BURKE v. WEIGHT WATCHERS INTERNATIONAL, INC. et al
Filing
41
OPINION. Signed by Judge William J. Martini on 10/14/13. (gh, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civ. No. 2:12-06742 (WJM)
AMY BURKE,
Plaintiff,
OPINION
v.
WEIGHT WATCHERS INTERNATIONAL,
INC. and WELLS ENTERPRISES, INC.
Defendants.
Plaintiff Amy Burke purchased two different diet ice cream bars sold under the
Weight Watchers label. Burke alleges that Defendants Weight Watchers International,
Inc. (“Weight Watchers”) and Wells Enterprises, Inc. (“Wells”) (together “Defendants”),
which manufactured the diet ice cream bars, misrepresented the number of calories on the
entire line of bars. Accordingly, Burke filed the instant putative class action. Burke’s
four-count Amended Complaint alleges breach of express warranty, violation of the New
Jersey Consumer Fraud Act (“NJCFA”), breach of implied warranty, and unjust
enrichment. Defendants move pursuant to Federal Rule of Civil Procedure 12(b)(1) to
dismiss claims related to diet bars that Burke did not purchase. Defendants also move
pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss the entire Amended
Complaint, arguing that Burke’s claims are preempted by the federal Food, Drug, and
Cosmetic Act (“FDCA”). Finally, Defendants move pursuant to Federal Rule of Civil
Procedure 12(f) to strike certain allegations in the Amended Complaint relating to a
Today Show segment on low-calorie ice cream. For the reasons set forth below, the
Court will DENY Defendants’ Rule 12(b)(1) motion to dismiss, the Court will GRANT
Defendants’ Rule 12(b)(6) motion to dismiss, and the Court will DENY Defendants’
Rule 12(f) motion to strike.
WILLIAM J. MARTINI, U.S.D.J.:
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I.
BACKGROUND
A.
The Diet Bars
Defendant Weight Watchers International, Inc. is “the world’s leading provider of
weight management services.” Am. Compl. ¶ 15. Weight Watchers International, Inc.
contracted with Defendant Wells Enterprises to manufacture a line of diet ice cream bars
(the “Diet Bars”). Id. ¶ 17. The Diet Bars come in a variety of flavors, including the Ice
Cream Candy Bar, the GIANT Chocolate Fudge Bar, the Divine Triple Chocolate Bar,
and the Dark Chocolate Dulcé de Leché Ice Cream Bar. Id. ¶ 11. Burke regularly
purchases the Ice Cream Candy Bar and the GIANT Chocolate Fudge Bar. Id. ¶ 13.
Burke does not identify any other Diet Bar she has purchased.
According to the label on its box, the Ice Cream Candy Bar contains 140 calories.
Id. ¶ 27. Burke claims that “[t]he actual number of calories of each Ice Cream Candy Bar
product, as packaged and sold to the public, is significantly higher.” Id. ¶ 32. In support
of this allegation, Burke appeals to independent laboratory tests indicating that Ice Cream
Candy Bars’ calorie content is 20%-36% greater than the calorie content listed on the
box. Id. ¶ 43. Burke does not describe which tests yielded these results, but she does
note that “[a]ll of the testing was done in accordance to, and in compliance of, FDA
guidelines, including 21 C.F.R. 101.9 [(“Section 101.9”)].” Id. ¶ 41. Burke makes no
allegations about tests performed on Diet Bars other than the Ice Cream Candy Bar.
B.
The Today Show Report on the Diet Bars
On August 20, 2012, the Today Show aired a segment (the “Segment”) discussing
its investigation of “low-calorie” ice creams. Am. Compl. ¶ 33. The investigation
revealed that one Weight Watchers Ice Cream Candy Bar contained more calories than
were listed on its label. Id. Weight Watchers “did not refute the damning results of the
testing performed on behalf of the Today Show.” Id. ¶¶ 35, 37.
The Amended Complaint omits to mention that at one point during the Segment, a
Today Show contributor said that it was “completely legal” for Weight Watchers to
represent one calorie content for its Ice Cream Candy Bar when the Ice Cream Candy Bar
actually contained 16% more calories. See Rossen Reports: Can you believe diet frozen
dessert
labels?
(August
20,
2012),
available
at
http://www.today.com/id/48596412/site/todayshow/ns/todaytoday_rossen_reports/t/rossen-reports-can-you-believe-diet-frozen-dessertlabels/#.UTkORNa90uQ (last visited Sept. 23, 2013).
II.
LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint,
in whole or in part, if the plaintiff fails to state a claim upon which relief can be granted.
The moving party bears the burden of showing that no claim has been stated. Hedges v.
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United States, 404 F.3d 744, 750 (3d Cir. 2005). In deciding a motion to dismiss under
Rule 12(b)(6), a court must take all allegations in the complaint as true and view them in
the light most favorable to the plaintiff. See Warth v. Seldin, 422 U.S. 490, 501 (1975);
Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts Inc., 140 F.3d 478, 483 (3d Cir.
1998).
Although a complaint need not contain 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.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the factual allegations
must be sufficient to raise a plaintiff’s right to relief above a speculative level, such that it
is “plausible on its face.” See id. at 570; see also Umland v. PLANCO Fin. Serv., Inc.,
542 F.3d 59, 64 (3d Cir. 2008). A claim has “facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 556). While “[t]he plausibility standard is not akin to a
‘probability requirement’ . . . it asks for more than a sheer possibility.” Id.
In considering a motion to dismiss, the court generally relies on the complaint,
attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263 (3d
Cir. 2007). The court may also consider “undisputedly authentic document[s] that a
defendant attaches as an exhibit to a motion to dismiss if the plaintiff’s claims are based
on the [attached] document[s].” Pension Benefit Guar. Corp. v. White Consol. Indus.,
998 F.2d 1192, 1196 (3d Cir.1993). Moreover, “documents whose contents are alleged in
the complaint and whose authenticity no party questions, but which are not physically
attached to the pleading, may be considered.” Pryor v. Nat’l Coll. Athletic Ass’n, 288
F.3d 548, 560 (3d Cir. 2002).
Federal Rule of Civil Procedure 12(b)(1) provides for the dismissal of a complaint
for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). There are two types of
challenges to subject-matter jurisdiction: (1) facial attacks, which challenge the
allegations of the complaint on their face; and (2) factual attacks, which challenge the
existence of subject-matter jurisdiction, quite apart from any pleadings. Mortensen v.
First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977). In reviewing a facial
attack, like the one in this case, the court must consider the allegations of the complaint in
the light most favorable to the plaintiff. Gould Electronics Inc. v. United States, 220 F.3d
169, 176 (3d Cir. 2000); PBGC v. White, 998 F.2d 1192, 1196 (3d Cir. 1993).
Federal Rule of Civil Procedure 12(f) allows courts to “strike from a pleading an
insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”
III.
DISCUSSION
The Complaint contains four counts. Count I is a claim for breach of express
warranty. Count II is a claim for a violation of the New Jersey Consumer Fraud Act
(“NJCFA”). Count III is a claim for breach of the implied warranty of merchantability
and fitness for a particular purpose. Count IV is a claim for unjust enrichment. Weight
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Watchers moves to dismiss the Amended Complaint and to strike portions of the
Amended Complaint. First, Weight Watchers argues that Burke lacks standing to pursue
class action claims relating to Diet Bars she did not purchase (e.g., the Divine Triple
Chocolate Bar). Second, Weight Watchers argues preemption under the FDCA. Third,
Weight Watchers argues that allegations relating to the Segment are prejudicial and
should be stricken.
A.
12(b)(1) Motion to Dismiss
On standing grounds, Weight Watchers moves pursuant to Rule 12(b)(1) to
dismiss claims relating to Diet Bars that Burke did not purchase. The Court will DENY
the motion.
To bring suit in federal court, a plaintiff must have standing under Article III of
the Constitution. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). In Lujan,
which was not a class action case, the Supreme Court described the requirements of
standing as follows:
First, the plaintiff must have suffered a “concrete,” “particularized” injuryin-fact, which must be “actual or imminent, not conjectural or hypothetical.
Second, that injury must be “fairly traceable to the challenged action of the
defendant, and not the result of the independent action of some third party
not before the court.” Third, the plaintiff must establish that a favorable
decision likely would redress the injury.
Toll Bros., Inc. v. Twp. of Readington, 555 F.3d 131, 137-38 (3d Cir. 2009) (internal
citations and quotations omitted).
It is clear that Burke has standing to bring claims relating to the Diet Bars she
actually purchased, namely the Ice Cream Candy Bar and the GIANT Fudge Bar. What
is less clear is whether Burke also has standing to bring a class action based on alleged
false labels on Diet Bars she did not purchase (e.g., the Divine Triple Chocolate Bar).
Courts in this District are split on the issue. Some hold that class action plaintiffs lack
standing to recover for injuries associated with products they neither purchased nor used.
See, e.g., Lieberson v. Johnson & Johnson Consumer Cos., Inc., 856 F. Supp. 2d 529,
537 (D.N.J. 2011). Other courts take a different approach. For these courts, a class
action plaintiff’s standing to pursue claims based on products she neither purchased nor
used is “an issue that is not yet ripe” to decide at the motion to dismiss stage.” Kuzian v.
Electrolux Home Products, Inc., --- F. Supp. 2d ----, 2013 WL 1314722, at *2-3 (D.N.J.
March 28, 2013). Instead, the standing issue becomes ripe only in the context of a
motion for class certification. See id. (“[C]lass certification issues are ‘logically
antecedent to the existence of Article III issues,’ and it is appropriate to reach the class
action issues first, since the standing issues would not exist but for the class action
certification.”) (quoting Amchem Prods. v. Windsor, 521 U.S. 591, 612-13 (1997)).
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One case that subscribes generally to the latter approach is Stewart v. Smart
Balance, Inc., No. 11-6174, 2012 WL 4168584, at *16 (D.N.J. June 26, 2012). At issue
in Stewart was the deceptive labeling of three different “Fat Free Enhanced Milk
Products” sold under the Smart Balance name. Plaintiffs purchased the “Fat Free Milk
and Omega-3” product, but they did not purchase the “Lactose-Free Fat Free Milk and
Omega-3s” or the “HeartRight Fat Free Milk and Omega-3s & Natural Plant Sterols”
products. Still, plaintiffs brought class action claims alleging labeling improprieties in
each of the three products. On standing grounds, defendants moved to dismiss claims
relating to the milk products that plaintiffs did not purchase. The Stewart court denied
the motion. Finding that “the basis for each of the claims relating to the [three milk
products] is the same, the products are closely related, and the Defendants are the same,”
id. at *16, the Stewart court held that class certification was the proper time to determine
standing. This Court is persuaded by Stewart’s approach.
Here, though Burke purchased only two kinds of Weight Watchers Diet Bars, she
seeks to bring class action claims that cover the entire line of Diet Bars. The basis for
Burke’s claims is the same with respect to all of the Diet Bars, the Diet Bars are closely
related because they belong to the same product line, and the Defendants are the same.
Applying Stewart, the Court will DENY Burke’s motion to dismiss for lack of standing.
B.
12(b)(6) Motion to Dismiss
Counts I-IV are state law claims alleging that Weight Watchers profited through
deceptive labeling. Weight Watchers moves to dismiss all counts, arguing that Burke’s
claims are uniformly preempted by the FDCA. The Court agrees with Weight Watchers.
Under the FDCA, food is deemed “misbranded” unless its “label or labeling bears
nutrition information that provides the total number of calories . . . in each serving size or
other unit of measure of the food.” 21 U.S.C. § 343(q)(1)(C) (“Section 343(q)(1)(C)”).
The implementing regulations for Section 343(q)(1)(C) explain that the “total number of
calories” can be calculated using one of five methods (the “Five Methods”):
(1)
the Atwater method;
(2)
a method that assigns 4, 4, and 9 calories per gram for protein,
total carbohydrate, and total fat, respectively;
(3)
a method that assigns 4, 4, and 9 calories per gram for protein,
total carbohydrate less the amount of insoluble dietary fiber,
and total fat, respectively;
(4)
data for specific food factors for particular foods or ingredients
approved by the Food and Drug Administration (FDA); or
(5)
bomb calorimetry data.
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Section 101.9 (emphasis added). A “safe-harbor” provision allows the “total number of
calories” measured by any of the Five Methods to be as much as 20% greater than the
calorie content listed on a label. 21 C.F.R. § 101.9(g)(5).
To the extent state law “directly or indirectly establish[es] . . . any requirement for
nutrition labeling of food that is not identical to the requirement of [S]ection 343(q),” the
state law is preempted. 21 U.S.C. § 343-1(a)(4). However, if a state law seeks to impose
liability consistent with Section 343(q), it is not preempted. See Smajlaj v. Campbell
Soup Co., 782 F. Supp. 2d 84, 93 (D.N.J. 2011). To illustrate this, consider an individual
who brings a state law claim for deceptive advertising, arguing that a product’s label
provides false information about calorie content. Say, for the example, the product’s
label indicates 100 calories. Say further that a test performed using one of the Five
Methods yields a measurement of 120 calories. Then the product’s label complies with
the FDCA’s labeling requirements. That is because the calorie value measured using one
of the Five Methods (120 calories) does not exceed by more than 20% the calorie value
listed on the label (100 calories). Because the product’s label complies with the FDCA’s
safe harbor, the state law false advertising claim would be preempted. However, if all of
the Five Methods yield a calorie value greater than 120, then the product’s label would
violate the FDCA, and the state law false advertising claim would not be preempted.
Burke’s claims are preempted because she has failed to plead two separate things.
First, she has not pled that she tested the Ice Cream Candy Bar using every one of the
Five Methods. Second, she has not pled that every one of the tests results exceeds the
calorie value on the Ice Cream Candy Bar label by more than 20%. Instead, Burke cites
generally to laboratory tests performed “in accordance to, and in compliance of, FDA
guidelines, including 21 C.F.R. 101.9.” Am. Compl. ¶ 41. Burke’s allegations are
insufficient to allege a violation of the FDCA. This conclusion goes not just for the Ice
Cream Candy Bar, but also for the all of the other Diet Bars, whose calorie context Burke
apparently did not measure.
Accordingly, even if Burke has pled the elements of a state law cause of action in
Counts I-IV, Burke’s claims are preempted. See 21 U.S.C. § 343-1(a)(4). The Court will
DISMISS Counts I-IV WITHOUT PREJUDICE.
C.
12(f) Motion to Strike
The Segment represented that Weight Watchers’s Ice Cream Candy Bar’s label
lists a calorie value that is inaccurate. Burke makes note of this representation in her
Amended Complaint. Am. Compl. ¶ 33-39. But Burke’s pleading omits to mention the
Segment’s conclusion that Weight Watchers’s label is “completely legal” when it comes
to representations about calorie count. Arguing that the Amended Complaint is
incomplete and prejudicial, Burke moves pursuant to Rule 12(f) to strike the Amended
Complaint’s allegations concerning the Segment (paragraphs 33-39). Since the Court has
dismissed the Amended Complaint, it will DENY the motion to strike on mootness
grounds. See Hughes v. Panasonic Consumer Electronics Co., No. 10-846, 2011 WL
2976839, at *28 (D.N.J. July 21, 2011). However, because Burke might choose to file a
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Second Amended Complaint, the Court will address the merits of Weight Watchers’s
argument, which the Court finds to be persuasive.
Rule 12(f) allows courts to “strike from a pleading . . . any redundant, immaterial,
impertinent, or scandalous matter.” Motions to strike “usually will be denied unless the
allegations have no possible relation to the controversy and may cause prejudice to one of
the parties, or if the allegations confuse the issues in the case.” Deery v. Crystal
Instruments Corp., No. 13-198, 2013 WL 4517867, at *1 (D.N.J. Aug. 23, 2013) (internal
quotations and citations omitted). The Court finds that the allegations about the Segment
are potentially inflammatory, and confusing and collateral. Accordingly, if the motion to
strike were not moot, the Court would grant it.
IV.
CONCLUSION
For the reasons stated above, the Court will DENY the Rule 12(b)(1) motion to
dismiss. The Court will GRANT the Rule 12(b)(6) motion to dismiss. Counts I-IV are
DISMISSED WITHOUT PREJUDICE. Finally, the Court will DENY the Rule 12(f)
motion to strike. The Court shall grant Burke 30 days in which to file a Second Amended
Complaint addressing only those deficiencies identified in this opinion. An appropriate
order follows.
/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.
Date: October 15, 2013
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