Chin et al v. General Mills, Inc.

Filing 33

MEMORANDUM OF LAW & ORDER. IT IS HEREBY ORDERED: Defendant's Motion to Dismiss 20 is GRANTED. (Written Opinion). Signed by Chief Judge Michael J. Davis on 5/31/13. (GRR) Modified text on 6/3/2013 (MMP).

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
_____________________________________________________________________
TRACIE CHIN and SALVATORE
MONTALBANO, individually,
and on behalf of other members
of the general public similarly
situated,
Plaintiffs,

v.

MEMORANDUM OF LAW & ORDER
Civil File No. 12-2150 (MJD/TNL)

GENERAL MILLS, INC.,
Defendant.
_______________________________________________________________________
Andrea Clisura, Antonio Vozzolo, and Juan E. Monteverde, Faruqi & Faruqi,
LLP, and Shawn M. Perry, Perry & Perry PLLP, Counsel for Plaintiffs.
Jerry W. Blackwell, Benjamin W. Hulse, Emily A. Babcock, and Mary S. Young,
Blackwell Burke PA, Counsel for Defendant.
_______________________________________________________________________
I.

INTRODUCTION
This matter is before the Court on Defendant’s Motion to Dismiss under

Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). [Docket No. 20] The
Court heard oral argument on March 15, 2013. For the reasons that follow, the
Court grants Defendant’s motion to dismiss.
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II.

BACKGROUND
A.

Factual Background
1. Parties

Defendant General Mills is a Delaware corporation with its principal place
of business in Minnesota. (Compl. ¶ 9.) General Mills produces, markets, and
sells Nature Valley products, including “Protein Chewy Bars,” “Chewy Trail Mix
Granola Bars,” “Yogurt Chewy Granola Bars,” “Sweet & Salty Nut Granola
Bars,” and “Granola Thins.” (Id. at ¶ 1.)
Plaintiffs are consumers who purchased one or more of the Nature Valley
products. (Id. at ¶¶ 8-9.) Plaintiff Tracie Chin is a resident of Brooklyn, New
York. (Id. at ¶ 7.) She purchased and consumed Nature Valley products on
multiple occasions during the identified class period from various retailors,
including Duane Reade, Pathmark, and Costco. (Id.) Chin purchased Nature
Valley Granola Thins from a Costco store in Brooklyn, New York during the
summer of 2012. (Id.) Chin purchased Nature Valley “Sweet & Salty Nut
Granola Bars” from a Duane Reade store in New York, New York during the
summer of 2011 and from a Pathmark store in Staten Island, New York at least
four different times between 2011 and the spring of 2012. (Id.)

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Plaintiff Salvatore Montalbano is a resident of East Brunswick, New Jersey.
(Id. at ¶ 8.) On multiple occasions, Montalbano purchased and consumed Nature
Valley “Chewy Trail Mix Granola Bars,” “Sweet & Salty Nut Granola Bars,” and
“Granola Thins” from a Shop Rite store in New Jersey. (Id.)
2. Allegations of Misconduct
Plaintiffs allege that General Mills has engaged in unfair, unlawful,
deceptive, and misleading practices in violation of Federal law, Minnesota state
law, New York state law, New Jersey state law, and common law. (Id. at ¶¶ 1,
35-128.) Plaintiffs maintain that General Mills markets its Nature Valley
products as “100% Natural” or “Natural.” (Id. at ¶¶ 2-3, 15-18.) Plaintiffs assert
that the Nature Valley products are not “natural” because the products contain
“highly processed and non-natural sugar substitutes high fructose corn syrup
and high maltose corn syrup, as well as the highly processed and non-natural
texturizer Maltodextrin.” (Id. at ¶¶ 4-5, 19-34.)
Plaintiffs maintain that General Mills represents that the products are
“100% Natural” in order to command a premium price for the products, take
away market share from its competitors, and increase its own profits.” (Id. at
¶¶ 3, 42-46.) Plaintiffs Chin and Montalbano assert that they relied on General

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Mills’ representations that the products were “100% Natural” when they
purchased the products. (Id. at ¶¶ 7-8.) Plaintiffs Chin and Montalbano also
assert that they would not have purchased the products under the same terms if
they had known that they contained “highly processed and non-natural sugar
substitutes high fructose corn syrup and high maltose corn syrup, as well as the
highly processed and non-natural texturizer Maltodextrin.” (Id.)
B.

Procedural Background

On August 31, 2012, Plaintiffs filed a Complaint in this Court against
General Mills alleging nine counts relating to the Nature Valley Granola Bars.
[Docket No. 1] On November 26, 2012, General Mills moved to dismiss the
Complaint for lack of jurisdiction. [Docket No. 8] On December 17, 2012, the
parties filed a stipulation with the Court whereby the parties agreed to continue
General Mills’ motion to dismiss pending the filing of Plaintiffs’ Amended
Complaint. [Docket No. 15]
On January 4, 2013, Plaintiffs filed their Amended Complaint. [Docket No.
19] The Amended Complaint alleges Count I: Violation of Written Warranty
under the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301, et seq.; Count II:
Violation of Implied Warranty of Merchantability under the Magnuson-Moss

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Warranty Act, 15 U.S.C. § 2301, et seq. and under New York and New Jersey
State Law; Count III: Unjust Enrichment under state law; Count IV: Breach of
Express Warranty under state law; Count V: Breach of Implied Warranty of
Merchantability under state law; Count VI: Fraudulent Misrepresentation under
state law; Count VII: Violation of Minnesota Consumer Protection Laws; Count
VIII: Violation of the New York Unfair and Deceptive Business Practices Law,
N.Y. Gen. Bus. Law § 349, et seq.; Count IX: Violation of the False Advertising
Law, N.Y. Gen. Bus. Law § 350, et seq.; Count X: Violation of the New Jersey
Consumer Fraud Act, STAT. ANN. § 56:8-1, et seq.
Plaintiffs seek to sue on behalf of “all persons in the United States who,
within the relevant statute of limitations period, purchased Nature Valley
products that contained high fructose corn syrup or high maltose corn syrup or
Maltodextrin and were packaged, labeled, marketed, or advertised as being
“100% Natural.” (Compl. at ¶ 48.) Plaintiff Chin also seeks to represent a
“subclass defined as all members of the Class who purchased Nature Valley
products in New York. (Id. at ¶ 49.) Plaintiff Montalbano also seeks to represent
a “subclass defined as all members of the Class who purchased Nature Valley
products in New Jersey.” (Id. at ¶ 50.)

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On January 22, 2013, Defendants filed the current motion to dismiss and
allege that the Complaint should be dismissed pursuant to Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6).
III.

DISCUSSION
A.

Motion to Dismiss for Lack of Standing

General Mills argues that this Court does not have subject matter
jurisdiction over Plaintiffs’ claims relating to Nature Valley products that they
did not purchase because Plaintiffs have failed to plead facts demonstrating their
standing to seek such relief.
“A plaintiff has the burden of establishing subject matter jurisdiction, for
which standing is a prerequisite.” Jones v. Gale, 470 F.3d 1261, 1265 (8th Cir.
2006) (citations omitted). The Eighth Circuit has explained:
[t]o establish standing, a plaintiff is required to show that he or she
had ‘suffered an injury in fact, meaning that the injury is (a) concrete
and particularized and (b) actual or imminent, not conjectural or
hypothetical.’ Second, the injury must be traceable to the
defendant’s challenged action. Third, it must be ‘likely’ rather than
‘speculative’ that a favorable decision will redress the injury.
Id. (quoting South Dakota Farm Bureau, Inc. v. Hazeltine, 340 F.3d 583, 591 (8th
Cir. 2003)).
In order to properly dismiss for lack of subject matter jurisdiction under
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Rule 12(b)(1), the complaint must be successfully challenged on its face or on the
factual truthfulness of its averments. In a facial challenge to jurisdiction, all of
the factual allegations concerning jurisdiction are presumed to be true and the
motion is successful if the plaintiff fails to allege an element necessary for subject
matter jurisdiction. Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993) (citations
omitted). Here, the Court is presented with a facial challenge as General Mills
does not contest the validity of the Amended Complaint’s factual allegations for
the purpose of their standing argument.
General Mills maintains that Plaintiffs seek relief for alleged false
representations made on Protein Chewy Bars and Yogurt Chewy Granola Bars
even though Plaintiffs do not allege in their Amended Complaint that they ever
purchased these products. General Mills argues that Plaintiffs lack Article III
standing for these products and Plaintiffs improperly seek to represent a class of
consumers who purchased products that the named Plaintiffs did not purchase.
The Court agrees with General Mills and dismisses Plaintiffs’ claims
relating to the alleged false representations made in regard to the Protein Chewy
Bars and Yogurt Chewy Granola Bars for lack of standing. It is clear from the
face of Plaintiffs’ Complaint that neither Chin nor Montalbano purchased the

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Protein Chewy Bars or Yogurt Chewy Granola Bars. The named plaintiffs in a
class action may not rely on injuries that the putative class may have suffered,
but instead must allege that they personally have been injured. Lewis v. Casey,
518 U.S. 343, 357 (1996) (“That a suit may be a class action . . . adds nothing to the
question of standing, for even named plaintiffs who represent a class ‘must
allege and show that they personally have been injured, not that injury has been
suffered by other, unidentified members of the class to which they belong and
which they purport to represent.’”) (quotations omitted); Thunander v. Uponor,
Inc., 887 F. Supp. 2d 850, 863 (D. Minn. 2012) (“A class representative must have
standing to assert claims on his or her own behalf in order to have standing to
assert claims as a class representative”). The Court notes that other courts
routinely dismiss claims in consumer class actions that attempt to seek relief
relating to products that the named plaintiffs have not purchased. See Carrea v.
Dreyer’s Grand Ice Cream, Inc., No. C 10-01044 JSW, 2011 WL 159380, at *3 (N.D.
Cal. Jan. 10, 2011) (dismissing claims without prejudice as to products that the
named plaintiff did not purchase); Hemy v. Perdue Farms, Inc., Civil Action No.
11-888 (FLW), 2011 WL 6002463, at *11 (D.N.J. Nov. 30, 2011) (dismissing claims
with prejudice as to products that named plaintiff did not purchase); Lieberson

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v. Johnson & Johnson Consumer Co., Inc., 865 F. Supp. 2d 529, 537 (D.N.J. 2011)
(dismissing allegations regarding products that Plaintiff did not purchase and
only considering allegations regarding products that Plaintiff alleges she
purchased and used).
Plaintiffs have not identified any case law from the Eighth Circuit or the
District of Minnesota that would permit them to assert claims relating to
products that they themselves did not purchase. Plaintiffs point to one Eighth
Circuit case and maintain that “a plaintiff may be able to assert causes of action
which are based on conduct that harmed him, but which sweep more broadly
than the injury he personally suffered.” Braden v. Wal-Mart Stores, Inc., 588 F.3d
585, 591-92 (8th Cir. 2009) (holding that an ERISA plaintiff may seek relief under
§ 1132(a)(2) for the entire plan). As the Court stated during oral argument and
Plaintiffs’ counsel agreed, this case was decided in the context of an ERISA class
action and does not directly relate to the underlying facts in this case.
Therefore, the Court grants General Mills’ motion to dismiss and dismisses
Counts I through X of Plaintiffs’ Complaint to the extent that the respective
Counts seek relief relating to the Protein Chewy Bars and Yogurt Chewy Granola
bars.

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B.

Rule 12(b)(6)
1. Standard

Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may
move the Court to dismiss a claim if, on the pleadings, a party has failed to state
a claim upon which relief may be granted. In reviewing a motion to dismiss, the
Court takes all facts alleged in the complaint to be true. Zutz v. Nelson, 601 F.3d
842, 848 (8th Cir. 2010).
To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is
plausible on its face. Thus, although a complaint need not include
detailed factual allegations, a plaintiff’s obligation to provide the
grounds of his entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of
action will not do.
Id. (citations omitted).
In deciding a motion to dismiss, the Court considers “the complaint,
matters of public record, orders, materials embraced by the complaint, and
exhibits attached to the complaint.” PureChoice, Inc. v. Macke, Civil No. 071290, 2007 WL 2023568, at *5 (D. Minn. July 10, 2007) (citing Porous Media Corp.
v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999)).
2. Count I: Violation of Written Warranty under the MagnusonMoss Warranty Act, 15 U.S.C. § 2301, et seq.
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The Magnuson-Moss Warranty Act (“MMWA”) creates a private federal
cause of action for “a consumer who is damaged by the failure of a supplier,
warrantor, or service contractor to comply with any obligation under this
chapter, or under a written warranty, implied warranty, or service contract.” 15
U.S.C. § 2310(d)(1). The MMWA includes a cause of action for breach of a
written warranty. Id. The MMWA defines “written warranty” as:
Any written affirmation of fact or written promise made in
connection with the sale of a consumer product by a supplier to a
buyer which relates to the nature of the material or workmanship
and affirms or promises that such material or workmanship is defect
free or will meet a specified level of performance over a specified
period of time.
15 U.S.C. § 2301(6)(A). Therefore, to constitute a written warranty, a statement
must either affirm or promise that such material or workmanship (1) is defect
free, or (2) will meet a specified level of performance over a specified period of
time. Id. The Federal Trade Commission’s regulation interpreting the statutory
language states that “[c]ertain representations, such as energy efficiency ratings
for electrical appliances, care labeling of wearing apparel, and other product
information disclosures, may be express warranties under the Uniform
Commercial Code” but “these disclosures alone are not written warranties under

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this Act.” 16 C.F.R. § 700.3(a) (2012).
Plaintiffs concede that they have only brought claims under the “defect
free” prong of the MMWA’s written warranty definition. [Docket No. 19 at
¶¶ 56-64; Docket No. 27 at 9] Therefore, the Court will analyze whether
Plaintiffs have stated a claim that “100% Natural” constitutes a “written
affirmation of fact or written promise [that] . . . affirms or promises that such
material or workmanship is defect free.” 15 U.S.C. § 2301(6)(A).
General Mills argues that the Court should dismiss Count I as to all
products because Plaintiffs cannot allege the existence of an actionable warranty.
The Court agrees with General Mills. Labeling a product “100% Natural” is not a
written warranty under the MMWA. See Jones v. ConAgra Foods, Inc., No. C 1201633 CRB, 2012 WL 6569393, at *12 (N.D. Cal. Dec. 17, 2012) (holding that 100%
natural descriptions on PAM cooking spray, Hunt’s canned tomato products,
and Swiss Miss cocoa did not constitute written warranties under MMWA); see
also Anderson v. Jamba Juice Co., 888 F. Supp. 2d 1000, 1004 (N.D. Cal. 2012)
(“The statement “All Natural” is a general product description rather than a
promise that the product is defect free. . . . Therefore the language “All Natural”
on the smoothie kits’ labels did not create a written warranty within the meaning

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of the MMWA.”). Instead, this type of statement is a product description that
does not constitute a “written warranty.” See Jamba Juice Co., 888 F. Supp. 2d at
1004 (dismissing MMWA claim and holding that “all natural” statement was a
general product description and not a written warranty); Astiana v. Dreyer’s
Grand Ice Cream, Inc., Nos. C-11-2910 EMC, C-11-3164 EMC, 2012 WL 2990766,
at *3 (N.D. Cal. July 20, 2012) (dismissing MMWA claim holding that “all
natural” statement on ice cream products is a product description and does not
constitute a written warranty). Further, the Court finds that in this case, the
knowing inclusion of specific ingredients in a food product that are part of the
recipe does not constitute a written warranty under the “defect” prong. Astiana,
2012 WL 2990766, at *3.
The Court rejects Plaintiffs argument that they have sufficiently pled a
“defect free” claim. Plaintiffs have not identified any caselaw in support of their
position. Instead, Plaintiffs rely on the plain meaning of the statute. The Court
disagrees with Plaintiffs’ interpretation and grants Defendant’s motion to
dismiss Count I of the Complaint.
3. Count II: Violation of Implied Warranty of Merchantability
under the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301, et
seq. and Count V: Breach of Implied Warranty of
Merchantability under state law
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Plaintiffs’ Amended Complaint alleges that General Mills breached an
implied warranty of merchantability under MMWA and state laws. (Compl.
¶¶ 65-77, 89-93.)
The MMWA defines an “implied warranty” as an implied warranty
arising under state law. 15 U.S.C. § 2301(7). Plaintiffs’ Amended Complaint
does not identify which state laws apply to their implied warranty claims. The
parties’ briefs, however, specifically address New York and New Jersey state
law, and therefore the Court will limit its analysis to those state laws. The parties
agree that a full choice of law analysis is not required to resolve the issues
presented in a motion to dismiss. [Docket No. 22 at 13; Docket No. 27 at 10]
New Jersey and New York law both provide that “a warranty that the
goods shall be merchantable is implied in a contract for their sale if the seller is a
merchant with respect to goods of that kind.” N.J. STAT. ANN. § 12A:2-314(1);
N.Y. MCKINNEY’S U.C.C. § 2-314(1). New Jersey and New York law further
provide that in order for goods to be merchantable, they must:
(a)
(b)
(c)

pass without objection in the trade under the contract
description; and
in the case of fungible goods, are of fair average quality within
the description; and
are fit for the ordinary purposes for which such goods are
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(d)

(e)
(f)

used; and
run, within the variations permitted by the agreement, of even
kind, quality and quantity within each unit and among all
units involved; and
are adequately contained, packaged, and labeled as the
agreement may require; and
conform to the promises or affirmations of fact made on the
container or label if any.

N.J. STAT. ANN. § 12A:2-314(2); N.Y. MCKINNEY’S U.C.C. § 2-314(2). A product is
not merchantable if it fails to meet any of the above criteria. N.J. STAT. ANN. §
12A:2-314(2); N.Y. MCKINNEY’S U.C.C. § 2-314(2).
Plaintiffs’ Amended Complaint alleges that General Mills violated
subsections (a), (e), and (f). (Compl. ¶¶ 74, 92.) Plaintiffs allege that the
packaging of the Nature Valley products states that the products are “100%
Natural” and the products are not in fact “100% Natural.” Id.
General Mills argues that the Court should dismiss Counts II and V as to
all products because Plaintiffs cannot allege a violation of subsections (a), (e), or
(f) as these subsections do not apply to remote purchasers of products. The
Court agrees with General Mills. Subsection (a) requires the existence of a
contract between General Mills and Plaintiffs. See N.J. STAT. ANN. § 12A:2-314(a)
(requiring that the product “pass without objection in the trade under the
contract description”) (emphasis added); N.Y. MCKINNEY’S U.C.C. § 2-314(2)(a)
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(same). Likewise, subsection (e) requires the existence of an “agreement”
between General Mills and Plaintiffs. See N.J. STAT. ANN. § 12A:2-314(e)
(requiring product to be “adequately contained, packaged, and labeled as the
agreement may require”) (emphasis added); N.Y. MCKINNEY’S U.C.C. § 2314(2)(e) (same). Although subsection (f) does not expressly require an
agreement or contract between Plaintiffs and General Mills, the Official
Comment 10 confirms that subsection (f) also applies only to direct purchasers.
See N.J. STAT. ANN. § 12A:2-314, cmt. 10; N.Y. MCKINNEY’S U.C.C. § 2-314, cmt.
10.
Plaintiffs have not pled that a contract or agreement existed between
themselves and General Mills and the Court finds that Plaintiffs were not direct
purchasers. Therefore, Plaintiffs have failed to state a claim for breach of the
implied warranty of merchantability under New York and New Jersey law.
Because the MMWA’s implied warranty of merchantability is based on state law,
Plaintiffs have also failed to state a claim under the MMWA. Therefore the Court
dismisses Counts II and V from Plaintiff’s Complaint.
4. Count IV: Breach of Express Warranty under state law
Plaintiffs’ Amended Complaint alleges that General Mills breached an

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express warranty under state laws. (Compl. ¶¶ 84-88.)
An express warranty is any affirmation of fact or promise that relates to
the goods or any description of the goods that becomes part of the basis of the
bargain. See N.Y. MCKINNEY’S U.C.C. § 2-313; N.J. STAT. ANN. § 12A:2-313.
Plaintiffs allege that General Mills expressly warranted that the Nature Valley
products were “100% Natural.” (Compl. ¶ 86.) Plaintiffs allege, however, that
the Nature Valley products are not 100% natural. [Id. at ¶ 87] Plaintiffs’
Amended Complaint does not identify which state laws apply to their express
warranty claims. Plaintiffs’ opposition to the motion to dismiss presents
arguments relating to New York and New Jersey state law, and therefore the
Court will only address those state laws.
General Mills argues that “100% Natural” cannot be viewed in isolation
and must be read in the context of the entire package, including the ingredient
panel. General Mills further argues that the specific terms included in the
ingredient list must inform the more general term “100% Natural.” See STAT.
ANN. § 12A:2-317 (“Warranties whether express or implied shall be construed as
consistent with each other and as cumulative . . . . Exact or technical
specifications displace . . . general language of description); N.Y. MCKINNEY’S

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U.C.C. § 2-317 (same). The Court agrees with General Mills and finds that the
specific terms determine the scope of the express warranty that was allegedly
made to the Plaintiffs. As such, General Mills cannot be in breach of an express
warranty by including an ingredient that it expressly informed consumers was
included. The Court, therefore, dismisses Count IV of Plaintiffs’ Complaint.
C.

Rule 9(b) Particularity

General Mills’ also asserts that Plaintiffs’ fraud-based claims in Counts III,
VI, VII, and X fail to meet the requirements of Rule 9(b) of the Federal Rules of
Civil Procedure and therefore should be dismissed. Count III alleges unjust
enrichment under unidentified state law. Count VI alleges fraudulent
misrepresentation under unidentified state law. Count VII alleges violations of
Minnesota consumer protection laws. Count X alleges violations of the New
Jersey Consumer Fraud Act, STAT. ANN. § 56:8-1, et seq.
1. Standard
Plaintiffs must plead allegations of fraud with particularity. Fed R. Civ. P.
9(b). A pleading which alleges fraud or mistake must identify “who, what,
where, when and how.” Bank of Montreal v. Avalon Capital Grp., Inc., 743 F.
Supp. 2d 1021, 1028 (D. Minn. 2010) (quoting Parnes v. Gateway 2000, Inc., 122

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F.3d 539, 550 (8th Cir. 1997)). The facts alleged must “give Defendants notice of
what conduct is complained of and [allow them] to prepare a defense to such
claim of misconduct.” First Presbyterian Church of Mankato, Minn. v. John G.
Kinnard & Co., 881 F. Supp. 441, 445 (D. Minn.1995) (citation omitted).
The heightened pleading standard in Rule 9(b) applies to claims of unjust
enrichment (Count III), claims of fraudulent misrepresentation (Count VI), and
claims under Minnesota’s, New York’s, and New Jersey’s consumer protection
statutes (Counts VII and X). See Cox v. Mortgage Elec. Registration Sys., Inc., 685
F.3d 663, 672-73 (8th Cir. 2012) (“Under Minnesota law, any allegation of
misrepresentation, whether labeled as a claim of fraudulent misrepresentation or
negligent misrepresentation, is considered an allegation of fraud which must be
pled with particularity.”); Khoday v. Symantec Corp., 858 F. Supp. 2d 1004, 1011
n. 5 (D. Minn. 2012) (“The Court will apply the heightened pleading standard of
Rule 9(b) to the unjust enrichment claim because allegations of fraud underlie the
unjust enrichment claim.”); Soroof Trading Dev. Co., Ltd. v. GE Fuel Cell Sys.,
LLC, 842 F. Supp. 2d 502, 513 (S.D.N.Y. 2012) (dismissing misrepresentation
claim under New York state law for failure to satisfy the Rule 9(b) pleading
requirements); Smajlaj v. Campbell Soup Co., 782 F. Supp. 2d 84, 98 (D.N.J. 2011)

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(reasoning that Rule 9(b) applies to claims under the New Jersey consumer fraud
statutes); Tuttle v. Lorillard Tobacco Co., 118 F. Supp. 2d 954, 963 (D. Minn. 2000)
(reasoning that Rule 9(b) applies to allegations under Minnesota’s consumer
fraud statutes).
2. Merits
General Mills argues that Plaintiffs fail to satisfy the Rule 9(b) pleading
requirements because the Amended Complaint does not allege how the Plaintiffs
were allegedly deceived by the “100% Natural” statement. General Mills reasons
that Plaintiffs do not explain what they believed “natural” meant when they
bought the products. Likewise, Plaintiffs do not allege with any specificity that
high maltose corn syrup and maltodextrin are “unnatural” and instead plead
that the ingredients are “highly processed.”
Plaintiffs argue that they have satisfied Rule 9(b) and have adequately pled
“how” the “100% Natural” statement misled themselves and other consumers.
Plaintiffs reason that they pled that the products contain non-natural ingredients
that are manufactured by chemical processes. (Compl. at ¶ 2, 20-25.) Plaintiffs
further reason that General Mills misleads consumers to believe that the
products are high quality and healthy when they are not. (Id. ¶ 3.) Plaintiffs

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maintain that reasonable consumers, like themselves, believe that a food product
represented as “100% Natural” does not contain highly processed, non-natural
sugar substitutes such as high fructose corn syrup and high maltose corn syrup,
and the non-natural texturizer Maltodextrin. Plaintiffs allege that they relied on
General Mills’ “100% Natural” representations and would not have paid the
premium price for the products had they known the products contained the nonnatural ingredients. Plaintiffs maintain that these allegations satisfy the Rule 9(b)
pleading requirements.
The Court agrees with General Mills and will dismiss Counts III, VI, VII,
and X for failure to satisfy the heightened pleading requirements of Rule 9(b).
Plaintiffs have failed to plead how they were deceived by the “100% Natural”
statement. Relatedly, Plaintiffs have not alleged with any specificity what they
believed “100% Natural” to mean. Plaintiffs make several statements regarding
ingredients that are “highly processed,” but fail to plead what they understood
this term to mean and how it does or does not relate to the “100% Natural”
statement. Therefore, the Court dismisses Counts III, VI, VII, and X of Plaintiffs’
Complaint.
Accordingly, based upon the files, records, and proceedings herein, IT IS

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HEREBY ORDERED:
Defendant’s Motion to Dismiss [Docket No. 33] is GRANTED.
Dated: May 31, 2013

s/ Michael J. Davis
Michael J. Davis
Chief Judge
United States District Court

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