Paschoal et al v. Campbell Soup Company et al, No. 4:2021cv07029 - Document 73 (N.D. Cal. 2022)

Court Description: ORDER GRANTING DEFENDANT CAMPBELLS 36 MOTION TO DISMISS AND GRANTING IN PART AND DENYING IN PART DEFENDANT SUN-MAID AND PLUMS 38 MOTION TO DISMISS. Case Management Statement due by 11/8/2022. Initial Case Management Conference set for 11/15 /2022 02:00 PM. The 11/15 proceeding will be held by AT&T Conference Line. The parties are advised that in the event of an audio problem, counsel should be prepared to attend the hearing via Zoom conference at the Courts direction. The court cir culates the following conference number to allow the equivalent of a public hearing by telephone.For conference line information, see: https://apps.cand.uscourts.gov/telhrg/ All counsel, members of the public and press please use the follow ing dial-in information below to access the conference line: Dial In: 888-808-6929Access Code: 6064255The Court may be in session with proceedings in progress when you connect to the conference line. Therefore, mute your phone if p ossible and wait for the Court to address you before speaking on the line. For call clarity, parties shall NOT use speaker phone or earpieces for these calls, and where at all possible, parties shall use landlines. The parties are further advised to ensure that the Court can hear and understand them clearly before speaking at length.PLEASE NOTE: Persons granted access to court proceedings held by telephone or videoconference are reminded that photographing, recording, and rebroadcast ing of court proceedings, including screenshots or other visual copying of a hearing, is absolutely prohibited. See General Order 58 at Paragraph III. Signed by Judge Haywood S. Gilliam, Jr. on 9/15/2022. (ndr, COURT STAFF) (Filed on 9/15/2022)

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Paschoal et al v. Campbell Soup Company et al Doc. 73 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 RAFAEL PASCHOAL, et al., Plaintiffs, 8 v. United States District Court Northern District of California 9 10 CAMPBELL SOUP COMPANY, et al., 11 Defendants. Case No. 21-cv-07029-HSG ORDER GRANTING DEFENDANT CAMPBELL’S MOTION TO DISMISS AND GRANTING IN PART AND DENYING IN PART DEFENDANT SUN-MAID AND PLUM’S MOTION TO DISMISS Re: Dkt. Nos. 36, 38 12 13 Pending before the Court are two motions to dismiss. Defendant Campbell Soup Company 14 15 16 (“Campbell”) moves to dismiss, briefing for which is complete. See Dkt. Nos. 36, 53, 55. Defendants Sun-Maid Growers of California (“Sun-Maid”) and Plum, PBC (“Plum) also move to dismiss, briefing for which is complete. See Dkt. Nos. 38, 52, 56. The Court finds these matters 17 appropriate for disposition without oral argument and the matters are deemed submitted. See Civil 18 19 L.R. 7-1(b). For the reasons discussed below, the Court GRANTS Defendant Campbell’s motion to dismiss and GRANTS IN PART AND DENIES IN PART Defendants Sun-Maid’s and 20 21 22 23 Plum’s motion to dismiss. I. BACKGROUND A. Factual Background According to the First Amended Complaint, Defendants produce and sell baby food 24 25 26 pouches intended for children 6 months and up under the brand name “Plum Organics.” See Dkt. No. 24 (“FAC”) ¶¶ 16-17, 34-36. Plaintiffs allege that Defendant Sun-Maid acquired the Plum Organics brand from Defendant Campbell in May 2021, and that Defendant Campbell had 27 acquired the brand in May 2013. Id. at 2 n.1. 28 Dockets.Justia.com Plaintiffs Rafael Paschoal, Lisa Chong, and Adina Ringler are consumers in California United States District Court Northern District of California 1 2 who allege that they were deceived into buying Defendants’ products and paying a premium for 3 them. Id. ¶¶ 4-7, 53, 60, 66. Plaintiffs allege that Food and Drug Administration (“FDA”) 4 regulations prohibit companies from making any “nutrient content claims” on food packaging 5 “intended specifically for use by infants and children less than 2 years of age.” See id. ¶ 23. 6 Plaintiffs allege that Defendants’ “Plum Organics” baby food pouches (the “Products”) are 7 intended for children under two years old and that the product packaging includes unlawful 8 nutrient content claims. Id. ¶¶ 16-17; see also Dkt. No. 27-1 Ex. A to FAC. Plaintiffs assert that 9 front-label statements on Product packaging such as “3g Protein,” “4g Fiber,” and “200mg 10 Omega-3 ALA from Chia” are nutrient content claims, and are therefore not allowed to be 11 included on products intended for children less than two years old. FAC ¶¶ 20-22. As further 12 examples of what they allege to be unlawful nutrient content claims on the Products, Plaintiffs cite 13 the statements: “Good Source of Vit. C,” “Nutrient-Dense Blend,” and “Exposure to key nutrients 14 in the first 1000 days is critical for a child’s development,” among others. Dkt. No. 27-1 Ex. A to 15 FAC. 16 Plaintiffs allege that “Defendants’ advertising and labeling of the Products with express 17 and implied nutrient content claims is unlawful, misleading, deceptive, and intended to induce 18 consumers to purchase the Products at a premium price.” FAC ¶ 22. Plaintiffs further allege that 19 “[t]hese claims deceive and mislead reasonable consumers into believing that the Products will 20 provide more benefits than their competitors, and induces parents to purchase the Products despite 21 a lack of evidence that an increased intake for the nutrients advertised are appropriate or 22 recommended for infants and toddlers less than two years of age.” Id. 23 Plaintiffs bring causes of action under under California’s Consumer Legal Remedies Act 24 (Cal. Civ. Code § 1750, et seq.), False Advertising Law (Cal. Bus. & Prof. Code § 17500, et seq.), 25 and Unfair Competition Law (Cal. Bus. & Prof. Code § 17200, et seq.) as well as for common law 26 fraud, deceit and/or misrepresentation and for unjust enrichment. 27 B. 28 The FDA regulates what a manufacturer can include on food packaging. In 21 C.F.R. § Regulatory Background 2 1 101.13, the FDA lists general principles regulating nutrient content claims—claims that expressly 2 or implicitly characterize the level of a nutrient. See 21 C.F.R. § 101.13(b). Within that list of 3 general principles, the FDA forbids the making of any nutrient content claims “on food intended 4 specifically for use by infants and children less than 2 years of age,” with some exceptions set by 5 regulation. 21 C.F.R. § 101.13(b)(3). California incorporates the FDA requirements as state 6 requirements through the Sherman Law. Cal. Health & Safety Code § 110100 (“All food labeling 7 regulations and amendments to those regulations . . . in effect on January 1, 1993, or adopted on or 8 after that date shall be the food labeling regulations of this state.”). 9 United States District Court Northern District of California 10 II. LEGAL STANDARD Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a short and plain 11 statement of the claim showing that the pleader is entitled to relief[.]” A defendant may move to 12 dismiss a complaint for failing to state a claim upon which relief can be granted under Federal 13 Rule of Civil Procedure 12(b)(6). “Dismissal under Rule 12(b)(6) is appropriate only where the 14 complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.” 15 Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). To survive a Rule 16 12(b)(6) motion, a plaintiff must plead “enough facts to state a claim to relief that is plausible on 17 its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible 18 when a plaintiff pleads “factual content that allows the court to draw the reasonable inference that 19 the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 20 In reviewing the plausibility of a complaint, courts “accept factual allegations in the complaint as 21 true and construe the pleadings in the light most favorable to the nonmoving party.” Manzarek v. 22 St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). Nonetheless, Courts do not 23 “accept as true allegations that are merely conclusory, unwarranted deductions of fact, or 24 unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). 25 Federal Rule of Civil Procedure 9(b) heightens these pleading requirements for all claims 26 that “sound in fraud” or are “grounded in fraud.” Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 27 (9th Cir. 2009) (citation omitted); Fed. R. Civ. P. 9(b) (“In alleging fraud or mistake, a party must 28 state with particularity the circumstances constituting fraud or mistake.”). The Ninth Circuit has 3 1 interpreted Rule 9(b) to require that allegations of fraud are “specific enough to give defendants 2 notice of the particular misconduct which is alleged to constitute the fraud charged so that they can 3 defend against the charge and not just deny that they have done anything wrong.” Neubronner v. 4 Milken, 6 F.3d 666, 671 (9th Cir. 1993) (quotation marks and citation omitted). In short, a fraud claim must state “the who, what, when, where, and how” of the alleged United States District Court Northern District of California 5 6 conduct, Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir. 1997), and “set forth an explanation as to 7 why [a] statement or omission complained of was false and misleading.” In re GlenFed, Inc. Secs. 8 Litig., 42 F.3d 1541, 1548 (9th Cir. 1994) (en banc), superseded by statute on other grounds as 9 stated in Ronconi v. Larkin, 252 F.3d 423, 429 & n.6 (9th Cir. 2001). “Malice, intent, knowledge 10 and other conditions of a person’s mind may be alleged generally.” Fed. R. Civ. P. 9(b). 11 III. 12 DISCUSSION A. Proper Defendants As an initial matter, Defendants Campbell and Sun-Maid contend that they are not proper 13 14 defendants because Plaintiffs do not allege how they were involved, other than being Defendant 15 Plum’s parent companies, or allege facts sufficient to pierce the corporate veil. Dkt. Nos. 36 at 2- 16 5, 38 at 13-14.1 “It is a general rule that a parent corporation and its subsidiary will be treated as separate 17 18 legal entities.” Pantoja v. Countrywide Home Loans, Inc., 640 F. Supp. 2d 1177, 1192 (N.D. Cal. 19 20 21 22 23 24 25 26 27 28 1 Defendant Campbell requests that the Court take judicial notice of state incorporation documents (Exhibits A-C), communications from the United States Patent and Trademark Office (Exhibit D), Campbell’s Form 10-Q filed with the United States Securities and Exchange Commission (“SEC”) for the quarterly period ending on May 2, 2021 (Exhibit E), and Campbell’s Form 8-K filed with the SEC on June 9, 2021 (Exhibit G). Dkt. No. 37; see also Dkt. No. 36 (Exhibits A-G). Plaintiffs do not object to Defendant Campbell’s request for judicial notice, and in fact rely on the documents in their opposition. See Dkt. No. 53 at 4-6. With the exception of Exhibit D, the Court finds that the documents are publicly available documents that are not subject to reasonable dispute, and GRANTS Defendant Campbell’s request for judicial notice as to Exhibits A-C, E, and G. See F.R.E. 201(b). Exhibit D appears to be an email sent from a “USPTO.GOV” to “ipmail@gpmlaw.com.” Such an email is not an “undisputed matter of public record,” and the Court therefore DENIES Defendant Campbell’s request for judicial notice as to Exhibit D. See Harris v. Cnty. of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012). Defendants Sun-Maid and Plum request that the Court take judicial notice of state incorporation documents (Exhibits 1 and 2). Dkt. No. 38-7. Plaintiffs did not file any objection. The Court finds that the documents are publicly available documents that are not subject to reasonable dispute, and GRANTS Defendants Sun-Maid’s and Plum’s request for judicial notice as to Exhibits 1 and 2. See F.R.E. 201(b). 4 1 2009). Beyond alleging that Defendants Campbell and Sun-Maid “acquired the Plum Organics 2 brand,” the FAC does not specify what role either of these Defendants had or has in the production 3 and marketing of the Products. As other courts in this district have found, generic and conclusory 4 allegations against a parent company based on a subsidiary’s conduct are not sufficient to state a 5 claim. Gustavson v. Wrigley Sales Co., 961 F. Supp. 2d 1100, 1133 (N.D. Cal. 2013) (dismissing 6 “common scheme” allegations against a parent company as “wholly generic and conclusory”); 7 Wilson v. Frito-Lay North America, Inc., No. 12-1586 SC, 2013 WL 1320468, at *3-4 (N.D. Cal. 8 April 1, 2013) (dismissing claims against a parent company because the plaintiffs “never explain 9 exactly how PepsiCo, as Frito-Lay’s parent company, is liable for Frito-Lay’s activity”). “[V]arious theories—including the alter ego doctrine and principal-agent relationships— United States District Court Northern District of California 10 11 may provide a basis for piercing the corporate veil that separates a parent from its formally distinct 12 subsidiary.” Gustavson, 961 F. Supp. 2d at 1133. In opposition to the motions to dismiss, 13 Plaintiffs point to websites, financial statements and other sources in an attempt to show a close 14 relationship between Defendants Campbell and Plum and Defendants Sun-Maid and Plum. See 15 Dkt. Nos. 53 at 5-6, 52 at 4-5. However, Plaintiffs did not plead anything about these sources or 16 allegations in the FAC, and the Court will not consider these new allegations made in Plaintiffs’ 17 opposition. See Schneider v. Cal. Dep't of Corrections, 151 F.3d 1194, 1197 n. 1 (9th Cir.1998) 18 (“[A] court may not look beyond the complaint to . . . a memorandum in opposition to a 19 defendant's motion to dismiss.”). 20 For these reasons, the Court GRANTS Defendant Campbell’s motion, and dismisses all 21 claims against it with leave to amend. See Dkt. No. 36.2 The Court also GRANTS Defendants 22 Sun-Maid’s and Plum’s motion on this ground, and dismisses all claims against Defendant Sun- 23 Maid with leave to amend. See Dkt. No. 38. 24 25 26 27 28 The Court does not address Defendant Campbell’s argument that Plaintiffs’ claims are preempted under Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341 (2001), because the Court finds that Plaintiffs have failed to state a claim against this defendant. However, the Court notes that it has previously rejected a similar argument in Vassigh v. Bai Brands LLC, No. 14-cv-05127HSG, 2015 WL 4238886, at *4 (N.D. Cal. July 13, 2015), and any future arguments along this line should address the Court’s reasoning in Vassigh. 5 2 1 B. Standing Defendant Plum contends that Plaintiffs lack standing because they fail to allege a 2 plausible theory of injury. To pursue a case, a plaintiff must establish that he or she has standing. 3 See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). One of the essential elements of standing 4 is that “the plaintiff must have suffered an ‘injury in fact’—an invasion of a legally protected 5 interest which is (a) concrete and particularized . . . and (b) actual or imminent, not conjectural or 6 7 hypothetical.” Id. (citations and quotations omitted). For an injunctive relief claim, a plaintiff must show “a sufficient likelihood that he will again be wronged in a similar way.” City of Los 8 Angeles v. Lyons, 461 U.S. 95, 111 (1983). In the labeling context, the Ninth Circuit has held that 9 “a previously deceived consumer may have standing to seek an injunction against false advertising 10 or labeling, even though the consumer now knows or suspects that the advertising was false at the United States District Court Northern District of California 11 12 time of the original purchase, because the consumer may suffer an ‘actual and imminent, not conjectural or hypothetical’ threat of future harm.” Davidson v. Kimberly-Clark Corp. 889 F.3d 13 956, 969 (2018) (citation omitted). As examples of potential future harm, the Ninth Circuit noted 14 15 that a consumer may “be unable to rely on the product’s advertising or labeling in the future, and so will not purchase the product although she would like to” or “she might purchase the product in 16 the future, despite the fact it was once marred by false advertising or labeling, as she may 17 reasonable, but incorrectly, assume the product was improved.” Id. at 969-970. 18 Defendant Plum argues that Plaintiffs lack standing to pursue either a damages or an 19 injunctive relief claim. With respect to damages, Plum argues that Plaintiffs suffered no injury 20 because they “do not dispute that the statements of ‘3 g protein’ and ‘4 g fiber’ are truthful.” Dkt. 21 No. 38 at 12-13; Dkt. No. 56 at 13. And with respect to injunctive relief, Plum contends, relying 22 heavily on In re Coca-Cola Prods. Mktg. and Sales Prac. Litig., No. 20-15742, 2021 WL 3878654 23 (9th Cir. Aug. 31, 2021), that Plaintiffs fail to meet the Davidson standard because they allege a 24 25 “bare procedural violation” and “there can be no injury merely because the identical truthful information applies in two places on the label rather than one.” Dkt. No. 38 at 13. 26 The Court finds that Plaintiffs have adequately alleged standing on both grounds. As to 27 the damages claim, Plaintiffs allege more than a “bare procedural violation” because they allege 28 6 United States District Court Northern District of California 1 they paid a premium or would not have otherwise purchased the Products but for the challenged 2 representations. Plaintiffs allege that they purchased the Products at a premium because the 3 inclusion of nutrient content claims led them to believe the Products had more health benefits than 4 comparable products that did not include such claims. See FAC ¶¶ 37, 44, 46, 53, 60, 66. 5 Plaintiffs further allege that “[h]ad Defendants not unlawfully and misleadingly labeled their 6 Products, [they] would not have purchased them or, at a very minimum, [they] would have paid 7 less for the Products.” Id. ¶¶ 54, 61, 67. At this stage, Plaintiffs’ theory of injury is plausibly and 8 adequately pled, given that the FDA’s strict regulation of nutrient content claims means that the 9 relevant question is not just whether the information is literally true, but also whether the 10 placement of that information misleads consumers regarding its significance from a nutritional 11 standpoint. See id. ¶ 22. Defendant’s suggestion that all that is at issue here is an “abstract 12 interest in compliance with labeling requirements,” Dkt. No. 38 at 13, because the location of the 13 representations doesn’t matter is inconsistent with the allegations in the complaint. See Hawkins 14 v. Kroger Co., 906 F.3d 763, 769, 771 (9th Cir. 2018) (finding that requirement that manufacturer 15 include certain information within the Nutrition Facts Panel “did not give the manufacturer license 16 to make the same claim elsewhere on the product,” and concluding that plaintiff adequately 17 alleged standing where she “alleged that she relied on the label’s misrepresentation and would not 18 have purchased the product without those misrepresentations”). As to the injunctive relief claim, Plaintiffs allege a sufficient likelihood of future harm 19 20 because they assert that they “continue[] to desire to purchase baby and toddler food products” and 21 that “[i]f the Products did not contain unlawful and misleading labels, [they] would likely 22 purchase the Products again in the future.” Id. ¶¶ 55, 62, 68. This is enough under Davidson.3 The Court DENIES Defendant Plum’s motion to the extent it is based on lack of standing. 23 24 25 26 27 28 3 In re Coca-Cola obviously is not binding, and even if it is viewed as persuasive authority, the case does not support Plum’s injunctive relief standing challenge. The allegations here are unlike those in In re Coca-Cola, where some plaintiffs alleged only that “if [the product] were properly labeled, they would consider purchasing it” and others had “no stated desire to purchase [the product] in the future.” 2021 WL 3878654 at *2-3. 7 1 C. Primary Jurisdiction Doctrine Defendant Plum urges the Court to dismiss or stay this case under the primary jurisdiction 2 doctrine. Dkt. No. 38 at 9-12. 3 “The primary jurisdiction doctrine allows courts to stay proceedings or to dismiss a 4 complaint without prejudice pending the resolution of an issue within the special competence of 5 an administrative agency . . . [and] is to be used only if a claim requires resolution of an issue of 6 first impression, or of a particularly complicated issue that Congress has committed to a regulatory 7 agency, and if protection of the integrity of a regulatory scheme dictates preliminary resort to the 8 agency which administers the scheme.” Clark v. Time Warner Cable, 523 F.3d 1110, 1114 (9th 9 Cir. 2008) (internal quotations and citations omitted). 10 As Plaintiffs note, courts routinely decline to invoke the primary jurisdiction doctrine in 11 United States District Court Northern District of California food labeling cases because courts are well-equipped to assess allegations that a defendant has 12 violated FDA regulations. See Chacanaca v. Quaker Oats Co., 752 F. Supp. 2d 1111, 1124 (N.D. 13 Cal. 2010); Victor v. R.C. Bigelow, Inc., No. 13-cv-02976-WHO, 2014 WL 1028881, at *12 (N.D. 14 Cal. March 14, 2014); Dkt. No. 52 at 10. That is especially true in cases like this one, where the 15 allegations do not involve technical or scientific issues, but rather allegations that the label is 16 17 18 misleading. Chacanaca, 752 F. Supp. 2d at 1124 (noting that “the issues that survive defendant’s preemption arguments . . . do not entail technical questions or require agency expertise”); Jones v. ConAgra Foods, Inc., 912 F. Supp. 2d 889, 898-99 (N.D. Cal. 2012) (“Plaintiff’s allegations of 19 deceptive labeling do not require the expertise of the FDA to be resolved in the courts, as every 20 day courts decide whether conduct is misleading.” (citations and quotations omitted)). The Court 21 DENIES the motion to dismiss on this ground, and declines to invoke the primary jurisdiction 22 doctrine. 23 24 D. Nutrient Content Claims Defendant Plum argues that Plaintiffs fail to state a claim because the labels at issue are not 25 nutrient content claims, and alternatively argue that even if the labels are nutrient content claims, 26 they are allowed under Section 101.13(c). Dkt. No. 38 at 4-9. 27 28 i. The statements at issue are nutrient content claims. 8 A nutrient content claim can be express or implied. See 21 C.F.R. § 101.13(b). “An 1 2 expressed nutrient content claim is any direct statement about the level (or range) of a nutrient in 3 the food, e.g. ‘low sodium’ or ‘contains 100 calories.’” 21 C.F.R. § 101.13(b)(1).4 “An implied 4 nutrient content claim is any claim that: (i) Describes the food or an ingredient therein in a manner 5 that suggests that a nutrient is absent or present in a certain amount (e.g. ‘high in oat bran’); or (ii) 6 Suggests that the food, because of its nutrient content, may be useful in maintaining healthy 7 dietary practices and is made in association with an explicit claim or statement about a nutrient 8 (e.g. ‘healthy, contains 3 grams (g) of fat’).” 21 C.F.R. § 101.13(b)(2). In Hawkins, the Ninth Circuit explained that the statements “No Trans Fat” and “0g Trans United States District Court Northern District of California 9 10 Fat” were “expressed” nutrient content claims because they made a direct statement about the 11 level of trans fat in the food. 906 F.3d at 770-71. Defendant argues that Hawkins does not control 12 because it claims that the problem with the product statements there was that they involved 13 rounding (i.e., labeling a product “0g Trans Fat” when it actually had some amount of trans fat). 14 Dkt. No. 56 at 8. But nothing in Hawkins suggests that its reasoning was so limited. The Ninth 15 Circuit first considered whether the statements were nutrient content claims. In determining that 16 they were, the court did not rely on whether the figures were rounded or the statements were false, 17 but instead pointed out that the defendant made a “direct statement about the level” of nutrient in 18 the food. See id. at 771-72. It was only after the statements were determined to be nutrient 19 content claims that the court examined whether the statements were unlawful by considering 20 whether they “in any way implicitly characteriz[ed] the level of the nutrient in the food” or were 21 22 23 24 25 26 27 28 4 Plaintiffs request that the Court take judicial notice of two documents Plaintiffs assert were formerly published as FDA guidance. See Dkt. No. 54. Neither document is currently available on the FDA website, and it is unclear whether they would be relevant to the issue at hand because one is “A Guide for Restaurants and Other Retail Establishments” from 1995 and the other is “A Labeling Guide for Restaurants and Other Retail Establishments Selling Away-From-Home Foods” from 2008. Id. Defendants object to Plaintiffs’ request to take judicial notice of the 1995 publication because Defendants have not been able to verify its authenticity. See Dkt. No. 58 at 12. Plaintiffs represent that they obtained it through “an archive available online through Google,” see Dkt. No. 54 at 1, but Defendants assert that they were not able to find it online, see Dkt. No. 58 at 1-2. Given the authenticity and reliability issues with the 1995 publication, the fact that both publications are no longer published on the FDA website, and the fact that the publications were intended for audiences different than the relevant ones in this case, the Court does not rely on these sources in making its decision and DENIES Plaintiffs’ request for judicial notice. 9 United States District Court Northern District of California 1 false or misleading in any respect. See id. 2 The Court finds that the statements at issue here, such as “3g Protein” and “4g Fiber,” are 3 express nutrient content claims. They are direct statements about the level of nutrient in the food, 4 and are similar to the “contains 100 calories” example included in the regulation. See 21 C.F.R. § 5 101.13(b)(1). Plaintiffs also allege that indirect statements, such as “Nutrient-Dense Blend” and 6 “Exposure to key nutrients in the first 1000 days is critical for a child’s development,” are made in 7 conjunction with the direct statements on the Products. See Dkt. No. 27-1 at 3. These statements 8 are implied nutrient content claims because they suggest that the product’s nutrient content may be 9 useful in maintaining healthy dietary practices. See Hadley v. Kellogg Sales Co., 273 F. Supp. 3d 10 1052, 1078 (N.D. Cal. 2017) (“The FDA has issued guidance that establishes that statements such 11 as ‘nutritious,’ ‘wholesome,’ ‘best choice,’ and ‘good for you’ are also implied nutrient content 12 claims when stated next to an ‘explicit or implicit claim or statement about a nutrient.’” (citation 13 omitted)). Defendant argues that the statements at issue here are not nutrient content claims because 14 15 they do not “characterize” the nutrient level, in the way that “only 200 mg of sodium” or “high 16 fiber” does. See Dkt. No. 38 at 4-8. Defendant cites FDA guidance which states: Nutrient content claims describe the level of a nutrient in the product, using terms such as free, high, and low, or they compare the level of a nutrient in a food to that of another food, using terms such as more, reduced, and lite. An accurate quantitative statement (e.g., 200 mg of sodium) that does not otherwise “characterize” the nutrient level may be used to describe the amount of a nutrient present. However, a statement such as “only 200 mg of sodium” characterizes the level of sodium by implying that it is low. 17 18 19 20 FDA, Label Claims for Conventional Foods and Dietary Supplements, available at 21 22 https://www.fda.gov/food/food-labeling-nutrition/label-claims-conventional-foods-and-dietary- 23 supplements; see Dkt. No. 38-4.5 Defendant argues that under this guidance the statement “3g 24 25 26 27 28 5 Defendants Sun-Maid and Plum request that the Court take judicial notice of three FDA guidance documents: the online publication just cited (Exhibit 3), food labeling regulations published at 56 FED. REG. 60421-78 on November 27, 1991 (Exhibit 4), and food labeling regulations published at 58 FED. REG. 2302-2426 on January 6, 1993 (Exhibit 5). Dkt. No. 38-7. Plaintiffs did not file any objection. The Court finds that these are publicly available documents that are not subject to reasonable dispute, and GRANTS Defendants Sun-Maid’s and Plum’s request for judicial notice as to Exhibits 3, 4, and 5. See F.R.E. 201(b). 10 1 protein” is not a nutrient content claim because it is a quantitative statement without any further 2 description or characterization. See Dkt. No. 38 at 5-6. Plaintiffs point out that the guidance 3 states that an accurate quantitative statement can be made so long as it does not “otherwise 4 ‘characterize’” the nutrient content level, suggesting that the quantitative statement is itself a 5 characterization of the nutrient content level. See Dkt. No. 52 at 7. United States District Court Northern District of California 6 Whatever import the Court might assign to the FDA’s online guidance, where as here it 7 appears to conflict with the plain language of the regulation, the plain language controls. See 8 Hawkins, 906 F.3d at 771-72 (expressing the view that “the FDA’s food regulations promulgated 9 under the NLEA are ‘inconsistent and incomprehensive’”). On this point, the Court agrees with 10 the conclusion reached by the court in a recent case in this district involving the same issue 11 presented here. See Davidson v. Sprout Foods Inc., No. 22-cv-01050-RS, 2022 WL 2668481 12 (N.D. Cal. July 11, 2022) (considering allegations that statements such as “3g of Protein” and “4g 13 of Fiber” were unlawful nutrient content claims when made on baby food). The court in Davidson 14 rejected the defendant’s argument that nutrient content claims must “characterize” the nutrient 15 level and concluded that “3g of Protein” is a nutrient content claim based on the “clear text of the 16 regulation” and Ninth Circuit decisions. Id. at 6-8. The result is the same here: the statements at 17 issue are nutrient content claims. 18 19 ii. Plaintiffs plausibly allege that the nutrient content claims at issue may not be made on products marketed to children under the age of two. Defendant Plum contends that even if the statements at issue are nutrient content claims, 20 they are lawful under Part 101 of the regulations. 21 22 Part 101 is under “Subchapter B – Food for Human Consumption” and is titled “Food Labeling.” 21 C.F.R. § 101. It contains both broad principles (like the general rules for nutrient 23 content claims at § 101.13) and specific provisions (such as when a nutrient content claim can say 24 a product is “unsalted,” see § 101.61). Generally, food product packaging can include nutrient 25 content claims as long as they comply with Part 101. However, products intended for infants are 26 carved out as a special case. If the food is meant to be consumed by a child under the age of two, 27 the regulations prohibit the inclusion of any nutrient content claims on the product’s packaging 28 11 1 “unless specifically provided for in parts 101, 105, or 107.” 21 C.F.R. § 101.13(b) (emphasis 2 added). Throughout Part 101, there are regulations that are clearly intended to permit certain types 3 of nutrient content claims on food for infants. For example, § 101.60(c)(2) outlines when the term 4 “no sugar added” can be used, and § 101.60(c)(4) states that “[t]he claims provided for in 5 paragraph . . . (c)(2) of this section may be used on labels . . . that are intended specifically for use 6 by infants and children less than 2 years of age.” See also, e.g., 21 C.F.R. § 101.61(c)(3) (defining 7 when the word “unsalted” can appear on “food intended specifically for infants and children less 8 than 2 years of age”). United States District Court Northern District of California 9 Defendant argues that the baby food labels at issue here are permissible because they 10 comply with § 101.13(i)(3). Section 101.13(i)(3) states that labels “may contain a statement about 11 the amount or percentage of a nutrient if . . . [t]he statement does not in any way implicitly 12 characterize the level of the nutrient in the food and it is not false or misleading in any respect.” 13 However, unlike other regulations in Part 101 that specifically detail what labels are permissible 14 for infants or children under the age of two, section 101.13(i)(3) contains no such reference. If, as 15 Defendant argues, any statement allowed under Part 101 may also be made on food for children 16 under two, it would negate the purpose of having a specific provision focused on children’s 17 product labeling. The only logical reading of the regulatory structure is that while accurate 18 statements about the amount of a nutrient may be allowed on products intended for people over the 19 age of two, section 101.13(i)(3) is not an exception to the rule that nutrient content claims may not 20 be made on food intended for infants and children under the age of two. See Dastar Corp. v. 21 Twentieth Century Fox Film Corp., 539 U.S. 23, 35 (2003) (“ A statutory interpretation that 22 renders another statute superfluous is of course to be avoided.”); Ariz. State Bd. for Charter Sch. v. 23 U.S. Dep't of Educ., 464 F.3d 1003, 1008 (9th Cir. 2006) (“[W]ell-accepted rules of statutory 24 construction caution us that ‘statutory interpretations which would produce absurd results are to be 25 avoided.’” (citation omitted)). 26 The Court DENIES Defendant Plum’s motion to dismiss on this ground, and finds that 27 Plaintiffs adequately allege that the Products contain nutrient content claims, which may not be 28 included on food intended for infants and children less than two years of age. 12 1 IV. CONCLUSION The Court GRANTS Defendant Campbell’s motion to dismiss with leave to amend. See 2 Dkt. No. 36. The Court GRANTS IN PART AND DENIES IN PART Defendants Sun-Maid’s 3 4 and Plum’s motion to dismiss. See Dkt. No. 38. Defendant Sun-Maid is dismissed with leave to amend, and the Court denies Defendants’ requests to dismiss for lack of standing, on the basis of 5 primary jurisdiction, and for failure to state a claim. Any amended complaint must be filed within 6 28 days of the date of this order. 7 The Court SETS a telephonic case management conference for November 15, 2022 at 2:00 8 p.m. The Court further DIRECTS the parties to submit a joint case management statement by 9 November 8, 2022. All counsel shall use the following dial-in information to access the call: 10 Dial-In: 888-808-6929 11 United States District Court Northern District of California Passcode: 6064255 12 For call clarity, parties shall NOT use speaker phone or earpieces for these calls, and where 13 at all possible, parties shall use landlines. 14 IT IS SO ORDERED. 15 Dated: 9/15/2022 16 17 18 ______________________________________ HAYWOOD S. GILLIAM, JR. United States District Judge 19 20 21 22 23 24 25 26 27 28 13

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