Ronald M. Whyte, United States District Court Judge
Plaintiff alleges that defendants Kraft Foods Global, Inc., Cadbury Adams USA LLC, and Back to Nature Food Company (collectively "defendants") violate California's unfair completion law, Cal. Bus. & Prof.Code §§ 17200 et seq. ("UCL") (counts 1-3), fair advertising law, id. § 17500 et seq. ("FAL") (counts 4-5), and Consumer Legal Remedies Act, Cal. Civ. Code § 1750, et seq. ("CLRA") (count 6). Second Amended Compl. ("SAC"), Dkt. No. 53. The laws alleged to be violated as a predicate for the "unlawful" prong of plaintiff's UCL claim include provisions of the state Sherman Food, Drug, and Cosmetic Law, California Health & Safety Code § 109875 et seq. ("Sherman Laws"). On February 25, 2013 the court dismissed all of plaintiff's claims based on restitution, the Song-Beverly Consumer Warranty Act, and the Magnuson-Moss Warranty Act with prejudice, and some of plaintiff's UCL, FAL, and CLRA claims with leave to amend. Dkt. No. 49. The SAC (1) amends the previously dismissed UCL, FAL, and CLRA claims based on allegedly unlawful or deceptive labels and (2) adds a host of new claims based on defendants' unpurchased products that bear the same or similar labels as those that plaintiff purchased. Defendants move to dismiss the amended claims, the new claims based on products that plaintiff did not herself purchase, and plaintiff's claims based on certain statements plaintiff allegedly viewed on defendants' website only. Having considered the arguments of the parties, and for the reasons set forth below, this court GRANTS-IN-PART and DENIES-IN-PART defendants' motion to dismiss.
In 1938, Congress enacted the Federal Food, Drug, and Cosmetic Act ("FDCA"), codified at 21 U.S.C. § 301 et seq. "The [FDCA] gives the [United States Food and Drug Administration ("FDA") ] the responsibility to protect the public health by ensuring that `foods are safe, wholesome, sanitary, and properly labeled,' 21 U.S.C. § 393(b)(2)(A), and the FDA has promulgated regulations pursuant to this authority, see, e.g., 21 C.F.R. § 101.1 et seq." Lockwood v. Conagra Foods, Inc., 597 F.Supp.2d 1028, 1030 (N.D.Cal.2009). "There is no private right of action under the FDCA." Id. (citing Merrell Dow Pharms., Inc. v. Thompson, 478 U.S. 804, 810, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986)). Rather, "the FDA enforces the FDCA and its regulations through administrative proceedings." Id.
In 1990, Congress enacted the Nutrition Labeling and Education Act ("NLEA"), codified in scattered sections of 21 U.S.C., amending the FDCA. "The NLEA aimed to `clarify and ... strengthen
The NLEA also "amended the FDCA by adding [21 U.S.C. § 343-1(a),] an express preemption provision." Lockwood, 597 F.Supp.2d at 1030. Section 343-1(a) provides in relevant part that:
21 U.S.C. § 343-1(a)(3)-(5) (emphases added). The express preemption provisions "reach[] beyond positive enactments like statutes and regulations, to embrace common-law duties and judge-made rules." Chacanaca, 752 F.Supp.2d at 1118 (citing Bates v. Dow Agrosciences, LLC, 544 U.S. 431, 443, 125 S.Ct. 1788, 161 L.Ed.2d 687 (2005)). The NLEA, however, does not "preempt any provision of State law" not "expressly preempted under [21 U.S.C. § 343-1(a)]." Id. (quoting Pub.L. No. 101-535, § 6(c)(1), 104 Stat. 2353, 2364).
California's Sherman Laws adopt the federal labeling requirements as the food labeling requirements of the state. 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 regulations of this state."). In addition to this blanket provision, the Sherman Laws specifically adopt certain provisions that mirror or incorporate by reference the FDCA and NLEA food labeling and packing requirements, including the following provisions that, inter alia, form the basis for the "unlawful" prong of plaintiff's UCL claims:
See SAC ¶¶ 49, 187-208.
The labels primarily at issue in defendants' second motion to dismiss are: (1) the "natural lemon [lemondade] flavor" claims on the Crystal Light products; and (2) the nutrient content claims "good source" and "wholesome" on Planter's Nut-trition Wholesome Nut Mix; and (3) the fat-related nutrient content claims on Kraft's Mexican Style Four Cheese Blend. The issue is whether plaintiff has cured the pleading to sufficiently allege a violation of the applicable FDA regulations that would render these labels unlawful and misleading to a reasonable consumer.
Plaintiff also raises a host of new claims with respect to "essentially identical" or "similar" packaging and labels on products allegedly purchased by other class members, including:
(1) all Trident sugarless gum flavors ("essentially identical"), SAC ¶ 224;
(2) other lines of Trident gum ("similar"), id.;
(3) all Dentyne Ice and Dentyne Fire sugarless gum flavors ("essentially identical"), id. ¶ 225;
(4) all varieties of defendants' Back to Nature cookies, graham crackers, and granola with the "natural" or "evaporated cane juice" claims ("similar"), id. ¶¶ 226-27;
(5) all original Capri Sun flavors (all "share a uniform size and shape [and] on casual inspection, the only obvious difference between them is their flavor, and all flavors bear the same challenged label"), id. ¶ 228;
(6) all Capri-Sun Sunrise flavors ("essentially the same" packaging as the original Capri-Sun flavors and "the same challenged label"), id.;
(7) all Capri-Sun Roarn' Waters flavors ("substantially similar" packaging and challenged label), id.;
(9) all Country Time lemonade products ("similar packages" and the "same label"), id. ¶ 230;
(10) all Stovetop Stuffing varieties ("similar packaging" and the same slack fill), id. ¶ 231;
(11) all Jell-O Sugar Free flavors ("similar packaging" and the same slack fill), id. ¶ 232;
(12) all Crystal Light products bearing the "natural and other natural flavor labels" (all "share a uniform size and shape [and] on casual inspection, the only obvious difference between them is their flavor, and all flavors bear the same challenged label"), id. ¶ 233;
(13) all Kraft cheese varieties bearing the "natural cheese" label ("similar packaging"), id. ¶ 234;
(14) all varieties of defendants' Back to Nature Cookies ("the only obvious difference between them is their flavor, and all flavors bear the same challenged label"), id. ¶ 235.
Finally, there is an issue whether claims based on statements plaintiff allegedly saw only on defendants' website are pled with sufficient particularity.
"After the pleadings are closed[,] ... a party may move for judgment on the pleadings." Fed.R.Civ.P. 12(c). When considering a motion for judgment on the pleadings, the court takes all factual allegations in the complaint as true and construes them in a light most favorable to the plaintiff. Sateriale v. R.J. Reynolds Tobacco Co., 697 F.3d 777, 783 (9th Cir. 2012). To survive a motion to dismiss for failure to state a claim, the facts pled need only give rise to "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). "However, this principle is inapplicable to legal conclusions; `threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,' are not taken as true." Delacruz v. Cytosport, Inc., No 11-3532, 2012 WL 2563857, at *5 (N.D.Cal. June 28, 2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)).
The court takes judicial notice of exhibits 1-6, filed by defendants in support of this motion. Dkt. No. 57. Exhibits 1-6 depict the packaging of the products plaintiff challenged in the SAC. See Bronson v. Johnson & Johnson, Inc., No. 12-4104, 2013 WL 1629191, at *1 n. 1 (N.D.Cal. Apr. 16, 2013) (explaining that judicial notice of the food product packaging relied upon in the complaint is appropriate and does not convert a motion to dismiss into a motion for summary judgment).
Plaintiff asks the court to take judicial notice of three public documents in other cases that demonstrate the FDA's position on the issue of whether the FDCA preempts a private action to enforce state requirements that are identical to the FDCA. Dkt. No. 60. The court need not take judicial notice of these documents but, to the extent the court finds them helpful or persuasive, the court will consider them as it would consider any other published authority. See Feezor v. Excel Stockton, LLC., No. 12-0156, 2013 WL 2485623, at *3 (E.D.Cal. June 10, 2013) ("As these materials are not themselves facts, they are not subject to judicial notice.").
Defendants move to dismiss the amended claims on the grounds that: (1) they are still expressly preempted by 21 U.S.C. § 343-1(a) because the product labels comply with FDA regulations; (2) they are impliedly preempted because they are based solely on alleged violations of the Federal Food, Drug, and Cosmetic Act ("FDCA") and conflict with the FDCA's enforcement scheme; (3) the FDA has primary jurisdiction over the claims because the FDA can better determine the technical issues of font size and placement; and (4) the labels are unlikely to deceive a reasonable consumer, and therefore plaintiff has no standing. Defendants also ask the court to dismiss the new claims based on products that plaintiff did not herself purchase. Finally, defendants ask the court to dismiss plaintiff's claims based on certain statements plaintiff allegedly viewed on defendants' website only.
Defendants argue that plaintiff's amended UCL claims are preempted under 21 U.S.C. § 343-1, the FDCA's express preemption provision. According to defendants, because these food labels at issue are in compliance or, at least in substantial compliance, with federal law, a judgment in plaintiff's favor would impose different or additional requirements than those of the FDCA and NLEA, and thus the claims are expressly preempted. Plaintiff counters that these labels actually violate existing FDA policies, and thus, plaintiff seeks to impose nothing more than what the FDA already requires.
Plaintiff first claims that the purchased Crystal Light products contain artificial flavors which "simulate, resemble, or reinforce the characterizing flavor, including sodium citrate and potassium citrate." SAC ¶ 66. Therefore, plaintiff argues, the product is not eligible to bear the "natural flavors" label under 21 C.F.R. § 101.22(i)(2) ("[I]f the food contains any artificial flavor which simulates, resembles or reinforces the characterizing flavor ... the name of the characterizing flavor shall be accompanied by the word(s) `artificial' or `artificially flavored.'"). Neither party disputes the fact that the purchased Crystal Light products do, in fact, contain a natural lemon flavor within the meaning of 21 C.F.R. § 101.22(a)(3). The issue then, is whether the product contains additional artificial flavors that simulate, resemble, or reinforce the natural lemon flavor. The court concludes that the product does not contain any such additional artificial flavors.
In the SAC, plaintiff only points to two specific ingredients which she alleges are "artificial" flavors: potassium citrate and sodium citrate. SAC ¶ 66. While these substances may be artificial ingredients, nothing in the FDA regulations suggests that these ingredients are flavors, artificial or otherwise. Potassium citrate is listed by the FDA as being used in the pasteurization of certain cheese products (as emulsifying agents), see 21 C.F.R. §§ 133.169, 133.171, 133.179, and sodium citrate is described by the regulations as an artificial sweetener in jams and preserves, see 21 C.F.R. §§ 150.161. Neither product, however, is included in the FDA's list of artificial flavors. See 21 C.F.R. § 172.515(b), 182.60; see also Viggiano v. Hansen Natural Corp., No. 12-10747, 944 F.Supp.2d 877, 888-89, 2013 WL 2005430, at *7 (C.D.Cal. May 13, 2013) (finding that sucralose was not a flavor when FDA regulations listed it only as a sweetener and did
Allowing plaintiff's state-law claim to proceed would mean reading California's Sherman Laws to impose an additional or different regulatory requirement on defendants' product, in violation of the FDCA's express preemption provision. See Kanter v. Warner-Lambert Co., 99 Cal.App.4th 780, 795, 122 Cal.Rptr.2d 72 (2002) ("[W]hen a state-law claim, however couched, would effectively require a manufacturer to include additional or different information on a federally approved label, it is preempted."); Chacanaca v. Quaker Oats Co., 752 F.Supp.2d 1111, 1121-23 (N.D.Cal.2010) (finding express preemption of UCL and other state-law claims that sought to impose labeling requirements that were not identical to FDA regulations regarding the use of the terms "0g Trans Fat" and "good source" of calcium and fiber). Thus, plaintiff's claims against the purchased Crystal Light products are expressly preempted. Because the defendants were unable to cure the claims, and any further attempts would be futile, this dismissal is with prejudice.
Plaintiff next alleges that defendants' nut mix product is misbranded because the disclosure statement concerning the nutrient content claims ("good source of 5 vitamins and minerals" and "wholesome") does not comply with FDA regulations concerning typeface and placement. SAC ¶ 133. While the disclosure is indeed present on the Nutrition Facts panel on the back of the product, it does not appear adjacent to the nutrient content claims placed on the front of the label, and is thus in technical violation of 21 C.F.R. § 101.13(4)(ii) ("[T]he disclosure statement
Courts have found that where plaintiffs are only seeking to impose state law requirements that are identical to federal regulations, there is no express preemption under the FDCA. See, e.g., Wilson v. Frito-Lay N. Am., Inc., No. 12-1586, 2013 WL 1320468, at *7 (N.D.Cal. Apr. 1, 2013); Brazil v. Dole Food Co., No. 12-01831, 935 F.Supp.2d 947, 953, 2013 WL 1209955, at *4 (N.D.Cal. Mar. 25, 2013); Lanovaz v. Twinings N. Am., Inc., No. 12-02646, 2013 WL 675929, at *3 (N.D.Cal. Feb. 25, 2013); Kosta v. Del Monte Corp., 12-01722, 2013 WL 2147413, at *7 (N.D.Cal. May 15, 2013). Since California's Sherman Laws fully adopt federal food labeling law, allowing plaintiff's state law UCL claims to proceed based on the "unlawfulness" of the nut mix label imposes no other requirement than what FDA regulations already require. Whether or not defendants' label is also misleading for the purposes of the UCL is another issue discussed later in this order, but for the purposes of preemption, plaintiff's claim is not expressly preempted and cannot be dismissed on that basis.
The same analysis applies to the fat-related nutrient content claims on defendants' cheese product. Plaintiff has cured the pleadings and now sufficiently alleges that defendants' cheese product is in technical violation of FDA regulations concerning the size and placement of the requisite disclosure statement. SAC ¶ 134; see 21 C.F.R. § 101.13(h)(4)(i). While the label does bear the requisite disclosure statement, it is not immediately adjacent to the claim at the top of the label, and is arguably not in "bold or easily legible typeface or print" as required by the regulation. The fact that this label does not comply with FDA regulations precludes express preemption because, as explained, allowing plaintiff's claim to proceed imposes no other requirements than what the FDA and applicable state Sherman Laws already require. Therefore, plaintiff's claim regarding the fat-related nutrient content claim on the cheese product cannot be dismissed on the basis of express preemption.
Defendants also argue that plaintiff's claims are impliedly preempted because they are based solely on alleged violations of the FDCA, and conflict with the FDCA's enforcement scheme, citing the Ninth Circuit's recent decision in Perez v. Nidek, 711 F.3d 1109 (9th Cir.2013). Defendants argue that, under Perez, it is the
In Perez, plaintiff brought several state-law claims against a group of physicians for failing to disclose that a laser medical device used on the plaintiff had not received FDA pre-approval. Perez, 711 F.3d at 1112. The medical device at issue was subject to device-specific requirements under the FDA's pre-market approval regime. Id. at 1118. The Ninth Circuit held that plaintiff's state-law claims were expressly preempted because they depended on a state law requirement "in addition to those federal requirements ... that physicians and medical device companies must affirmatively tell patients when medical devices have not been approved for a certain use." Id. at 1118-19 (emphasis added). Because FDA regulations did not specifically require this disclosure, the circuit court held that allowing plaintiff's state-law claims to proceed would have meant imposing an additional regulatory requirement on the defendants, which was expressly precluded by the preemption provision of the FDCA. Id. at 1119.
However, the Ninth Circuit went on to note that plaintiff's claims were also impliedly preempted, i.e., would be precluded even absent an express preemption provision in the FDCA, because allowing the state claims to proceed would have undermined the FDCA's enforcement scheme. Id. at 1119. This is the basis for defendants' second preemption argument. But the Ninth Circuit's conclusion on this issue was still based on the fact that plaintiff's state-law claims would have imposed an additional disclosure requirement on the defendants that was not required by federal regulations. Because the FDA was still in the midst of investigating whether or not the failure to disclose actually constituted a violation of the FDCA (and the FDA has primary responsibility for enforcing the FDCA), the circuit court held that allowing plaintiff's state-law fraud-by-omissions claims to proceed could have potentially undermined the FDA's enforcement authority if the FDA reached a different conclusion. Id. at 1120.
However, nowhere in its opinion did the Ninth Circuit argue that allowing plaintiffs to bring state-law claims based on state laws that parallel federal requirements would constitute "private enforcement" of FDA regulations that would conflict with the FDA's regulatory authority. In fact, it noted the opposite: state-law claims are not impliedly preempted "insofar as the state-law duty parallels a federal-law duty." Id. at 1118 (internal citations omitted). While the Ninth Circuit was speaking only in the context of the Medical Devices Amendments to the FDCA, lower courts, including this district, have repeatedly extended this reasoning to violations of FDA food labeling regulations more generally if there is a regulation directly on point. See, e.g., Wilson, 2013 WL 1320468, at *7; Brazil, 935 F.Supp.2d at 953, 2013 WL 1209955, at *4.
Unlike the situation in Perez, here, plaintiff's claims rest entirely on violations of California's Sherman Law counterparts that parallel federal requirements, and which do not require this court to create new requirements or interpret the scope of currently existing regulations. Here, the court need only determine whether defendants' labels actually comply with existing and well-understood FDA regulations, "a determination that would not risk undercutting the FDA's expert judgments and authority." Astiana v. Hain Celestial Grp., 905 F.Supp.2d 1013, 1016-17
Similar reasoning applies to defendants' argument that this court should dismiss on the basis of primary jurisdiction. "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 "is committed to the sound discretion of the court when `protection of the integrity of a regulatory scheme dictates preliminary resort to the agency which administers the scheme.'" Syntek Semiconductor Co. v. Microchip Tech. Inc., 307 F.3d 775, 781 (9th Cir.2002) (quoting United States v. General Dynamics Corp., 828 F.2d 1356, 1362 (9th Cir. 1987)). Courts consider the following non-exhaustive factors in deciding whether the doctrine of primary jurisdiction applies: "(1) the 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." Id. The doctrine "is to be used only if a claim `requires resolution of an issue of first impression, or of a particularly complicated issue that Congress has committed to a regulatory agency.'" Time Warner, 523 F.3d at 1114 (quoting Brown v. MCI WorldCom Network Servs., 277 F.3d 1166, 1172 (9th Cir.2002)).
As previously noted, plaintiff's case does not require this court to determine difficult issues of first impression better left to the FDA's expertise, but instead only requires the application of well-understood FDA regulations directly on point. "[T]he FDA's expertise ... is not necessary to determine whether the labels are misleading, [and the] reasonable consumer determination and other issues involved in [this] lawsuit are within the expertise of the courts to resolve." Delacruz, 2012 WL 2563857, at *10; see also Brazil, 935 F.Supp.2d at 959-61, 2013 WL 1209955, at *10-11 (holding that primary jurisdiction did not apply to claims of violation of FDA regulations and guidance concerning "all natural," fresh, antioxidant, and other nutrient claims); Astiana v. Ben & Jerry's Homemade, Inc., No. 10-4387, 2011 WL 2111796, at *15 (N.D.Cal. May 26, 2011) (holding that primary jurisdiction did not apply where the court had to determine whether defendant's "All Natural" claims were misleading); Chacanaca, 752 F.Supp.2d at 1124 ("[Plaintiffs] assert that defendant has violated FDA regulations and marketed a product that could mislead a reasonable consumer. This is a question courts are well-equipped to handle."). Defendants' motion to dismiss on the basis of primary jurisdiction is denied.
Finally, defendants argue that plaintiff's remaining claims should be dismissed because the labels, even if in technical violation of FDA regulations, are unlikely to deceive a reasonable consumer, and plaintiff therefore has no standing. According to defendants, because plaintiff
In order to bring a claim under the UCL or FAL, a plaintiff must establish: (1) "a loss or deprivation of money or property sufficient to qualify as injury in fact, i.e., economic injury"; and (2) "that that economic injury was the result of, i.e., caused by, the unfair business practice or false advertising that is the gravamen of the claim." Kwikset Corp. v. Superior Court, 51 Cal.4th 310, 322, 120 Cal.Rptr.3d 741, 246 P.3d 877 (2011) (emphases in original). In order to satisfy the causation prong of the standing requirement, plaintiff must demonstrate "a causal connection or reliance on the alleged misrepresentation." Id. at 326, 120 Cal.Rptr.3d 741, 246 P.3d 877 (quotation omitted).
The court disagrees with defendants that a plaintiff would be required to know of the particular FDA or state law regulations in order for violations thereof to cause an economic injury. Plaintiff's claim is essentially that, because defendants' labels did not comply with state and federal requirements regarding the font-size and placement of the disclosure statement, she could not see or did not understand the disclosures, and therefore was misled by the unlawful packaging and purchased the product based thereon. SAC ¶¶ 79, 212-13. Plaintiff satisfies the UCL and FAL's standing requirements: the court has already determined that defendants' products are technically misbranded, plaintiff alleges she was misled as a result of the misbranding and has suffered economic injury because she purchased a product she otherwise would not have. As the court previously held with respect to defendants' first motion to dismiss ("1st MTD Order"), "[t]he alleged purchase of a product that plaintiff would not otherwise have purchased but for the alleged unlawful label is sufficient to establish an economic injury-in-fact for plaintiff's unfair competition claims." 1st MTD Order 7, Dkt. No. 49 (citing cases).
Defendants further argue that plaintiff lacks standing to sue based on products that she did not herself purchase. See 1st MTD Order 8. The court previously held in this case that there can be no requisite pecuniary injury where plaintiff did not herself purchase the product at issue. See id. ("The alleged injury in this case is that plaintiff `based and justified the decision to purchase [d]efendants' products in substantial part on [d]efendants' package labeling, packaging and website claims" and "would have foregone purchasing [d]efendants' products and bought other products readily available at a lower price.") [S]AC ¶ [213] (emphases added).
In Lanovaz v. Twinings, this court recently extended plaintiff's standing to "products ... nearly identical to the claims for the purchased product." Order at 4, No. 12-2646, Dkt. No. 60. In Lanovaz,
Defendants allege that the SAC does not sufficiently state a claim based on the "excellent source" and "healthy" and "wholesome" claims on their website. Defs.' Mot. 11-13. With respect to the "excellent source" statement on the website allegedly directed to defendants' Capri Sun products, the court finds that the SAC does not sufficiently plead an "excellent source" claim with respect to any purchased product. Rather, the SAC only generally alleges that "[d]efendants made an impermissible `excellent source' claim on their website regarding Capri Sun products." SAC ¶ 228 (emphasis added). Plaintiff fails to plead specific reliance on this particular website statement with respect to any purchased product. Accordingly, the court dismisses the "excellent source" website claims with leave to amend. The court dismisses the "healthy" and "wholesome" website claims for similar reasons. The SAC generally alleges that these claims were present on defendants' website but does not sufficiently plead reliance on these specific aspects of the website when purchasing any particular product. See SAC ¶ 245 ("Plaintiff saw such healthy and wholesome claims which influence their [sic] decision to purchase [d]efendants' products." (emphasis added)).
For the foregoing reasons, the court GRANTS defendants' motion to dismiss with respect to: (1) plaintiff's "natural lemon [lemonade] flavor" claims with prejudice, (2) the majority of the products not-purchased by plaintiff (as specified above) with prejudice, and (3) the "excellent source" and "healthy" and "wholesome" claims on the website with thirty days leave to amend. The court DENIES defendant's motion to dismiss with respect to the nutrient content claims on the purchased Planters Nut-rition product and Kraft Mexican Style Four Cheese blend.
