Court: District Court, N.D. California; March 21, 2017; Federal District Court
The court, presided over by Judge Lucy H. Koh, granted Kellogg Sales Company's motion to dismiss a lawsuit filed by plaintiff Stephen Hadley, who claimed that Kellogg's product packaging contained misleading statements regarding the healthfulness of its cereals and bars. Hadley, a long-time consumer of Kellogg products, alleged that the packaging suggested these items were healthy despite containing excessive sugar, which he contended rendered them unhealthy. The lawsuit specifically identified twelve product lines, totaling 53 variants, that Hadley claimed were misleadingly marketed.
The complaint distinguished between "total sugar," which includes all sugars in a product, and "added sugar," which refers to sugars not naturally present in the ingredients. Hadley argued that high consumption of added sugar is linked to various health issues, including metabolic syndrome and diabetes, and noted that current guidelines from the American Heart Association and the FDA recommend significantly lower levels of added sugar than what is present in Kellogg's products. Ultimately, the court found sufficient grounds to dismiss the case based on the arguments presented and the evidence provided.
The First Amended Complaint (FAC) does not clarify the rationale for comparing the total sugar percentage per serving in the products with the recommended daily added sugar intake set by the AHA and FDA. The Plaintiff claims that the packaging of the Defendant's products makes numerous health-related assertions, including terms like “Heart Healthy” and “Good source of whole grains.” Specifically, Raisin Bran is cited with multiple health claims emphasizing its heart health benefits and nutritional qualities, while other products, such as Nutri-Grain bars, contain only one contested claim: “MADE WITH Real Fruit.”
Procedurally, the Plaintiff filed a complaint on August 29, 2016, followed by a motion to dismiss from the Defendant on October 31, 2016. The Plaintiff then submitted the FAC on November 14, 2016, alleging five causes of action: violations of California’s False Advertising Law, Consumers Legal Remedies Act, and Unfair Competition Law, along with breaches of express and implied warranties. The Defendant moved to dismiss the FAC on December 8, 2016, to which the Plaintiff opposed on January 6, 2017, and the Defendant replied on January 19, 2017.
The legal standard under Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a complaint to present a clear and succinct claim indicating the entitlement to relief. A complaint failing this standard may be dismissed under Rule 12(b)(6), as established by the Supreme Court's ruling in Bell Atlantic Corp. v. Twombly, which mandates sufficient factual pleading for claims to be deemed plausible.
A claim exhibits facial plausibility when the plaintiff presents factual content that permits a reasonable inference of the defendant's liability for the alleged misconduct, as established in Ashcroft v. Iqbal. This plausibility standard requires more than mere possibility; it mandates sufficient factual allegations. In ruling on a Rule 12(b)(6) motion, courts accept factual claims in the complaint as true and view them favorably towards the nonmoving party, but do not accept allegations that contradict judicially noticeable facts or merely legal conclusions. Conclusory allegations and unwarranted inferences are inadequate to counter a motion to dismiss, and a plaintiff can inadvertently plead out of court by providing facts that negate her claim.
Claims involving fraud or mistake must meet the heightened pleading standards of Federal Rule of Civil Procedure 9(b), which requires particularity in stating the circumstances of the fraud, including specifics about the false representations and the identities of the parties involved. Plaintiffs must clarify the misleading aspects of statements made.
If a court decides to dismiss the complaint, it must consider whether to allow leave to amend. Rule 15(a) encourages granting leave to amend liberally when justice requires, focusing on decision-making based on merits rather than technicalities. However, a court may deny this leave due to factors such as undue delay, bad faith, repeated failures to amend, undue prejudice to the opposing party, or futility of the amendment.
Plaintiff's First Amended Complaint (FAC) alleges that Defendant falsely represents its products as healthy despite containing high levels of added sugar. Defendant counters by asserting that Plaintiff's claims under the False Advertising Law (FAL), Consumer Legal Remedies Act (CLRA), and Unfair Competition Law (UCL) are insufficiently pleaded regarding fraud. Additionally, Defendant contends that Plaintiff has not effectively demonstrated a violation under the unlawful prong of the UCL and argues that the statements on its product packaging constitute puffery, thus failing to establish an express warranty. Furthermore, Defendant claims that the implied warranty of merchantability has not been breached and challenges Plaintiff's standing for injunctive relief.
Both parties submit requests for judicial notice, which the Court considers first. Judicial notice can be taken for facts that are widely known or easily verifiable, as outlined by Federal Rule of Evidence 201(b). The Court acknowledges that public records are appropriate subjects for judicial notice, including court proceedings with direct relevance to the case.
Defendant seeks judicial notice of various documents, including an image of Kellogg’s Raisin Bran packaging and several federal regulations regarding food labeling. The Court notes that while the FAC includes a packaging image, it lacks the nutrition label details. According to legal precedents, a court can consider documents integral to a claim, even if not attached to the complaint. Following standard practice in product-labeling claims, the Court grants Defendant's request for judicial notice of the Raisin Bran packaging image.
Defendant's request for judicial notice is granted for six documents published in the Federal Register and two publicly available congressional records, as these are subject to judicial notice under 44 U.S.C. 1507 and established case law. Conversely, Plaintiff's request for judicial notice of eighteen "facts" from various sources, including articles and a scientific report, is partially denied. The first four sources can only be noticed for their public existence, not for the truth of their content. While Plaintiff seeks to establish claims about sugar levels in Raisin Bran and actions by the sugar industry, the court emphasizes that merely acknowledging the existence of these publications does not substantiate claims regarding the truthfulness of the product labeling or any breach of warranty. Thus, the Court denies Plaintiff's request concerning the first four articles, as their relevance does not extend to the specific claims being made against Defendant.
Judicial notice is granted for the Scientific Report of the 2015 Dietary Guidelines Advisory Committee, as it is a government-published document. The court can acknowledge public records from reliable sources but cannot take notice of disputed facts within those documents. The plaintiff asserts claims under the False Advertising Law (FAL), the Consumer Legal Remedies Act (CLRA), and the Unfair Competition Law (UCL) based on allegedly misleading product packaging. The FAL prohibits false or misleading advertising, while the CLRA outlaws unfair practices in consumer transactions. A specific CLRA violation relates to misrepresenting the quality of goods. The UCL encompasses unlawful, unfair, or fraudulent business practices, with each prong providing distinct liability theories. Violations of the FAL or CLRA typically also breach the UCL's fraudulent prong. The court will consider the FAL, CLRA, and fraudulent UCL claims together since they share a standard of "likely to deceive" a reasonable consumer. The plaintiff contends that the defendant misrepresented the healthiness of its products due to excessive added sugars and, for some items, trans fats. The court will evaluate these claims accordingly.
Plaintiff's causes of action under the FAL, CLRA, and UCL focus on the claim that Defendant mislabels its cereals and cereal bars as healthy despite containing excessive added sugar, which Plaintiff argues is unhealthy. The legal foundation of Plaintiff's claims relies on the assertion that excessive sugar consumption is harmful, thus making Defendant’s health claims false or misleading. However, Defendant counters that Plaintiff has not sufficiently alleged the specific amount of added sugar in its products or demonstrated that such amounts are excessive or unhealthy. The Court agrees, stating that Plaintiff's allegations only address total sugar content and do not differentiate it from added sugar, which is critical under Federal Rule of Civil Procedure 9(b) that requires specific factual pleading regarding fraudulent claims. Plaintiff's references to total sugar, including sugars from fruit, do not meet the legal standard, as they fail to quantify the added sugar in each of the 53 products in question. While Plaintiff cites scientific recommendations for added sugar intake, he does not explicitly connect Defendant’s products to these benchmarks. Plaintiff's argument that exact amounts need not be detailed because they are within Kellogg’s exclusive knowledge is rejected since he does not sufficiently demonstrate that he lacks access to pertinent information regarding the added sugar content.
Plaintiff claims that Defendant’s product labels misrepresent the healthiness of their products by implying they are healthy despite containing high levels of added sugar. To support these claims, Plaintiff must have some knowledge of the added sugar content, which suggests a prior investigation was conducted. However, Plaintiff fails to specify which of the 53 products have discrepancies regarding added versus total sugar and inaccurately inflates the added sugar content by conflating it with total sugar levels. Notably, Plaintiff estimates that Raisin Bran contains 9 grams of added sugar out of 18 grams of total sugar per serving, indicating that the added sugar is only half of the total. This estimation contradicts Plaintiff's argument that information about added sugar is exclusively held by Defendant, highlighting the inadequacy of the factual allegations in the First Amended Complaint (FAC). The Ninth Circuit’s Rule 9(b) requirements necessitate specific factual allegations to prevent frivolous claims and protect reputations. Plaintiff’s FAC lacks sufficient detail about the added sugar content for each product, which is essential to substantiate the assertion that Defendant's labels are misleading. Consequently, the Court grants Defendant's motion to dismiss Plaintiff's claims under the FAL, CLRA, and the fraudulent prong of the UCL. Although the Court previously found the original complaint moot after Plaintiff amended it, it is now dismissing the amended complaint while allowing for a further amendment due to the possibility that relevant information may still be within Defendant's exclusive control.
Plaintiff claims that Nutri-Grain Fruit Crunch Granola Bars and Nutri-Grain Crunch Crunchy Breakfast Bars (collectively, "Nutri-Grain bars") contain partially hydrogenated vegetable oil, which is considered harmful to health, particularly heart health. The only statement on the product packaging being challenged is “MADE WITH Real Fruit.” Defendant contends that Plaintiff lacks a cause of action regarding this statement for two reasons: (1) it is preempted, and (2) it is not misleading. The Court determines that Plaintiff has not sufficiently demonstrated how the statement is misleading, thereby not needing to address the preemption issue.
To establish a claim under the California False Advertising Law (FAL), Consumer Legal Remedies Act (CLRA), or the fraudulent prong of the Unfair Competition Law (UCL), Plaintiff must show that the packaging is likely to deceive a reasonable consumer. These laws prohibit not only false advertising but also true statements that could still mislead or confuse consumers. The determination of whether a business practice is deceptive is typically a factual question.
Plaintiff must provide more than a possibility that the advertisement could be misunderstood. The statement “MADE WITH Real Fruit” is factually accurate, as the bars are indeed made with real fruit, and does not mention trans fat. The packaging is silent on trans fat, and thus the true statement would not lead a reasonable consumer to believe that the bars are trans fat-free. Previous court cases have similarly ruled that factually true statements on product labels did not mislead consumers, including cases involving “Muscle Milk Bars” and “Made with Real Vegetables” on crackers, where courts concluded that reasonable consumers would not be misled by such statements.
Plaintiff contends that the statement “MADE WITH Real Fruit” emphasizes the health benefits of its cereals and bars, particularly regarding whole grain, fiber, or real fruit content. However, Plaintiff does not specify what benefit is falsely represented by the real fruit claim. Additionally, while alleging that the “health and wellness” claims on Nutri-Grain bar packaging are misleading due to unhealthy trans fat content, Plaintiff fails to provide legal authority supporting the assertion that a manufacturer cannot truthfully state the presence of an ingredient, like real fruit, even if trans fats are also present. The court references Lam v. General Mills, where misleading representation occurred due to a discrepancy between the marketed fruit and actual ingredients, which is not the case here as the Plaintiff does not dispute the type of fruit listed on the packaging. The court concludes that the statement is not misleading when it accurately reflects the product's content. As a result, the court grants the motion to dismiss the claims related to the “MADE WITH Real Fruit” statement and trans fats under the FAL, CLRA, and fraudulent UCL prong, noting that the Plaintiff's amended complaint fails to rectify identified deficiencies. The court also highlights that the unlawful prong of the UCL requires a valid predicate law violation to be actionable, and without a viable claim under any predicate law, the UCL claim cannot succeed. Thus, the dismissal is with prejudice, indicating that further amendment would be futile.
Rule 9(b)’s particularity requirement applies to both the fraudulent and unlawful prongs of the UCL (Unfair Competition Law). In Vess v. Cibar-Geigy Corp., it was established that if a claim is grounded in fraud, the entire pleading must meet Rule 9(b)’s specificity requirements. Plaintiffs do not need to comply with this rule for UCL’s unlawful prong unless their claim involves fraud. If a plaintiff alleges a unified course of fraudulent conduct underlying their UCL claims, specificity is required.
In this case, the plaintiff claims that the defendant violated the UCL’s unlawful prong by breaching four statutes: the FAL (False Advertising Law), the CLRA (Consumer Legal Remedies Act), the California Sherman Food, Drug, and Cosmetic Law, and the federal FDCA (Food, Drug, and Cosmetic Act). The court first evaluates the allegations related to the FAL and CLRA, finding that the plaintiff’s claims of fraudulent conduct were inadequately pleaded. Consequently, the UCL claims based on the FAL and CLRA must also fail because a UCL claim cannot succeed if the underlying claim is insufficient.
The court then addresses the Sherman Law and FDCA, noting that California adopts federal labeling requirements through the Sherman Law. Therefore, violations of FDA regulations under the FDCA will also affect whether there are violations of the Sherman Law. The FDCA outlines criteria for misbranding, including improper labeling through nutrient content and health claims, which must comply with specific statutory requirements. The FDA regulations detail three types of claims related to labeling: expressed nutrient content claims, implied nutrient content claims, and health claims.
An expressed nutrient content claim directly states the level of a nutrient in food, such as "low sodium" or "contains 100 calories." In contrast, an implied nutrient content claim suggests the presence or absence of a nutrient, for example, "high in oat bran." A health claim characterizes the relationship between a substance and a disease or health-related condition. The regulations specify requirements for both nutrient content and health claims. The Plaintiff alleges that the Defendant's products are misbranded due to several violations: (1) forbidden health claims linking fiber to cardiovascular disease, (2) inappropriate placement of intervening material in relation to health claims, (3) nutrient content claims presented in a font size larger than permitted, (4) misleading protein content claims, (5) a misleading claim regarding "No High Fructose Corn Syrup," and (6) omissions of required information on labels. The Defendant contends there are no violations of FDA regulations, or that any violations are mere technicalities that do not mislead consumers or harm the Plaintiff. The Court examines the alleged violations, particularly focusing on the health claims linking fiber to cardiovascular disease, which are prohibited under 21 U.S.C. 101.14 and 21 C.F.R. 101.71(a). Specifically, it states that health claims linking dietary fiber to cardiovascular disease are not authorized unless they meet certain criteria outlined in Subpart E of the regulations. The Plaintiff claims that one of the Defendant's products improperly asserts that fiber aids in weight loss and improves cholesterol, blood pressure, and blood sugar levels.
The FAC alleges that certain products make unauthorized health claims, including statements suggesting that whole grains support a healthy lifestyle by implying fiber content. The Court first examines whether these claims violate 21 C.F.R. 101.14 and 101.71(a) and then evaluates if they constitute mere technical violations that do not mislead reasonable consumers. The Defendant argues that health claims associated with Raisin Bran Cinnamon Almond do not violate federal regulations as they merely reference risk factors for heart disease without linking fiber directly to the disease. The FDA compliance guide indicates that claims about fiber and cholesterol can imply a connection to heart disease, making it a factual issue whether claims about risk factors such as weight loss or blood pressure imply treatment or prevention of heart disease. The Court concludes that the Plaintiff sufficiently alleges that the Defendant's claims link fiber to cardiovascular disease. The Defendant's new argument regarding compliance with 21 C.F.R. 101.77 is not considered, as it was raised for the first time in a reply brief. Furthermore, the Defendant asserts that the Plaintiff's claims involve mere technical violations that require proof of consumer deception. The Court interprets this as an assertion that the Plaintiff has not met the "reasonable consumer test," which requires showing that the public is likely to be misled.
A plaintiff must satisfy the "reasonable consumer test" for unlawful prong claims under the Unfair Competition Law (UCL) when the claims are based on fraud. This requirement was established in prior cases, such as Bruton v. Gerber Prod. Co., where the court assessed whether the gravamen of the plaintiff's claims involved fraud. The plaintiffs allege that the defendant engaged in deceptive labeling practices that misrepresented the products' ingredients, violating FDA regulations and the Sherman Law. Such violations typically involve misleading actions associated with fraud, as seen in Kane v. Chobani, Inc.
The plaintiffs specifically challenge the defendant’s health claims linking fiber to cardiovascular health, arguing these claims are fraudulent due to the presence of added sugar in the product. The FDA regulations cited aim to prevent misleading health claims about soluble fiber, indicating that attributing beneficial effects solely to soluble fiber can be misleading. The plaintiffs assert that the defendant's labeling violates these regulations designed to protect consumers from misinformation.
The key issue is whether a reasonable consumer would be misled by the defendant’s claims regarding soluble fiber, which is a factual question typically unsuitable for dismissal. However, courts can evaluate consumer deception based on product packaging. If a court determines that the public is unlikely to be misled, it may dismiss the case. In this instance, the claim may be deceptive because it suggests that Raisin Bran Cinnamon Almond is healthy, despite its high sugar content.
Plaintiff's claims regarding misleading statements about added sugar and the connection between fiber and heart disease are insufficiently alleged under Rule 9(b), which mandates specifying what is false or misleading about the claims. The court finds that the Plaintiff failed to demonstrate how a reasonable consumer would be misled by these health claims on Raisin Bran Cinnamon Almond packaging. Consequently, the court grants the Defendant's motion to dismiss the unlawful prong of the UCL claim related to these health claims but allows Plaintiff the opportunity to amend the complaint to potentially meet the reasonable consumer standard.
Additionally, the Plaintiff's claim about intervening material between health claims and required information is dismissed, as the Plaintiff did not defend this point against the Defendant's arguments, leading the court to determine that the issue is waived. As a result, this dismissal is with prejudice because the Plaintiff has not addressed the identified deficiencies and further amendments would be futile, as established in Carvalho. The court also notes that the original complaint had similar deficiencies regarding the intervening material claim.
A nutrient content claim must not exceed a type size that is two times larger than the statement of identity, nor should it be unduly prominent compared to that statement. The defendant argues that the plaintiff has insufficiently alleged a violation of 21 C.F.R. 101.13(f), claiming the plaintiff has not specified any misleading statements in the First Amended Complaint (FAC) and has only provided a general allegation of a "bare technical violation" without demonstrating how a reasonable consumer could be misled. A statement of identity identifies the product, as illustrated by the Coe v. General Mills case, which identified "Protein Nutrition Shake" as the statement for Muscle Milk. The plaintiff’s FAC includes a vague allegation that many of Kellogg's products violate the regulation due to nutrient content claims being excessively sized or prominently styled. However, the plaintiff fails to specify which products or statements violate the regulation, not meeting the pleading standards established by Twombly and Iqbal, which necessitate factual allegations rather than conclusory statements. As a result, the court grants the defendant’s motion to dismiss the unlawful prong of the Unfair Competition Law (UCL) claim related to nutrient content claim sizing but allows for amendment since the prior motion did not identify this deficiency.
Regarding protein content claims under 21 C.F.R. 101.13(i)(3), the plaintiff alleges the defendant misrepresents the protein amount in cereals by stating the protein content with milk instead of just the cereal. The defendant contends that the labeling, which states "9g Protein" accompanied by an infographic showing the contributions from both cereal (5g) and milk (4g), is not misleading. The court agrees with the defendant, indicating that the infographic clarifies the protein contributions, although the plaintiff argues the larger font for the total protein amount could mislead consumers by drawing more attention.
The symbols for cereal and milk are sized similarly to the "9g Protein" lettering and positioned directly below it within the same bordered area. In the case of Morgan v. Wallaby Yogurt Company Inc., the court concluded that labeling with "evaporated cane juice" did not misleadingly conceal sugar content, as the nutrition panel above the ingredient list clearly indicated sugar presence. In this instance, the protein content from milk and cereal is also clearly displayed below the potentially misleading statement, leading a reasonable consumer to interpret the protein as derived from both sources. The regulations allow disclaimers to clarify nutrient levels in food to avoid misleading consumers.
The court has granted the defendant's motion to dismiss the plaintiff's claims regarding the protein content under the California Unfair Competition Law (UCL), ruling that the claims were not misleading as a matter of law, and that allowing amendment would be futile since the plaintiff failed to address previous deficiencies identified by the defendant. Consequently, the court dismissed the claim with prejudice.
Additionally, the plaintiff contends that the statement “No High Fructose Corn Syrup” on some Nutri-Grain cereal bars violates 21 C.F.R. 101.13(e), which mandates that a food can only be labeled as “free” of a nutrient if it has been specifically processed to reduce that nutrient. The plaintiff argues that the Nutri-Grain bars in question have not undergone any such processing to lower high fructose corn syrup content, thus violating the regulation.
A food product cannot be labeled as “free” of a nutrient unless it has not been specially processed, altered, or reformulated to reduce that nutrient; instead, the label must indicate that the food inherently lacks the nutrient. The plaintiff argues that Kellogg’s Nutri-Grain cereal bars should state they are “high fructose corn syrup free” rather than “No High Fructose Corn Syrup.” However, the plaintiff’s claim relies solely on the assertion that none of Kellogg’s products naturally contain high fructose corn syrup, which is vague and lacks sufficient factual support. The plaintiff does not clarify what constitutes Kellogg’s food products in their natural state, and the claim lacks the necessary factual content to establish that the Nutri-Grain bars have not been processed to reduce high fructose corn syrup. Additionally, the plaintiff does not present evidence that other cereal bars do not contain high fructose corn syrup, and FDA guidance suggests such a label is permissible if comparable products contain the nutrient. The court finds the plaintiff has not adequately alleged a violation of labeling regulations. Furthermore, the plaintiff's new argument that “No High Fructose Corn Syrup” implies a sugar-free claim is unsupported by allegations that consumers equate high fructose corn syrup with sugar. Since these state law claims were not included in the original complaint, the court does not consider them.
The Court expresses skepticism regarding the claim that the statement “No High Fructose Corn Syrup” implies the absence of sugar in a product. It notes that violations of “low in sugar” and “sugar free” regulations were not included in the First Amended Complaint (FAC), making this statement insufficient for the Plaintiffs' cause of action under the unlawful prong of the Unfair Competition Law (UCL). Consequently, the Court grants the Defendant's motion to dismiss this claim but permits the Plaintiff to amend the complaint, as the issue was not previously raised.
Regarding the Plaintiff's allegations of misbranding under 21 C.F.R. 1.21, the claims focus on misleading health statements that fail to disclose the risks associated with added sugars. The Court finds that the Plaintiff has not adequately demonstrated the quantity of added sugar or its health implications, leading to a dismissal of this claim as well, but allows the Plaintiff another opportunity to amend the complaint with more specific details.
For the unfair prong of the UCL, which addresses business practices that violate public policy or are unethical, the Court notes the current ambiguity in California law concerning consumer claims under this prong. It clarifies that claims must be connected to a legislatively declared policy, as established by the California Supreme Court. Overall, the Court grants the Defendant's motion to dismiss all challenged statements while allowing the Plaintiff to amend the complaint to potentially strengthen their claims.
The Cel-Tech court's ruling is limited to unfairness claims targeting business competitors, and California courts are currently divided on the applicable test for consumer actions. The Ninth Circuit permits the use of either the balancing or tethering tests for such consumer claims. In this case, the plaintiff references both tests alongside specific legislative policies from the FAL, CLRA, FDA regulations, and Sherman law, indicating their applicability.
The traditional balancing test deems an act unfair if consumer injury is significant, not outweighed by benefits, and not reasonably avoidable by consumers. Under the Cel-Tech test, an unfair business practice requires allegations of a violation of a legislative policy or evidence of actual or threatened competitive impact. Courts in this district have ruled that if the unfair business practices overlap with claims under the fraudulent and unlawful prongs of the UCL, the unfair prong cannot stand if the other claims do not.
The plaintiff claims that the defendant's practices regarding high-sugar cereals violate the FAL, CLRA, FDA regulations, and Sherman law, suggesting that the unfair prong of the UCL is based on allegations of fraudulently marketing unhealthy products as healthy or breaching FDA regulations. However, the court found that the plaintiff inadequately alleged violations of the FAL, CLRA, and the fraudulent prong of the UCL, and dismissed the unlawful prong UCL claims concerning FDCA and Sherman law violations. Consequently, the court granted the defendant’s motion to dismiss the unfair prong UCL claim for the same reasons. The court allowed the plaintiff to amend their claims as it did for the other UCL claims. Additionally, the plaintiff asserts a breach of express warranty under California law, as defined by Cal. Com. Code § 2313.
An affirmation of fact or promise made by the seller that relates to the goods and is part of the bargain creates an express warranty, ensuring the goods conform to that affirmation. To establish a breach of express warranty, a plaintiff must specify the warranty's terms, demonstrate reasonable reliance on those terms, and show that a breach caused injury. General descriptions of the goods can create express warranties if they are integral to the bargain. The plaintiff failed to adequately plead a breach of express warranty due to a lack of specificity, listing multiple statements without clarifying which applies to each product variant. Additionally, the court emphasizes that clarity is essential in lengthy complaints, and thus grants the defendant's motion to dismiss this claim but allows the plaintiff to amend their complaint to specify the claimed warranties.
Regarding the implied warranty of merchantability, a breach can occur if a product is unfit for its ordinary purpose or does not conform to affirmations made on its packaging. The defendant contends that a breach requires the product to lack basic fitness for ordinary use, which the plaintiff concedes is not the case. However, the plaintiff asserts that the products do not align with the affirmations on their packaging. The court notes that a claim can be valid based on non-conformance with packaging claims, even if the product is fit for ordinary use.
The implied warranty of merchantability claim is contingent upon express warranty claims for the same product, as established in Hendricks v. StarKist Co. The court found the express warranty claim inadequately pled due to a lack of specificity regarding which statements applied to which products, leading to a similar conclusion for the implied warranty claim. Consequently, the court granted the defendant's motion to dismiss the implied warranty cause of action, allowing the plaintiff to amend the complaint to clarify the warranty statements pertinent to each product.
For injunctive relief, Article III standing requires the plaintiff to demonstrate: (1) an actual injury, (2) a direct connection to the defendant's conduct, and (3) a likelihood of remedy through judicial action. To secure standing for prospective injunctive relief, the plaintiff must show a concrete threat of future harm, not just past injury, and must indicate a likelihood of future injury to themselves, rather than merely to unnamed class members. The court has consistently ruled that a plaintiff must assert an intent to purchase the products in question in the future to establish standing for injunctive relief. Awareness of misleading advertising does not negate standing, as demonstrated in multiple cases including Davidson v. Kimberly-Clark Corp. and In re Yahoo Mail Litig.
The Court has determined that a narrow interpretation of Article III standing in consumer protection cases is inappropriate. It argues that if standing were defined as the Defendant suggests, federal courts could not issue injunctions against false advertising, as injured plaintiffs would be considered to avoid future harm. The Court asserts that knowledge of a misrepresentation does not negate standing if the plaintiff expresses intent to purchase the products in the future. This includes situations where a plaintiff claims they would consider buying products if the misrepresentation is corrected. The Court references several cases supporting the idea that a consumer might still be interested in a product if it were accurately labeled. In this context, the Plaintiff argues they meet the standing requirement by indicating they would consider purchasing Kellogg products again if they were appropriately priced. Courts in the district have found that a willingness to consider future purchases can confer standing for injunctive relief. The Lilly case illustrates that the harms addressed in such litigation extend beyond just purchasing mislabeled products; they encompass the broader issue of consumer trust in product representations. However, the Lilly ruling does not clarify the implications of a plaintiff merely stating they would consider a purchase contingent on pricing.
An injunction against the Defendant’s food labeling practices could prevent the Plaintiff from consuming mislabeled products, but the Court lacks authority to mandate appropriate pricing changes, as the Plaintiff did not specify what an "appropriate" price would be. Consequently, the Court finds Plaintiff’s standing insufficient and grants the Defendant’s motion to dismiss the request for injunctive relief, allowing the Plaintiff 30 days to amend the complaint to demonstrate intent to purchase that meets Article III requirements. If the Plaintiff fails to file an amended complaint or cure deficiencies within this period, the claims will be dismissed with prejudice.
The Court further addresses the Plaintiff’s standing for claims under the FAL, CLRA, and UCL related to statements on the Defendant's website. The Plaintiff did not allege visiting the website, making the injury not “fairly traceable” to the Defendant’s conduct, resulting in a dismissal of these claims with prejudice. The Court then examines claims based solely on misleading statements on product packaging, excluding those on the website. The Plaintiff’s request for judicial notice of a Huffington Post article was denied, as it did not establish the truth of the facts therein, failing to meet Rule 9(b) standards. Additionally, the Plaintiff’s allegations regarding the use of terms like "wholesome" and "nutritious" in relation to specific products do not cite a violation of 21 C.F.R. 101.65, which was not addressed in the opposition, thus the Court does not need to consider that argument. The implicated products include various Raisin Bran varieties.
The FDA guidance referenced pertains to claims regulated under 21 C.F.R. 101.93, which is pertinent in assessing whether a specific disease is referenced in the claims at issue. The Court determines that the Defendant has not met its burden of persuasion for dismissal, as established in case law, specifically citing Makah Indian Tribe v. Verity and Sierra Club v. Watt. Although the Defendant argues similarities between the health claims and 21 C.F.R. 101.77, it fails to demonstrate these similarities effectively. Under 101.77, health claims linking fiber to cardiovascular disease must also reference diets low in saturated fat and high in fruits, vegetables, and grains, which the Defendant's statements do not. The Court declines to search the complaint for supporting evidence for the Defendant's claims, emphasizing the expectation that parties present their arguments clearly.
Regarding the claim about the term "heart healthy," the Court finds the Plaintiff’s allegations insufficient to show that reasonable consumers would be misled. Consequently, the Court grants the Defendant’s motion to dismiss the heart healthy claims but allows the Plaintiff leave to amend their complaint to potentially meet the reasonable consumer test. The Court also identifies products allegedly misrepresenting protein content and notes that the statement "No High Fructose Corn Syrup" appears on several products. Although high fructose corn syrup may not be classified as a nutrient under 21 C.F.R. 101.13(e), the Court does not need to decide on this matter as the Plaintiff has not adequately pled a violation of the regulation.
