MELINDA HARMON, District Judge.
Pending before the Court is Plaintiffs Uri Gedalia ("Gedalia") and Kira Lewis's ("Lewis") (collectively "Plaintiffs") Motion to Certify (Doc. 17) and Defendants Whole Foods Market Services, Inc., et al.'s ("Whole Foods") Motion to Dismiss (Doc. 18). Also before the Court is Plaintiffs' response (Doc. 36) and Whole Foods's reply (Doc. 42). Having considered the motion, the response, the reply, the facts in the record and the applicable law, the Court concludes Whole Food's Motion to Dismiss (Doc. 18) should be granted. Plaintiff's Motion to Certify (Doc. 17) is denied as moot.
Plaintiffs filed this class action suit against Whole Foods individually and on behalf of all persons who have purchased Whole Foods's private-label 365 Organic and 365 Everyday Value (collectively "365 Brands") products that are allegedly falsely labelled as being organic, natural, and/or GMO-free. (Doc. 1). Plaintiffs seek certification as a nationwide class, or, in the alternative, as either state statutory sub-classes, or as Texas and California sub-classes. (Id. ¶¶ 137-39). The Complaint asserts violations of California's Organic Products Act ("COPA", CAL. HEALTH & SAFETY CODE §§ 110810-110959), Consumers Legal Remedies Act ("CLRA", CAL. CIV.CODE § 1750 et seq.,) False Advertising Law ("FAL", CAL. BUS. & PROF.CODE § 17500 et seq.,) and Unfair Competition Law ("UCL", CAL. BUS. & PROF.CODE § 17200 et seq.). Plaintiffs also allege breaches of express and implied warranties, fraud, unjust enrichment, and negligence and negligent misrepresentation. Plaintiffs Gedalia and Lewis are residents of Houston, Texas and Encino, California, respectively. They claim to have purchased 365 Brands products
In its motion to dismiss (Doc. 18), Whole Foods contends: (1) the complaint violates the Federal Rules of Civil Procedure Rule 8(a); (2) the Plaintiffs lack standing to sue for products they did not personally purchase and for representations that they never alleged they saw; (3) the claims about "organic" and "natural" representations are preempted by federal statutes; (4) the doctrine of primary jurisdiction should be invoked; (5) the Plaintiffs failed to allege plausible, actual, or reasonable reliance on Whole Foods's representations; (6) the complaint violates the Federal Rule of Civil Procedure 9(b); and (7) the warranty and unjust enrichment claims fail as a matter of law.
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Factual matter is limited to "documents attached to or incorporated in the complaint and matters of which judicial notice may be taken." U.S. ex rel. Willard v. Humana Health Plan of Texas Inc., 336 F.3d 375, 379 (5th Cir.2003).
Whole Foods argues the complaint's length (74 pages) runs afoul of the requirement for "a short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. PRO. 8(a). However, "verbosity or length is not by itself a basis for dismissing a complaint based on Rule 8(a)." Hearns v. San Bernardino Police Dep't, 530 F.3d 1124, 1131-32 (9th Cir.2008) (citing Wynder v. McMahon, 360 F.3d 73, 80 (2d Cir.2004)); see also Atwood v. Humble Oil & Ref. Co., 243 F.2d 885, 888 (5th Cir.1957).
Plaintiffs' claims extend beyond the nine allegedly purchased items to all 365 Brands products that are allegedly falsely labelled as being organic, natural, and/or GMO-free. (Doc. 1.) Whole Foods argues Plaintiffs lack standing in regard to unpurchased products for which they arguably have not suffered any injury. Standing under Article III requires that plaintiffs suffer an injury-in-fact. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed,2d 351 (1992). The UCL, FAL, and CLRA have an "economic injury" standing requirement that is met if the plaintiff "can truthfully allege [he was] deceived by a product's label into spending money to purchase the product, and would not have purchased it otherwise." Kwikset Corp. v. Superior Court, 51 Cal.4th 310, 120 Cal.Rptr.3d 741, 246 P.3d 877, 881 (2011).
Courts in the Fifth Circuit have not directly considered standing for unpurchased
Whole Foods argues Plaintiffs failed to plead they actually viewed false representations before purchasing the products and the representations were a reason for making the purchases. See Cattie v. Wal-Mart Stores, Inc., 504 F.Supp.2d 939, 947 (S.D.Cal.2007) ("[F]ailure to allege reliance leaves open the possibility that Plaintiff is attempting to sue on behalf of other injured parties even though she herself was not injured."); Brazil v. Dole Food Co., Inc., 12-CV01831-LHK, 2013 WL 5312418, at *9 (N.D.Cal. Sept. 23, 2013) (plaintiff did not have standing under the UCL, FAL, or CLRA when he failed to allege that he either viewed or relied on the defendant's alleged misrepresentations). The complaint in this case includes allegations that Plaintiffs "saw the false, misleading, and deceptive representations detailed." (Doc. 1 ¶ 126). The complaint further alleges:
(Id. ¶¶ 26, 30). Some of the claims involve online and in-store representations not present on the actual packaging of purchased products. See, e.g., Doc. 1 ¶ 33 (instore signage at Whole Foods Market, 701 Waugh Dr., Houston, Texas). Plaintiffs do not allege they saw the Unacceptable Ingredient
The doctrine of implied preemption applies where "`Congressional intent to preempt is inferred from the existence of a pervasive regulatory scheme' or where `state law conflicts with federal law or interferes with the achievement of federal objectives.'" Witty v. Delta Air Lines, Inc., 366 F.3d 380, 384 (5th Cir.2004). A court begins with a presumption against preemption, based on an "assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996). The Supreme Court has recognized "States have always possessed a legitimate interest in the protection of (their) people against fraud and deception in the sale of food products' at retail markets within their borders." Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 144, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963) (quoting Plumley v. Massachusetts, 155 U.S. 461, 472, 15 S.Ct. 154, 39 L.Ed. 223 (1894)).
Whole Foods argues "organic" claims are impliedly preempted by the Organic Foods Production Act ("OFPA", 7 U.S.C. §§ 6501 et seq.). The law does not indicate a clear and manifest purpose to occupy the field, nor does it conflict with relevant California law. Jones v. ConAgra Foods Inc., 912 F.Supp.2d 889, 893 (N.D.Cal.2012) (organic misrepresentation claims not impliedly preempted by OFPA because California law related to organic labeling did not conflict with OFPA; rather, they incorporated the OFPA). Whole Foods points to a contrary California state court decision. Quesada v. Herb Thyme Farms, Inc., 166 Cal.Rptr.3d 346, 358-59 (Cal.Ct.App.2013). That court relied on an Eighth Circuit holding expressly limited to the issue of noncompliance with organic certification laws, excluding preemption of "state law claims unrelated to the decision to certify, and certification compliance" such as misrepresentation claims. Id. at 355 (citing In re Aurora Dairy Corp. Organic Milk Mktg. & Sales Practices Litig., 621 F.3d 781 (8th Cir.2010)). The case is now on review in the California Supreme Court. Quesada v. Herb Thyme Farms, 170 Cal.Rptr.3d 737, 323 P.3d 1 (Cal.2014).
Whole Foods argues "natural" food claims are impliedly preempted by the Food, Drug, and Cosmetic Act ("FDCA"), as amended by the Nutritional Labeling and Education Act of 1990 ("NLEA", Pub.L. No. 101-535, 104 Stat 2353 (1990)). The law does not indicate conflict preemption or field preemption. Holk v. Snapple Beverage Corp., 575 F.3d 329, 335 (3d Cir. 2009) (neither field nor conflict preemption existed under federal statute or formal regulatory action, despite the FDA's acknowledgement that issuing a formal definition of "natural" would help resolve ambiguity surrounding misleading label claims). Id. at 341. Plaintiffs' claims are not impliedly preempted by the OFPA or the FDCA.
Whole Foods argues the Court should refrain from ruling on "organic" and "natural" claims under the doctrine of primary jurisdiction (Doc. 18 at 26). This doctrine is limited to issues which, "under a regulatory scheme, have been placed within the special competence of an administrative body." Mercury Motor Exp., Inc. v. Brinke, 475 F.2d 1086, 1092 (5th Cir.1973) (citing Gen. Am. Tank Car Corp. v. El Dorado Terminal Co., 308 U.S. 422, 433, 60 S.Ct. 325, 84 L.Ed. 361 (1940)).
Whole Foods argues the Plaintiffs cannot identify a plausible misrepresentation under the "reasonable consumer" standard. The standard requires Plaintiffs to show "members of the public are likely to be deceived." Williams v. Gerber Products Co., 552 F.3d 934, 938 (9th Cir. 2008) (internal citations omitted); Lavie v. Procter & Gamble Co., 105 Cal.App.4th 496, 508, 129 Cal.Rptr.2d 486 (2003) (plaintiffs must show "it is probable that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled."). Whether a reasonable consumer would find a representation misleading is generally a fact question. Id. Dismissal is only appropriate in "rare" situations, as when "the advertisement itself made it impossible for the plaintiff to prove that a reasonable consumer was likely to be deceived." Id.; Hairston v. S. Beach Beverage Co., Inc., CV 12-1429-JFW DTBX, 2012 WL 1893818, at *4 (C.D.Cal. May 18, 2012) ("[W]here a Court can conclude as a matter of law that members of the public are not likely to be deceived by the product packaging, dismissal is appropriate.").
In a parallel case, a district court denied Whole Foods's motion to dismiss on grounds that "All Natural" products plausibly appear to the reasonable consumer not to contain Sodium Acid Pyrophosphate ("SAPP"). Garrison v. Whole Foods Mkt. Group, Inc., 13-CV-05222-VC, 2014 WL 2451290 (N.D.Cal. June 2, 2014). Unlike the instant case, Garrison involved only one ingredient, SAPP, and one representation ("All Natural") printed on labels. The court took judicial notice by unopposed motion of an FDA Warning Letter to Alexia Foods, Inc. stating: "Your Alexia brand Roasted Red Potatoes & Baby Portabella Mushrooms product contains disodium
The principal "natural" food case is Williams v. Gerber, 552 F.3d 934 (9th Cir. 2008). There, the Ninth Circuit reversed the dismissal of a claim that Gerber Fruit Juice Snacks deceptively contained only white grape juice and no juice from fruits displayed on the packaging. 552 F.3d at 939-40. Even though the actual ingredients were listed on the Nutrition Facts Label, the court held the packaging had four features likely to deceive a reasonable consumer: (1) the name ("Fruit Juice Snacks"); (2) the pictures of fruits; (3) the statement, "made with real fruit juice and other all natural ingredients"; and (4) the statement, "just one of a variety of nutritious Gerber Graduates foods and juices that have been specifically designed to help toddlers grow up strong and healthy." Id. The court explained:
Id. at 940. The court noted "other all natural ingredients" could reasonably be interpreted to mean "all the ingredients in the product were natural." Id. at 939 (emphasis added).
Lower courts following Williams have generally denied motions to dismiss claims that "all natural" products contained "unnatural" ingredients, according to the definition of "natural" in the pleadings. Surzyn v. Diamond Foods, Inc., C 14-0136 SBA, 2014 WL 2212216 (N.D.Cal. May 28, 2014) (holding that "All Natural" Kettle Brand tortilla chips reasonably appear not
Courts have further limited "natural" claims based on pleading standards. Courts have dismissed with leave to amend pleadings that did not specify which ingredients were unnatural. Figy v. Frito-Lay N. Am., Inc., ___ F.Supp.3d ___, 13-3988 S.C. 2014 WL 3953755 (N.D.Cal. Aug. 12, 2014) (dismissing "all natural" claims providing "no detail whatsoever about how or why the offending ingredients are unnatural."); Chin v. Gen. Mills, Inc., CIV. 12-2150 MJD/TNL, 2013 WL 2420455 (D.Minn. June 3, 2013) (same). Courts have also dismissed claims going beyond the packaging to unspecified statements and advertisements. Garrison, 2014 WL 2451290, at *4 (dismissing claims based on misrepresentations of natural ingredients " "contained in various media advertising and . . . reiterated and disseminated by officers, agents, representatives, servants, or employees" of Whole Foods."); Janney v. Mills, 944 F.Supp.2d 806, 809 (N.D.Cal. 2013) (dismissing claims that Nature Valley granola bars deceptively contain high fructose corn syrup, high maltose corn syrup, and maltodextrin, despite the use of "images of forests, mountains, and seascapes; photographs of people in natural settings such as deserts, forests, lakes, beaches or mountains; photographs of wildlife, plants, lakes, clouds; or videos of mountain bikers riding on forest or desert trails and pausing to admire scenic vistas while snaking on granola bars . . . The allegation that an `image of nature' can be viewed as deceptively describing the ingredients in granola bars is entirely implausible, and therefore inadequate to state a claim under any of the causes of action pled in the FAC—much less, to state a claim for fraud.")
One court went so far as to hold "All Natural" was not deceptive by definition, given the plaintiff's conflicting definitions of the term. Pelayo, 989 F.Supp.2d at 978-80. The court added, "the reasonable consumer is aware that Buitoni Pastas are not `springing fully-formed from Ravioli trees and Tortellini bushes.'" Id. Several courts have criticized this holding. See Jou, 2013 WL 6491158, at *8 (Pelayo "is at odds with basic logic, contradicts the FTC statement on which it relies, and appears in conflict with the holdings of many other
Other healthy-sounding terms on food labels have been held to be non-actionable puffery. Fraker v. KFC Corp., 2006 U.S. Dist. LEXIS 79049, at *9-11 (S.D.Cal. Oct. 19, 2006) ("highest quality ingredients," "balanced diet plan," "part of a sensible diet"); Shaker v. Nature's Path Foods, Inc., EDCV 13-1138-GW OPX, 2013 WL 6729802 (C.D.Cal. Dec. 16, 2013) ("optimum"). Courts have also dismissed claims based on healthy-sounding terms that are "objectively true." Lam v. Gen. Mills, Inc., 859 F.Supp.2d 1097, 1103-04 (N.D.Cal.2012) ("`gluten free' . . . communicates nothing more than the absence of gluten in the product"); Figy, ___ F.Supp.3d ___, 2014 WL 3953755 ("FAT FREE"); cf. Yumul v. Smart Balance, Inc., 733 F.Supp.2d 1117, 1128-29 (C.D.Cal.2010) ("It is not clear whether or not a statement that a product contains no cholesterol would cause a reasonable consumer to conclude that the product does not increase LDL blood cholesterol levels."); Brown v. Hain Celestial Group, Inc., 913 F.Supp.2d 881, 895-99 (N.D.Cal. 2012) (reasonable consumer may be deceived by products with 70% organic content labeled with "grammatical variations" of "product name + "organics", or product name + close tag line with word "organic.").
The Ninth Circuit has suggested limits on the scope of Williams by affirming dismissals in two unpublished cases involving chewing gum and ice cream. Stuart v. Cadbury Adams USA, LLC, 458 Fed. Appx. 689, 690-91 (9th Cir.2011) ("Only an unreasonable consumer would be confused or deceived by Cadbury's failure to clarify that Trident White gum works only if consumers continue to brush and floss regularly."); Carrea v. Dreyer's Grand Ice Cream, Inc., 475 Fed.Appx. 113, 115 (9th Cir.2012) ("[I]t strains credulity to claim that a reasonable consumer would be misled to think that an ice cream dessert, with `chocolate coating topped with nuts,' is healthier than its competitors simply by virtue of these "Original" and "Classic" descriptors."). Some lower courts have dismissed claims along similar common-sense lines, rejecting claims requiring the reasonable consumer to leap to conclusions about the healthfulness or the fruit and vegetable content of common grocery items. McKinnis v. Kellogg USA, 2007 WL 4766060, at *4 (C.D.Cal. Sept. 19, 2007) ("Natural Fruit Flavors" in Froot Loops); Werbel ex rel. v. Pepsico, Inc., C 09-04456 SBA, 2010 WL 2673860, at *5 (N.D.Cal. July 2, 2010) (Cap'n Crunch "Crunchberries"); Red v. Kraft Foods, Inc., CV 10-1028-GW AGRX, 2012 WL 5504011 (C.D.Cal. Oct. 25, 2012) ("The fact remains that the [Kraft Vegetable Thins] is a box of crackers, and a reasonable consumer will be familiar with the fact of life that a cracker is not composed of
In the instant case, plaintiffs allege that 365 Brands deceptively include (1) non-organic ingredients in organic products, (2) GMOs and (3) Unacceptable Ingredients. Plaintiffs have submitted hundreds of product label images. Docs. 5-2 to 5-5. In regard to non-organic ingredients, none of the labels state "100% organic." The organic labels include USDA and third-party certification seals. Plaintiffs do allege the products include "synthetic ingredients that are
In regard to GMOs, many submitted labels include the statement: "365 Everyday Value products are formulated to avoid genetically engineered ingredients." Yet Plaintiff has submitted lab test results showing 365 Everyday Value Corn Flakes contained 57% GMO corn. Doc. 1 at 29. The Whole Foods website states:
"FAQ on GMOs," Doc. 5-9 at 2 (emphasis in original). The same document states: "shoppers looking for products that are sourced to avoidGMOs [sic] can seek out
The Unacceptable Ingredient List is located on the Whole Foods website. Doc. 5-7. The list begins with a bold disclaimer:
Id. Plaintiffs allege they purchased 365 Brands products containing Unacceptable Ingredients, including "irradiated foods" (cholecalciferol, ergocalciferol), "nitrates" (thiamine mononitrate), "artificial colors," and "artificial flavors." Doc. 36 at 48. Whole Foods argues the term "irradiated foods" is "directed to the use of ionizing radiation in meat, produce, seafood and freestanding spice products, not obscure nutrient, vitamin, and mineral ingredients." Doc. 18 at 44. Plaintiffs argue that all food coloring is "artificial," even those made of "natural" ingredients, according to the FDA definition of "color additive." Doc. 1 ¶ 89 (citing 21 C.F.R. § 101.22(a)(4)). Plaintiffs list more than fifty ingredients contained in 365 Brands products that are "artificial." Doc. 1 at 38-45. Plaintiffs allege the ingredients do not meet the reasonable consumer's understanding of the term "natural," which "comports with federal law and Whole Foods' proffered definition." Doc. 1 ¶ 86. Specifically, Plaintiffs cite the following definitions:
(1) "Natural foods can be defined as foods that are minimally processed, largely or completely free of artificial ingredients, preservatives and other non-naturally occurring chemicals and as near to their whole, natural state as possible." WHOLE FOODS 2011 ANNUAL REPORT 4.
USDA FOOD STANDARDS AND LABELING POLICY BOOK (2005). For "synthetic," Plaintiffs cross-reference 7 C.F.R. § 205.2:
(3) "According to FDA policy, `natural' means the product does not contain synthetic or artificial ingredients." Food Label Helps Consumers Make Healthier Choices, FDA (March 2008), http://www.fda.gov/downloads/ForConsumers/ConsumerUpdates/UCM199361.pdf. In fact, the FDA has declined to adopt a formal definition of "natural":
Food Labeling: Nutrient Content Claims, General Principles, Petitions, Definition of Terms; Definitions of Nutrient Content Claims for the Fat, Fatty Acid, and Cholesterol Content of Food, 58 Fed.Reg. 2302-0158 (Jan. 6, 1993) (emphasis added). The FDA definition incorporates "normal expectations," adding little if anything to the Court's analysis under the reasonable consumer standard. The cited Whole Foods definition is circular, defining "natural" as "not artificial" and "as near to [a] natural state as possible," in addition to "minimally" processed. The USDA definition is more stringent, excluding any "chemical process . . . that chemically changes a substance," but it is limited to meat and poultry. Nonetheless, Whole Foods does not offer an alternative definition which might include all the "artificial" ingredients contained within 365 Brands products. Whole Foods simply argues that the proffered understanding "based on arcane and technical regulatory definitions, not what a reasonable consumer would consider the terms to mean." Doc. 18 at 44-45. Most of the California natural-foods decisions cited above have held that whether a reasonable consumer would plausibly consider alleged artificial ingredients "natural" is a fact question. However, those decisions involve products labeled "all natural." Here, Plaintiffs do not allege misrepresentations on the labels but on the Unacceptable Ingredient List, located on a webpage that Plaintiffs have not shown they nor the reasonable consumer would have visited and plausibly relied upon.
In addition to the inclusion of artificial colors and flavors on the Unacceptable Ingredient List, Plaintiffs submit images of advertising and signage that state, e.g., "Nothing artificial . . . ever, ever, ever." Doc. 5-20 at 3. None of the submitted labels include a statement referring to the list. The motion and response discuss "difficult to read embedded text on a banner of a product label." Doc. 18 at 45; Doc. 36 at 40. The Court is unable to locate text on a banner referring to "natural" or "artificial" ingredients on the submitted labels. Some of the labels include brown strips featuring faint green line drawings, including some text including
Although Williams expressly discouraged reliance on ingredient lists to correct "misleading representations on the front of the box," an ingredient list "certainly serves some purpose," providing "more detailed information about the product that confirms other representations on the packaging." 552 F.3d at 940 (emphasis added). Plaintiffs Complaint extends well beyond the packaging to include a diffuse medley of representations on vehicles, signage, and unsubstantiated statements by store employees. Doc. 1 ¶ 29. Plaintiffs even include representations that no longer exist, i.e. past versions of the Unacceptable Ingredient List. Doc. 36 at 48 ("Whole Foods can change the list in the future, it cannot change the past."). Plaintiffs complain these representations belie the "dizzying array of ingredients" listed on the submitted product labels. Id. ¶ 12. But that is the purpose of requiring ingredient lists on every product label. Plaintiffs argument seems to be that since Whole Foods has developed a successful brand as a provider of natural foods, it should be obligated to guarantee every molecule in every product it sells under its in-house brand is natural. Similarly, Plaintiffs argue every molecule in Whole Foods's organic products should be organic, in spite of the tiered organic labeling regime provided by the OFPA. Although one could argue organic labeling is inherently misleading,
Whole Foods argues Plaintiffs failed to state fraud-based claims with particularity. Fed.R.Civ.P. 9(b). In order to articulate the elements of fraud with sufficient particularity, a plaintiff must state
Plaintiffs argue Whole Foods made "written express warranties including, but not limited to, warranties that its [365 Brands products] were `organic,' contained no artificial ingredients, contained no GMOs, and contained no ingredients listed in its Unacceptable Ingredient List." (Doc. 1 ¶ 202). Whole Foods responds that food labels do not constitute express warranties, citing cases arising under the Magnuson-Moss Warranty Act ("MMWA"). See, e.g., Chin v. Gen. Mills, Inc., CIV. 12-2150 MJD/TNL, 2013 WL 2420455, at *5 (D.Minn. June 3, 2013) ("Labeling a product `100% Natural' is not a written warranty under the MMWA."); Astiana, 2012 WL 2990766, at *3 (noting that many courts have held that product descriptions do not constitute warranties against a product defect under the MMWA).
Here, Plaintiffs brought their express warranty claims under state law. (Doc. 1 ¶ 201). California and Texas have both adopted Section 2-313 of the Uniform Commercial Code ("UCC") as their express warranty statute, see CAL. COM.CODE § 2313 (West 2014); TEX. BUS. & COM.CODE § 2.313 (West 2013), and their respective state courts undergo similar analyses in determining whether a breach of express warranty occurred. Weinstat v. Dentsply Int'l, Inc., 180 Cal.App.4th 1213, 103 Cal.Rptr.3d 614, 626 (2010); Crosbyton Seed Co. v. Mechura Farms, 875 S.W.2d 353, 361 (Tex.App.-Corpus Christi 1994, no pet.). Federal district courts have also permitted breach of express warranty claims in food-labelling cases under CAL. COM.CODE § 2313. See In re Ferrero Litig., 794 F.Supp.2d 1107, 1118 (S.D.Cal. 2011) (holding that representations on Nutella's packaging constituted an express warranty); Vicuna, 2012 WL 1497507, at
The elements of a breach of express warranty claim are: (1) proof that an affirmation or description was made; (2) the statement was part of the basis of the bargain; (3) the buyer relied on the statement; (4) the product failed to comply with the affirmation or description; (5) the breach was the proximate cause of the buyer's financial injury. See Crosbyton Seed Co., 875 S.W.2d at 361. Here, Plaintiff has failed to show an affirmation was made that 365 Brands products did not contain GMOs or non-organic ingredients allowed under organic labeling law. As far as "artificial" ingredients, Plaintiffs have failed to show affirmations not included on product packaging applied to "the Products themselves." Brown, 913 F.Supp.2d at 900; see also Sugawara v. Pepsico, Inc., 2009 WL 1439115, at *5 (E.D.Cal. May 21, 2009); McKinnis, 2007 WL 4766060, at *5. Plaintiff has failed to show plausible reliance, according to the reasonable consumer standard discussed in the previous section ("Plausible or Reasonable Reliance"). See Bohac, 2014 WL 1266848, at *9 (the standard for reliance on an express warranty of "100% Natural" granola bars is whether "a reasonable consumer could plausibly read these terms to be specific factual representations that the products contain no non-natural ingredients."); Sugawara, 2009 WL 1439115, at *5.
Plaintiffs argue Whole Foods "impliedly warranted that the products were merchantable and fit for the ordinary purposes for which such goods are used." (Doc. 1 ¶ 209). California and Texas's implied warranty of merchantability statutes are based on UCC § 2-314. See CAL. COM. CODE § 2314 (West 2014); TEX. BUS. & COM.CODE § 2.314 (West 2013). Section 2-314 states that for goods to be merchantable they must at least: (a) pass without objection in the trade under the contract description; (b) in the case of fungible goods, be of fair average quality within the description; (c) be fit for the ordinary purposes for which such goods are used; (d) run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; (e) be adequately contained, packaged, and labeled as the agreement may require; or (f) conform to the promises or affirmations of fact made on the container or label (if any). U.C.C. § 2-314(2) (2012). A breach of implied warranty of merchantability claim may be brought under any of § 2-314(2)'s subsections and the claim only fails if it cannot satisfy any of the subsections. See Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 444 n. 4 (Tex.1989). Here, Plaintiffs do not show that 365 Brands products plausibly did not meet the first five elements. See Viggiano, 944 F.Supp.2d at 898 (dismissing implied warranty claims for "all natural" soda where plaintiff did not allege "the beverage was not drinkable, that it was contaminated or contained foreign objects, etc."); Bohac, 2014 WL 1266848, at *10 (dismissing implied warranty claims for "100% natural" granola bars where plaintiff did not allege the products lacked "the most basic degree of fitness for ordinary use . . . [or], for example, alleged that the products were not edible or contaminated."). Plaintiffs also fail to show the products plausibly did not conform to "promises or affirmations of fact made on the container or label," as explained in the previous section ("Express Warranty").
Plaintiffs claim unjust enrichment as an independent cause of action under the principles of restitution. However, California and Texas courts both hold that unjust enrichment is an element of restitution and not an independent cause of action. See Durell v. Sharp Healthcare, 183 Cal.App.4th 1350, 108 Cal.Rptr.3d 682, 699 (2010) ("[T]here is no cause of action in California for unjust enrichment. Unjust enrichment is synonymous with restitution.") (citations and internal quotation marks omitted); Lilani v. Noorali, CIV.A. H-09-2617, 2011 WL 13667, at *11 (S.D.Tex. Jan. 3, 2011) (observing that most Texas appellate courts do not view unjust enrichment as an independent cause of action but treat it as an element of restitution). In addition, courts have dismissed restitution claims based on allegations of fraudulent activity when the complaint also states claims based on the UCL and CLRA. See Collins v. eMachines, Inc., 202 Cal.App.4th 249, 260, 134 Cal.Rptr.3d 588 (Cal.Ct.App.2011) ("Because we have found that plaintiffs' remedies at law are adequate (counts alleged under the CLRA, the UCL, and common law fraud), a claim for restitution, alleging that [defendant] has been unjustly enriched by its fraud, is unnecessary."); In re Sony PS3 Other OS Litig., 551 Fed.Appx. 916, 923 (9th Cir. 2014) (holding that plaintiffs cannot state a claim for unjust enrichment when they have already stated claims under the UCL and CLRA); Garrison, 2014 WL 2451290, at *6 (dismissing the equity-based claim of restitution because "the plaintiff's remedies at law are adequate").
For the foregoing reasons, it is hereby
It is further