Leonhart v. Nature's Path Foods, Inc, No. 5:2013cv00492 - Document 36 (N.D. Cal. 2014)

Court Description: Order granting 17 Motion to Dismiss. Signed by Hon. Edward J. Davila on 3/31/2014.(ejdlc3, COURT STAFF) (Filed on 3/31/2014)

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Leonhart v. Nature&#039;s Path Foods, Inc Doc. 36 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 SAN JOSE DIVISION United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 SUSAN LEONHART, on behalf of herself and ) ) all others similarly situated, ) ) Plaintiff, ) ) v. ) NATURE’S PATH FOODS, INC., ) ) ) Defendant. ) ) ) Case No. 5:13-CV-0492-EJD ORDER GRANTING DEFENDANT’S MOTION TO DISMISS [Re: Docket No. 17] Presently before the Court is Defendant Nature’s Path Foods, Inc.’s (“Nature’s Path” or 19 “Defendant”) Motion to Dismiss Plaintiff’s First Amended Complaint (“FAC”) and Motion to 20 Strike. Dkt. No. 17. Plaintiff Susan Leonhart (“Plaintiff”) filed this putative class action against 21 Defendant alleging that several of Defendant’s products have been improperly labeled so as to 22 amount to misbranding and deception in violation of several California and federal laws. 23 Per Civ. L.R. 7-1(b), the motion was taken under submission without oral argument. 24 Having fully reviewed the parties’ papers, the Court GRANTS Defendant’s Motion to Dismiss. 25 I. BACKGROUND 26 27 Plaintiff filed her original complaint on February 4, 2013. Dkt. No. 1. Plaintiff’s FAC was filed on May 17, 2013. Dkt. No. 16. 28 1 Case No. 5:13-CV-0492-EJD ORDER GRANTING DEFENDANT’S MOTION TO DISMISS Dockets.Justia.com 1 Plaintiff is a California consumer who bought two of Defendant’s food products: 2 EnviroKidz Panda Puffs cereal and Heritage Flakes cereal. Dkt. No. 16 ¶ 2. Plaintiff brings a 3 putative class action suit against Defendant on behalf of all persons in the United States who, 4 within the last four years, purchased the same or similar products or other of Defendant’s food 5 products that were similarly allegedly mislabeled. Id. ¶ 124. Plaintiff argues that the following 6 representations on the packaging of these and other of Defendant’s food products were unlawful 7 and/or misleading: (1) “evaporated cane juice” (“ECJ”) claims; (2) unapproved health or drug 8 claims; (3) “low sodium” claims; (4) “preservative free” claims; and (5) slack-filled packaging. Id. 9 ¶ 14. United States District Court For the Northern District of California 10 Plaintiff alleges the following causes of actions: violation of California’s Unfair 11 Competition Law (“UCL”), Cal. Bus. & Prof. Code § 17200 et seq., (counts 1-3); violation of the 12 False Advertising Law (“FAL”), Cal. Bus. & Prof. Code § 17500 et seq., (counts 4-5); violation of 13 the Consumers Legal Remedies Act (“CLRA”), Cal. Civ. Code § 1750 et seq., (count 6); and 14 unjust enrichment (count 7). Id. ¶¶ 135-194. 15 II. LEGAL STANDARD 16 A. Rule 8(a) 17 Federal Rule of Civil Procedure 8(a) requires a plaintiff to plead each claim with sufficient 18 specificity to “give the defendant fair notice of what the . . . claim is and the grounds upon which it 19 rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations omitted). A 20 complaint which falls short of the Rule 8(a) standard may be dismissed if it fails to state a claim 21 upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). “Dismissal under Rule 12(b)(6) is 22 appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support a 23 cognizable legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 24 2008). Moreover, the factual allegations “must be enough to raise a right to relief above the 25 speculative level” such that the claim “is plausible on its face.” Twombly, 550 U.S. at 556-57. 26 When deciding whether to grant a motion to dismiss, the court generally “may not consider 27 any material beyond the pleadings.” Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 28 1542, 1555 n.19 (9th Cir. 1990). The court must accept as true all “well-pleaded factual 2 Case No. 5:13-CV-0492-EJD ORDER GRANTING DEFENDANT’S MOTION TO DISMISS 1 allegations.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The court must also construe the 2 alleged facts in the light most favorable to the plaintiff. Love v. United States, 915 F.2d 1242, 3 1245 (9th Cir. 1988). However, the court may consider material submitted as part of the complaint 4 or relied upon in the complaint, and may also consider material subject to judicial notice. See Lee 5 v. City of Los Angeles, 250 F.3d 668, 688-69 (9th Cir. 2001). But “courts are not bound to accept 6 as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555. 7 B. Rule 9(b) 8 Fraud-based claims are subject to heightened pleading requirements under Federal Rule of 9 Civil Procedure 9(b). In that regard, a plaintiff alleging fraud “must state with particularity the United States District Court For the Northern District of California 10 circumstances constituting fraud.” Fed. R. Civ. P. 9(b). The allegations must be “specific enough 11 to give defendants notice of the particular misconduct which is alleged to constitute the fraud 12 charged so that they can defend against the charge and not just deny that they have done anything 13 wrong.” Semegen v. Weidner, 780 F.2d 727, 731 (9th Cir. 1985). To that end, the allegations 14 must contain “an account of the time, place, and specific content of the false representations as well 15 as the identities of the parties to the misrepresentations.” Swartz v. KPMG LLP, 476 F.3d 756, 764 16 (9th Cir. 2007). Averments of fraud must be accompanied by the “who, what, when, where, and 17 how” of the misconduct charged. Vess v. Ciba–Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 18 2003) (citation omitted). Additionally, “the plaintiff must plead facts explaining why the statement 19 was false when it was made.” Smith v. Allstate Ins. Co., 160 F. Supp. 2d 1150, 1152 (S.D. Cal. 20 2001) (citation omitted); see also In re GlenFed, Inc. Sec. Litig., 42 F.3d 1541, 1549 (9th Cir. 21 1994) (en banc) (superseded by statute on other grounds). 22 C. Rule 12(b)(1) 23 A party may file a motion to dismiss with the Court for lack of subject matter jurisdiction. 24 Fed. R. Civ. P. 12(b)(1). A Rule 12(b)(1) motion may be either facial or factual. Wolfe v. 25 Strankman, 392 F.3d 358, 362 (9th Cir. 2004). A facial 12(b)(1) motion involves an inquiry 26 confined to the allegations in the complaint, whereas a factual 12(b)(1) motion permits the court to 27 look beyond the complaint to extrinsic evidence. Id. When a defendant makes a facial challenge, 28 3 Case No. 5:13-CV-0492-EJD ORDER GRANTING DEFENDANT’S MOTION TO DISMISS 1 all material allegations in the complaint are assumed true, and the court must determine whether 2 lack of federal jurisdiction appears from the face of the complaint itself. Wolfe, 392 F.3d at 362. 3 On a factual challenge, the party opposing the motion must produce affidavits or other 4 evidence necessary to satisfy its burden of establishing subject matter jurisdiction. Safe Air For 5 Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). Under a factual attack, the court need 6 not presume the plaintiff’s allegations as true. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000); 7 accord Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983). In the absence of a full- 8 fledged evidentiary hearing, however, disputed facts pertinent to subject matter jurisdiction are 9 viewed in the light most favorable to the nonmoving party. Dreier v. United States, 106 F.3d 844, United States District Court For the Northern District of California 10 847 (9th Cir. 1996). 11 Federal courts are courts of limited jurisdiction, adjudicating only cases which the 12 Constitution and Congress authorize. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 13 375, 377 (1994). An Article III federal court must ask whether a plaintiff has suffered sufficient 14 injury to satisfy the “case or controversy” requirement of Article III of the U.S. Constitution. To 15 satisfy Article III standing, a plaintiff must allege: (1) an injury in fact that is concrete and 16 particularized, as well as actual and imminent; (2) that the injury is fairly traceable to the 17 challenged action of the defendant; and (3) that it is likely (not merely speculative) that the injury 18 will be redressed by a favorable decision. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 19 528 U.S. 167, 180-81 (2000); Lujan v. Defenders of Wildlife, 504 U.S. 555, 561-62 (1992). 20 At least one named plaintiff must have suffered an injury in fact. See Lierboe v. State Farm 21 Mut. Auto. Ins. Co., 350 F.3d 1018, 1022 (9th Cir. 2003) (“if none of the named plaintiffs 22 purporting to represent a class establishes the requisite of a case or controversy with the 23 defendants, none may seek relief on behalf of himself or any other member of the class”). 24 A suit brought by a plaintiff without Article III standing is not a “case or controversy,” and 25 an Article III federal court therefore lacks subject matter jurisdiction over the suit. Steel Co. v. 26 Citizens for a Better Env’t, 523 U.S. 83, 101 (1998). “A party invoking the federal court’s 27 jurisdiction has the burden of proving the actual existence of subject matter jurisdiction.” 28 4 Case No. 5:13-CV-0492-EJD ORDER GRANTING DEFENDANT’S MOTION TO DISMISS 1 Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir. 1996). If a court determines that it lacks 2 subject matter jurisdiction, the court must dismiss the action. Fed. R. Civ. P. 12(h)(3). 3 III. DISCUSSION 4 A. Statutory Framework 5 The operative statute in this matter is the Food, Drug, and Cosmetic Act (“FDCA”), 21 6 U.S.C. § 301 et seq., as amended by the Nutrition Labeling and Education Act of 1990 (“NLEA”), 7 21 U.S.C. § 343 et seq. 21 U.S.C. § 343 establishes the conditions under which food is considered 8 “misbranded.” Generally, food is misbranded under 21 U.S.C. § 343(a)(1) if “its labeling is false 9 or misleading in any particular.” United States District Court For the Northern District of California 10 The California Sherman Food, Drug, and Cosmetic Law, Cal. Health & Safety Code § 11 109875 et seq., incorporates the requirements of the FDCA as the food labeling requirements of the 12 state of California. Plaintiff brings claims for relief under the UCL, FAL, and CLRA based on 13 Defendant’s alleged violations of the Sherman Law. The UCL prohibits business practices that are 14 unlawful, unfair, or fraudulent. The “fraudulent” prong of the UCL “requires a showing [that] 15 members of the public are likely to be deceived.” Wang v. Massey Chevrolet, 97 Cal. App. 4th 16 856, 871 (2002). The “unlawful” prong of the UCL “borrows violations of other laws and treats 17 them as independently actionable.” Daugherty v. Am. Honda Motor Co., Inc., 144 Cal. App. 4th 18 824, 837 (2006). As for the “unfair” prong, “California appellate courts disagree on how to define 19 an ‘unfair’ act or practice in the context of a UCL consumer action.” Morgan v. Wallaby Yogurt 20 Co., Inc., No. 13-CV-00296-WHO, 2014 WL 1017879, at *11 (N.D. Cal. March 13, 2014); (citing 21 Davis v. Ford Motor Credit Co., 179 Cal. App. 4th 581, 594 (2009)). Some courts have held that 22 the “unfair” prong requires alleging a practice that “offends an established public policy or . . . is 23 immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers,” and the 24 policy must be “tethered to specific constitutional, statutory or regulatory provision.” Bardin v. 25 Daimlerchrysler Corp., 136 Cal. App. 4th 1255, 1263, 1266 (2006) (quotations omitted). Other 26 courts have held that the court must apply a balancing test that “weigh[s] the utility of the 27 defendant’s conduct against the gravity of the harm to the alleged victim.” Schnall v. Hertz Corp., 28 78 Cal. App. 4th 1144, 1167 (2000). 5 Case No. 5:13-CV-0492-EJD ORDER GRANTING DEFENDANT’S MOTION TO DISMISS 1 B. Standing for Unpurchased Products 2 A defendant may challenge standing through a Federal Rule of Civil Procedure 12(b)(1) 3 motion and may either attack the complaint on its face or the existence of jurisdiction in fact. 4 Wolfe, 392 F.3d at 362. Defendant argues that Plaintiff has no standing to sue for products not 5 purchased. Plaintiff asserts claims based on the two products she purchased and all products that 6 make the same label representations as those products and whose labels violate the same food 7 labeling regulations. 8 As noted, to establish Article III standing, a plaintiff must allege facts showing an “injury- 9 in-fact,” causation, and redressability such that the injury will be likely redressed by a decision in United States District Court For the Northern District of California 10 the plaintiff’s favor. Lujan, 504 U.S. at 561-62. An “injury in fact” requires showing “an invasion 11 of a legally protected interest which is concrete and particularized and actual or imminent, not 12 conjectural or hypothetical.” Id. at 560 (citations and internal quotation marks omitted). 13 The UCL and FAL incorporate the Article III standing requirements, but additionally 14 require that the plaintiff plead an economic injury. Kwikset Corp. v. Superior Court, 51 Cal. 4th 15 310, 322-23 (2011); see also TrafficSchool.com, Inc. v. Edriver Inc., 653 F.3d 820, 825 n.1 (9th 16 Cir. 2011) (“Plaintiffs filing an unfair competition suit must prove a pecuniary injury . . . and 17 ‘immediate’ causation. . . . Neither is required for Article III standing.” (internal citations 18 omitted)). Proposition 64 was enacted in 2004 as a means of “confin[ing] [UCL] standing to those 19 actually injured by a defendant’s business practices and [ ] curtail[ing] the prior practice of filing 20 suits on behalf of clients who have not used the defendant’s product or service, viewed the 21 defendant’s advertising, or had any other business dealing with the defendant.” Kwikset, 51 Cal. 22 4th at 321 (internal citations omitted). Under the UCL and FAL, a plaintiff suffers an injury-in-fact 23 when he or she has “(1) expended money due to the defendants’ acts of unfair competition; (2) lost 24 money or property; or (3) been denied money to which he or she has a cognizable claim.” 25 Chacanaca v. Quaker Oats Co., 752 F. Supp. 2d 1111, 1125 (N.D. Cal. 2010). 26 To satisfy the injury-in-fact requirement for unfair competition claims, “courts in California 27 require that plaintiffs demonstrate the purchase of products as a result of deceptive advertising.” 28 Id. To plead actual reliance, the “plaintiff must allege that the defendant’s misrepresentations 6 Case No. 5:13-CV-0492-EJD ORDER GRANTING DEFENDANT’S MOTION TO DISMISS 1 were an immediate cause of the injury-causing conduct.” In re Tobacco II, 46 Cal. 4th 298, 328 2 (2009). However, “the plaintiff is not required to allege that those misrepresentations were the sole 3 or even the decisive cause of the injury-producing conduct.” Id. A plaintiff can satisfy the UCL’s 4 standing requirement by alleging that he or she would not have bought the product but for the 5 alleged misrepresentation. Kwikset, 51 Cal. 4th at 330. 6 The California Supreme Court has held that the phrase “as a result of” in UCL section 17204 “imposes an actual reliance requirement on plaintiffs prosecuting a private enforcement 8 action under the UCL’s fraud prong.” In re Tobacco II, 46 Cal. 4th at 326. This also applies under 9 the UCL’s “unlawful” and “unfair” prong, where the predicate unlawfulness is misrepresentation 10 United States District Court For the Northern District of California 7 and deception. Hale v. Sharp Healthcare, 183 Cal. App. 4th 1373, 1385 (2010); see also Kwikset, 11 51 Cal. 4th 310; In re Actimmune Mkt. Litig., No. 08-2376-MHP, 2010 WL 3463491, at *8 (N.D. 12 Cal. Sept. 1, 2010), aff’d, 464 F. App’x 651 (9th Cir. 2011); Brazil v. Dole Foods Co., 935 F. 13 Supp. 2d 947 (N.D. Cal. 2013); Kane v. Chobani, No. 12-CV-02425-LHK, 2014 WL 6573000, at 14 *5 (N.D. Cal. Feb. 20, 2014). 15 While courts are split as to whether actual purchase is required to establish the requisite 16 injury-in-fact, many courts in this district have found that claims regarding unpurchased products 17 similar to Plaintiff’s do not survive a motion to dismiss. See Ivie v. Kraft Foods Global, Inc., 961 18 F. Supp. 2d 1033, 1046 (N.D. Cal. 2013) (“there can be no requisite pecuniary injury where 19 plaintiff did not herself purchase the product at issue”); Larsen v. Trader Joe’s Co., No. C-11- 20 05188-SI, 2012 WL 5458396, at *5 (N.D. Cal. June 14, 2012) (finding that as a matter of law 21 plaintiffs could not have suffered a particularized injury for products they did not purchase); Major 22 v. Ocean Spray Cranberries, Inc., No. 12-CV-03067-EJD, 2013 WL 2558125 (N.D. Cal. June 10, 23 2013) (denying class certification due to lack of typicality where plaintiff did not purchase named 24 products); Granfield v. NVIDIA Corp., No. C-11-05403-JW, 2012 WL 2847575, at *6 (N.D. Cal. 25 July 11, 2010) (“when a plaintiff asserts claims [for defective product or false advertising] . . . 26 claims relating to products not purchased must be dismissed for lack of standing”); Carrea v. 27 Dreyer’s Grand Ice Cream, Inc., No. C-10-01044-JSW, 2011 WL 159380, at *3 (N.D. Cal. Jan. 10, 28 2011) (dismissing claims based on products other than those purchased by the plaintiff). In Miller 7 Case No. 5:13-CV-0492-EJD ORDER GRANTING DEFENDANT’S MOTION TO DISMISS 1 v. Ghirardelli Chocolate Co., 912 F. Supp. 2d 861, 871 (N.D. Cal. 2012), the court analyzed why 2 the products that plaintiff did not buy were not substantially similar to those he did buy. The 3 identified products were different, looked different, and were labeled differently, so plaintiff did 4 not allege “the sort of similarity of representation or product” that would amount to “the same basic 5 mislabeling practice” such as was found in Astiana v. Dreyer’s Grand Ice Cream, Inc., Nos. C-11- 6 2910-EMC, C-11-3164-EMC, 2012 WL 2990766, at *13 (N.D. Cal. July 20, 2012) or Anderson v. 7 Jamba Juice Co., 888 F. Supp. 2d 1000 (N.D. Cal. 2012). 8 9 In this case, Plaintiff asserts claims regarding statements she never saw and products she did not buy. However, Plaintiff does not allege that the products are substantially similar beyond United States District Court For the Northern District of California 10 having the same labeling statements. Accordingly, Plaintiff lacks standing to bring claims as to 11 unpurchased products and the claims are dismissed. 12 C. Preemption 13 Defendant argues that Plaintiff’s causes of action predicated upon state law are preempted 14 by the FDCA. Defendant contends that language in the federal law explicitly precludes Plaintiff, a 15 private actor, from enforcing this federal law and the FDA regulations, and Plaintiff cannot use the 16 Sherman Law as a way to sidestep preemption. Defendant further argues that such enforcement is 17 expressly preempted because a judgment in Plaintiff’s favor would impose requirements different 18 from or in addition to the exhaustive federal laws and regulations. 19 The preemption doctrine stems from the Supremacy Clause of Article VI of the U.S. 20 Constitution, under which federal law is deemed the “supreme law of the land.” Federal law 21 preempts state law where any of the three forms of preemption are found: (1) express preemption; 22 (2) field preemption; and (3) and implied preemption. Hillsborough Cnty., Florida v. Automated 23 Med. Labs. Inc., 471 U.S. 707, 713 (1985). In other words, federal preemption occurs when 24 Congress enacts a statute that explicitly preempts state law; when state law actually conflicts with 25 federal law; or when federal law occupies a legislative field to such an extent that it is reasonable to 26 conclude that Congress left no room for state regulation in the field. Chae v. SLM Corp., 593 F.3d 27 936, 941 (9th Cir. 2010). 28 8 Case No. 5:13-CV-0492-EJD ORDER GRANTING DEFENDANT’S MOTION TO DISMISS 1 2 1. Implied Preemption Defendant argues that to the extent that Plaintiff seeks to enforce labeling rules that are 3 identical to the FDA regulations, Plaintiff’s claims are impliedly preempted because, pursuant to 4 the FDCA, private litigants are prohibited from suing to enforce compliance with the FDA 5 regulations. In this case, however, Plaintiff has not brought suit to enforce the federal statute; 6 rather, Plaintiff’s action is based on the Sherman Law, a parallel state law that mirrors the relevant 7 sections of the FDCA and the NLEA. In such cases, courts have refused to find that preemption 8 precludes the private, state-based causes of action. See Brazil, 935 F. Supp. 2d 947; Chacanaca, 9 752 F. Supp. 2d at 1118; Chavez v. Blue Sky Natural Beverage Co., 268 F.R.D. 365, 371 (N.D. United States District Court For the Northern District of California 10 Cal. 2010); see also Hughes v. Boston Scientific Corp., 631 F.3d 762 (5th Cir. 2011). 11 To bolster its argument, Defendant points to the Ninth Circuit’s decision in Pom Wonderful 12 LLC v. Coca-Cola Co., 679 F.3d 1170 (9th Cir. 2012), a suit brought under the federal Lanham Act 13 alleging false and deceptive labeling. Id. Based on the particular facts of the case, the court held 14 that a plaintiff could not bring federal Lanham Act claims where doing so would require litigating 15 whether the conduct in question violates the FDCA. Id. at 1176. Contrary to Defendant’s 16 contention, the Pom Wonderful court only held that the FDCA bars causes of actions brought under 17 the federal Lanham Act where doing so would implicate the rules and regulations set forth under 18 the FDCA and is therefore inapplicable to the case at hand. Id.; see also Bruton v. Gerber Products 19 Co., 961 F. Supp. 2d 1062, 1080 (N.D. Cal. 2013); Brazil, 935 F. Supp. 2d 947; Delacruz v. 20 Cytosport, Inc., No. C-11-3532-CW, 2012 WL 2563857, at *7 n.3 (N.D. Cal. June 28, 2012) 21 (“[T]he Ninth Circuit did not rule on whether the FDCA expressly preempted Pom’s state law 22 claims under the UCL and FAL. . . . The Ninth Circuit’s preemption ruling was limited to a finding 23 that the FDCA preempted Pom’s claims under the Lanham Act.”). 24 Defendant further relies on the Ninth Circuit’s decision in Perez v. Nidek Co., Ltd., 711 25 F.3d 1109 (9th Cir. 2013), however that decision is factually distinguishable from this case because 26 it arose in the context of medical devices regulated by the FDCA and courts in this district have 27 found that its reasoning does not apply to food labeling cases. Bruton, 961 F. Supp. 2d at 1082. 28 9 Case No. 5:13-CV-0492-EJD ORDER GRANTING DEFENDANT’S MOTION TO DISMISS 1 2 2. Express Preemption Defendant next argues that express preemption language from the FDCA acts as a bar to 3 Plaintiff’s state-based claims. Defendant contends that Plaintiff’s claims are expressly preempted 4 because Plaintiff is seeking to impose requirements that are “not identical” to the language of the 5 FDCA statute and the rules and regulations imposed by the FDA. 6 State consumer protection laws are preempted if they seek to impose requirements that 7 contravene the requirements set forth by federal law. See Wyeth v. Levine, 555 U.S. 555 (2009); 8 see also Astiana v. Ben & Jerry’s Homemade, Inc., Nos. C-10-4387-PJH, C-10-4937-PJH, 2011 9 WL 2111796 (N.D. Cal. May 26, 2011). The FDCA, as amended by the NLEA, contains an United States District Court For the Northern District of California 10 express preemption provision, making clear that state laws imposing labeling requirements not 11 identical to FDA mandates are preempted. 21 U.S.C. § 343-1(a). However, “where a requirement 12 imposed by state law effectively parallels or mirrors the relevant sections of the NLEA, courts have 13 repeatedly refused to find preemption.” Chacanaca, 752 F. Supp. 2d at 1118. This means that a 14 plaintiff’s claims need not fail on preemption grounds if the requirements she seeks to impose are 15 identical to those imposed by the FDCA and the NLEA amendments. 16 Courts in this district have generally found express preemption under the FDCA only when: 17 (1) the FDA requirements with respect to a particular food label or package are clear; and (2) the 18 product label or package at issue is in compliance with that policy, such that plaintiff necessarily 19 seeks to enforce requirements in excess of what the FDCA, NLEA, and the implementing 20 regulations require. Ivie, 2013 WL 685372, at *8. 21 This Court does not find that Plaintiff’s claims are preempted as Plaintiff brings her claims 22 under the Sherman Law and her claims do not impose any requirements in addition to the FDCA. 23 Courts in this district have determined that the FDA’s draft guidance on ECJ claims is sufficient to 24 state the FDA’s position on the term such that a claim based on the term is not in addition to the 25 FDA’s regulations. See Ivie, 2013 WL 685372, at *12 (holding that ECJ claims are not preempted 26 and could go forward under “deceptive” prong of UCL at the motion to dismiss stage). 27 28 10 Case No. 5:13-CV-0492-EJD ORDER GRANTING DEFENDANT’S MOTION TO DISMISS D. Primary Jurisdiction 2 The primary jurisdiction doctrine allows courts to “stay proceedings or to dismiss a 3 complaint without prejudice pending the resolution of an issue within the special competence of an 4 administrative agency.” Ivie, 2013 WL 685372, at *5 (quoting Clark v. Time Warner Cable, 523 5 F. 3d 1110, 1114 (9th Cir. 2008)). Courts consider the following factors in deciding whether the 6 doctrine of primary jurisdiction applies: “(1) the need to resolve an issue that (2) has been placed 7 by Congress within the jurisdiction of an administrative body having regulatory authority (3) 8 pursuant to a statute that subjects an industry or activity to a comprehensive regulatory authority 9 that (4) requires expertise or uniformity in administration.” Ivie, 2013 WL 685372, at *5. 10 United States District Court For the Northern District of California 1 Where determination of a plaintiff’s claim would require a court to decide an issue 11 committed to the FDA’s expertise without a clear indication of how the FDA would view the issue, 12 courts of this district have found that dismissal or stay under the primary jurisdiction doctrine is 13 appropriate. See Hood v. Wholesoy & Co., Modesto Wholesoy Co. LLC, No. 12-CV-5550-YGR, 14 2013 WL 3553979, at *5-6 (N.D. Cal. July 12, 2013) (ECJ and soy yogurt claims dismissed 15 because the FDA’s position is unsettled); Astiana v. Hain Celestial, 905 F. Supp. 2d 1013, 1016-17 16 (N.D. Cal. 2012) (holding that “[i]n absence of any FDA rules or regulations (or even informal 17 policy statements) . . . the court declines to make any independent determination of whether [the 18 label] was false or misleading” and the claims were barred under the primary jurisdiction doctrine). 19 In contrast, however, where FDA policy is clearly established with respect to what 20 constitutes an unlawful or misleading label, the primary jurisdiction doctrine is inapplicable 21 because there is little risk that the courts will undermine the FDA’s expertise. See Brazil, 935 F. 22 Supp. 2d at 959 (where the FDA has established requirements applicable to the violations, there is 23 no risk of undercutting the FDA’s judgment and authority, thus a stay is not necessary). 24 With regard to ECJ claims, the majority of courts in this district have decided that such 25 claims are not barred by the doctrine of primary jurisdiction. FDA’s guidance suggests that the 26 agency does not view the issue as unsettled and the claim is not precluded by primary jurisdiction 27 doctrine. See Swearingen v. Yucatan Foods, L.P., No. C-13-3544-RS, 2014 WL 553537 (N.D. 28 Cal. Feb. 7, 2014); Gitson v. Clover Stornetta Farms, No. C-13-01517-EDL, 2014 WL 172338, at 11 Case No. 5:13-CV-0492-EJD ORDER GRANTING DEFENDANT’S MOTION TO DISMISS *12 (N.D. Cal. Jan. 15, 2014); Morgan v. Wallaby Yogurt Co., Inc., No. 13-CV-0296-WHO, 2013 2 WL 5514563, at *4 (N.D. Cal. Oct. 4, 2013); Werdebaugh v. Blue Diamond Growers, No. 12-CV- 3 02724-LHK, 2013 WL 5487236, at *8-9 (N.D. Cal. Oct. 2, 2013) (FDA, through guidance and 4 warning letters, has articulated a position on ECJ); Kane v. Chobani, Inc., No. 12-CV-2425-LHK, 5 2013 WL 3703981, at *17 (N.D. Cal. Jul. 12, 2013), vacated by 2013 WL 5529723 (N.D. Cal. Jul. 6 25, 2013), reconsidered by 2013 WL 5289253 (N.D. Cal. Sept. 19, 2013) (denying motion to 7 dismiss ECJ claim on primary jurisdiction ground, but granting motion to dismiss claim that use of 8 ECJ in yogurt violated standards of identity for yogurt on primary jurisdiction grounds)1; Ivie, 9 2013 WL 685372, at *12 (holding that ECJ claims could go forward under “deceptive” prong of 10 United States District Court For the Northern District of California 1 UCL); Samet v. Procter & Gamble, Co., No. 12-CV-01891-PSG, 2013 WL 3124647, at *8 (N.D. 11 Cal. June 18, 2013) (FDA regulation that common or usual name be used to identify ingredients 12 encompasses ECJ). This Court adopts the position taken by a majority of courts in this district, 13 finding that ECJ claims need not be dismissed as a result of the primary jurisdiction doctrine. 14 With regards to Plaintiff’s other claims, Defendant has not demonstrated that this Court 15 could not determine whether such claims are misleading without FDA expertise. See Jones v. 16 ConAgra Foods, Inc., 912 F. Supp. 2d 889 (N.D. Cal. 2012) (concluding that similar allegations 17 regarding deceptive labeling do not require FDA expertise to be solved in court); Cytosport, 2012 18 WL 2563857, at *10 (N.D. Cal. June 28, 2012) (“FDA’s expertise . . . is not needed to determine 19 whether the labels are misleading.”). As such, the claims are not barred by the doctrine of primary 20 jurisdiction. 21 E. Sufficiency of Claims 22 Plaintiff alleges two different facets of their argument against Defendant. First, 23 Defendant’s packages and labels render the products “misbranded” and therefore unlawful; second, 24 Defendant’s labels are “fraudulent” and “misleading.” Plaintiff argues that the first facet of the 25 case does not sound in fraud. 26 1 27 28 In Kane v. Chobani, No. 12-CV-02425-LHK, 2013 WL 5289253 (N.D. Cal., Sept. 19, 2013), the court ultimately dismissed plaintiffs’ ECJ allegations for failure to sufficiently state a claim under Rule 8(a) and Rule 9(b) because plaintiffs did not adequately plead that they believed the yogurts contained “only natural sugars from milk and fruit and did not contain added sugars or syrups.” Id. at *7. 12 Case No. 5:13-CV-0492-EJD ORDER GRANTING DEFENDANT’S MOTION TO DISMISS 1 For all claims under the UCL that arise from deceptive advertising, as Plaintiff’s claims 2 here do, Plaintiff must plead reliance and show that “members of the public are likely to be 3 deceived.” Williams v. Gerber Products Co., 552 F.3d 934, 938 (9th Cir. 2008); Kwikset, 51 Cal. 4 4th 310. Whether a practice is “deceptive, fraudulent, or unfair” is generally a question of fact that 5 is not appropriate for resolution on the pleadings. Williams, 552 F.3d at 938-39; Bruton, 961 F. 6 Supp. 2d at 1089. Where there are food packaging features that could likely deceive a reasonable 7 consumer, the Ninth Circuit has found that granting a motion to dismiss is inappropriate. Williams, 8 552 F.3d at 939. 9 However, where a court can conclude as a matter of law that alleged misrepresentations are United States District Court For the Northern District of California 10 not likely to deceive a reasonable consumer, courts have dismissed claims under the UCL, FAL, 11 and CLRA. Jones, 912 F. Supp. 2d at 899; see Red v. Kraft Foods, Inc., No. 10-CV-1028-GW, 12 2012 WL 5504011, at *4 (C.D. Cal. Oct. 25, 2012) (“where . . . the claim alleges that a consumer 13 will read a true statement on a package and then disregard ‘well-known facts of life,’” the court 14 granted a motion to dismiss because a reasonable consumer would not be deceived by pictures of 15 vegetables and the true phrase “Made with Real Vegetables”); Carrea v. Dreyer’s Grand Ice 16 Cream, Inc., 475 Fed. Appx. 113 (9th Cir. 2012) (unpublished Ninth Circuit case determined that a 17 reasonable consumer would not think the terms “original” or “classic” indicate a wholesome or 18 nutritious product). 19 1. “Unlawful” Claims 20 As discussed above, under the “unlawful” prong of the UCL, Plaintiff must plead reliance 21 when claims are premised on allegedly deceptive advertising. See Kwikset, 51 Cal. 4th 310; 22 Chobani, No. 12-CV-02425-LHK, 2014 WL 657300, at *5 (N.D. Cal. Feb. 20, 2014); Brazil, 2013 23 WL 5312418, at *8-9. Defendant argues that Plaintiff cannot avoid the UCL’s pleading 24 requirement under the “unlawful” prong. 25 Plaintiff argues that her claims are not based on misrepresentation, rather on the illegality of 26 the products themselves as their misbranding violates the Sherman Law, and therefore there is no 27 need for Plaintiff to prove reliance. Plaintiff relies on Medrazo v. Honda of N. Hollywood, 205 28 Cal. App. 4th 1 (2012), and Steroid Hormone Product Cases, 181 Cal. App. 4th 145 (2010), for the 13 Case No. 5:13-CV-0492-EJD ORDER GRANTING DEFENDANT’S MOTION TO DISMISS 1 proposition that no showing of reliance is required where a defendant sells a product that is illegal 2 to sell. However, as discussed in Chobani, 2014 WL 657300, at *7, these cases are unavailing 3 because Steroid Hormone was decided prior to the California Supreme Court’s decision in Kwikset 4 and the alleged unlawful conduct in that case was not based on a statute prohibiting specific types 5 of misrepresentations. Similarly, Medrazo does not discuss Kwikset’s finding that actual reliance 6 applies to claims under the unlawful prong of the UCL. Plaintiff cannot circumvent the reliance 7 requirement by simply pointing to a regulation or code provision that was violated by the alleged 8 label misrepresentation, summarily claiming that the product is illegal to sell and therefore 9 negating the need to plead reliance. As this district pointed out in Brazil, if the court held that a United States District Court For the Northern District of California 10 plaintiff “has standing to bring claims based solely upon allegations that he would not have 11 purchased a product that was misbranded, purchasers who never ‘viewed the defendant’s 12 advertising’ or misleading labeling would have standing to sue. Such a holding is inconsistent with 13 Proposition 64 and Kwikset.” Brazil, 2013 WL 5312418, at *9. Therefore, actual reliance must be 14 pled in order to satisfy the requirements of the UCL. 15 2. “Fraudulent” Claims 16 For all claims of Defendant’s alleged violations, Plaintiff has not pled her claims with the 17 particularity required by Rule 9(b). The ECJ claims will be dismissed because Plaintiff does not 18 identify which, if any, of the products she purchased had labels that used the term ECJ. Further, 19 the AC fails to allege what Plaintiff believed ECJ to be if not sugar and does not explain what a 20 reasonable person would believe ECJ to be. As for the health claims, Plaintiff does not specify 21 which health claims she saw on the two products she purchased and does not demonstrate her 22 reliance on those labels. The “preservative free” claim is also not alleged with the requisite 23 specificity. Beyond stating that the EnviroKids cereal “bore such a false labeling statement” and 24 that the ingredient statement did not include a parenthetical after the term tocopherols, Plaintiff 25 does not allege what statement concerning preservatives she read on the labels of the products she 26 purchased. Additionally, Plaintiff alleges that the two products she purchased were unjustifiably 27 slack-filled, but she does not demonstrate facts showing that she was deceived by the packaging. 28 14 Case No. 5:13-CV-0492-EJD ORDER GRANTING DEFENDANT’S MOTION TO DISMISS 1 2 As a result, all of Plaintiff’s claims based on the alleged misrepresentations are dismissed for failure to meet the heightened pleading standard of Rule 9(b). 3 F. Restitution Based on Unjust Enrichment / Quasi-Contract 4 Plaintiff claims that Defendant sold products that were not capable of being sold (because 5 their labels violated state and federal regulations), and it would be unjust and inequitable for 6 Defendant to retain the benefit without restitution to Plaintiff and class of the money paid for the 7 products. Defendant argues that Plaintiff’s claim for unjust enrichment / quasi-contract must be 8 dismissed because there is no cause of action for unjust enrichment in California. 9 Courts in this district are split on the issue of whether to dismiss such claims. A number of United States District Court For the Northern District of California 10 courts have held that a plaintiff cannot assert a claim for unjust enrichment that is duplicative of 11 statutory or tort claims. See Hendricks v. StarKist Co., No. 13-CV-729-YGR, 2014 WL 1244770, 12 at *11 (N.D. Cal. March 25, 2014); Pardini v. Unilever U.S., Inc., 961 F. Supp. 2d 1048, 1060 13 (N.D. Cal. 2013); Morgan, 2013 WL 5514563, at *11; Brazil, 2013 WL 1209955, at *18; Chobani, 14 2013 WL 5289253, at *11; Lanovaz v. Twinings N. Am., Inc., C-12-02646-RMW, 2013 WL 15 675929, at *7 (N.D. Cal. Feb. 25, 2013); Smith v. Ebay Corp., No. C 10-03825-JSW, 2012 WL 16 27718, at *9-10 (N.D. Cal. Jan. 5, 2012). Other courts declined to dismiss when an unjust 17 enrichment claim is based on quasi contract, because it is not deemed a standalone claim. See 18 Jones, 912 F. Supp. 2d at 904; Larsen v. Trader Joe’s Co., C 11-05188 SI, 2012 WL 5458396, at *7 19 (N.D. Cal. June 14, 2012); Astiana, 2011 WL 2111796, at *11 (N.D. Cal. May 26, 2011). 20 The Court agrees with the line of reasoning proffered in the former cases, as Plaintiff’s 21 claim and the relief sought is duplicative of Plaintiff’s statutory claims under the UCL and CLRA. 22 As such, this claim is dismissed. 23 IV. CONCLUSION 24 For the reasons stated above, Defendant’s Motion to Dismiss will be GRANTED. 25 Plaintiff’s claims are dismissed with leave to amend. If Plaintiff wishes to further amend the 26 complaint, the Court orders that it be pled in compliance with the pleading standards of Rules 8 and 27 9 and filed within 15 days of the date of this order. 28 15 Case No. 5:13-CV-0492-EJD ORDER GRANTING DEFENDANT’S MOTION TO DISMISS

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