LUCY H. KOH, United States District Judge.
Plaintiff Natalia Bruton ("Bruton") brings this putative class action against Gerber Products Company ("Gerber") and Nestlé U.S.A., Inc. ("Nestlé U.S.A.") (collectively, "Defendants"), alleging that Defendants violated federal and state law by making false and misleading claims on their food labels. Defendants move to dismiss Bruton's First Amended Complaint, ECF No. 28; Bruton opposes, ECF No. 34, and Defendants replied, ECF No. 36. Having considered the submissions of the parties, the parties' oral arguments at the hearing on this motion, and the relevant law, the Court hereby GRANTS IN PART and DENIES IN PART Defendants' Motion to Dismiss the First Amended Complaint.
Gerber claims to be "the world's most trusted name in baby food," and reportedly controls between 70 and 80 percent of the baby food market in the United States. First Amended Complaint ("FAC") ¶ 8, ECF No. 26. Through the Gerber brand, Defendants produce, package, and sell retail food products intended to be consumed by infants and children under two years of age, such as puree baby food, snacks, yogurts, side dishes, and beverages for infants and young children. FAC ¶¶ 7, 9. Gerber organizes its products by "stages" including: "Birth+," "Supported Sitter," "Sitter," "Crawler," "Toddler," and "Preschooler." FAC ¶ 9. All of the Gerber product categories other than "Preschooler" describe children under two years of age. Id.
Bruton is a California consumer who is concerned about the nutritional content of the food that she purchases for her child's consumption. FAC ¶ 107. At various times within the past four years, she purchased many of Defendants' food products that are intended for children under the age of two. FAC ¶¶ 22, 108. Specifically, Bruton contends that she purchased the following products: (1) Gerber Nature Select 2nd Foods Fruit — Banana Plum Grape; (2) Gerber Nature Select 2nd Foods Fruit — Apples and Cherries; (3) Gerber Nature Select 2nd Foods Vegetables — Carrots; (4) Gerber Nature Select 2nd Foods Spoonable Smoothies — Mango; (5) Gerber Yogurt Blends Snack — Strawberry; (6) Graduates Lil' Crunchies — Mild Cheddar; (7) Graduates Fruit Puffs — Peach; (8) Graduates Wagon Wheels — Apple Harvest; (9) Graduates for Toddlers Animal Crackers — Cinnamon Graham; and (10) Graduates for Toddlers Fruit Strips — Strawberry. FAC ¶ 110.
Before purchasing Defendants' products for her child, Bruton allegedly read and relied on Defendants' labels, which she contends are "misbranded." FAC ¶¶ 10, 111. She also allegedly read and relied on Defendants' "unlawful and deceptive misrepresentations at Defendants' website, www.gerber.com." FAC ¶ 111. At the point of sale, Bruton contends that she "did not know, and had no reason to know, that Defendants' products were misbranded" and "would not have bought the products
First, Bruton challenges Defendants' use of "nutrient content claims," which are claims about specific nutrients contained in a product that, pursuant to Section 403 of the Food, Drug, and Cosmetic Act ("FDCA") (codified at 21 U.S.C. § 343(r)), must be made in accordance with federal regulations. FAC ¶ 51; see 21 U.S.C. § 343(r)(1)(A) (defining "nutrition levels and health-related claims" as pertaining to "a food intended for human consumption which is offered for sale and for which a claim is made in the label or labeling of the food which expressly or by implication ... characterizes the level of any nutrient"). California expressly adopted the requirements of Section 403 of the FDCA in Section 110670 of the Sherman Food, Drug, and Cosmetic Law (the "Sherman Law"). See Cal. Health & Safety Code § 110670 ("Any food is misbranded if its labeling does not conform with the requirements for nutrient content or health claims as set forth in Section 403(r) (21 U.S.C. Sec. 343(r)) of the federal act and the regulations adopted pursuant thereto.").
Bruton alleges that Defendants make nutrient content claims on virtually all of their Gerber food products, despite the fact that the Food and Drug Administration ("FDA") authorizes nutrient content claims on foods for adults that are not permitted for children under age two due to differing nutritional needs. See FAC ¶ 62 (alleging that the nutrient content claims on products intended to be consumed by young children are barred because their nutritional needs are different than those of adults, and therefore nutritional claims on infant and toddler food can be highly misleading); see 21 C.F.R. § 101.13(b)(3) ("Except for claims regarding [certain] vitamins and minerals ... no nutrient content claims may be made on food intended specifically for use by infants and children less than 2 years of age unless the claim is specifically provided for" by particular regulations).
Bruton specifically asserts that Defendants make misbranded nutrient content claims that fall into three categories: (a) "Excellent Source" and "Good Source" claims; (b) "As Healthy As Fresh" claims; and (c) "No Added Sugar" claims.
Second, Bruton asserts that Defendants misleadingly tout their products as being "made with 100% natural" ingredients when they contain artificial ingredients or added ingredients not normally expected to be in food. FAC ¶ 77. According to Bruton, "[a] reasonable consumer would expect that when Defendants label their products as being made with 100% natural ingredients, the product's ingredients are `natural' as defined by the federal government and its agencies." FAC ¶ 80. In addition, Bruton contends that a reasonable consumer "would also expect products bearing such labels ... [to be] made with natural ingredients under the common use of the word `natural.'" Id. According to Bruton, "[a] reasonable consumer would understand that `natural' products do not contain synthetic ingredients or ingredients not normally expected to be in food." Id.
Finally, Bruton alleges that many of Defendants' products that are labeled with a "No Added Sugar" or similar sugar-related nutrient content claim contain disqualifying levels of calories that prohibit the claim from being made absent a mandated disclosure statement warning of the higher caloric level of the products and thus violate 21 C.F.R. § 101.60(c)(2). See FAC ¶ 83. Bruton asserts that, "[b]ecause consumers may reasonably be expected to regard terms that represent that the food contains `no added sugar' 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 as a matter of law are falsely represented." FAC ¶ 90.
Bruton now seeks to bring this putative class action, pursuant to Federal Rule of Civil Procedure 23(b)(2) and 23(b)(3), on behalf of a nationwide class consisting of all persons who, within the last four years, "purchased any of Defendants' food products intended specifically for use by infants and children less than 2 years of age." FAC ¶ 118 ("Nationwide Class"). Bruton also seeks to represent a California subclass of "[a]ll persons in the state of California who purchased any of Defendants' food products intended specifically for use by infants and children less than 2 years of age ... within the last four years." Id. ("California Subclass").
Bruton contends that, by manufacturing, advertising, distributing, and selling misbranded products, Defendants have violated California Health & Safety Code Sections 109885, 110390, 110395, 110398, 110660, 110665, 110670, 110705, 110760, 110765, and 110770. See FAC ¶¶ 97-103. In addition, Bruton asserts that Defendants have violated the standards set by 21 C.F.R. §§ 101.2, 101.13, 101.54, and 101.65, which have been adopted by reference into the Sherman Law. See FAC ¶¶ 104, 105. Consequently, Bruton's First Amended Complaint alleges the following causes of action: (1) violation of California's Unfair Competition Law ("UCL"), California Business and Professions Code §§ 17200 et seq., for unlawful, unfair, and fraudulent business acts and practices (claims 1, 2, and 3); (2) violation of California's False Advertising Law ("FAL"), California Business and Professions Code
Bruton filed a putative class action complaint against Defendants Gerber Products Company, Nestlé Holdings, Inc., and Nestlé USA, Inc. on May 11, 2012. ECF No. 1. On July 2, 2012, Bruton filed a Notice of Voluntary Dismissal of Defendant Nestlé Holdings, Inc. ECF No. 9. Defendants Gerber Products Company and Nestlé USA, Inc. then filed a Motion to Dismiss on August 31, 2012. ECF No. 18. Rather than responding to Defendants' Motion to Dismiss, Bruton filed an amended class action complaint on September 21, 2012. ECF No. 26.
Consequently, on October 5, 2012, Defendants withdrew their Motion to Dismiss the original complaint as moot, ECF No. 27, and filed a Motion to Dismiss the Amended Complaint, ("Mot.") ECF No. 28, which is currently before this Court. Defendants move to dismiss Bruton's FAC on many different grounds, including: (1) lack of subject-matter jurisdiction as required by Rule 12(b)(1) of the Federal Rules of Civil Procedure; (2) failure to state a claim upon which relief may be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure; and (3) failure to plead claims grounded in fraud with sufficient particularity, as required by Rule 9(b) of the Federal Rules of Civil Procedure. In addition, Defendants filed a Request for Judicial Notice in Support of the Motion to Dismiss. ECF No. 29.
A defendant may move to dismiss an action for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). A Rule 12(b)(1) motion to dismiss tests whether a complaint alleges grounds for federal subject matter jurisdiction. A motion to dismiss for lack of subject matter jurisdiction will be granted if the Complaint on its face fails to allege facts sufficient to establish subject matter jurisdiction. See Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n. 2 (9th Cir.2003). In considering a Rule 12(b)(1) motion, the Court "is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction." McCarthy v. United States, 850 F.2d 558, 560 (9th Cir.1988). If the plaintiff lacks standing under Article III of the U.S. Constitution, then the court lacks subject matter jurisdiction, and the case must be dismissed. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 101-02, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). Once a party has moved to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), the opposing party bears the burden of establishing the court's jurisdiction. See Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010).
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss an action for failure to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (internal quotation marks omitted). For purposes of ruling on a Rule 12(b)(6) motion, a court "accept[s] factual allegations in the complaint as true and construe[s] the pleadings in the light most favorable to the nonmoving party." Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir.2008).
However, a court need not accept as true allegations contradicted by judicially noticeable facts, Shwarz v. United States, 234 F.3d 428, 435 (9th Cir.2000), and the "[C]ourt may look beyond the plaintiff's complaint to matters of public record" without converting the Rule
Claims sounding in fraud or mistake are subject to the heightened pleading requirements of Federal Rule of Civil Procedure 9(b), which requires that a plaintiff alleging fraud "must state with particularity the circumstances constituting fraud." Fed. R. Civ. P. 9(b); see Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir.2009). To satisfy the heightened standard under Rule 9(b), the allegations must be "specific enough to give defendants notice of the particular misconduct which is alleged to constitute the fraud charged so that they can defend against the charge and not just deny that they have done anything wrong." Semegen v. Weidner, 780 F.2d 727, 731 (9th Cir.1985). Thus, claims sounding in fraud must allege "an account of the time, place, and specific content of the false representations as well as the identities of the parties to the misrepresentations." Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir.2007) (per curiam) (internal quotation marks omitted). The plaintiff must set forth what is false or misleading about a statement, and why it is false." In re Glenfed, Inc. Sec. Litig., 42 F.3d 1541, 1548 (9th Cir.1994) (en banc), superseded by statute on other grounds as stated in Ronconi v. Larkin, 253 F.3d 423, 429 n. 6 (9th Cir.2001).
If the Court determines that the complaint should be dismissed, it must then decide whether to grant leave to amend. Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend "should be freely granted when justice so requires," bearing in mind that "the underlying purpose of Rule 15 ... [is] to facilitate decision on the merits, rather than on the pleadings or technicalities." Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir.2000) (en banc) (internal quotation marks omitted). Nonetheless, a court "may exercise its discretion to deny leave to amend due to `undue delay, bad faith or dilatory motive on part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party ..., [and] futility of amendment.'" Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 892-93 (9th Cir.2010) (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)) (alterations in original).
Despite the numerous assertions that Bruton makes in her 59-page complaint, Bruton contends that her case essentially has two facets: (1) that Defendants' products are "misbranded," and (2) that the labels are "deceptive." Opp'n at 1. First, Bruton alleges that Defendants package, label, and market food products that do not comply with certain provisions of the Sherman Law, thereby "misbrand[ing]"
Second, Bruton alleges that Defendants' packaging and labels are misleading, deceptive, fraudulent, and unlawful. See id. Bruton contends that she reasonably relied on Defendants' misrepresentations, and was thereby deceived, in deciding to purchase Defendants' products. Id. Consequently, Bruton asserts that Defendants' deceptive packaging and labels give rise to claims for relief due to violating the unfair and fraudulent prongs of the UCL (claims 2 and 3), engaging in misleading, deceptive, and untrue advertising in violation of the FAL (claims 4 and 5), and violating the CLRA (claim 6). Bruton also maintains that Defendants' deceptive practices give rise to a claim for relief under the unlawful provision of the UCL (claim 1), by virtue of Defendants' violations of the FAL and CLRA. See FAC ¶¶ 134, 135. In addition, Bruton brings claims for restitution based on unjust enrichment/quasi-contract (claim 7), violation of the Song-Beverly Consumer Warranty Act, Cal. Civ.Code §§ 1790 et seq. (claim 8), and violation of the Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2301 et seq.
Defendants challenge the viability of Bruton's FAC on several different grounds, which the Court distills into four primary arguments: (1) failure to state a claim against Nestlé USA; (2) preemption by the federal Food, Drug, and Cosmetics Act ("FDCA") and invocation of the doctrine of Primary Jurisdiction; (3) lack of constitutional and statutory standing; and (4) failure to state viable causes of action for other, claim-specific reasons. The Court discusses each in turn.
At the outset, Defendants contend that the claims against Nestlé USA should be dismissed with prejudice because Gerber and Nestlé USA are separate entities and the FAC concerns only Gerber products. See Mot. at 1; Reply at 2. Bruton argues that she sufficiently states a claim against Nestlé USA because, in the FAC's first paragraph, she states that she is referring to Gerber and Nestlé USA collectively as "Defendants." See Opp'n at 4 (citing to FAC at 1). Consequently, Bruton maintains that all of the FAC's allegations include assertions against Nestlé USA.
Despite Bruton's introductory reference to Gerber and Nestlé USA together as "Defendants," the rest of the FAC lacks sufficient factual allegations from which the Court may infer more than a "sheer possibility" that Nestlé USA has acted unlawfully. See Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Importantly, only Gerber products are at issue in this case. Moreover, aside from the first paragraph, the FAC makes only two references to Nestlé USA throughout the entire complaint.
The first reference to Nestlé USA occurs in paragraph 25 of the FAC. In this paragraph, Bruton alleges that Defendant Nestlé USA is a privately held Delaware corporation owned by Nestlé Holdings, Inc. and that, "[d]uring the relevant period, Nestlé USA played an active role in the labeling, marketing, and sales of Gerber products ... [which] included ... activities involving through [sic] `Nestlé Nutrition' and `Nestlé Nutrition USA.'" FAC ¶ 25 (emphasis added). However, the FAC does not set forth the relationship between Nestlé USA and Nestlé Nutrition, or explain why Nestlé USA should be held liable for Gerber's misbranded products by
The FAC's only other factual allegation specific to Nestlé USA is a reference to a warning letter from the FDA that concerns products not at issue in this case. See FAC ¶ 46; see also FAC, Ex. C (referring to Nestlé Juicy Juice products).
In order to cure the deficiencies in the FAC, Bruton asserts new factual allegations regarding Nestlé USA in a footnote to her opposition. See Opp'n at 4 n.2. For example, Bruton contends that, for at least a portion of the class period, Nestlé USA operated and controlled the Gerber verybestbaby.com website. Id. Bruton's new factual allegations do not cure the defects in the FAC because, "[i]n determining the propriety of a Rule 12(b)(6) dismissal, a court may not look beyond the complaint to a plaintiff's moving papers, such as a memorandum in opposition to a motion to dismiss." Broam v. Bogan, 320 F.3d 1023, 1026 n. 2 (9th Cir.2003) (internal quotation marks omitted). Yet, because "facts raised for the first time in plaintiff's opposition papers should be considered by the court in determining whether to grant leave to amend or to dismiss the complaint with or without prejudice," id, the Court takes note of these new allegations and finds that Bruton has set forth sufficient information to demonstrate that amendment may not be futile.
Accordingly, the Court GRANTS Defendants' Motion to Dismiss Bruton's claims against Nestlé USA with leave to amend.
Next, Defendants contend that the federal Food, Drug, and Cosmetics Act preempts all of Bruton's claims. See Mot. at 6. Pursuant to the Supremacy Clause of the United States Constitution, "Congress has the power to preempt state law." Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 372, 120 S.Ct. 2288, 147 L.Ed.2d 352 (2000) (citing U.S. CONST. art. VI, cl. 2). "Federal preemption occurs when: (1) Congress enacts a statute that explicitly pre-empts state law; (2) state law actually conflicts with federal law; or (3) federal law occupies a legislative field to such an extent that it is reasonable to conclude that Congress left no room for state regulation in that field." Chae v. SLM Corp., 593 F.3d 936, 941 (9th Cir. 2010) (internal quotation marks omitted).
When analyzing the scope of a preemption statute, a court's analysis must "start with the assumption that the historic police powers of the States [are] not to be superseded by the Federal Act unless that was the clear and manifest purpose of
Defendants argue that, to the extent that Bruton seeks to enforce labeling rules that are different from the FDA regulations, they are expressly preempted. See Mot. at 9. In addition, to the extent that Bruton seeks to enforce labeling rules that are identical to the FDA regulations, Defendants contend that Bruton's claims are impliedly preempted because, pursuant to the FDCA, private litigants are prohibited from suing to enforce compliance with the FDA regulations. See Mot. at 6. For the reasons discussed herein, the Court is not persuaded that Defendants have overcome the "considerable burden" that "Congress d[id] not intend to supplant state law" in this area. Stengel, 704 F.3d at 1227.
The FDCA, codified at 21 U.S.C. §§ 301 et seq., "gives the FDA the responsibility to protect the public health by ensuring that `foods are safe, wholesome, sanitary, and properly labeled.'" Lockwood v. Conagra Foods, Inc., 597 F.Supp.2d 1028, 1030 (N.D.Cal.2009) (quoting 21 U.S.C. § 393(b)(2)(A)). Section 331 expressly prohibits the misbranding of food in interstate commerce, 21 U.S.C. § 331(a)-(c), (k), while Section 343 sets forth conditions under which food is considered "misbranded," 21 U.S.C. § 343. In general, a food is "misbranded" if its labeling is "false or misleading in any particular." 21 U.S.C. § 343(a)(1).
In 1990, Congress amended the FDCA with the Nutrition Labeling and Education Act of 1990 ("NLEA") to include additional food labeling requirements. Nutritional Labeling and Education Act of 1990, Pub. L. No. 101-535, 104 Stat. 2353 (1990); see also H.R. Rep. No. 101-538 (1990), reprinted in 1990 U.S.C.C.A.N. 3336, 3337 (stating that the purpose behind the NLEA was "to clarify and to strengthen the Food and Drug Administration's legal authority to require nutrition labeling on foods, and to establish the circumstances under which claims may be made about nutrients in foods"). Part of the NLEA's purpose was also to "create uniform national standards regarding the labeling of food." In re Farm Raised Salmon Cases, 42 Cal.4th 1077, 1086, 72 Cal.Rptr.3d 112, 175 P.3d 1170 (2008) (citing 136 CONG. REC. 5840 (daily ed. July 30, 1990) (Remarks of Rep. Waxman)).
In furtherance of the NLEA's aim of promoting uniform national labeling standards, the NLEA includes an explicit preemption provision which states, in part, that "no State ... may directly or indirectly establish ... any requirement ... made in the labeling of food that is not identical to" certain FDA requirements, such as 21 U.S.C. § 343(r), which applies to nutrition levels and health-related claims. 21 U.S.C § 343-1(a)(5) (emphasis added). "`Not identical to' ... means that the State requirement directly or indirectly imposes obligations or contains provisions concerning the composition or labeling of food, or concerning a food container, that: (i) Are not imposed by or contained in the applicable provision ... or (ii) Differ from those specifically imposed by or contained in the applicable provision...." 21 C.F.R. § 100.1(c)(4).
Through the Sherman Law, California has expressly adopted the federal labeling requirements as its own. See Cal. Health & Safety Code § 110100 ("All food labeling regulations and any amendments to those regulations adopted pursuant to the federal act, in effect on January 1, 1993, or adopted on or after that date shall be the food labeling regulations of this state."). California has also enacted a number of laws and regulations that adopt and incorporate specific enumerated federal food laws and regulations. See, e.g., Cal. Health & Safety Code § 110670 ("Any food is misbranded if its labeling does not conform with the requirements for nutrient content or health claims as set forth in ... (21 U.S.C. § 343(r))....").
In this case, Defendants contend that the FDA has established requirements applicable to all of the alleged violations identified by Bruton, including the following: "nutrient content" claims, 21 U.S.C. § 343(r)(1)(A); the FDA's "natural" policy, see 21 C.F.R. § 101.22; 58 Fed. Reg. at 2407; the "health" claims, see 21 C.F.R. § 101.14; and the "sugar-related" claims, see 21 C.F.R. § 101.60. According to Defendants, "there is no label element Plaintiff challenges that FDA regulation or policy does not address." Mot. at 10. For her part, Bruton contends that she does not seek to impose labeling rules that differ from the FDA regulations. See Opp'n at 9. As both sides in this case assert that Bruton's claims fall within the scope of the FDA's requirements, the Court does not find that, for purposes of this Motion to Dismiss, the claims are subject to express preemption.
Defendants also allege that all of Bruton's claims are preempted because there is no private right of action to enforce FDA regulations. See Mot. at 6-9. Specifically, the FDCA provides that, in general, "proceedings for the enforcement, or to restrain violations, of [the FDCA] shall be by and in the name of the United States." 21 U.S.C. § 337(a) (emphasis added); see Buckman Co. v. Plaintiffs' Legal Comm., 531 U.S. 341, 349 n. 4, 121 S.Ct. 1012, 148 L.Ed.2d 854 (2001) (noting, in the context of the medical device provisions of the FDCA that, due to 21 U.S.C. § 337(a), "[t]he FDCA leaves no doubt that it is the Federal Government rather than private litigants who are authorized to file suit for noncompliance with the [FDCA]").
Bruton does not dispute that, under the FDCA, private litigants are expressly prohibited from suing to enforce compliance with the federal regulations. However, Bruton contends that she is not attempting to enforce the FDCA but rather to enforce California's legal requirements, pursuant to the Sherman Law, which are identical to FDA regulations. See Opp'n at 8.
According to Defendants, Bruton's claims are subject to implied preemption because they still amount to an attempt to privately enforce the FDCA. See Mot. at 8-9. In support of Defendants' position that the Sherman Law cannot be used to enforce FDA regulations, Defendants rely
As this Court already discussed in Brazil v. Dole Food Co., 935 F.Supp.2d 947, 2013 WL 1209955 (N.D.Cal. Mar. 25, 2013), the Court is "not persuaded that Pom Wonderful stands for the sweeping proposition Defendants set forth." Id. at *7. Importantly, in Pom Wonderful, the Ninth Circuit limited its ruling to the federal Lanham Act and explicitly declined to address whether plaintiff's state-law claims were also preempted. See Pom Wonderful, 679 F.3d at 1179 (vacating the summary judgment to the extent it ruled that plaintiff lacked statutory standing on its UCL and FAL claims and "remand[ing] so that the district court can rule on the state claims"). Consequently, the Ninth Circuit did not specifically address the impact of the FDCA on states' historic power to protect its people against fraud and deception in the sale of food products. Nor did it grapple with the presumption that Congress did not intend to supplant state law. See Stengel, 704 F.3d at 1227-28. Thus, the Court finds that Pom Wonderful is distinguishable from this case. See also Delacruz v. Cytosport, Inc., No. 11-3532, 2012 WL 2563857, at *7 n. 3 (N.D.Cal. June 28, 2012) ("The Ninth Circuit's preemption ruling [in Pom Wonderful] was limited to a finding that the FDCA preempted Pom's claims under the Lanham Act."); accord Khasin v. Hershey Co., No. 12-1862, 2012 WL 5471153, at *5 (N.D.Cal. Nov. 9, 2012); cf. Ivie v. Kraft
Defendants also contend that the Ninth Circuit's recent decision in Perez, 711 F.3d 1109, as well as Judge Watford's concurrence in Stengel, 704 F.3d at 1234, require the dismissal of Bruton's claims. See ECF No. 47, at 1. Specifically, Defendants assert that, based on these decisions, "the test to determine whether claims alleging a violation of the FDCA are preempted [is the following]: `The plaintiff must be suing for conduct that violates the FDCA (or else his claim is expressly preempted by § 360k(a)), but the plaintiff must not be suing because the conduct violates the FDCA (such a claim would be impliedly preempted under Buckman).'" Id. (citing Perez, 711 F.3d at 1120); see also id. (citing Judge Watford's concurrence in Stengel, 704 F.3d at 1235, for the proposition that state-law claims that exist "solely by virtue" of federal enactments are preempted). Underlying Defendants' arguments is an attempt to further expand the scope of the Supreme Court's decision in Buckman, 531 U.S. 341, 121 S.Ct. 1012, 148 L.Ed.2d 854. The Court finds such an expansion to be unwarranted in this case.
Initially, it bears emphasizing that Buckman,
Next, in the context of food labeling, the Court finds it significant that Congress has not set forth a "clear and manifest" statement that it intended state food labeling claims to be subject to implied preemption. See Chae, 593 F.3d at 944 ("We must be cautious about conflict preemption where a federal statute is urged to conflict with state law regulations within the traditional scope of the state's police powers. When we deal with an area in which states have traditionally acted, the Supreme Court has told us to start with the assumption that a state's historic police powers will not be superseded absent a `clear and manifest purpose of Congress.'") (quoting Wyeth v. Levine, 555 U.S. 555, 565, 129 S.Ct. 1187, 173 L.Ed.2d 51 (2009)). Significantly, the NLEA explicitly states that the Act "shall not be construed to preempt any provision of State law, unless such provision is expressly preempted under [21 U.S.C. § 343-1]." NLEA § 6(c)(1) (emphasis added). The plain language of the statute, therefore, provides further evidence that Congress did not intend for the FDCA, as amended by the NLEA, to impliedly preempt state-law food labeling claims. See Wyeth, 555 U.S. at 575, 129 S.Ct. 1187 ("`The case for federal pre-emption is particularly weak where Congress has indicated its awareness of the operation of state law in a field of federal interest, and has nonetheless decided to stand by both concepts and to tolerate whatever tension there [is] between them.'") (alteration in original) (quoting Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 166-67, 109 S.Ct. 971, 103 L.Ed.2d 118 (1989)).
Further, to the extent that Bruton must demonstrate that her state-law claims fit through a "narrow gap" to escape preemption under the FDCA — as described by the Eighth Circuit in In re Medtronic Inc., Sprint Fidelis Leads Products Liability Litig., 623 F.3d 1200, 1204 (8th Cir.2010), and cited in Stengel and Perez — it appears that Bruton has done so in this case. First, Bruton notes that, because her claims are based on state laws that parallel the federal regulations, she is suing for
Thus, the Court is not persuaded that Defendants have overcome the presumption against preemption. See Lohr, 518 U.S. at 485, 116 S.Ct. 2240; Chavez v. Blue Sky Natural Beverage Co., 268 F.R.D. 365, 373 (N.D.Cal.2010) ("In view of the Supreme Court's determination in Wyeth that Congress did not intend FDA oversight to be [the] exclusive means of ensuring drug safety and effectiveness, and in the absence of authority to the contrary in the food labeling regulatory scheme, defendants have not persuaded the court that plaintiff's state-law claims obstruct federal regulation of food labeling."). Accordingly, the Court DENIES Defendants' Motion to Dismiss Plaintiffs' FAC on the basis of preemption.
Alternatively, Defendants argue that the Court may invoke the doctrine of primary jurisdiction. Specifically, Defendants argue that the fact that the "FDA has issued letters and industry guidance regarding the very labeling rules Bruton seeks to enforce privately ... evidences FDA's invocation of its primary jurisdiction by undertaking enforcement actions and working
The primary jurisdiction doctrine "allows courts to stay proceedings or to dismiss a complaint without prejudice pending the resolution of an issue within the special competence of an administrative agency." Clark v. Time Warner Cable, 523 F.3d 1110, 1114 (9th Cir.2008). The doctrine applies when: "(1) [there is a] need to resolve an issue that (2) has been placed by Congress within the jurisdiction of an administrative body having regulatory authority (3) pursuant to a statute that subjects an industry or activity to a comprehensive regulatory authority that (4) requires expertise or uniformity in administration." Syntek Semiconductor Co. v. Microchip Tech., Inc., 307 F.3d 775, 781 (9th Cir.2002) (amended). However, the doctrine of primary jurisdiction "does not require that all claims within an agency's purview be decided by the agency. Nor is it intended to secure expert advice for the courts from regulatory agencies every time a court is presented with an issue conceivably within the agency's ambit." Brown v. MCI WorldCom Network Servs., Inc., 277 F.3d 1166, 1172 (9th Cir.2002) (internal quotation marks omitted). Rather, "[p]rimary jurisdiction is properly invoked when a claim is cognizable in federal court but requires resolution of an issue of first impression, or of a particularly complicated issue that Congress has committed to a regulatory agency." Id.
Defendants urge that, in this case, the "FDA has `regulatory authority pursuant to a statute that subjects an industry or activity to comprehensive regulatory authority,' and resolving the issue `requires expertise or uniformity in administration.'" Mot. at 12 (quoting Syntek, 307 F.3d at 781). The Court is not persuaded. While this case does involve issues within the jurisdiction of the FDA, the Ninth Circuit has made clear that only those claims raising issues of first impression or particular complexity are appropriately dismissed or stayed based on primary jurisdiction. See Brown, 277 F.3d at 1172. Based on the information available at this stage, however, the issues in this case are neither novel nor especially complex. Defendants effectively concede that Bruton's claims are not ones of first impression, stating that "there is no label element Plaintiff challenges that FDA regulation or policy does not address." Mot. at 10.
Defendants also argue that Bruton lacks Article III standing, see Mot. at 17-18, as well as standing to assert a claim under the UCL, the FAL, and the CLRA, see id. at 22-23. Specifically, Defendants contend that Bruton fails to plead either a cognizable legal injury or plausible reliance. See id. at 15.
To have Article III standing, a plaintiff must plead and prove that he or she has suffered sufficient injury to satisfy the "case or controversy" requirement of Article III of the United States Constitution. See Clapper v. Amnesty Int'l, ___ U.S. ___, 133 S.Ct. 1138, 1146, 185 L.Ed.2d 264 (2013) ("`One element of the case-or-controversy requirement' is that plaintiffs `must establish that they have standing to sue.'" (quoting Raines v. Byrd, 521 U.S. 811, 818, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997))). Therefore, for Article III standing, a plaintiff must allege: (1) injury-in-fact that is concrete and particularized, as well as actual and imminent; (2) wherein injury is fairly traceable to the challenged action of the defendant; and (3) redressable by a favorable ruling. Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 130 S.Ct. 2743, 2752, 177 L.Ed.2d 461 (2010); Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (same). "The party invoking federal jurisdiction bears the burden of establishing these elements." Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).
Bruton also must demonstrate standing under the UCL's unlawful, unfair, and fraudulent prongs; the FAL; and the CLRA to bring causes of action for violations of these statutes. To have standing under the FAL and the CLRA, a plaintiff must claim to have relied on the alleged misrepresentation and economic injury. See Cal. Bus. & Prof. Code § 17535 (providing that a plaintiff must have "suffered injury in fact and have lost money or property as a result of a violation of this chapter" to have standing); Durell v. Sharp Healthcare, 183 Cal.App.4th 1350, 1367, 108 Cal.Rptr.3d 682 (2010) (finding plaintiff's CLRA claim failed because plaintiff failed to allege facts showing that he "relied on any representation by" defendant).
Defendants argue that Bruton cannot prove that she suffered a concrete harm because her alleged injury arises from the allegation that the products she purchased are "legally worthless." Mot. at 17 (citing to FAC ¶ 91). According to Defendants, Bruton's alleged injury is but a "legal construct" rather than a "genuine or concrete harm." Id. Thus, "[e]ven if some technical noncompliance with FDA rules existed ... no cognizable harm has flowed to Plaintiff." Id.
In opposition, Bruton contends that her allegations are clearly sufficient to plead standing. Specifically, Bruton alleges economic injury based on the fact that she paid a "premium" for products that she would not have otherwise purchased had she known the truth about Defendants' false and misleading labels. Opp'n at 13; see, e.g., FAC ¶ 73 ("Because of these improper nutrient content claims, Plaintiff purchased these products and paid a premium for them."); see also FAC ¶ 106 ("Plaintiff would not have purchased the Defendants' Misbranded Food Products had she known they were not capable of being legally sold or held."). Essentially, Bruton alleges that she and class members "spent money that, absent defendants' actions, they would not have spent," Maya v. Centex Corp., 658 F.3d 1060, 1069 (9th Cir. 2011), and she points out that the Ninth Circuit has acknowledged that "[t]his is a quintessential injury-in-fact," id. See also Sierra Club v. Morton, 405 U.S. 727, 733, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972) ("[P]alpable economic injuries have long been recognized as sufficient to lay the basis for standing.").
The Court finds that Bruton's allegations suffice — at this stage of the litigation — to confer Article III standing for the products that she purchased that featured "Good Source," "Excellent Source," "As Healthy As Fresh," and sugar-related claims.
The Court further finds that Bruton has plausibly alleged reliance and causation for the purpose of statutory standing under the UCL, the FAL, and the CLRA based on the products that she purchased that featured "Good Source," "Excellent Source," "As Healthy As Fresh," and sugar-related claims. "A plaintiff may establish that the defendant's misrepresentation is an `immediate cause' of the plaintiff's conduct by showing that in its absence the plaintiff `in all reasonable probability' would not have engaged in the injury-producing conduct." In re Tobacco II Cases, 46 Cal.4th 298, 326, 93 Cal.Rptr.3d 559, 207 P.3d 20 (2009) (internal quotation marks omitted). In addition, "while a plaintiff must allege that the defendant's misrepresentations were an immediate cause of the injury-causing conduct, the plaintiff is not required to allege that those misrepresentations were the sole or even the decisive cause of the injury-producing conduct." Id. at 328, 93 Cal.Rptr.3d 559, 207 P.3d 20. Further, "a presumption, or at least an inference, of reliance arises wherever there is a showing
In this case, Bruton alleges that she "read and reasonably relied on" Defendants' labels, "including labels with nutrient content claims," when making her decision to purchase Defendants' products. FAC ¶ 111; see also FAC ¶ 10 ("Bruton relies on the representations made on product labeling to make choices about what food to purchase for her child."). Notably, all of the products that Bruton allegedly purchased include one or all of the "nutrient content" claims, "natural" claims, and "sugar related" claims. See, e.g., FAC ¶ 110 (showing that the Gerber Nature Select 2nd Foods Fruit — Banana Plum Grape label includes claims on the label that the product is "As Healthy As Fresh," has "No Added Refined Sugar," and is "Made with 100% Natural Fruit").
In addition, Bruton contends that, "[b]ased on Defendants' [labeling] claims, Plaintiff believed that the products were a better and healthier choice than other available products." FAC ¶ 112; see also FAC ¶ 73 ("Because of these improper nutrient content claims, Plaintiff purchased these products and paid a premium for them."). She further asserts that her reliance was reasonable because "[c]onsumers rely on food labeling claims with the understanding that nutritional information on product packaging is highly regulated and, therefore, should be trustworthy." FAC ¶ 15; see also FAC ¶ 16 ("Consumers often do not look beyond the nutrient content claims and health claims made on the front of the food product packaging, and are less likely to check the Nutrition Facts panels contained on the back of packaging where front-of-packaging nutrient content claims are present.").
While Defendants dispute that a reasonable consumer would actually be familiar with the FDA's policy and regulations, rely on Defendants' allegedly misbranded labels, and then be deceived by them, see Mot. at 15, the Court recognizes that whether a practice is "deceptive, fraudulent, or unfair" is generally a question of fact that is not appropriate for resolution on the pleadings. See Williams v. Gerber Products Co., 552 F.3d 934, 938-39 (9th Cir.2008) (citation omitted); see also Khasin, 2012 WL 5471153, at *7 (rejecting a similar plausibility argument because "the issues Defendant raise[s] ultimately involve questions of fact as to whether Plaintiff was or was not deceived by the labeling; this argument is therefore beyond the scope of this Rule 12(b)(6) motion"). Therefore, the Court does not dismiss these claims due to implausibility.
Moreover, because Bruton has alleged what a reasonable consumer may find to be false and misleading about the "good source," "excellent source," "As Healthy As Fresh," and sugar-related claims, as discussed further in Part III. D.1., the Court finds that these claims also satisfy Rule 9(b)'s heightened pleading requirement. See Yourish v. Cal. Amplifier, 191 F.3d 983, 993 (9th Cir.1999) (holding that, in addition to alleged the time, place, and content of an alleged misrepresentation, a "plaintiff must set forth what is false or misleading about a statement, and why it is false. In other words, [a] plaintiff must set forth an explanation as to why the statement or omission complained of was false or misleading.") (internal quotation marks omitted).
Thus, the Court finds that Bruton has standing to assert claims, pursuant to the UCL, the FAL, and the CLRA, which are predicated on the "Good Source," "Excellent Source," "As Healthy As Fresh," and sugar-related claims that are featured on the products that she allegedly purchased.
Defendants also challenge Bruton's references to products that she did not allegedly purchase. See Mot. at 13 (citing FAC ¶¶ 70, 77-78, and all products listed in Exhibit A to the FAC that Bruton does not allege that she actually purchased). Defendants argue that such allegations may not form the basis of a valid claim. Id. In addition, Defendants contend that these claims fail to meet the more stringent pleading requirements of Rule 9(b). Mot. at 16-17.
Courts are split as to whether an actual purchase is required to establish the requisite injury-in-fact for the purpose of standing or whether this is an issue better resolved at the class certification stage. Compare Granfield v. NVIDIA Corp., No. 11-05403, 2012 WL 2847575, at *6 (N.D.Cal. July 11, 2012) ("[W]hen a plaintiff asserts claims based both on products that she purchased and products that she did not purchase, claims relating to products not purchased must be dismissed for lack of standing."), with Astiana v. Dreyer's Grand Ice Cream, Inc., No. 11-2910, 2012 WL 2990766, at *13 (N.D.Cal. July 20, 2012) (holding that "any concerns ... about material differences are better addressed at the class certification stage rather than at the 12(b)(6) stage"). The Supreme Court has noted, without clearly resolving, this tension in the law. See Gratz v. Bollinger, 539 U.S. 244, 263 n. 15, 123 S.Ct. 2411, 156 L.Ed.2d 257 (2003) (declining to resolve whether variations in the factual circumstances underlying plaintiffs' and absent class members' injuries "is appropriately addressed under the rubric of standing or adequacy," and "not[ing] that there is tension in our prior cases in this regard").
Within this district, some courts have analyzed whether there is "sufficient similarity" between the products purchased by the plaintiff and those allegedly purchased by the absent class members. In Astiana v. Dreyer's Grand Ice Cream, Inc., for example, Judge Chen found standing where Plaintiffs were "challenging the same kind of food products (i.e., ice cream) as well as the same labels for all of the products — i.e., `All Natural Flavors' ... and `All Natural Ice Cream' ... [because whether] the different ice creams may ultimately have different ingredients is not dispositive as Plaintiffs are challenging the same basic mislabeling practice across different product flavors." 2012 WL 2990766, at *13. Similarly, in Colucci v. ZonePerfect Nutrition Co., No. 12-2907, 2012 WL 6737800 (N.D.Cal. Dec. 28, 2012), Judge Conti held that one plaintiff had standing for purchasing one type of nutrition bar, despite not purchasing the other nineteen varieties of nutrition bars because the accused products were "all of a single kind, that is, ... nutrition bars" and "[t]hey share a uniform size and shape," such that "the only obvious difference between them is their flavor." Id. at *4.
Here, Bruton asserts claims involving many different food products, some of which are specific to what Bruton allegedly purchased and some of which are so broad that they are practically unidentifiable. Compare FAC ¶ 110 (listing the ten products that that Plaintiff allegedly purchased), with FAC ¶ 70 (listing mere "examples" of products that made "Good Source" and "Excellent Source" claims); see also FAC ¶ 83 ("Many of the Defendants' products that are labeled with a `No Added Sugar' or similar sugar-related nutrient content claim contain disqualifying levels of calories") (emphasis added). In addition, Bruton asserts several different bases for Defendants' alleged misbranding.
In light of the vagueness of several of Bruton's allegations, as well as the apparent errors in Bruton's chart of Gerber Label Misrepresentations, the Court cannot determine whether all the products that Bruton seeks to include in her complaint are indeed substantially similar to the products that she did purchase. Thus, the Court GRANTS Defendants' Motion to Dismiss Bruton's claims for products that she did not purchase, though it affords Bruton leave to amend. Should Bruton decide to file a Second Amended Complaint, Bruton is ORDERED to revise the table she attached as Exhibit A to her FAC to not just include "exemplar nutrient content claims" for each product category and product flavor, but the exact nutrient content claims at issue for each product category and product flavor, as well as the legal claims that correspond to each representation. Any amended complaint must also allege (if it is to survive a motion to dismiss) that the products Bruton did not purchase are substantially similar to those that she did purchase, and also that the two categories of products contained substantially similar misrepresentations.
Bruton also alleges that she "read and reasonably relied upon Defendants' unlawful and deceptive misrepresentations at Defendants' website, www.gerber.com, before purchasing Defendants' Misbranded Food Products," because "Defendants' web address is printed on its package labels, and by law Defendants' website misrepresentations are incorporated in its labels." FAC ¶ 111. However, Bruton does not allege that she ever actually viewed any of the alleged misrepresentations at the Gerber website. Bruton's theory of incorporation by reference does not suffice to plead actual reliance on the statements on Gerber's website, and the Court therefore finds that Bruton does not have standing to assert claims based on advertisements and websites that she did not view personally.
Thus, the Court DENIES Defendants' Motion to Dismiss Bruton's FAC on the basis of Article III or statutory standing based on products that Bruton purchased (except with regard to the "all-natural" labels). The Court GRANTS without prejudice Defendants' Motion to Dismiss
Finally, Defendants argue that the Court must dismiss, pursuant to Rule 12(b)(6), Bruton's claims for violation of the UCL for unlawful, unfair, and fraudulent business acts and practices (claims 1, 2, and 3);
First, Defendants argue that Bruton's claims must be dismissed because they are not plausible and because Bruton cannot show that the statements on Defendants' labels violate FDA regulations or policy. Mot. at 14, 18. In fact, Defendants maintain that the statements on Gerber's labels are truthful, and therefore constitute commercial speech protected by the First Amendment. Mot. at 18. As the Supreme Court stated in Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980), "[f]or commercial speech to come within [a limited form of First Amendment protection], it at least must concern lawful activity and not be misleading." Id. at 566, 100 S.Ct. 2343; see also Posadas de Puerto Rico Assocs. v. Tourism Co., 478 U.S. 328, 340, 106 S.Ct. 2968, 92 L.Ed.2d 266 (1986) (same); see also Cent. Hudson Gas & Elec. Corp., 447 U.S. at 563, 100 S.Ct. 2343 ("The government may ban forms of communication more likely to deceive the public than to inform it."). "Once it is determined that the First Amendment applies to the particular kind of commercial speech at issue, then the speech may be restricted only if the government's interest in doing so is
To the extent that Defendants attempt to dispute the merits of Bruton's allegations by virtue of invoking a First Amendment defense, the Court finds such arguments inappropriate for a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6). However, to the extent Defendants challenge whether Bruton has sufficiently stated a claim, the Court considers Defendants' contentions.
For the reasons stated herein, the Court finds that Bruton has sufficiently stated a claim for the nutrient content "Source" claims, "As Healthy As Fresh" claims, and sugar-related labels. The Court finds that Bruton has not plausibly alleged a claim based on the "100% Natural" labeling.
As noted in Part I.A.1, Bruton alleges that Gerber is precluded from making "nutrient content" claims on products intended for children less than two years of age, and that some of the products that she purchased included labels claiming that the products were an "excellent source" or a "good source" of vitamins and minerals. See FAC ¶ 60. According to Bruton, "[e]xcept for claims regarding the percentage of a vitamin or mineral for which there is an established Reference Daily Intake (RDI), a nutrient content claim may not be made for a food intended specifically for use by infants and children less than two years of age unless the claims are specifically provided for in parts 101, 105, or 107 of FDA regulations." FAC ¶ 60(a) (citing 21 C.F.R. § 101.13(b)(3)).
However, pursuant to 21 C.F.R. § 101.13(q)(3)(i), claims regarding the percentage of a vitamin or mineral for which there is an established Reference Daily Intake (as defined in 21 C.F.R. § 101.9) — including foods intended specifically for use by infants and children less than 2 years of after — "may be made on the [food] label ... unless such claim is expressly prohibited by regulation under section 403(r)(2)(A)(vi) of the act." 21 C.F.R. § 101.13(q)(3)(i) (emphasis added).
In response, Bruton cites a February 22, 2010 FDA warning letter sent to Gerber in which, among other things, the FDA informed Gerber that its Gerber Graduates Fruit Puffs were misbranded because, pursuant to 21 C.F.R. § 101.54, "[t]he labeling for these products includes nutrient content claim [sic] such as `good source of iron, zinc, and vitamin E for infants and toddlers," which is not permitted for foods intended specifically for infants and children under age 2. FAC, Ex.
Accordingly, the Court finds that Bruton has at least alleged a plausible claim that Gerber's use of nutrient content "Source" claims are misbranded and deceptive for the purpose of surviving a motion to dismiss.
Bruton also contends that the trademark "As Healthy As Fresh" as it appears on Gerber's food products is an unauthorized nutrient content claim in violation of FDCA 403(r)(1)(A) and 21 U.S.C. § 343(r)(1)(A). FAC ¶ 60(b). Of the ten products that Plaintiff allegedly purchased, three of those products contained the "As Healthy As Fresh" label: (1) Gerber Nature Select 2nd Foods Fruit — Banana Plum Grape; (2) Gerber Nature Select 2nd Foods Fruit — Apples and Cherries; and (3) Gerber Nature Select 2nd Foods Vegetables — Carrots. FAC ¶ 110.
Bruton alleges that these products bear the nutrient content claim "healthy." The circumstances under which "healthy" claims are permitted are defined in 21 C.F.R. § 101.65(d), but these regulations do not allow the "healthy" claim for products specifically intended for children under two years of age pursuant to 21 C.F.R. § 101.13(b)(3). In further support of Bruton's claims, Bruton relies on the February 2010 FDA warning letter which states as follows:
Opp'n at 21 (citing FAC, Ex. B).
Defendants do not specifically respond to Bruton's arguments regarding why Gerber's "As Healthy As Fresh" claims may fail to comply with specific federal regulations. Rather, Defendants merely claim that "As Healthy As Fresh" is not an unauthorized nutrient content claim but "a dietary guidance statement that conveys the important message that processed vegetables and fruits are as healthy for a child, or anyone for that matter, as fresh vegetables and fruits." Mot. at 19. Further, Defendants contend that this trademark slogan is, at most, "non-actionable opinion or puffery," and therefore cannot serve as a basis for liability. Mot. at 20.
In order to state a claim under the UCL, the FAL, or the CLRA, a plaintiff must allege that statements or other representations appearing on defendants' product labels are likely to deceive a reasonable consumer. Freeman v. Time, Inc., 68 F.3d 285, 289 (9th Cir.1995). Statements that amount to mere opinion or puffery are not actionable because no reasonable consumer relies on mere "puffery." As the Ninth Circuit explained in Cook, Perkiss and Liehe, Inc. v. Northern California Collection Service Inc., 911 F.2d 242 (9th Cir.1990), "[t]he common theme that seems to run through cases considering puffery in a variety of contexts is that consumer reliance will be induced by specific rather than general assertions." Id. at 246. Consequently, "[a]dvertising which merely states in general terms that one product is superior is not actionable. However, misdescriptions of specific or absolute characteristics of a product are actionable." Id. (internal quotation marks omitted). For example, in Consumer Advocates v. Echostar Satellite Corp., 113 Cal.App.4th 1351, 8 Cal.Rptr.3d 22 (2003), the California Court of Appeal found that the descriptions of a satellite television system as possessing "crystal clear digital video" and "CD quality audio" were non-actionable, as the representations were nothing more than "boasts, all-but-meaningless superlatives," and "claim[s] which no reasonable consumer would take as anything more weighty than an advertising slogan." Id. at 1361, 8 Cal.Rptr.3d 22; cf. Cook, Perkiss and Liehe, Inc., 911 F.2d at 246 (noting that, while "an advertiser's statement that its lamps were far brighter than any lamp ever before offered for home movies" was found to be puffery, allegations of superior brightness based on statements such as "35,000 candle power and 10-hour life" did support a potential Lanham Act claim) (internal quotation marks omitted).
Unlike in Consumer Advocates and Cook, Perkiss and Liehe, Inc., however, the products at issue here are covered by federal regulations which impose specific labeling requirements and which appear to assume that consumers in fact do rely on health-related claims on labels. Indeed, Congress passed the NLEA, in part, in response to "unfounded health claims" that companies were making "in the marketplace." See H.R. Rep. No. 101-538 (1990), reprinted in 1990 U.S.C.C.A.N. 3336, 3339; see also id. ("Health claims supported by a significant scientific agreement can reinforce the Surgeon General recommendations and help Americans to maintain a balanced and healthful diet ...
For purposes of a motion to dismiss, the Court finds that the "As Healthy As Fresh" claims do not fall into the category of non-actionable puffery. Bruton has alleged a plausible claim for the purpose of surviving this motion to dismiss.
Bruton also alleges that Gerber food products make unlawful sugar-related claims. First, Bruton contends that Gerber's claims that certain products contain "No Added Sugar" or "No Added Refined Sugar" are unlawful because these nutrient claims may not be made on food products intended for children under two years of age. See 21 C.F.R. § 101.13(b)(3) (prohibiting all nutrient content claims on products intended for children under two, except as specifically provided for elsewhere); 21 C.F.R. § 101.60(c)(4) (allowing "No Added Sugar" claims only with respect to dietary supplements or vitamins intended for children under two). Second, Bruton alleges that the "No Added Sugar" and "No Added Refined Sugar" claims are unlawful because they contain "disqualifying levels of calories that prohibit the claim from being made absent a mandated disclosure statement warning of the higher caloric level of the products" in violation of 21 C.F.R. § 101.60(c)(2). FAC ¶ 83.
Defendants do not move to dismiss Bruton's FAC on the basis of her first sugar-related claim, which pertains to nutrient claims that may not be made on food products intended for children under two years of age. In response to Bruton's second sugar-related claim, however, Defendants dispute that a "low calorie" disclaimer is required for foods designed for young children. Mot. at 22. Defendants further argue that certain products that Bruton allegedly purchased, specifically Gerber 2nd Foods — Carrots, Gerber 2nd Foods Fruit — Apples & Cherries, and Gerber Nature Select 2nd Foods Spoonable Smoothies — Mango, all meet the requirements for low calorie foods as they are under 40 calories, and therefore do not trigger the requirement for a disclaimer. Id. (citing 21 C.F.R. § 101.60(c)(2)(v); 21 C.F.R. § 101.60(b)(2)). In addition, Defendants contend that there is no recommendation by the FDA that foods designed for young children require a "low calorie" disclaimer as this is not an age population for which the FDA recommends caloric restrictions. Id.
Section 21 C.F.R. § 101.60(c)(2) states that "[t]he terms `no added sugar,' `without added sugar,' or `no sugar added' may be used only if ... [t]he product bears a statement that the food is not `low calorie' or `calorie reduced' (unless the food meets the requirements for a `low' or `reduced calorie' food) and that directs consumers' attention to the nutrition panel for further information on sugar and calorie content." FDA regulations further define a low-calorie food, in part, as one where "[t]he food has a reference amount customarily consumed greater than 30 grams (g) or greater than 2 tablespoons and does not provide more than 40 calories per reference amount customarily consumed." 21 C.F.R. § 101.60(b)(2)(i)(A).
In response, Bruton disputes that the calorie counts for these 2nd Foods products are as low as Defendants claim; in support of her argument, she points to the labels embedded in the FAC. See Opp'n at 22 (citing, as examples, Gerber Nature Select 2nd Foods Fruit — Banana Plum Grape, which claims that it has "No Added
Thus, Bruton has alleged sufficient facts to state a plausible claim as to the sugar-related labeling of Defendants' products.
Bruton also contends that Defendants are prohibited from using labels that contain the term "natural" because their products contain artificial ingredients and flavorings, artificial coloring, and chemical preservatives. FAC ¶ 74. For example, Bruton asserts that some of the labels on Gerber's products advertise that they are "Made with 100% Natural Fruit" despite the fact that these products use citric acid, ascorbic acid, and other ingredients that are not "natural" as defined by the federal government and its agencies. See FAC ¶¶ 78, 80.
Defendants first dispute that they made any "100% Natural claims." Mot. at 20. Instead, their labels state that the products are "Made with 100% natural fruit," which Defendants contend is truthful and must be read in context. Id. Second, Defendants contend that, even though the two products that Bruton purchased contain citric or ascorbic acid, neither of these ingredients renders the "all natural" labels deceptive. See id. at 21. In particular, Defendants argue that FDCA regulations confirm that "vitamin C" and "ascorbic acid" may be used interchangeably in nutrition labeling, and meet the FDA's definition of a "chemical preservative." Id.; see 21 C.F.R. § 101.9(c)(8)(v) (stating that synonyms such as "Vitamin C — Ascorbic acid" "may be added in parentheses immediately following the name of the nutrient or dietary component").
Bruton replies by citing Williams, 552 F.3d 934, for the proposition that "reasonable consumers expect that the ingredient list contains more detailed information about the product that confirms other representations on the packaging." Id. at 939-40. According to Bruton, "[a] reasonable consumer would expect that when Defendants label their products as being made with 100% natural ingredients, the product's ingredients are `natural' as defined by the federal government and its agencies." FAC ¶ 80. In addition, Bruton
The Court is not persuaded by Bruton's arguments. If Defendants' labels claimed that the products were "100% natural," Bruton's allegations might be sufficient. However, Bruton fails to explain why a label claiming that a product is "Made with 100% Natural Fruit" plausibly implies that the entire product — which contains ingredients other than fruit — is free of synthetic ingredients or ingredients not normally expected to be in food. Thus, Bruton fails to set forth why a reasonable consumer would find Defendants' labels to be false and misleading. Bruton also fails to set forth why she personally was misled by these labels.
Consequently, the Court finds that Bruton has failed to plausibly allege a claim under the UCL, the FAL, and the CLRA based on the "all natural" labeling, and GRANTS Defendants' Motion to Dismiss on this basis. However, because Bruton may be able to cure the deficiencies in these allegations, Bruton's UCL, FAL, and CLRA claims predicated on the "all natural" labeling are dismissed without prejudice. See Lopez, 203 F.3d at 1127 (holding that "a district court should grant leave to amend ... unless it determines that the pleading could not possibly be cured by the allegation of other facts").
In addition, Defendants seek to dismiss Bruton's claim under the Magnuson-Moss Warranty Act ("MMWA"). See Mot. at 23-24. The federal MMWA creates a civil cause of action for consumers to enforce the terms of implied or express warranties. See 15 U.S.C. § 2310(d). Under the MMWA, a "written warranty" means a "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 ... and affirms or promises that such material ... is defect free or will meet a specified level of performance over a specified period of time." 15 U.S.C. § 2301(6)(A) (emphasis added).
Bruton's MMWA claim fails because the allegedly misbranded labels are not "warranties" and thus do not fall within the coverage of the act. As this Court recognized in Brazil, "`product descriptions [such as `As Healthy As Fresh' or `all natural'] do not constitute warranties against a product defect' for the purposes of a MMWA claim[]." See Brazil, 935 F.Supp.2d at 966, 2013 WL 1209955, at *17 (quoting Astiana, 2012 WL 2990766, at *3). Other courts in this district have likewise concluded that product descriptions do not constitute warranties against a product defect for the purposes of a MMWA claim. See, e.g., Astiana, 2012 WL 2990766, at *3; Larsen v. Trader Joe's Co., 2012 WL 5458396, at *3 (N.D.Cal. June 14, 2012); Littlehale v. Hain Celestial Group, Inc., No. 11-6342, 2012 WL 5458400, at *1 (N.D.Cal. July 2, 2012); Jones, 912 F.Supp.2d at 903-04. Accordingly,
Defendants also contend that Bruton has not stated a claim under the Song-Beverly Consumer Warranty Act. Mot. at 24 n.16. The Song-Beverly Consumer Warranty Act provides that "every sale of consumer goods that are sold at retail in [California] shall be accompanied by the manufacturer's and the retail seller's implied warranty that the goods are merchantable." Cal. Civ. Code § 1792. Under the Act, a "consumer good" is defined as "any new product or part thereof that is used, bought, or leased for use primarily for personal, family, or household purposes, except for clothing and consumables." Cal. Civ. Code § 1791(a) (emphasis added). Bruton does not dispute that all of the products at issue in this case are consumables. See Opp'n at 24. Therefore, all of Defendants' products are excluded from the Act.
Since Bruton has not, and cannot, allege a breach of the Song-Beverly Consumer Warranty Act, the Court GRANTS Defendants' Motion to Dismiss this cause of action with prejudice.
Defendants' final argument is that Bruton's claim for restitution based on "unjust enrichment/quasi contract" must be dismissed because California does not recognize "unjust enrichment" as a separate cause of action. Mot. at 25. Despite some inconsistency in the law, several recent decisions by the California Court of Appeals have held that "[u]njust enrichment is not a cause of action, just a restitution claim." See, e.g., Hill v. Roll Int'l Corp., 195 Cal.App.4th 1295, 1307, 128 Cal.Rptr.3d 109 (2011); accord Levine v. Blue Shield of Cal., 189 Cal.App.4th 1117, 1138, 117 Cal.Rptr.3d 262 (2010); Durell, 183 Cal.App.4th at 1370, 108 Cal.Rptr.3d 682; Melchior v. New Line Prods., Inc., 106 Cal.App.4th 779, 793, 131 Cal.Rptr.2d 347 (2003). In light of this recent authority, this Court has previously determined that there is no distinct cause of action for unjust enrichment under California law. See, e.g., Low v. LinkedIn Corp., 900 F.Supp.2d 1010, 1031 (N.D.Cal.2012); Fraley v. Facebook, Inc., 830 F.Supp.2d 785, 814 (N.D.Cal.2011); accord Ferrington v. McAfee, Inc., No. 10-01455, 2010 WL 3910169, at *17 (N.D.Cal. Oct. 5, 2010) (citing Durell, 183 Cal.App.4th at 1370, 108 Cal.Rptr.3d 682).
Accordingly, the Court GRANTS Defendants' Motion to Dismiss Bruton's claim for Restitution Based on Unjust Enrichment/Quasi Contract with prejudice.
For the foregoing reasons, the Court DISMISSES WITHOUT PREJUDICE:
Should Bruton elect to file a Second Amended Complaint curing the deficiencies discussed herein, she shall do so within thirty (30) days of the date of this Order. Failure to meet the thirty-day deadline to file an amended complaint or failure to cure the deficiencies identified in this Order will result in a dismissal with prejudice. Bruton may not add new causes of action or parties without leave of the Court or stipulation of the parties pursuant to Federal Rule of Civil Procedure 15.
