THOMAS M. DURKIN, District Judge.
Derek Gubala ("Plaintiff") alleges that CVS Pharmacy, Inc., ("CVS") deceptively labeled its protein powder product (the "Product") as "Whey Protein Powder" and included the misleading assertion that the Product contained "26 grams of high-quality protein per serving." R. 1 ¶¶ 18-19. Plaintiff brings four claims under state law: (1) a violation of various state consumer fraud acts on behalf of the multi-state class
For purposes of a motion to dismiss under either Rule 12(b)(1) or Rule 12(b)(6), the court accepts all well-pleaded factual allegations as true and construes all reasonable inferences in the plaintiff's favor. See, e.g., Scanlan v. Eisenberg, 669 F.3d 838, 841 (7th Cir. 2012); Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). A Rule 12(b)(1) motion challenges federal jurisdiction, and the plaintiff bears the burden of establishing the elements necessary for jurisdiction, including standing, have been met. Mutter v. Madigan, 17 F.Supp.3d 752, 756-57 (N.D. Ill. 2014) (citing Scanlan, 669 F.3d at 841-42). In ruling on a 12(b)(1) motion, the court may look outside of the complaint's allegations and consider whatever evidence has been submitted on the issue of jurisdiction. Mutter, 17 F. Supp. 3d at 756-57 (citing Ezekiel v. Michel, 66 F.3d 894, 897 (7th Cir. 1995)).
A Rule 12(b)(6) motion challenges the sufficiency of the complaint. See, e.g., Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). A complaint must provide "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), sufficient to provide defendant with "fair notice" of the claim and the basis for it. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). This standard "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While "detailed factual allegations" are not required, "labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. The complaint must "contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). A Rule 12(c) motion is governed by the same standards as a motion to dismiss for failure to state a claim under Rule 12(b)(6). Lodholtz v. York Risk Servs. Group, Inc., 778 F.3d 635, 639 (7th Cir. 2015) (citing Adams v. City of Indianapolis, 742 F.3d 720, 727-28 (7th Cir. 2014)). "`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.'" Mann v. Vogel, 707 F.3d 872, 877 (7th Cir. 2013) (quoting Iqbal, 556 U.S. at 678). In applying this standard, the Court accepts all well-pleaded facts as true and draws all reasonable inferences in favor of the non-moving party. Mann, 707 F.3d at 877.
CVS is a Delaware corporation with its principal place of business in Rhode Island. R. 1 ¶ 4. CVS, directly and through its subsidiaries, sells a product labeled as "Whey Protein Powder" in Illinois and throughout the United States. Id. Below the name and flavor, the Product container's front label states "26 grams of high-quality protein per serving," "supports lean muscle & exercise recovery," and "quick dissolving, easy to mix." R. 1 ¶ 17. An image of the front of the Product is reproduced below
R. 17 Ex. A. Plaintiff purchased the Product for approximately $20.00 in July 2014 from a CVS Store in Bolingbrook, Illinois and contends that had he known the "true facts," about the whey protein content, he would not have purchased the Product. R. 1 ¶¶ 3, 62. In the Complaint, Plaintiff primarily alleges that he was deceived by the use of the phrases "Whey Protein Powder" and "26 grams of high-quality protein," on the product's front label into believing the 26 grams of protein were purely whey protein. R. 1 ¶¶ 22-26. Plaintiff takes issue with this labeling because CVS utilizes "protein-spiking" to increase the protein content of the product. Id. ¶ 11. According to Plaintiff's description, protein spiking involves adding "nitrogen-containing, cheap, and less beneficial free form amino acids and non-protein ingredients to the Product." Id. Because nitrogen is the "tag"
CVS argues that the Court should grant its motion to dismiss for the following reasons: (1) the Plaintiff's claims are preempted by the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 343-1(a) ("FDCA"), as amended by the National Labeling and Education Act, 21 U.S.C. § 341, et seq. ("NLEA"); (2) the Complaint should be stayed under the primary jurisdiction doctrine; (3) CVS is protected by the IFCA's safe-harbor provision specifically authorized by federal regulations; (4) Plaintiff fails to allege facts plausibly showing the Product label deceived consumers regarding the whey protein content; and (5) Plaintiff's allegations fail to state unjust enrichment and breach of express warranty claims. See R. 17.
CVS argues that all of Plaintiff's claims are expressly preempted by the NLEA. R. 17 at 5. The NLEA established a regulatory scheme for food labeling and for regulating nutrient content claims on food labels. 21 U.S.C. § 341 et seq. The NLEA prohibits states from enacting "any requirement for nutrition labeling of food that is not identical to the requirement of section 343(q) of this title . . . [or] any requirement respecting any claim of the type described in section 343(r)(1) of this title, made in the label or labeling of food that is not identical to the requirement of section 343(r) of this title." 21 U.S.C. §§ 343-1(a)(4)-(5). Thus, through the NLEA amendments, the FDCA expressly preempts any food labeling "requirements" that are not identical to those in sections 343(q) or 343(r).
The term "requirements" "sweeps broadly." Turek v. Gen. Mills, Inc., 754 F.Supp.2d 956, 958 (N.D. Ill. 2010) (citing Cipollone v. Liggett Group Inc., 505 U.S. 504, 521 (1992)). States can impose a requirement that is identical to those imposed by the FDCA, but not different from or more burdensome than those requirements. Chi. Faucet Shoppe, Inc. v. Nestle Waters North Am., Inc., 24 F.Supp.3d 750, 758 (N.D. Ill. 2014). As the Seventh Circuit affirmed in Turek, "[i]t is easy to see why Congress would not want to allow states to impose disclosure requirements of their own on packaged food products, most of which are sold nationwide. Manufacturers might have to print 50 different labels, driving consumers who buy food products in more than one state crazy." 662 F.3d 423, 426 (7th Cir. 2011). States can, however, enforce identical requirements, and thus enforce a violation of the FDCA as a violation of state law, because the FDCA does not create a private right of action. Turek, 662 F.3d at 426.
The critical questions for this court to consider are (1) what requirements the NLEA imposes on the labeling of protein content; and (2) whether Plaintiff seeks to impose different or additional requirements on CVS. As discussed above, the NLEA forbids states from imposing "any requirement respecting any claim of the type described in section 343(r)(1) . . . made in the label or labeling of food that is not identical to the requirement of section 343(r)." 21 U.S.C. § 343-1(a)(5); Turek, 662 F.3d at 426. Section 343(r)(1)(A) governs any claim "made in the label or labeling of the food which expressly or by implication characterizes the level of any nutrient which is of the type required by paragraph (q)(1) or (q)(2)." 21 U.S.C. § 343(r)(1)(A). Section (q)(1)(D) includes a requirement that the "label or labeling" of food products intended for human consumption state "the amount of . . . total protein contained in each serving size or other unit of measure." 21 U.S.C. § 343(q)(1). Additional protein labeling requirements are contained in the FDCA regulations, including 21 C.F.R. § 101.9(c)(7), which states in relevant part, "[p]rotein content may be calculated on the basis of the factor of 6.25 times the nitrogen content of the food as determined by the appropriate method of analysis as given in the `Official Methods of Analysis of the AOAC International.'" Any additional Food and Drug Administration ("FDA") requirements relating to labeling that mention protein are incorporated in section 343(r)(1) as requirements to which any labeling disclosures required by a state must be identical. Turek, 662 F.3d at 427. Thus, the labeling of protein content falls within the statutes and regulations covered by NLEA express preemption. As a result, state requirements must be identical to such regulations.
Plaintiff's consumer fraud claims are based on the labelling of the Product. See R. 1 ¶ 21 ("A reasonable consumer, looking at Defendant's Product label, is misled because the claimed `26 grams of high quality protein per serving' is not calculated based on the protein's actual whey protein content, but rather not[sic] the nitrogen-containing free from amino acids and non-protein ingredients that Defendant has used to spike the Product."). However, Plaintiff asserts that he "has not alleged that the protein grams per serving appearing in the Product's Nutrition Facts label is misleading, nor has [he] alleged that Defendant must calculate that figure using a different method." R. 26 at 9. In the complaint, Plaintiff primarily alleges that he was deceived by the use of the phrases "Whey Protein Powder" and "26 grams of high-quality protein" on the product's front label into believing the 26 grams of protein were derived solely from whey protein. R. 1 ¶¶ 29-30.
Plaintiff's claims would require defendants to label their products in a particular way. Remedying the allegedly deceptive labeling would require CVS to specifically identify each source of protein in the Product. The NLEA does not include such a labelling requirement. Under Section 343-1(a)(1), the standard for labeling protein does not require CVS to distinguish between sources of protein when listing total protein content. Requiring CVS to differentiate between whey protein and protein from amino acids when labeling the protein content of its product would not be identical to the labeling requirements imposed by federal law. Thus, such a requirement is barred. Turek, 662 F.3d at 427; see also Chi. Faucet Shoppe, 24 F. Supp. 3d at 758-59 (discussing preemption under the FDCA and noting that "state law cannot be used to fill what private litigants perceive to be gaps in the regulatory requirements imposed by federal law.").
Further supporting preemption of Plaintiff's claims is the fact that the FDA specifically considered and rejected a proposal to enforce stricter requirements for labeling products as "high" in protein or as "sources" of protein. Comments were submitted to the FDA "suggest[ing] that `high' and `source' claims for protein should be based on protein quality as well as level because such claims may be misleading if a food contains a lower quality protein." See Food Labeling: Nutrient Content Claims, 58 Fed. Reg. 2302, 2344 (Jan. 6, 1993) (Comment 150). The FDA responded that "the agency believes that adding a second criterion based on the PDCAAS [Protein Digestibility Corrected Amino Acid Score] for `high' and `good source' in protein claims is not necessary." Id. Plaintiff would require CVS to distinguish between protein sources on products labeled as having "high quality" protein. The FDA has considered this issue and determined that labeling a product as high in protein or as a good source of protein is not misleading to consumers, irrespective of the source of the protein, so long as the protein content was properly calculated under FDA regulations.
The Seventh Circuit affirmed the dismissal of substantially similar claims in Turek, 662 F.3d at 425. The plaintiff in Turek brought a claim under the ICFA based on General Mills' description of fiber content in labeling its "chewy bars." Id. The labeling at issue included both (1) the statement on the Nutrition Facts panel that "a serving contains 9 grams of `Dietary Fiber' and that this is 35 percent of one's `Daily Value' of dietary fiber," and (2) the image on the front of the box where "a circle encloses the words `35% of your daily fiber.'" Id. The plaintiff claimed the statements were misleading because they did not include disclaimers that the principal fiber was from inulin,
Plaintiff's claims are not distinguishable from those in Turek on any meaningful basis. Plaintiff here concedes that the calculation of protein content was proper, but takes issue with the fact that some protein ingredients are not as beneficial as whey protein. R. 26 at 10 ("[w]hile Defendant is not legally obligated to calculate the protein content per serving appearing in the Nutrition Facts label in a different manner, it is legally obligated to refrain from deceptively marketing the whey protein content of the Product elsewhere on the label") (emphasis in original). In Turek, the plaintiff claimed that fiber from inulin was not as beneficial as naturally occurring fiber. As CVS asserts, "Plaintiff here is advancing the same argument that was preempted in Turek: the label is misleading because it does not differentiate the quality of the ingredients that make up the calculation." R. 29 at 5. Thus, like the claims in Turek, Plaintiff's claims are preempted.
In an attempt to avoid the implications of Turek, Plaintiff tries to distinguish his case by arguing that his claims only concern the front of the label, which cannot be preempted, while the claim in Turek only concerned information appearing on the box's Nutrition Facts label on the back of the Product. R. 26 at 7-10, 12. For example, he refers to the whey protein content claims on the front of the label as appearing on "non-preempted portions of the label" and states the Nutrition Facts label is "the only aspect of the label that could be subject to preemption" under the FDCA. R. 26 at 1, 7-10, 12 (emphasis in original). Plaintiff provides no legal support for the assertion that because his claim does not involve the Nutrition Facts label, it cannot be preempted. See id. His argument that the front of the label is a "non-preempted" portion of the label is simply not tenable. In Turek, the court specifically addressed the front label of the fiber bar box in describing the plaintiff's arguments and in analyzing whether the claims were preempted. Plaintiff fails to recognize that point. The district court opinion for Turek, which was substantially upheld by the Seventh Circuit, states:
Turek, 754 F. Supp. at 960. The Court agrees that there is no support in the language of the statute or regulations for the position that preemption is somehow limited to the Nutrition Facts label. To the contrary, labeling specifically encompasses all written matter accompanying a product. Id. The distinction between marketing materials and labeling "is both illusory and irrelevant. It is illusory because labeling is marketing." Chi. Faucet Shoppe, 24 F. Supp. 3d at 758 (emphasis in original). Thus, the NLEA applies to statements made on the front of the package as well as on the nutrition facts label on the back of the package. As a result, to the extent Plaintiff's consumer fraud claim is based on the argument that CVS has misrepresented the amount of purely whey protein in the Product, his claims are dismissed.
Arguably, one of Plaintiff's contentions about CVS's labelling is not preempted because it seeks to enforce a requirement that is identical to those imposed by the FDCA. Turek, 662 F.3d at 426. Though Plaintiff does not elaborate on the argument, he alleges that CVS's Product label is misleading in that it includes one Product ingredient and not other notable ingredients. The FDA has recognized that such product names may mislead consumers, stating "[t]he labeling of food which contains two or more ingredients may be misleading by reason (among other reasons) of the designation of such food in such labeling by a name which includes or suggests the name of one or more but not all such ingredients, even though the names of all such ingredients are stated elsewhere in the labeling." 21 C.F.R. § 101.18(b). Plaintiff argues that it is misleading to use the name "Whey Protein Powder" to describe a product that has been "adulterated with substantial amounts of free form amino acids and non-protein ingredients." R. 26 at 11.
In response, CVS notes that Plaintiff refuses to acknowledge the presence of the words "Naturally and Artificially Flavored Drink Mix" on the Product label and continuously claims that the "26 grams of high-quality protein" appears directly below the name "Whey Protein Powder," despite two statements between the two phrases.
Plaintiff argues that a determination of whether the placement of the above-described Product information is misleading to consumers under the ICFA is a question of fact.
The label plainly shows that Plaintiff's allegations mischaracterize the label. While the wording "Whey Protein Powder" is in larger text than the other words on the front label, the word "Vanilla" is also prominent and clearly displayed directly below the name. The words "Naturally & Artificially Flavored Drink Mix," while smaller than the above two label items, are still clearly visible and prominently placed as part of the Product description on the front of the container below the other two descriptions. R. 17 Ex. A. The Product does not list the whey protein ingredient while "excluding others"; it is clearly also labeled as being vanilla-flavored and containing additional natural and artificial ingredients. These statements make it clear to any consumer upon first glance that the Product is not pure whey protein, and thus the label does not create a likelihood of deception or have the capacity to deceive based on the identifying name of "whey protein powder." Plaintiff's failure to address these points in his response brief is telling.
Plaintiff cites to a number of cases to support his argument that the use of "whey protein" without listing other ingredients in the Product name is misleading to consumers. R. 26 at 11-12. For instance, in Ackerman v. Coca-Cola Co, the product, "Vitaminwater," used a product name that referenced vitamins and water, but omitted the fact that there was a key, unnamed, ingredient—sugar. No. CV 09-0395, 2010 WL 2925955, at *12-13 (E.D.N.Y. July 21, 2010). The labeling for Vitaminwater repeatedly stated that the product contained only vitamins and water, while failing to mention that it also contained sugar. Id. at *12-13. The court also noted that the potential for confusion based on the product name was "heightened by the presence of other statements" on the product labeling, such as "vitamins + water = all you need," which had the potential to "reinforce a consumer's mistaken belief that the product is comprised of only vitamins and water." Id. at *13.
Ackerman is distinguishable from this case. Here, the Product label clearly mentions its artificial flavors and vanilla flavor in addition to the whey protein. Plaintiff fails to address or acknowledge those additional portions of the Product name. As a result, the Court finds as a matter of law, the Product name of "Whey Protein Powder" was not likely to deceive a consumer or have the capacity to deceive, and Plaintiff's claim must fail.
In his claim for breach of express warranty, Plaintiff contends that he formed a contract with CVS when he purchased the Product with terms including promises and affirmations of fact described in the complaint. Specifically, Plaintiff argues that "through its advertising, labeling, marketing and packaging," CVS purports to "create an express warranty that the Product contained `26 Grams of high quality protein per serving.'" R. 1 ¶ 66. According to Plaintiff, CVS breached the warranty because its statement about the product was false and did not conform with his beliefs, Plaintiff would not have bought the Product had he known the true nature of its ingredients, and he suffered damages in the amount of the purchase price as a result. R. 1 ¶ 68-69.
To state a claim for breach of express warranty in Illinois, a plaintiff "must allege that (1) the seller made an affirmation of fact or promise; (2) relating to the goods; (3) which was part of the basis for the bargain; and (4) seller guaranteed that the goods would conform to the affirmation or promise." Baldwin v. Star Scientific, Inc., No. 14 C 588, 2015 WL 170407, at *11 (N.D. Ill. Jan. 13, 2015). Further, in general, "a plaintiff must state the terms of the warranty or attach it to the complaint." Id. CVS argues that the complaint fails to plead facts sufficient to demonstrate that any alleged false statements in the Product's label were "part of the basis of the bargain" as it does not state why Plaintiff purchased the Product and how he was supposedly deceived. R. 17 at 14-15; R. 29 at 13-15.
The Court finds that Plaintiff's breach of express warranty claim "that the Product `contained 26 Grams of high quality protein per serving,'" as plead, fails for a different reason: because "assertions to customers that their products are of high quality . . . are viewed as `puffing,' rather than express warranties." Pressalite Corp. v. Matsushita Elec. Corp. of Am., No. 02 C 7086, 2003 WL 1811530, at *3 (N.D. Ill. Apr. 4, 2003) (citing Olin Mathieson Chemical Corp. v. Moushon, 235 N.E.2d 263, 264 (Ill. App. Ct. 4th Dist. 1968) (plaintiff's oral statements to defendant that his product was of good quality, good results would be obtained and the customer would be pleased were statements of the seller's opinion rather than an express warranty)); see also Ibarolla v. Nutrex Research, Inc., No. 12 C 4848, 2012 WL 5381236, at *7 (N.D. Ill. Oct. 31, 2012) (finding statement in promotional materials could not be the basis of an express warranty where it was "not a factual statement about an objective characteristic or capacity of the product."); MacNeil Auto. Prods., Ltd., 715 F.Supp.2d 786, 794 (N.D. Ill. 2010) (distinguishing between general allegations of a product's high quality, which are not warranties, and specific factual representations about a product's characteristics, which are warranties); Accurate Transmissions, Inc. v. Sonnax Indus., Inc., No. 04 C 7441, 2007 WL 1773195, at *5 (N.D. Ill. June 14, 2007) ("Statements that boast unverifiably of the quality of a product constitute puffing and will not create express warranties.") (citing Avery v. State Farm Mut. Auto, Ins. Co., 835 N.E.2d 801, 846 (2005)). Because Plaintiff's express warranty claim that the Product "contained `26 Grams of high quality protein per serving'" relies on opinion language viewed as "puffing," it fails and the claim is dismissed.
Plaintiff's unjust enrichment claim relies on the assertion that the Product labeling was somehow misleading or deceptive or contained false statements. An unjust enrichment claim cannot stand where facts underlying the claim are the same fraudulent omissions and misrepresentations that support a "largely preempted and otherwise . . . insufficiently pleaded" ICFA claim. Chicago Faucet Shoppe, 24 F. Supp. 3d at 765 (citing Cleary v. Philip Morris Inc., 656 F.3d 511, 517-18 (7th Cir. 2011)). Since the Court has held that Plaintiff's ICFA claims are preempted or fail to state a claim, the unjust enrichment claim fails as well. See id.; see also Siegel v. Shell Oil Co., 612 F.3d 932, 937 (7th Cir. 2010) (citations omitted) ("[a] claim of unjust enrichment is not a separate cause of action that, standing alone, will justify an action for recovery.")
Because Plaintiff's consumer fraud claims are expressly preempted by the NLEA and fail to state a claim, it is unnecessary to address CVS's additional defense of the primary jurisdiction doctrine at this time. In the event Plaintiff is able to amend his complaint in such a way that it avoids preemption, the Court will consider CVS's additional defenses if and when they are raised. For the foregoing reasons, CVS's Motion to Dismiss is granted and the complaint is dismissed without prejudice. Plaintiff is allowed until July 16, 2015 to file an amended complaint. The Court notes that Plaintiff filed other non-Illinois state law claims on behalf of a class of consumers. R. 1. Those claims are dismissed without prejudice, as well. See, e.g., Wiesmueller v. Kosobucki, 513 F.3d 784, 786 (7th Cir. 2008) ("If . . . the named plaintiff's claim becomes moot before the class is certified, the suit must be dismissed because no one besides the plaintiff has a legally protected interest in the litigation"). However, the Court will allow amendment of the complaint by July 16, 2015 to include a named plaintiff who can prosecute those claims. See, e.g., Phillips v. Ford Motor Co., 435 F.3d 785, 787 (7th Cir. 2006) ("[S]ubstitution for the named plaintiffs is allowed," because courts "disregard the jurisdictional void that is created when the named plaintiffs' claims are dismissed and, shortly afterwards, surrogates step forward to replace the named plaintiffs").
