FERRERO U.S.A., INC.’S MEMO ISO MOTION TO DISMISS -1- 11 CV 0205 H 1 recommended value), 1 gram of fiber (i.e., 6% of the daily recommended value) and 3 grams of 2 protein, each of which are essential nutrients for the human body – does not “contribute” to a 3 “balanced breakfast.” In the absence of such “objective, measurable facts” or standards, 4 plaintiffs are trying to enforce their own subjective views of what “balanced” means to them 5 (apparently, a low-fat, sugar-free breakfast) – which is not actionable. 6 Finally, plaintiffs have failed to allege a claim for breach of warranty. Plaintiffs’ express 7 warranty claim fails because it depends on inferences that are unsupported, while their implied 8 warranty claims fail because plaintiffs do not contend that Nutella® is unfit for human 9 consumption, which is the applicable legal standard in the context of a food product. 10 11 Because the Consolidated Complaint fails to allege sufficient facts or articulate a legal theory upon which relief can be granted, it should be dismissed pursuant to Rule 12(b)(6). 12 13 ARGUMENT I. PLAINTIFFS’ CLAIMS ARE LARGELY PREEMPTED BY FEDERAL LAW 14 A. Statements Regarding The Contents of Nutella® 15 As explained in the Opening Brief, plaintiffs’ state law claims are preempted to the extent 16 they rely upon statements in the product’s labeling about ingredients of Nutella® that plaintiffs 17 allege suggest Nutella® is low in, or free of, sugar and saturated fat. The FDA has determined 18 for which nutrients and at what levels specific language is required to draw the consumer’s 19 attention to the amount of such nutrients in the product in connection with statements implying 20 the product is healthy or otherwise low in such nutrients. See 21 U.S.C. §§ 343(r)(2)(B), 21 343(r)(3)(A)(ii). It is undisputed that Nutella® does not exceed those levels, and therefore, 22 Ferrero is not required to make those, or any other, disclosures regarding sugar or saturated fat in 23 connection with any nutrient content claims. See 21 C.F.R. §§ 101.13(h)(1), 101.14(a)(4). Any 24 state law claim to the contrary therefore is preempted.1 In their attempt to avoid preemption, 25 26 27 28 1 Chacanaca v. Quaker Oats Co., 752 F. Supp. 2d 1111 (N.D. Cal. 2010), is on point. There, the Court found the statement “contains whole grain oats” was an implied nutrient content claim considering the context of plaintiffs’ allegations – i.e., that the statement conveyed the product was healthy, notwithstanding the presence of trans fat. Id. at 1121. But the FDA had already considered and declined to set a level of trans fat that would disqualify nutrient content claims in (continued...) FERRERO U.S.A., INC.’S REPLY ISO MOTION TO DISMISS -2- 11 CV 0205 H 1 plaintiffs argue that the challenged statements on the Nutella® label and website concerning 2 product ingredients (such as “Hazelnut Spread with Skim Milk & Cocoa,” and “Made with over 3 50 Hazelnuts per Jar”) “are not implied nutrient content claims.” Opp. at 5, 10. In taking this 4 position, however, plaintiffs are walking away from their own complaint. 5 While plaintiffs are correct that hazelnuts, skim milk and cocoa are not the specified 6 “nutrients” required by 21 U.S.C. § 343(q) or 21 C.F.R. § 101.9, as plaintiffs pleaded their 7 complaint, statements about these ingredients are implied nutrient content claims. Plaintiffs 8 acknowledge that the FDA has defined implied nutrient content claims to include any statement 9 that “[d]escribes the food or an ingredient therein in a manner that suggests that a nutrient is 10 absent or present in a certain amount (e.g., “high in oat bran”). 21 C.F.R. § 101.13(b)(2)(i) 11 (emphasis added). Under the plain language of Section 101.13(b), the fact that the challenged 12 statements concern “ingredients” rather than “nutrients” does not mean they are not implied 13 nutrient content claims. 14 Indeed, plaintiffs’ allegations fit squarely within Section 101.13(b)(2)(i)’s definition of a 15 nutrient content claim. Saturated fat and sugar are “nutrients” under any definition and the entire 16 thrust of the Consolidated Complaint is that Ferrero’s statements about hazelnuts, skim milk, and 17 cocoa suggest that the product does not contain sugar or saturated fat, or contains them at levels 18 that consumers would deem “healthy.” While Ferrero does not believe that statements about 19 hazelnuts, skim milk and cocoa imply that Nutella® is low in saturated fat or sugar, that is 20 plaintiffs’ theory of deception—that Ferrero draws consumers attention to certain ingredients in 21 Nutella® while supposedly failing to give equal prominence to the fact that the product “contains 22 23 24 25 26 27 28 (...continued from previous page) the labeling without additional disclosures. Any state law claims alleging the statement was misleading due to trans fat content would not be identical to the federal scheme and therefore were preempted. Id. Similarly here, the FDA has already considered and set the levels of total fat and saturated fat that are disqualifying and concluded (as with trans fat) that no amount of sugar makes a nutrient content claim in the labeling misleading. See Mem. in Support of Mot. to Dismiss (“Mem.”), at 10-11. Under Chacanaca, plaintiffs’ claims are expressly preempted to the extent they rely upon the statements concerning contents of Nutella®. Chacanaca, at 1123. Red v. Kraft Foods, Inc., 754 F. Supp. 2d 1137 (C.D. Cal. 2010) is not to the contrary. There the plaintiffs apparently did not contend that the phrases at issue implied anything about the product’s nutrient contents. See id. at 1142. FERRERO U.S.A., INC.’S REPLY ISO MOTION TO DISMISS -3- 11 CV 0205 H 1 dangerous levels of saturated fat [and] over 55% processed sugar” (Compl. ¶¶ 25, 32, 34, 112, 2 131, 143, 145) and that consumers, like plaintiffs, are allegedly “surprised and upset to learn that 3 Nutella® [contains] very high levels of refined sugar and saturated fat.” Id. ¶¶ 28, 32.2 Under 4 that theory, the statement is a nutrient content claim under the plain language of 101.13(b)(2)(i). 5 Lest there be any doubt that plaintiffs allege the challenged statements are implied 6 nutrient content claims, the Court need only look at plaintiffs’ First Cause of Action. There, 7 plaintiffs allege that Ferrero violated 21 C.F.R. § 101.13(i)(3), which “bars nutrient content 8 claims voluntarily placed on the front of a product label” as well as California Health & Safety 9 Code Section 110670, which “bars nutrient content and health claims voluntarily placed on the 10 front of a product label that fail to comply with the federal regulation for nutrient content and 11 health claims.” Compl. ¶¶ 132(b), 133 (emphasis added). Plaintiffs must commit to a theory. If 12 their theory is that Ferrero’s statements imply the nutrients fat and sugar were absent or present 13 in low amounts when, in fact, Nutella® contains “dangerous” levels of those nutrients, then their 14 claims are preempted. If on other hand, their theory is that Ferrero did not make any implied 15 nutrient claims, then they are walking away from their assertion that consumers are deceived by 16 the fat and sugar content of Nutella®, and the complaint should be dismissed since it does not 17 allege that the statements are otherwise deceptive (i.e., that Nutella® does not contain hazelnuts, 18 skim milk, or cocoa). 19 B. Statements Regarding Artificial Colors, Preservatives and Flavoring 20 As set forth in Ferrero’s Opening Brief, plaintiffs’ claims also are preempted to the extent 21 they are based upon Ferrero’s labeling statements that Nutella® “contains no artificial colors” 22 and “contains no artificial preservatives” without an accompanying statement that Nutella® 23 contains the artificial flavoring vanillin. This is because Ferrero – in accordance with FDA 24 requirements that artificial flavoring be disclosed in a manner likely to be read and understood 25 26 2 27 28 The Court has previously characterized the gist of plaintiffs’ claims as “alleg[ing] that Ferrero misleadingly promotes its Nutella® spread as healthy and beneficial to children when in fact it contains dangerous levels of sugar.” Order Denying without Prejudice Def.’s Motion to Transfer, at 1. (Dkt. No. 37). FERRERO U.S.A., INC.’S REPLY ISO MOTION TO DISMISS -4- 11 CV 0205 H 1 by the ordinary individual – does disclose on the product label and on its website that Nutella® 2 contains an artificial flavoring. See Mem. at 12-13. 3 In their Opposition, plaintiffs argue there can be no preemption of claims based on these 4 statements because the FDA does not “expressly permit Ferrero to represent that Nutella 5 ‘contains no artificial colors or preservatives.’” Opp. at 11-12. Plaintiffs misstate the test for 6 preemption in this context. The appropriate inquiry is not whether a statement is “expressly 7 permitted” as plaintiffs contend, but whether the state law claim seeks to impose a requirement 8 that is non-identical to the federal labeling requirements for disclosures of artificial ingredients. 9 See 21 U.S.C. § 343-1(a)(3) (“no State or political subdivision of a State may directly or 10 indirectly establish under any authority . . . any requirement for the labeling of food of the type 11 required by section . . . 343(k) of this title that is not identical to the requirement of such 12 section.”) (emphasis added). Section 343(k) deems a food to be misbranded if it contains any 13 artificial flavoring, coloring, or chemical preservative and the label does not disclose that fact. 14 21 U.S.C. § 343(k). Because Ferrero already complies with Section 343(k) by disclosing the 15 presence of artificial flavoring in the manner required by the FDA, plaintiffs’ claims are seeking 16 to impose requirements that are “not identical” to federal law. 17 In addition, plaintiffs now take the position that they have not alleged inadequate 18 disclosure of the artificial flavoring in Nutella®. Opp. at 11. But that is exactly what the 19 Consolidated Complaint alleges: “Ferrero deceptively omits that Nutella® contains the artificial 20 flavoring, vanillin.” Compl. ¶¶ 79, 97. Once again, plaintiffs improperly seek to amend their 21 complaint by way of their Opposition brief. 22 II. PLAINTIFFS HAVE FAILED TO STATE A CLAIM UNDER CALIFORNIA’S CONSUMER PROTECTION LAWS 23 24 In its Opening Brief, Ferrero demonstrated that the statements challenged in the 25 Consolidated Complaint are not likely to deceive the public as a matter of law. Mem. at 13-20. 26 Although plaintiffs chose to plead their case by lumping together a “cornucopia” of statements 27 (Opp. at 5), Ferrero showed that none of the statements on the Nutella® label, website, or 28 television advertisements are likely to deceive a reasonable consumer acting diligently under the FERRERO U.S.A., INC.’S REPLY ISO MOTION TO DISMISS -5- 11 CV 0205 H 1 circumstances. Recognizing that many of these statements should be “knocked out,” plaintiffs 2 contend that none of their claims “depend upon the Court finding any particular statement or 3 behavior actionable.” Opp. at 5. That is not correct. California’s consumer protection statutes 4 require plaintiffs to identify “specific individual phrases” that are likely to deceive the public. 5 Janda v. T-Mobile USA, Inc., 378 Fed. Appx. 705, 708-09 (9th Cir. 2010). 6 A. The Nutella® Label 7 Aside from the content claims and FDA-required statement of identity – which are not 8 deceptive in any way and for which plaintiffs’ claims are preempted in any event – the only 9 statement on the Nutella® label that plaintiffs are challenging is “[a]n example of a tasty yet 10 balanced breakfast: a glass of skim milk, orange juice and Nutella® on whole wheat bread,” 11 which appears on the label with a depiction of the same. Steinhart Decl. in Support of Mot. to 12 Dismiss, Ex. 1 (Dkt. No. 30-3). As explained in the Opening Brief, this statement would not 13 confuse a “reasonably prudent purchaser exercising ordinary care” into thinking that eating 14 Nutella® with a spoon would be a “balanced breakfast.” Rather, any reasonable consumer would 15 “appreciate the nutritional benefits associated with whole wheat bread, fruit, skim milk and 16 orange juice,” which are prominently displayed and described on the label. Mem. at 15. 17 Because the actual statement on the label is not deceptive, the complaint challenges something 18 that Ferrero never said, i.e., “‘that Nutella® is the key element that makes the depicted breakfast 19 “balanced” or nutritious.’” Id. (quoting Compl. ¶ 77). 20 Attempting to sidestep these arguments, plaintiffs abandon the “key element” theory 21 alleged in the Consolidated Complaint, and argue the “tasty yet balanced breakfast” statement is 22 not puffery because that phrase “is a concrete, specific factual assertion” that can be measured 23 according to “objective, measurable facts.” Opp. at 16. Plaintiffs do not and cannot, however, 24 identify any allegation in their complaint that the depicted breakfast is not “balanced” according 25 to those “objective, measureable facts.” Id. 26 Moreover, there are no factual allegations in the Consolidated Complaint to support the 27 (unplead) conclusion that a breakfast becomes unbalanced by “contributing” the nutrients in 28 Nutella®, i.e., 3.5 grams of saturated fat (18% of the FDA’s daily recommended amount), 22 FERRERO U.S.A., INC.’S REPLY ISO MOTION TO DISMISS -6- 11 CV 0205 H 1 grams of carbohydrates (7% of the FDA’s daily recommended amount), 1 gram of fiber (6% of 2 the FDA’s daily recommend amount), 3 grams of protein and 21 grams of sugar. Rather than 3 point to a factual basis for their new theory, plaintiffs argue that requiring such allegations would 4 be “well beyond the scope of a pleadings motion.” Id. But that is precisely the purpose of a 5 Rule 12(b)(6) motion – to ensure that plaintiffs have alleged a sufficient factual basis to support a 6 legal theory. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (“a complaint must contain 7 sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.’”); Oestreicher 8 v. Alienware Corp., 322 Fed. Appx. 489, 493 (9th Cir. 2009) (“A Rule 12(b)(6) dismissal may be 9 based on either ‘the lack of a cognizable legal theory or the absence of sufficient facts alleged 10 under a cognizable legal theory.’”). 11 If plaintiffs contend the depicted breakfast is not “balanced” according to “objective, 12 measurable facts,” then they must plead those facts. If, on the other hand, plaintiffs are seeking 13 to enforce their own idiosyncratic views of what constitutes a “balanced breakfast,” (i.e., one 14 without fat or sugar), then their claims are nonactionable and fail as a matter of law. Newcal 15 Indus., Inc. v. IKON Office Solution, 513 F.3d 1038, 1053 (9th Cir. 2008).3 16 B. The Television Advertisements for Nutella® 17 Plaintiffs contend Ferrero’s television advertisements are deceptive because they portray 18 “mothers feeding Nutella® to happy, healthy children” thereby implying that Nutella® is itself a 19 healthy product (Compl. ¶ 90) and rely upon Chacanaca v. Quaker Oats Co., 752 F. Supp. 2d 20 1111 (N.D. Cal. 2010) in support of that proposition. Opp. at 13-14. In Chacanaca, plaintiffs 21 alleged it was misleading to depict “children in soccer uniforms” in connection with a product 22 that contained trans fats – which plaintiffs alleged “are not safe in any amount.” Chacanaca, 752 23 F. Supp. 2d at 1126. Because plaintiffs alleged that “trans fats are not safe in any amount” and 24 25 3 26 27 28 Plaintiffs’ attempts to distinguish this Court’s holding in Fraker v. KFC Corporation are not persuasive. First, there is no reason why a statement would constitute puffery “because it involved restaurant food” as opposed to “packaged food.” Opp. at 15. Similarly, there is no reason why the statement “all foods can fit into a balanced diet plan” would constitute puffery when discussing “fast food” but not when discussing Nutella®.” Id. (emphasis added). Presumably, KFC’s “fast food” could have been measured by the same “objective, measurable (continued...) FERRERO U.S.A., INC.’S REPLY ISO MOTION TO DISMISS -7- 11 CV 0205 H 1 “crediting the inference plaintiffs draw from the box (that is, that active, healthy children are 2 fueled with Chewy Bars),” the court concluded it could not determine “whether or not a 3 reasonable consumer might be duped by these depictions.” Id. Chacanaca is distinguishable. 4 Here, plaintiffs are challenging Ferrero’s use of actors who appear healthy and happy 5 while eating Nutella® at the breakfast table. Presumably, plaintiffs would only be satisfied if 6 Ferrero (or any other company whose product contains sugar or saturated fat) advertised using 7 actors who look unhealthy and unhappy. The implications of plaintiffs’ preferred advertising 8 standard would sweep far and wide while introducing a level of uncertainty that would be hard to 9 overstate. C.f., Welch v. TD Ameritrade Holding Corp., No. 07 Civ. 6904, 2009 WL 2356131, at 10 *6 (S.D.N.Y. Jul. 27, 2009) (finding “no legal merit” to argument that defendant “cement[ed] its 11 false image as a truthful and non-deceptive firm by [using the actor] Sam Waterston, who has 12 become immediately identified as the highly ethical government prosecutor role in the ‘Law & 13 Order’ television series’”) (citation omitted). Doing so would substantially extend the holding in 14 Chacanaca (i.e., fueling kids in sports) to a broad prohibition of using “happy, healthy” actors in 15 any advertisement for a product that someone considers to be “unhealthy.” 16 While it should not affect the outcome of this motion (because it is not alleged in their 17 complaint), Ferrero is compelled to address plaintiffs’ contention that Ferrero “invented a 18 problem” of “‘families rush[ing] around in the morning’” while not taking the time to eat 19 breakfast. Opp. at 1 (citation omitted). As most parents are well-aware, the “battle over 20 breakfast” is not a Ferrero invention, and, as nutritionists agree, skipping breakfast is a pervasive 21 problem, especially for children. Ferrero’s advertisements recreate the morning reality for 22 millions of households. There is nothing imaginary, or deceptive, about this scene. 23 C. The Nutella® Website 24 Plaintiffs acknowledge that they have not “personally visited the Nutella website” but 25 claim they were “nevertheless exposed to the representations there, because they underlie 26 27 28 (...continued from previous page) facts” as Nutella® but the Court dismissed the “balanced diet” claims against KFC and should do so here as well. FERRERO U.S.A., INC.’S REPLY ISO MOTION TO DISMISS -8- 11 CV 0205 H 1 Ferrero’s ‘balanced breakfast’ message.” Id. at 19. The argument is sophistry. A consumer is 2 not “exposed to” a representation that s/he did not see or hear. If the statements that plaintiffs 3 did see (i.e., the label and the television advertising) are not deceptive, then plaintiffs have no 4 claim. The law is clear that plaintiffs do not have standing to pursue claims based on statements 5 or concepts that are unique to the website. See Mem. at 16-17 (citing cases). 6 The cases cited by plaintiffs on this point are inapposite. Those courts held that there is 7 no requirement for plaintiffs to allege that they were exposed to every repetition of the same 8 statement. See Rikos v. Proctor & Gamble Co., No. 11-cv-226, 2011 WL 1707209, at *1 (S.D. 9 Ohio May 4, 2011) (challenging “digestive benefits” claims on label, which were “emphasize[d] 10 and repeat[ed]” in advertising campaigns); Fitzpatrick v. General Mills, Inc., 263 F.R.D. 687 11 (S.D. Fla. 2010) (challenging statements that each touted the same benefits); Morey v. Nextfoods, 12 Inc., No. 10-cv-761, 2010 WL 2473314 (S.D. Cal. June 7, 2010) (statements at issue all made the 13 same claim). Here, in contrast, there are numerous statements challenged by plaintiffs that are 14 exclusive to the Nutella® website. Compl. ¶¶ 80, 82-89. Since plaintiffs admittedly were never 15 exposed to these statements, they are not actionable here. 16 D. Because Plaintiffs Have Failed to Allege Consumer Deception, Plaintiffs Have Not Stated A Claim under the CLRA or the Unlawful/Unfair Prongs of the UCL 17 18 In their Opposition, plaintiffs make clear that their CLRA claims, as well as their claims 19 under the unlawful and unfair prongs of the UCL, are based on the same consumer deception 20 theories discussed above, i.e., that Ferrero’s statements are likely to deceive the public. See Opp. 21 at 20-22. Because Nutella®’s labeling is not misleading – let alone false – these claims fail for 22 the same reasons as their claims under the deceptive prong. 23 Plaintiffs also claim, in two conclusory sentences, that “Ferrero’s conduct violated the 24 FDCA, which prohibits labeling that is ‘false or misleading in any particular’ and the Sherman 25 Law, which incorporates all of the requirements of the FDCA and its implementing regulations.” 26 Id. at 21. For all the reasons set forth above and in Ferrero’s Opening Brief, there is nothing 27 “false or misleading” about the Nutella® label. 28 FERRERO U.S.A., INC.’S REPLY ISO MOTION TO DISMISS -9- 11 CV 0205 H 1 III. PLAINTIFFS HAVE FAILED TO STATE A WARRANTY CLAIM 2 Plaintiffs argue that Ferrero “intentionally conveyed the specific and unequivocal 3 messages that Nutella itself is part of a ‘balanced breakfast,’ that Nutella is a healthful food to 4 serve children at breakfast, and that Nutella is nutritionally comparable to peanut butter.” Id. at 5 23. But Ferrero never expressly represents that “Nutella is a healthful food” or is “balanced” 6 when eaten by “itself.” Because plaintiffs’ warranty theory depends on an implication rather 7 than an express statement, it fails to state a claim. See Mem. at 24 (citing cases). 8 9 Plaintiffs also assert that they have sufficiently stated a claim for breach of implied warranty of merchantability but ignore well-settled law that, in this context, the test is whether 10 food is fit for human consumption. See 18 Williston on Contracts § 52:76 (4th ed. 2009) 11 (equating “merchantable” quality with “fitness for human use or consumption”); Sugawara v. 12 Pepsico, Inc., No. 2:08-cv-01335, 2009 WL 1439115, at *5 (E.D. Cal. May 21, 2009) (implied 13 warranty of merchantability claim fails when plaintiffs received what was described on product 14 box). Indeed, plaintiffs stress that they are not trying to “‘prohibit the sale of’ Nutella” (Opp. at 15 22) – which would not be the case if they believed Nutella® to be unfit for human consumption.4 16 Accordingly, plaintiffs’ claims for breach of express and implied warranty fail as a matter 17 of law and should be dismissed. 18 CONCLUSION 19 Ferrero respectfully requests that the Master Consolidated Complaint be dismissed 20 pursuant to Federal Rule of Civil Procedure Rule 12(b)(6). 21 22 Dated: June 13, 2011 WILSON SONSINI GOODRICH & ROSATI Professional Corporation 23 24 By: /s/ Dale R. Bish Dale R. Bish Attorneys for Defendant Ferrero U.S.A., Inc. 25 26 4 27 28 Although plaintiffs contend that the court in Aaronson v. Vital Pharms., Inc. “recently upheld a similar breach of implied warranty claim” (Opp. at 24), that action concerned a dietary supplement that allegedly was “not safe . . . for use by consumers” and “not fit for human use and/or consumption.” Aaronson Compl. ¶ 68. No such allegation was made here. FERRERO U.S.A., INC.’S REPLY ISO MOTION TO DISMISS -10- 11 CV 0205 H 1 2 CERTIFICATE OF SERVICE I am employed in the County of Santa Clara, State of California. I am over the age of 3 eighteen years and not a party to the within action; my business address is 650 Page Mill Road, 4 Palo Alto, California 94104-1050. 5 On June 13, 2011, I served the following document on the interested parties in this 6 action: REPLY MEMORANDUM IN SUPPORT OF DEFENDANT FERRERO U.S.A., 7 INC.’S MOTION TO DISMISS CONSOLIDATED COMPLAINT 8 9 I caused the above documents to be served via the Court’s Electronic Filing System on the following registered party shown on the court’s service list by posting such documents 10 electronically to the ECF website of the United States District Court for the Southern District of 11 California: 12 13 14 15 16 17 18 19 20 Ronald A. Marron, Esq. Ron.marron@gmail.com Law Offices of Ronald A. Marron, APLC 3634 4th Avenue, Suite 202 San Diego, CA 92103 Gregory S. Weston Jack Fitzgerald greg@westonfirm.com jack@westonfirm.com The Weston Firm 888 Turquoise Street San Diego, CA 92109 I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. 21 22 Dated: June 13, 2011 WILSON SONSINI GOODRICH & ROSATI Professional Corporation 23 24 By: /s/ Dale R. Bish Dale R. Bish Attorneys for Defendant Ferrero U.S.A., Inc. 25 26 27 28 FERRERO U.S.A., INC.’S REPLY ISO MOTION TO DISMISS -11- 11 CV 0205 H

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