Sonia Perez v. The Kroger Co., et al, No. 2:2017cv02448 - Document 81 (C.D. Cal. 2018)
Court Description: ORDER GRANTING DEFENDANTS MOTION FOR SUMMARY JUDGMENT 63 by Judge Otis D. Wright, II: The Court GRANTS Krogers motion for summary judgment (ECF No. 63)because Kroger Apple Juices No Sugar Added claim does not violate federal law,and thus, does not violate the UCL, FAL, or CLRA. The Court will issue judgment. (lc)
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Sonia Perez v. The Kroger Co., et al Doc. 81 O 1 2 3 4 5 6 7 United States District Court Central District of California 8 9 10 11 SONIA PEREZ, individually, and on 12 behalf of a class of similarly situated 13 individuals, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [63] v. 15 16 ORDER GRANTING Plaintiff, 14 Case No. 2:17-cv-02448-ODW (AGR) THE KROGER CO.; and DOES 1–10, Defendants. 17 18 I. 19 INTRODUCTION 20 Plaintiff Sonia Perez (“Perez”), on behalf of herself and the putative class 21 members she seeks to represent, alleges that Defendant The Kroger Co.’s (“Kroger”) 22 use of the statement “No Sugar Added” on Kroger Apple Juice1 violates the Food and 23 Drug Administration (“FDA”) regulations, specifically 21 C.F.R. § 101.60(c)(2)(iv). 24 (Second Am. Compl. (“SAC”) ¶¶ 1–2, 5–7, ECF. No. 35.) In particular, the FDA 25 regulation sets forth five provisions in which the terms “no sugar added,” “without 26 added sugar,” or “no added sugar” may be used. 21 C.F.R. § 101.60(c)(2). One of the 27 28 1 As used herein, Kroger 100% Apple Juice, Kroger 100% Natural Apple Juice, and Simple Truth Organic 100% Apple Juice shall collectively be referred to as Kroger Apple Juice. Dockets.Justia.com 1 five provisions requires that “[t]he food that it resembles and for which it substitutes 2 normally contains added sugar.” 21 C.F.R. § 101.60(c)(2)(iv). Plaintiff alleges that 3 Kroger Apple Juice violates this provision because Kroger Apple Juice “does not 4 resemble and substitute for a food that normally contains added sugars.” (SAC ¶ 7.) 5 Plaintiff further claims that the “no sugar added” label is “not appropriate to describe 6 foods that do not normally contain added sugars,” like Kroger Apple Juice, which 7 contains 100% apple juice. (SAC ¶ 31.) 8 Accordingly, Perez alleges that Kroger’s failure to comply with the FDA 9 regulation violates (1) the Unfair Competition Law (“UCL”) pursuant to California 10 Business and Professions Code section 17200 et seq.; (2) the False Advertising Law 11 (“FAL”) pursuant to California Business and Professions Code section 17500 et seq.; 12 and (3) the Consumer’s Legal Remedies Act (“CLRA”) pursuant to California Civil 13 Code section 1750 et seq. (SAC ¶¶ 53, 60, 66–74, 75–88.) 14 Kroger moves for summary judgment on all of Perez’s causes of action on the 15 basis that there is no violation of the FDA regulation, specifically 21 C.F.R. 16 § 101.60(c)(2)(iv), which is the underlying violation supporting all of Perez’s causes 17 of action. (Mot. Summ. J. (“Mot.”), ECF No. 63.) As state law labeling requirements 18 cannot be more restrictive or burdensome than the federal requirements, a state law 19 making the claim unlawful would be preempted if there is no violation of 21 C.F.R. 20 § 101.60(c)(2). 21 § 101.60(c)(2)(iv). See 21 U.S.C. §§ 343-1(a)(5), 343(r), 343(q); 21 C.F.R. 22 In support of Kroger’s Motion, Kroger argues that the FDA has explicitly 23 rejected Perez’s allegations, and the FDA allows the “No Sugar Added” labeling on 24 100% fruit juices where the label is truthful and otherwise conforms with the FDA 25 requirements. Kroger urges the Court to defer to the FDA’s interpretation of section 26 101.60(c)(2)(iv). 27 28 For the following reasons, the Court GRANTS Kroger’s Motion for Summary Judgment. (ECF No. 63.) 2 II. 1 FACTUAL BACKGRUOND 2 Perez alleges that in January 2017, she purchased Kroger Apple Juice after 3 reading and relying on the product’s “No Sugar Added” label. Perez alleges that sugar 4 level is important to her, and she believed that Kroger Apple Juice was healthier than 5 other brands of apple juice because of the “No Sugar Added” label. (SAC ¶¶ 16–18.) 6 Perez claims that she would not have bought Kroger Apple Juice if she had known 7 that similar products contained the same level of sugar. (SAC ¶ 17.) Perez further 8 claims that without the “No Sugar Added” label, she would have either not purchased 9 the product or paid less for it. (SAC ¶ 20.) 10 Kroger now moves for summary judgment on the basis that the FDA’s 11 interpretation of its own regulation, 21 C.F.R. § 101.60(c)—that 100% juices can 12 include “No Sugar Added” on their labels—is entitled to deference. Kroger further 13 argues that if the correct interpretation of section 101.60(c) allows the “No Sugar 14 Added” claim on the label of Kroger Apple Juice, then a state law making the claim 15 unlawful would be preempted. (Mot. 1.) 16 III. REQUEST FOR JUDICIAL NOTICE 17 In support of her Opposition, Plaintiff filed a Request for Judicial Notice 18 requesting that the Court take judicial notice of two items. (Req. for Judicial Notice, 19 ECF No. 68-2.) Specifically, Plaintiff requested that the Court take judicial notice of 20 (1) the decision in Sahjigian v. Sun-Maid Growers of California, 17-cv-05013-AB- 21 PJW (C.D. Cal. Dec. 14, 2017) and (2) that a letter from the Center for Science in the 22 Public Interest dated May 14, 2017 was publicly published on the FDA’s website. 23 However, Plaintiff failed to attach the exhibits to the request until one business day 24 before hearing. (See Notice of Errata, ECF No. 78.) 25 The party requesting judicial notice must supply the court with the source 26 material needed to determine whether the request is justified. In re Tyrone F. Conner 27 Corp., Inc., 140 B.R. 771, 781 (Bankr. E.D. Cal. 1992). “[T]he Court will not 28 3 1 rummage through the Court files and take notice of those documents requested absent 2 those documents being supplied to the Court.” Id. at 782. 3 Although the Request for Judicial Notice failed to properly attach the requested 4 documents as exhibits, Defendant did not oppose or otherwise object to the request. 5 Courts regularly take judicial notice of proceedings in other courts and facts that “can 6 be accurately and readily determined from sources whose accuracy cannot reasonably 7 be questioned.” Fed. R. Evid. 201(b)(2); see also Montantes v. Inventure Foods, No. 8 14-cv-1128-MWF (RZx), 2014 WL 3305578, at *2 (C.D. Cal. July 2, 2014) (stating 9 that courts “take judicial notice of proceedings in other courts . . . if those proceedings 10 have a direct relation to matters at issue”) (internal quotation marks omitted). 11 Therefore, the Court takes judicial notice of the above-referenced documents, 12 but not the facts contained therein. Lee v. City of Los Angeles, 250 F.3d 668, 690 (9th 13 Cir. 2001) (stating that judicial notice of public records is limited to the existence of 14 the documents, not the truth of their contents). 15 IV. LEGAL STANDARD 16 A court “shall grant summary judgment if the movant shows that there is no 17 genuine dispute as to any material fact and the movant is entitled to judgment as a 18 matter of law.” Fed. R. Civ. P. 56(a). Courts must view the facts and draw reasonable 19 inferences in the light most favorable to the nonmoving party. Scott v. Harris, 550 20 U.S. 372, 378 (2007). A disputed fact is “material” where the resolution of that fact 21 might affect the outcome of the suit under the governing law, and the dispute is 22 “genuine” where “the evidence is such that a reasonable jury could return a verdict for 23 the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 24 Conclusory or speculative testimony in affidavits is insufficient to raise genuine issues 25 of fact and defeat summary judgment. Thornhill’s Publ’g Co. v. GTE Corp., 594 F.2d 26 730, 738 (9th Cir. 1979). Moreover, though the Court may not weigh conflicting 27 evidence or make credibility determinations, there must be more than a mere scintilla 28 4 1 of contradictory evidence to survive summary judgment. Addisu v. Fred Meyer, Inc., 2 198 F.3d 1130, 1134 (9th Cir. 2000). 3 Once the moving party satisfies its burden, the nonmoving party cannot simply 4 rest on the pleadings or argue that any disagreement or “metaphysical doubt” about a 5 material issue of fact precludes summary judgment. See Celotex Corp. v. Catrett, 477 6 U.S. 317, 322–23 (1986); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 7 U.S. 574, 586 (1986); Cal. Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, 8 Inc., 818 F.2d 1466, 1468 (9th Cir. 1987). Nor will uncorroborated allegations and 9 “self-serving testimony” create a genuine issue of material fact. Villiarimo v. Aloha 10 Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002). The court should grant 11 summary judgment against a party who fails to demonstrate facts sufficient to 12 establish an element essential to his case when that party will ultimately bear the 13 burden of proof at trial. See Celotex, 477 U.S. at 322. 14 Pursuant to the Local Rules, parties moving for summary judgment must file a 15 proposed “Statement of Uncontroverted Facts and Conclusions of Law” that should 16 set out the material facts to which the moving party contends there is no genuine 17 dispute. C.D. Cal. L.R. 56-1. A party opposing the motion must file a “Statement of 18 Genuine Disputes” setting forth all material facts as to which it contends there exists a 19 genuine dispute. C.D. Cal. L.R. 56-2. “[T]he Court may assume that material facts as 20 claimed and adequately supported by the moving party are admitted to exist without 21 controversy except to the extent that such material facts are (a) included in the 22 ‘Statement of Genuine Disputes’ and (b) controverted by declaration or other written 23 evidence files in opposition to the motion.” C.D. Cal. L.R. 56-3. 24 V. DISCUSSION 25 Kroger argues that Perez’s causes of action are preempted by the Food, Drug, 26 and Cosmetic Act (“FDCA”) because the “No Sugar Added” claim complies with 21 27 U.S.C. § 101.60(c). As such, Perez’s causes of action pursuant to the UCL, FAL, and 28 CLRA are preempted because state law cannot impose a requirement that is more 5 1 burdensome or restrictive than federal law. Accordingly, the Court will first address 2 whether the state law claims are preempted and then whether Kroger complied with 3 the relevant federal regulation. 4 A. Preemption 5 Pursuant to the Supremacy Clause, U.S. Const. art. VI, cl. 2, federal law 6 preempts state law when “(1) Congress enacts a statute that explicitly preempts state 7 law; (2) state law actually conflicts with federal law; or (3) federal law occupies a 8 legislative field to such an extent that it is reasonable to conclude that Congress left no 9 room for state regulation in that field.” Chae v. SLM Corp., 593 F.3d 936, 941 (9th 10 Cir. 2010). 11 In 1990, Congress passed the Nutrition Labeling and Education Act (“NLEA”), 12 amending the FDCA, and adding an express preemption provision. See 21 U.S.C. 13 § 343-1(a). 14 labeling requirements that are “not identical to” the requirements set forth in certain 15 sections of the FDCA. “Not identical to” means that the state “requirement directly or 16 indirectly imposes obligations or contains provisions concerning the composition or 17 labeling of food . . . that: (i) [a]re not imposed by or contained in the applicable 18 provision . . .; or (ii) [d]iffer from those specifically imposed by or contained in the 19 applicable provision (including any implementing regulation) of section 401 or 403 of 20 the act.” 21 C.F.R. § 100.1(c)(4). Accordingly, a label claim regarding sugar content 21 falls under the FDCA’s express preemption provision. 22 No. 17-2763-DSF (FFMX), 2018 WL 3830119, at *2 (C.D. Cal. July 30, 2018) 23 (identifying a number of regulations regarding sugar content, including 21 C.F.R. 24 § 101.60, that fall under the FDCA’s express preemption provision). Specifically, section 341-1(a) prohibits states from establishing food Wilson v. Odwalla, Inc., 25 As Kroger indicates in its Reply, “[i]f Kroger is in compliance with Section 26 101.60(c)(2)(iv)—the only subsection Plaintiff alleges Kroger has violated—then 27 Plaintiff’s claims are preempted to the extent they seek to impose labeling more 28 burdensome that Section 101.60(c)(2)(iv).” (Reply in Supp. of Mot. (“Reply”) 10, 6 1 ECF No. 69.) The Court agrees to the extent that if section 101.60(c)(2) allows the 2 “No Sugar Added” claim on Kroger Apple Juice, then a state law making the “No 3 Sugar Added” claim unlawful would be preempted. Perez does not disagree with this 4 statement. (See Opp’n to Mot. (“Opp’n”) 14, ECF No. 68.) 5 Instead, Perez argues that she is not seeking to impose labeling requirements 6 that are more burdensome or restrictive than the FDA regulations, but instead, she is 7 seeking to “enforce food labeling requirements that are identical to [the] FDA 8 regulations.” (Opp’n 14.) As Perez notes, her UCL, FAL, and CLRA claims are 9 predicated on Kroger’s violation of an FDA regulation, specifically section 10 101.60(c)(2)(iv), which is incorporated into California’s Sherman Law and 21 U.S.C. 11 § 343(a). As such, Perez’s claims are not preempted, expressly or impliedly, because 12 Perez is not trying to impose additional requirements beyond the FDA regulations. 13 Accepting Perez’s argument as true, if Kroger’s “No Sugar Added” label complies 14 with federal law, then there would be no violation of the state laws that she seeks to 15 impose. Accordingly, the question the Court must resolve is whether the “No Sugar 16 17 Added” label on Kroger Apple Juice violates federal law. 18 B. The FDA Regulation 19 As discussed throughout, the FDA regulation at issue is 21 C.F.R. 20 § 101.60(c)(2). An agency’s interpretation of its own regulations may be entitled to 21 judicial deference unless it is “plainly erroneous or inconsistent with the regulation” or 22 that the agency’s “interpretation does not reflect the agency’s fair and considered 23 judgment on the matter in question.” Auer v. Robbins, 519 U.S. 452, 461–62 (1997). 24 This includes the FDA’s interpretation of its own regulation. PLIVA, Inc. v. Mensing, 25 564 U.S. 604, 613 (2011) (giving deference to the FDA’s interpretation); Reid v. 26 Johnson & Johnson, 780 F.3d 952, 962 (9th Cir. 2015) (granting deference to the 27 FDA’s guidance in letters). Deference to the FDA’s interpretation of its own rules is 28 proper even if it is the “product of an informal and non-final process.” Reid, 780 F.3d 7 1 at 962. However, Auer deference is warranted only after a court determines that the 2 regulation is ambiguous. Bassiri v. Xerox Corp., 463 F.3d 927, 930–31 (9th Cir. 3 2006) (holding that deference is proper “only when the language of the regulation is 4 ambiguous”). 5 interpretation would allow “the agency, under the guise of interpreting a regulation, to 6 create de facto a new regulation.” Christensen v. Harris County, 529 U.S. 576, 588 7 (2000). a. 8 If the regulation is not ambiguous, deferring to the agency’s Section 101.60(c)(2) is ambiguous. 9 A regulation is ambiguous when it is “not entirely ‘free from doubt’ . . . or 10 ‘susceptible to different interpretations and . . . discretional elements.’” Cal. Pac. 11 Bank v. Fed. Deposit Inc. Corp., 885 F.3d 560, 574 (9th Cir 2018) (citations omitted); 12 see also Hells Canyon Alliance v. U.S. Forest Service, 227 F.3d 1170, 1180 (9th Cir. 13 2000) (deferring to the agency’s interpretation because the plain language of the 14 regulation “is susceptible to more than one reasonable interpretation”). 15 Section 101.60(c)(2)(iv) requires that “[t]he food that it resembles and for 16 which it substitutes normally contains added sugar.” Both parties dispute the meaning 17 of the phrase “resembles and for which it substitutes.” (See Opp’n 8; Reply 3–5.) 18 The regulation itself does not define the phrase “resembles and for which it 19 substitutes.” Perez refers the Court to 21 C.F.R. § 101.13(d) for guidance on how the 20 phrase should be interpreted. Although a different section, Perez believes that section 21 101.13(d) is applicable because it appears in the “same volume of the Federal 22 Register” as section 101.60(c)(2). (Opp’n 5.) There is nothing in the regulation that 23 explicitly supports Perez’s position that 21 C.F.R. § 101.13(d) was intended to apply 24 to 21 C.F.R. § 101.60(c)(2).2 25 definition and use of the word “substitute” applied to section 101.60(c)(2), section 26 101.13(d) is uninformative. Section 101.13(d) states that a “substitute food is one that However, even assuming that section 101.13(d)’s 27 28 2 Beyond the fact that the regulations appear in the same volume of the Federal Register, the regulations do not refer to each other or otherwise indicate that the definitions are interchangeable. 8 1 may be used interchangeably with another food that it resembles, i.e., that it is 2 organoleptically, physically, and functionally (including shelf life) similar to, and that 3 it is not nutritionally inferior to unless it is labeled as an imitation.” 21 C.F.R. 4 § 101.13(d) (internal quotation marks omitted). 5 changes the question from “when does a product resemble and substitute for food” to 6 “when may a substitute food be used interchangeably with another food.” Specifically 7 here, what products may be used interchangeably with Kroger Apple Juice. This definition and use simply 8 Kroger disputes section 101.13(d)’s applicability and Perez’s narrow 9 interpretation of the statute that Kroger Apple can only resemble or substitute for 10 other 100% apple juices. (Mot. 7.) Instead, Kroger argues that the plain language of 11 the statute allows 100% juices to substitute for fruit juices that normally contain sugar. 12 (Reply 5.) 13 claims on fruit juices only if “the fruit juice resembles and substitutes for a 14 food . . . that normally contains added sugars.” (Opp’n 8–9.) Perez states that this 15 regulation allows “No Sugar Added” claims on juices such as 100% cranberry juice 16 because cranberry juice normally contains added sugars. (Opp’n 9.) As both parties’ 17 interpretations are reasonable, the Court finds the disputed phrase to be ambiguous. 18 Accordingly, the Court must now determine whether deference is warranted. 19 C. Perez argues that section 101.60(c)(2)(iv) allows “No Sugar Added” The FDA’s Interpretation 20 In a letter dated May 24, 2017, the Center for Science in the Public Interest 21 (CSPI) wrote to the FDA requesting the FDA take action to enforce 21 C.F.R. 22 § 101.60(c)(2)(iv) as to 100% juices. (Decl. of Sarah N. Davis (“Davis Decl.”) ¶ 5, 23 Ex. F (“CSPI Letter”) at 1, ECF Nos. 63-16, 63-22.) Similar to Perez’s position, the 24 CSPI Letter asserted that 100% juices do not normally contain added sugar, and as 25 such, labeling 100% juices as “No Sugar Added” violates the regulation. (Id.) The 26 CSPI letter encouraged the FDA to enforce its regulation in the interest of protecting 27 consumers from deceptive labeling. (CSPI Letter at 9.) The CSPI Letter further 28 outlined the harm associated with the practice of labeling 100% juices as “No Added 9 1 Sugar” including the impression that consumers will “equate such claim with low, or 2 at least moderate, levels of all sugars.” (Id. at 2.) 3 On August 31, 2017, Douglas Balentine, the director of the FDA’s Office of 4 Nutrition and Food Labeling, Center for Food Safety and Applied Nutrition, 5 responded. (Davis Decl. ¶ 6, Ex. H (“FDA Letter”), ECF No. 63-24.) The FDA 6 Letter states that “firms can label a product as 100% juice if the product contains other 7 ingredients, such as sweeteners or preservatives if the statement is accurate . . . and 8 meets FDA’s other requirements.” (Id. at 1.) There is no dispute that Kroger Apple 9 Juice is properly labeled 100% apple juice. 10 addressed 21 C.F.R. § 101.60(c)(2)(iv). In the FDA Letter, the FDA states: 11 12 13 14 15 16 The FDA Letter also specifically (Id. at 2.) We note that this condition does not limit the “No Added Sugar” claim to only very similar foods bearing the same name or the same juice content. For example, juices with no added sugar could substitute for juice with added sugar, fruit-flavored soft drinks sweetened with sugar, or other sugar-sweetened beverages. 17 The FDA’s interpretation is clear and consistent with Kroger’s interpretation 18 that Kroger Apple Juice is interchangeable and can substitute for other juices with 19 added sugar, fruit-flavored soft drinks sweetened with sugar, or other sugar-sweetened 20 beverages. Accordingly, if the FDA’s interpretation is entitled to Auer deference, 21 Kroger has not violated 21 C.F.R. § 101.60(c)(2)(iv). 22 a. The FDA Letter is not plainly erroneous. 23 An agency’s interpretation of its own regulations may be entitled to judicial 24 deference unless it is “plainly erroneous or inconsistent with the regulation” or that the 25 agency’s “interpretation does not reflect the agency’s fair and considered judgment on 26 the matter in question.” Auer, 519 U.S. at 461–62. 27 Perez advances two arguments as to why the FDA Letter is “completely 28 erroneous and inconsistent with the express language” of the regulation. (Opp’n 10.) 10 1 However, both of Perez’s arguments are premised on how two sentences in the FDA 2 Letter are inconsistent with section 101.13(d), as described supra, IV.B.a. As the 3 Court previously discussed, section 101.13(d) itself does not assist the Court in 4 interpreting section 101.60(c)(2)(iv). Even adopting section 101.13(d)’s definition, 5 the Court is still left to determine when may a substitute food be used interchangeably 6 with another food. Further, as Kroger explained in its Motion, and Perez failed to 7 address, the NLEA and Inspection Guides define “substitutes” in terms of product 8 categories. (See Mot. 8–9; Reply 8.) 9 section 101.13(j)(1)(i)(A) allows dissimilar foods “within a product category [to] 10 generally be substituted for one another.” The FDA Letter also finds support in the 11 agency’s regulatory scheme relating to “100% juice” labels. The FDA Letter explains 12 that the “permissibility of the ‘No Added Sugar’ claim on juices (single strength or 13 100% juice with or without added ingredients) is consistent with FDA’s new 14 definition for added sugars.” (FDA Letter at 2.) This suggests that the FDA’s 15 regulatory scheme takes a broad view of “substitute,” consistent with the FDA 16 Letter’s guidance. 17 18 19 Accordingly, the Court finds that the FDA Letter is not plainly erroneous or inconsistent with the regulation, and is therefore entitled to deference. b. The FDA Letter is not a litigation position or rationalization for its lack of enforcement. 20 21 Additionally, as addressed at the hearing, Next, Perez claims that the FDA Letter is “nothing more than a convenient 22 litigating position and rationalization for not enforcing its regulation.” 23 argument is based on CSPI’s “strongly worded and detailed letter” as “America’s 24 Food Watchdog.” 25 “obvious purpose was to explain why the FDA had decided not to spring into action 26 and take on the juice producers industry-wide at the request of CSPI.” (Id. at 11–12.) (Opp’n 11.) Perez’s Perez further presumes that the FDA Letter’s 27 Courts will decline to give an agency’s interpretation Auer deference when it 28 appears that the interpretation is “nothing more than a convenient litigating position.” 11 1 Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 155 (2012) (internal 2 quotation marks omitted). However, a “strongly worded and detailed letter” does not 3 equate to the FDA taking a litigation position. 4 involving the FDA exists, and the Court is unaware of any, such that the FDA would 5 take a “litigation position” on this issue. Taking Perez’s argument to its logical 6 conclusion would mean that the FDA’s response to every letter would result in the 7 FDA taking a litigation position. Perez’s argument is unpersuasive. Moreover, the 8 FDA’s refusal to take action appears simply consistent with the FDA’s past 9 interpretation of the regulation; there was no violation. (FDA Letter at 2 (stating that 10 “single strength or 100% juices have never been considered to be added sugars in the 11 Dietary Guidelines for Americans”).) Accordingly, Auer deference to the FDA’s interpretation of the regulation is 12 13 As Kroger notes, no litigation proper. VI. 14 OTHER CASES 15 The Court is also aware of several other cases brought by Plaintiff’s counsel, 16 asserting claims similar to those set forth in this action, where courts have dismissed 17 plaintiffs’ claims. See Wilson v. Odwalla, Inc., No. 17-2763-DSF (FFMx), 2018 WL 18 3830119 (C.D. Cal. July 30, 2018) (granting summary judgment in a case involving 19 100% orange juice with a “no sugar added” label); Reza v. Zico Beverages, No. 20 BC647064, slip op. at 4 (L.A. Super. Ct. July 17, 2018) (sustaining demurrer without 21 leave to amend in a case involving 100% coconut water with a “no sugar added” 22 label); Shaeffer v. Sun Pac., Inc., No. BC 654207, slip op. at 4 (L.A. Super. Ct. Apr. 9, 23 2018) (sustaining demurrer without leave to amend in a case involving 100% 24 tangerine juice with a “no sugar added” label). The Court admonishes counsel to 25 tread carefully in continuing to bring these particular claims. 26 \\\ 27 \\\ 28 \\\ 12 VII. 1 CONCLUSION 2 Giving deference to the FDA Letter, Kroger Apple Juice complies with section 3 101.60(c)(2)(iv) in that the FDA allows the “No Sugar Added” label on 100% fruit 4 juices where the label is truthful and otherwise conforms with the FDA requirements. 5 Therefore, the Court GRANTS Kroger’s motion for summary judgment (ECF No. 63) 6 because Kroger Apple Juice’s “No Sugar Added” claim does not violate federal law, 7 and thus, does not violate the UCL, FAL, or CLRA. The Court will issue judgment. 8 9 10 IT IS SO ORDERED. September 28, 2018 11 12 13 14 ____________________________________ OTIS D. WRIGHT, II UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13
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