1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
NOTICE OF MOTION AND MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF MOTION TO DISMISS CONSOLIDATED COMPLAINT, CASE NO. 5:10-CV-00502-RS
ARNOLD & PORTER LLP
ANGEL A. GARGANTA (SBN 163957)
RACHEL L. CHANIN (SBN 229253)
GEORGE F. LANGENDORF (SBN 255563)
One Embarcadero Center, 22nd Floor
San Francisco, California 94111
Telephone: 415.356.3000
Facsimile: 415.356.3099
E-Mail: angel.garganta@aporter.com
rachel.chanin@aporter.com
george.langendorf@aporter.com
Attorneys for Defendant
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
VICTOR GUTTMANN, KELLEY BRUNO,
SONYA YRENE, and REBECCA YUMUL,
on behalf of themselves and all others similarly
situated,
Plaintiffs,
v.
THE QUAKER OATS COMPANY,
Defendant.
Case No.: 5:10-CV-00502-RS
NOTICE OF MOTION AND MOTION
AND MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
DEFENDANT’S MOTION TO DISMISS
CONSOLIDATED COMPLAINT
Hearing Date: September 29, 2011
Time: 1:30 p.m.
Place: Courtroom 3, 17th Floor
Judge: Honorable Richard Seeborg
Action Filed: February 3, 2010
Case5:10-cv-00502-RS Document98 Filed07/29/11 Page1 of 23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
i
NOTICE OF MOTION AND MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF MOTION TO DISMISS CONSOLIDATED COMPLAINT, CASE NO. 5:10-CV-00502-RS
NOTICE OF MOTION AND MOTION TO DISMISS
TO PLAINTIFFS AND THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE THAT on September 29, 2011 at 1:30 p.m., in Courtroom 3, 17th
Floor of this Court, located at 450 Golden Gate Avenue, San Francisco, CA 94102, Defendant The
Quaker Oats Company (“Quaker”) will and hereby does move this Court to dismiss the
Consolidated Complaint filed against it on June 24, 2011.
Quaker seeks dismissal of the Consolidated Complaint without leave to amend, and entry of
judgment in favor of Quaker. This motion is based on this Notice of Motion and Motion, the
attached Memorandum of Points and Authorities, the accompanying Request for Judicial Notice
(“RJN”), the pleadings and papers on file herein, and such other matters as may be presented to the
Court at the time of the hearing.
Dated: July 29, 2011 ARNOLD & PORTER LLP
By: /s/ Angel A. Garganta
Angel A. Garganta
Attorneys for Defendant
Case5:10-cv-00502-RS Document98 Filed07/29/11 Page2 of 23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
i
NOTICE OF MOTION AND MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF MOTION TO DISMISS CONSOLIDATED COMPLAINT, CASE NO. 5:10-CV-00502-RS
TABLE OF CONTENTS
Page
I. INTRODUCTION ...............................................................................................................1
II. STATEMENT OF THE ISSUES TO BE DECIDED............................................................2
III. FACTS ALLEGED BY PLAINTIFFS .................................................................................2
IV. PROCEDURAL HISTORY .................................................................................................3
V. ARGUMENT.......................................................................................................................4
A. Plaintiffs’ Claims Are Preempted by Federal Law. ...................................................4
1. Plaintiffs’ “Made with Whole Grain Oats” and “No High Fructose
Corn Syrup” Claims Are Preempted..............................................................4
2. Plaintiffs’ “Heart Healthy” Claims Are Preempted........................................5
3. Plaintiffs’ “Helps Reduce Cholesterol!” Claims Are Preempted. ...................7
4. Claims Regarding Images of Oats, Fruits, and Brown Sugar Are
Preempted.....................................................................................................9
B. Taken in the Packaging Context in Which They Appear, the Statements
“Wholesome, Great-Tasting Goodness in Every Bowl,” “Quality,” and
“Smart Choices Made Easy” Are Non-Actionable Puffery. .....................................10
1. The Concept of “Healthiness” Is Mere Puffery That Is Not
Actionable. .................................................................................................11
2. The Statements “Wholesome, Great-Tasting Goodness in Every
Bowl,” “Quality,” and “Smart Choices Made Easy” Are Puffery.................11
C. The Consolidated Complaint Does Not Allege Facts Showing a “Plausible
Claim for Relief.” ...................................................................................................14
1. PHOs are Considered “Generally Safe” Under Federal Law........................14
2. The Amounts of Trans Fat in the Products Is Equated to “Zero” by
All Applicable State Laws...........................................................................15
VI. CONCLUSION..................................................................................................................17
Case5:10-cv-00502-RS Document98 Filed07/29/11 Page3 of 23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
ii
NOTICE OF MOTION AND MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF MOTION TO DISMISS CONSOLIDATED COMPLAINT, CASE NO. 5:10-CV-00502-RS
TABLE OF AUTHORITIES
Page(s)
CASES
Am. Italian Pasta Co. v. New World Pasta Co.,
371 F.3d 387 (8th Cir. 2004) ........................................................................................12, 13
Anunziato v. eMachines, Inc.,
402 F. Supp. 2d 1133 (C.D. Cal. 2005) ..............................................................................13
Ashcroft v. Iqbal,
129 S. Ct. 1937 (2009) ....................................................................................... 2, 14, 15, 17
Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007)........................................................................................... 2, 14, 15, 17
Bros. v. Hewlett-Packard Co.,
2006 WL 3093685 (N.D. Cal. Oct. 31, 2006) .....................................................................10
Chacanaca v. The Quaker Oats Co.,
752 F. Supp. 2d 1111 (N.D. Cal. 2010) .......................................................................passim
Cook, Perkins & Liehe, Inc. v. N. Cal. Collection Serv. Inc.,
911 F.2d 242 (9th Cir. 1990) ........................................................................................11, 14
Corley v. Rosewood Care Center, Inc. of Peoria,
388 F.3d 990 (7th Cir. 2004) ..............................................................................................13
Dvora v. General Mills, Inc.,
2011 WL 1897349 (C.D. Cal. May 16, 2011).......................................................................9
Long v. Hewlett-Packard Co.,
2007 WL 2994812 (N.D. Cal. July 27, 2007),
aff’d, 316 F. App’x 585 (9th Cir. 2009)..............................................................................10
Lynch v. Rawls,
2011 WL 1561801 (9th Cir. Apr. 26, 2011)........................................................................15
Newcal Indus., Inc. v. Ikon Office Solution,
513 F.3d 1038 (9th Cir. 2008) ............................................................................................12
Oestreicher v. Alienware Corp.,
544 F. Supp. 2d 964 (N.D. Cal. 2008),
aff’d, 322 F. App’x 489 (9th Cir. 2009)..............................................................................10
Pizza Hut, Inc. v. Papa John’s Int’l, Inc.,
227 F.3d 489 (5th Cir. 2000) ..............................................................................................12
Case5:10-cv-00502-RS Document98 Filed07/29/11 Page4 of 23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
iii
NOTICE OF MOTION AND MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF MOTION TO DISMISS CONSOLIDATED COMPLAINT, CASE NO. 5:10-CV-00502-RS
In re Sony Grand Wega KDF-E A10/A20 Series Rear Projection HDTV Television Litig.,
758 F. Supp. 2d 1077 (S.D. Cal. 2010)...............................................................................13
Sprewell v. Golden State Warriors,
266 F.3d 979 (9th Cir. 2001) ..............................................................................................15
Tylka v. Gerber Prods. Co.,
1999 WL 495126 (N.D. Ill. July 1, 1999) .......................................................................3, 12
Whiting v. AARP,
701 F. Supp. 2d 21 (D.D.C. 2010)......................................................................................14
Williams v. Gerber Prods. Co.,
552 F.3d 934 (9th Cir. 2008) ..............................................................................................11
STATUTES AND RULES
21 U.S.C. § 343(r) .......................................................................................................................6, 7
21 U.S.C. § 343-1(a)(5) ...................................................................................................................7
21 U.S.C. § 348 et seq. ..................................................................................................................15
Baltimore Health Code § 6-507 .....................................................................................................16
Cal. Bus. & Prof. Code § 17200 et seq.............................................................................................3
Cal. Bus. & Prof. Code § 17500 et seq.............................................................................................3
Cal. Civ. Code § 1750 et seq............................................................................................................3
Cal. Health & Safety Code § 114377(d).........................................................................................16
N.Y.C. Health Code. § 81.08(b).....................................................................................................16
Philadelphia Health Code § 6-307(2) .............................................................................................16
Stamford Municipal Code Sec. 132-24.1 .......................................................................................16
OTHER AUTHORITIES
21 C.F.R. § 101.13(h)(1) .................................................................................................................8
21 C.F.R. § 101.14(a)(1)..................................................................................................................6
21 C.F.R. § 101.14(a)(4)..................................................................................................................8
21 C.F.R. § 101.22(i).................................................................................................................9, 10
Case5:10-cv-00502-RS Document98 Filed07/29/11 Page5 of 23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
iv
NOTICE OF MOTION AND MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF MOTION TO DISMISS CONSOLIDATED COMPLAINT, CASE NO. 5:10-CV-00502-RS
21 C.F.R. § 101.81(c)(2)..............................................................................................................7, 8
21 C.F.R. § 170.30 ........................................................................................................................15
75 Fed. Reg. 76526 (Dec. 8, 2010) ................................................................................................15
Guidance for Industry: A Labeling Guide for Restaurants and Other Retail Establishments
Selling Away-From-Home Foods, § III Nutrition Labeling of Restaurant Foods,
¶¶ 40-41, 45-46, 55, 60, Food and Drug Administration (Apr. 2008)....................................6
Health Claim Notification for Whole Grain Foods with Moderate Fat Content,
FDA (Dec. 9, 2003), http://www.fda.gov/Food/ LabelingNutrition/LabelClaims/FDA
ModernizationActFDAMAClaims/ucm073634.htm .............................................................7
Select Committee on GRAS Substances, Report No. 70, www.accessdata.fda.gov/scripts/
fcn/fcnDetailNavigation.cfm?rpt=scogsListing&id=154.....................................................15
Case5:10-cv-00502-RS Document98 Filed07/29/11 Page6 of 23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1
NOTICE OF MOTION AND MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF MOTION TO DISMISS CONSOLIDATED COMPLAINT, CASE NO. 5:10-CV-00502-RS
MEMORANDUM OF POINTS AND AUTHORITIES
I. INTRODUCTION
Plaintiffs have ignored this Court’s prior ruling. They have alleged that certain claims
appearing on packages of Quaker products -- “heart healthy,” “made with whole grain oats,” “no
high fructose corn syrup,” and “helps reduce cholesterol” -- are false and misleading, despite the
fact that these claims are regulated by the Nutrition Labeling and Education Act (“NLEA”). They
have not alleged that these claims violate the NLEA; consequently they seek to impose
requirements that are “not identical” to the federal standard, and their allegations are preempted.
Perhaps realizing this, Plaintiffs also assert that certain statements -- “wholesome, great
tasting goodness” and “smart choices made easy” -- are misleading because they imply the products
on which they appear are “healthy.” See Consolidated Compl. (hereafter, “Compl.”) ¶¶ 72-73,
June 24, 2011, ECF No. 95. These allegations fail because, taken in the context in which they
appear on Quaker’s packaging, they invoke a subjective and unverifiable concept of “healthiness,”
and are therefore non-actionable puffery.
Moreover, and fundamentally, the entire premise of the Consolidated Complaint is not
cognizable as a matter of law. All of the supposed “deception” flows from the alleged “fact” that
partially hydrogenated oils (PHOs) in any amount are “unfit for human consumption,” Compl. ¶ 73,
and there is “‘no safe level,’” id. ¶ 59. The FDA lists PHOs as an ingredient that is “generally
recognized as safe,” meaning that as a matter of federal law, companies may use PHOs. Moreover,
the amount of trans fat actually in the Products is so low that the FDA requires it to be declared as
zero, and all applicable state and local laws identified in the Consolidated Complaint equate it with
containing no trans fat at all. Consequently the Consolidated Complaint fails to state a “plausible
claim for relief” as required by federal pleading standards.
In short, the allegations in the Consolidated Complaint are baseless, and the few facts
alleged establish that Quaker has not done anything wrong. Quaker respectfully requests that the
Court should dismiss the Consolidated Complaint outright, with prejudice.
Case5:10-cv-00502-RS Document98 Filed07/29/11 Page7 of 23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2
NOTICE OF MOTION AND MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF MOTION TO DISMISS CONSOLIDATED COMPLAINT, CASE NO. 5:10-CV-00502-RS
II. STATEMENT OF THE ISSUES TO BE DECIDED
1. Preemption: Whether Plaintiffs’ claims regarding “heart healthy,” “Helps Reduce
Cholesterol!,” and images of oats, fruits, and brown sugar are preempted by the NLEA because they
seek to impose requirements for product labeling that are “not identical” to those mandated by the
FDA.
2. Non-Actionable Puffery: Whether Plaintiffs’ claims regarding “wholesome, great-
tasting goodness in every bowl,” “quality,” and “smart choices made easy,” taken in context, are
non-actionable puffery.
3. Failure to Show a Plausible Claim For Relief: Whether Plaintiffs fail to state a
plausible legal claim under Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009) and Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555-58 (2007) because trans fat is considered “generally safe” under
federal law, and the amounts of trans fat in the products equates to “zero” under the state and local
laws cited by Plaintiffs.
III. FACTS ALLEGED BY PLAINTIFFS
Plaintiffs allege they have “repeatedly purchased” Quaker Chewy® Granola Bars, Instant
Quaker Oatmeal, and Quaker Oatmeal to Go Bars (“the Products”) at retail locations in California.
See Compl. ¶¶ 3, 14-20. They allege that the Products bore statements that they were “heart-
healthy,” see id. ¶¶ 67-71, 82; “made with whole grain oats,” see id. ¶ 72; “no high fructose corn
syrup,” see id.; “helps reduce cholesterol,” see id. ¶¶ 82-83; “wholesome, great tasting goodness in
every bowl,” see id. ¶ 70; “quality,” see id.; “smart choices made easy,” see id. ¶¶ 72-80; and bore
images of fruit, brown sugar, oats, nuts and children in soccer uniforms, id. ¶¶ 71, 81.
The Consolidated Complaint alleges that these statements are false and misleading because
the Products contain partially hydrogenated vegetable oils, which in turn contain trans fat. Compl.
¶ 4. Plaintiffs allege that trans fat is “toxic,” “unfit for human consumption,” and that there is “‘no
safe level.’” Id. ¶¶ 4, 59, 72-73, 81. The Consolidated Complaint also alleges that the Products are
unhealthy because they contain “highly refined sugar.” Id. ¶¶ 67, 70, 74, 81.
Case5:10-cv-00502-RS Document98 Filed07/29/11 Page8 of 23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
NOTICE OF MOTION AND MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF MOTION TO DISMISS CONSOLIDATED COMPLAINT, CASE NO. 5:10-CV-00502-RS
Plaintiffs do not and cannot allege that any representations made by Quaker violate FDA
regulations. They further do not allege that the amount of trans fat or sugars in the Products that
they consumed caused any adverse health effects to themselves or anyone else.
Plaintiffs allege causes of action for (1) violations of California’s Unfair Competition Law
(UCL), Bus. & Prof. Code § 17200 et seq. (Counts 1 and 2); (2) violations of California’s False
Advertising Law (FAL), Bus. & Prof. Code § 17500 et seq. (Count 3); and (3) violations of
California’s Consumer Legal Remedies Act (CLRA), Cal. Civ. Code § 1750 et seq. (Counts 4 and
5). Compl. ¶¶ 110-44.
IV. PROCEDURAL HISTORY
The first complaint in this action, which contained allegations regarding only Quaker
Chewy® Granola Bars, was filed on February 3, 2010 by Victor Guttmann and Robert Chacanaca.
On October 14, 2010, the Court granted in part and denied in part Quaker’s motion for judgment on
the pleadings in that action. Chacanaca v. The Quaker Oats Co., 752 F. Supp. 2d 1111 (N.D. Cal.
2010). This Court held that to the extent Plaintiffs’ state law claims seek to impose requirements in
addition to what is mandated by federal statutes and regulations, they fail on preemption grounds.
See id. at 1114, 1117-23. The Court explained that “[a]s a matter of federal law, then, the presence
of trans fats alone is not a ‘disqualifying’ nutrient which would prevent Quaker Oats from
emphasizing whatever other health benefits are available from the Bars’ other ingredients or
because it lacks certain ingredients.” Id .at 1122. This Court further found that
“at this juncture” and “on this motion,” it could not determine whether the statements “wholesome”
and “smart choices made easy” were non-actionable puffery. Id. at 1125-26. This Court reasoned
that, depending on the context, a statement like “wholesome” alone may not be puffery, and
distinguished other cases where “wholesome” had been found to be puffery based on the larger
context and packaging. See id. at 1125 (“The use of the word ‘wholesome,’ however, was only part
of the phrase deemed puffery in Tylka [v. Gerber Products Co., No. 96-1647, 1999 WL 495126, at
*2 (N.D. Ill. July 1, 1999)].” Moreover, the Court’s conclusion that certain claims should be
permitted to proceed was premised on accepting Plaintiffs’ allegation that trans fats are not safe in
any amount. See Chacanaca, 752 F. Supp. 2d at 1115 (“[Plaintiffs] insist in their Complaint that
Case5:10-cv-00502-RS Document98 Filed07/29/11 Page9 of 23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4
NOTICE OF MOTION AND MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF MOTION TO DISMISS CONSOLIDATED COMPLAINT, CASE NO. 5:10-CV-00502-RS
trans fats are not safe for human consumption in any amount.”); id. at 1126 (“Taking plaintiffs’
allegation that trans fats are not safe in any amount as true . . . .”).
On November 29, 2010, December 7, 2010, and January 7, 2011, three additional suits
containing similar allegations were filed against Quaker in this jurisdiction.1 On June 14, 2011, the
Court consolidated all four cases into the present action and appointed interim class counsel. On
June 24, 2011, interim class counsel filed the operative Consolidated Complaint. The Consolidated
Complaint adds allegations regarding additional products (Instant Quaker Oatmeal and Quaker
Oatmeal to Go Bars), pleads additional statements that are allegedly deceptive, and identifies
additional packaging that Plaintiffs allege is misleading.
V. ARGUMENT
A. Plaintiffs’ Claims Are Preempted by Federal Law.
Several of the statements Plaintiffs allege are false and misleading are in fact defined claims
subject to specific FDA regulations. Plaintiffs have not and cannot allege that Quaker has violated
these FDA standards, and therefore their claims are preempted and should be dismissed. As this
Court has already ruled, the NLEA includes express preemption provisions that preclude plaintiffs
from seeking to impose requirements in addition to what is mandated by federal statutes and
regulations. Chacanaca, 752 F. Supp. 2d at 1114, 1116-19. Plaintiffs seek to assert claims that
either this Court has already specifically found preempted or that are preempted under the same
reasoning as this Court’s prior decision.
1. Plaintiffs’ “Made with Whole Grain Oats” and “No High Fructose Corn
Syrup” Claims Are Preempted.
This Court previously held that the statements “made with whole grain oats” and “no high
fructose corn syrup” are preempted. Chacanaca, 752 F. Supp. 2d at 1121-22 (finding claims
preempted, and explaining that “plaintiffs’ claim asks this Court to ascribe disqualifying status to
trans fats where the Agency [FDA] has at least so far declined to do so”) (emphasis in original).
1 Yrene v. Quaker Oats Co., No. 5:10-CV-5389 RS; Yumul, et al. v. Quaker Oats Co., No. 5:10-CV-
5538 RS; Pelobello v. Quaker Oats Co., No. 3:11-CV-00093 RS.
Case5:10-cv-00502-RS Document98 Filed07/29/11 Page10 of 23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5
NOTICE OF MOTION AND MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF MOTION TO DISMISS CONSOLIDATED COMPLAINT, CASE NO. 5:10-CV-00502-RS
This Court has already ruled that these claims are preempted, and Plaintiffs allege no additional
facts that would support a different conclusion.
2. Plaintiffs’ “Heart Healthy” Claims Are Preempted.
Plaintiffs argue that the claim “heart healthy” and related statements and images on certain
Instant Quaker Oatmeal and Oatmeal-to-Go packaging are misleading because Quaker’s products
contain partially hydrogenated oils resulting in trace amounts of trans fat, and “highly refined
sugars.” Compl. ¶¶ 67-70, 82.
The Consolidated Complaint identifies certain Quaker Instant Oatmeal product packaging
that states, surrounded by a heart, “Heart Healthy” and “Whole Grains,” along with an asterisk
stating “See side panel for information about the relationship between whole grains and heart
disease.” See Compl. ¶¶ 67-70, pp. 13-18. The side panel of the packaging states “Now that’s a
part of a delicious heart healthy* breakfast,” with a statement immediately below that “*diets rich in
whole grain oats and other plant foods and low in saturated fat and cholesterol may help reduce the
risk of heart disease.” Id. p. 16, ¶¶ 68-71. The other side panel also prominently displays in large
font the same statement that “Diets rich in whole grain foods and other plant foods and low in
saturated fat and cholesterol may help reduce the risk of heart disease.” Id. p. 17, ¶¶ 68-71. The
Consolidated Complaint also identifies specific Quaker Instant Oatmeal back label packaging that
again states “part of a delicious heart healthy* breakfast,” surrounded by oats in the shape of a
heart, along with the statement immediately below that: “*diets rich in whole grain oats and other
plant foods and low in saturated fat and cholesterol may help reduce the risk of heart disease.”
Compl. p. 20, ¶¶ 68-71.
As this Court has already noted, the FDA specifically regulates these types of health claims,
whether written statements or symbols:
Health claim means any claim made on the label or in labeling of a food
. . . that expressly or by implication, including . . . written statements
(e.g., a brand name including a term such as “heart”), symbols (e.g., a
heart symbol), or vignettes, characterizes the relationship of any
substance to a disease or health-related condition. Implied health claims
include those statements, symbols, vignettes, or other forms of
communication that suggest, within the context in which they are
presented, that a relationship exists between the presence or level of a
substance in the food and a disease or health-related condition.
Case5:10-cv-00502-RS Document98 Filed07/29/11 Page11 of 23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6
NOTICE OF MOTION AND MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF MOTION TO DISMISS CONSOLIDATED COMPLAINT, CASE NO. 5:10-CV-00502-RS
21 C.F.R. § 101.14(a)(1); Chacanaca, 752 F. Supp. 2d at 1117. “A food purveyor may include
implicit content claims so long as they are consistent with a definition for a claim, as provided in a
federal regulation.” Id. at 1117 (quotations omitted). See also RJN Ex. A (Guidance for Industry:
A Labeling Guide for Restaurants and Other Retail Establishments Selling Away-From-Home
Foods, § III Nutrition Labeling of Restaurant Foods, ¶¶ 40-41, 45-46, 55, 60, Food and Drug
Administration (Apr. 2008) (explaining that the claims “heart healthy” and “healthy heart,” when
linked in labeling to a specific food, are regulated by the FDA as an implied health claim about
reducing the risk of heart disease)).
In this case, the FDA has authorized precisely the health claim about the relationship
between whole grain foods and heart health that Plaintiffs allege is misleading -- that “diets rich in
whole grain foods and other plant foods and low in saturated fat and cholesterol may help reduce
the risk of heart disease.” The Federal Food, Drug, and Cosmetic Act (FDCA) provides that,
notwithstanding other provisions of the statute and FDA regulations, such health claims may be
authorized pursuant to a notification process where a party submits a proposed claim based on an
authoritative statement issued by a federal scientific body about the relationship between a nutrient
and a disease-related condition. See 21 U.S.C. § 343(r)(3)(C). If the FDA authorizes the claim,
then any food manufacturer may make the claim until the FDA issues a regulation prohibiting or
modifying the claim or the FDA or a federal court finds that the requirements of the claim have not
been met. See 21 U.S.C. § 343(r)(3)(D).
Pursuant to the above-described process, in 2003, Kraft Foods submitted, and the FDA
approved, a notification for the following claim: “Diets rich in whole grain foods and other plant
foods, and low in saturated fat and cholesterol, may help reduce the risk of heart disease.” RJN Ex.
B (Kraft Letter, Aug. 8, 2003 (attaching report titled “Notification of Health Claim Based on
Authoritative Statement: Whole Grain Foods and Heart Disease”)). After discussions with the
FDA, Kraft added a requirement that foods labeled with the claim contain less than “0.5 grams trans
fat per reference amount customarily consumed (following standard rounding rules).” RJN Ex. C
(Kraft Letter, Nov. 26, 2003 (attaching amended report)). After the FDA approval, Quaker was free
to use “heart healthy” and related images based on the product’s whole grain content, if Quaker met
Case5:10-cv-00502-RS Document98 Filed07/29/11 Page12 of 23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
7
NOTICE OF MOTION AND MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF MOTION TO DISMISS CONSOLIDATED COMPLAINT, CASE NO. 5:10-CV-00502-RS
the FDA-approved criteria. See 21 U.S.C. § 343(r)(3)(D); RJN Ex. D (Health Claim Notification
for Whole Grain Foods with Moderate Fat Content, FDA (Dec. 9, 2003), http://www.fda.gov/Food/
LabelingNutrition/LabelClaims/FDAModernizationActFDAMAClaims/ucm073634.htm (noting
that “after December 9, 2003, manufacturers may use the specified claim on the label and in
labeling of any food product that meets the eligibility criteria described in the Kraft notification
(and stated below), unless or until FDA or a court acts to prohibit the claim.”)).
Plaintiffs do not and cannot allege that the Quaker products violate the FDA-approved
criteria. Instead, Plaintiffs improperly seek to impose non-identical requirements by arguing that
Quaker may not make the claim if the product contains any partially hydrogenated oils, even
amounts resulting in trans fat below the 0.5 gram threshold, or if the product contains sugar.
Plaintiffs’ claims are nothing more than an effort to impose additional non-identical requirements,
and to challenge the FDA’s previous decision to authorize the claim. These claims are clearly
preempted by federal law. See 21 U.S.C. § 343-1(a)(5).
3. Plaintiffs’ “Helps Reduce Cholesterol!” Claims Are Preempted.
Plaintiffs allege that the statement “Helps Reduce Cholesterol!” on certain Oatmeal to Go bar
packaging is “not complete, not truthful, and highly misleading” because of the existence of trace
amounts of trans fat, as well as refined sugars and starches. Compl. ¶ 83 (emphasis omitted).
Specifically, the Consolidated Complaint identifies a statement on the lower half of the back panel
that “Oatmeal Helps Reduce Cholesterol!*”, with an asterisked statement below that “*3 grams of
soluble fiber from oatmeal daily in a diet low in saturated fat and cholesterol may reduce the risk of
heart disease. Quaker Old Fashioned Oats provide 2g per serving. Quaker Instant Oatmeal, Oatmeal
Squares, and Oatmeal to Go bars provide 1 gram per serving.” See RJN Ex. E (copy of label).2
Again, the FDA specifically authorizes precisely such statements, and Plaintiffs’ claims are
preempted. Specifically, 21 C.F.R. § 101.81(c)(2) provides that “[a] health claim associating diets
that are low in saturated fat and cholesterol and that include soluble fiber from certain foods with
reduced risk of heart disease may be made on the label or labeling of a food . . . .”
2 Because the copy of the label excerpted in the Complaint is difficult to read, Quaker submits a true
and correct copy of the same label in its RJN.
Case5:10-cv-00502-RS Document98 Filed07/29/11 Page13 of 23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
8
NOTICE OF MOTION AND MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF MOTION TO DISMISS CONSOLIDATED COMPLAINT, CASE NO. 5:10-CV-00502-RS
The regulation sets forth specific requirements for making the claim, and Plaintiffs do not
and cannot allege these are not satisfied. 21 C.F.R. § 101.81(c)(2).3 The regulation also authorizes
an optional statement about the relationship to reducing cholesterol. See id. § 101.81(b)(2) (stating
that “[s]oluble fiber from certain foods, when included in a low saturated fat and cholesterol diet,
also helps to lower blood total- and LDL-cholesterol levels”) (emphasis added); id. § 101.81(d)(2)-
(3) (providing claim may also “state that the relationship between intake of diets that are low in
saturated fat and cholesterol and that include soluble fiber from the eligible foods sources . . . is
through the intermediate link of ‘blood cholesterol’ or blood total- and LDL-cholesterol” and
“information from paragraphs (a) and (b) [i.e., § 101.81(b)(2) above] of this section, which
summarizes the relationship between diets that are low in saturated fat and cholesterol and that
include soluble fiber from certain foods . . . .”).
As this Court has previously noted, while the FDA imposes certain general disqualifying
criteria for all health claims based on total fat, saturated fat, cholesterol, or sodium, there are no
general disqualifying criteria for trans fat, partially hydrogenated oils, or sugar. See id.
§ 101.14(a)(4); Chacanaca, 752 F. Supp. 2d at 1122 (“The Agency has by regulation imposed
‘disqualifying’ levels for only four nutrients: total fat, saturated fat, cholesterol, and sodium. 21
C.F.R. §§ 101.13(h)(1), 101.14(a)(4).”).
Plaintiffs do not, and cannot in good faith, argue that the criteria for the claim are not met.
Rather, Plaintiffs’ claims regarding the statement “Helps Reduce Cholesterol!” amount to yet
another attempt -- despite this Court’s ruling on the prior motion for judgment on the pleadings --
3 The regulation provides that the claim may be made if “(A) The claim states that diets that
are low in saturated fat and cholesterol and that include soluble fiber from certain foods ‘may’ or
‘might’ reduce the risk of heart disease. (B) In specifying the disease, the claim uses the following
terms: ‘heart disease’ or ‘coronary heart disease’’; (C) In specifying the substance, the
claim uses the term ‘soluble fiber’ qualified by the name of the eligible source of soluble fiber
. . . . (D) In specifying the fat component, the claim uses the terms ‘saturated fat’ and
‘cholesterol’; (E) The claim does not attribute any degree of risk reduction for CHD to diets that are
low in saturated fat and cholesterol and that include soluble fiber . . . ; and (F) The claim does not
imply that consumption of diets that are low in saturated fat and cholesterol and that include soluble
fiber . . . is the only recognized means of achieving a reduced risk of CHD. (G) The claim specifies
the daily dietary intake of the soluble fiber source that is necessary to reduce the risk of coronary
heart disease and the contribution one serving of the product makes to the specified daily dietary
intake level. . . .” 21 C.F.R. § 101.81(c)(2) (emphasis added).
Case5:10-cv-00502-RS Document98 Filed07/29/11 Page14 of 23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
9
NOTICE OF MOTION AND MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF MOTION TO DISMISS CONSOLIDATED COMPLAINT, CASE NO. 5:10-CV-00502-RS
to impose additional non-identical requirements on Quaker.
4. Claims Regarding Images of Oats, Fruits, and Brown Sugar Are
Preempted.
Plaintiffs argue that certain images of oats, nuts, fruit, and brown sugar are allegedly
misleading or “reinforc[e]” allegedly misleading health claims. See Compl. ¶ 69 (“images of oats
formed in the shape of a heart”), ¶ 71 (“images of fruit, oats formed in the shape of a heart, and
natural brown sugar”), ¶81 (“images of oats, nuts”). Plaintiffs again assert that these images are
misleading because of trace amounts of trans fat, partially hydrogenated oils, and “highly refined
sugars.” Id. ¶¶ 68, 70, 81. But FDA regulations explicitly authorize such images “characterizing
flavor,” and Plaintiffs’ claims merely seek to impose non-identical requirements.
Specifically, 21 C.F.R. § 101.22(i) regulates depictions characterizing flavor. See 21 C.F.R.
§ 101.22(i) (“If the label, labeling, or advertising of a food makes any direct or indirect
representations with respect to the primarily recognizable flavor(s), by word, vignette, e.g.,
depiction of a fruit, or other means, or if for any other reason the manufacturer or distributor of a
food wishes to designate the type of flavor in the food other than through the statement of
ingredients, such flavor shall be considered the characterizing flavor . . . .”). That is, the FDA has
specifically regulated the use of such images and Plaintiffs have not -- and cannot -- allege the
criteria are not satisfied. Rather, again Plaintiffs seek to impose additional non-identical
requirements based on trace amounts of trans fat from partially hydrogenated oils, and sugars.
Other courts have found that claims regarding similar images being purportedly misleading
are preempted. For example, in Dvora v. General Mills, Inc., No. CV 11-1074-GW, 2011 WL
1897349, *4 (C.D. Cal. May 16, 2011), the Court found that plaintiffs’ claims that pictures of
clusters allegedly resembling blueberries and/or pomegranate seeds were misleading were
preempted under the “characterizing flavor” regulations, 21 C.F.R. § 101.22(i). The Dvora court
explained: “[I]t is impossible to see how [p]laintiff’s lawsuit does not seek to impose limitations on
[d]efendants’ manner of packaging its products that are different from what federal regulations
currently require/permit. Accordingly, the Court would conclude that [p]laintiff’s claims (as
currently delineated) are preempted.” Id. at *6.
Case5:10-cv-00502-RS Document98 Filed07/29/11 Page15 of 23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
10
NOTICE OF MOTION AND MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF MOTION TO DISMISS CONSOLIDATED COMPLAINT, CASE NO. 5:10-CV-00502-RS
Under the FDA regulations, Quaker is permitted to include images of oats, nuts, fruit, and
brown sugar consistent with the characterizing flavor regulations, 21 C.F.R. § 101.22(i). Plaintiffs’
arguments are merely an attempt to impose additional non-identical requirements. Those claims are
preempted.
B. Taken in the Packaging Context in Which They Appear, the Statements
“Wholesome, Great-Tasting Goodness in Every Bowl,” “Quality,” and “Smart
Choices Made Easy” Are Non-Actionable Puffery.
The only other representations identified by Plaintiffs are statements that the Products
contain “wholesome, great-tasting goodness in every bowl,” are a “smart choice made easy,” and
are “quality.” This Court previously found, with respect to the prior Complaint in this case, that “at
this juncture” and “on this motion,” it could not determine whether the statements “wholesome” and
“smart choices made easy” in isolation were non-actionable puffery. Chacanaca, 752 F. Supp. 2d
at 1125-26. This Court reasoned that whether a statement such as “wholesome” is puffery depends
on the larger context and packaging. See id. at 1125. An examination of the context of the
statements and packaging, as presented in the Consolidated Complaint, reveals that these are
generalized statements of opinion about product quality that are subjective and not falsifiable. See
Oestreicher v. Alienware Corp., 544 F. Supp. 2d 964, 973 (N.D. Cal. 2008), aff’d, 322 F. App’x 489
(9th Cir. 2009). As such, they are puffery and are not actionable. See also, e.g., Bros. v. Hewlett-
Packard Co., C-06-02254 RMW, 2006 WL 3093685 at *4-5 (N.D. Cal. Oct. 31, 2006) (rejecting
“high-performance” and “top of the line” as puffery); Long v. Hewlett-Packard Co., C 06-02816
JW, 2007 WL 2994812, *7 (N.D. Cal. July 27, 2007), aff’d, 316 F. App’x 585 (9th Cir. 2009)
(rejecting “reliable mobile computing solution” and “do more on the move” as puffery).
Perhaps realizing this, Plaintiffs’ primary challenge to these statements is not that they are
untrue, but that they are misleading because they imply that the Products are “healthy.” See, e.g.,
Compl. ¶ 72 (“Though possibly true, these statements are deceptive . . . they imply that Quaker chewy
granola bars are healthy despite containing artificial trans fat . . . .”), ¶ 73 (“[T]he obvious implication
of the statements, taken in context, is that Quaker Chewy granola bars are a good decision for one’s
health.”). Plaintiffs’ challenge fails because statements that invoke a subjective and unverifiable
concept of “healthiness” are non-actionable puffery. See Oestreicher, 544 F. Supp. 2d at 973.
Case5:10-cv-00502-RS Document98 Filed07/29/11 Page16 of 23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
11
NOTICE OF MOTION AND MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF MOTION TO DISMISS CONSOLIDATED COMPLAINT, CASE NO. 5:10-CV-00502-RS
1. The Concept of “Healthiness” Is Mere Puffery That Is Not Actionable.
To the extent Plaintiffs’ allegations rest on some vague concept of “healthiness,” these
claims are non-actionable puffery. In Williams v. Gerber Prods. Co., 552 F.3d 934 (9th Cir. 2008),
the Ninth Circuit explained that claims that are otherwise puffery might still be challenged if they
contribute to a broader deceptive message conveyed by the package as a whole. In that case, the
Ninth Circuit first found that other aspects of the product packaging deceptively suggested that the
products contained fruit. Id. at 939. Turning to allegations that the statement “nutritious” was false
and misleading, the Court stated that, “were it standing on its own” the claim “nutritious” could be
puffery “since nutritiousness can be difficult to measure concretely.” Id. at 939 n.3. It allowed the
allegation to go forward, however, because the claim “contributes . . . to the deceptive context of the
packaging as a whole.” Id. at 939 n.3.
In this case, by contrast, the Court has already rejected Plaintiffs’ allegations that Quaker’s
statements about specific nutrients and ingredients (including trace amounts of trans fat) in the
Products are false and misleading. Chacanaca, 752 F. Supp. 2d at 1117-24 (holding that such
claims are preempted by FDA regulations). Consequently, there is no broader deception to which
the supposed implied claims of healthiness might contribute, and standalone statements that
allegedly imply “healthfulness” are mere puffery.
2. The Statements “Wholesome, Great-Tasting Goodness in Every Bowl,”
“Quality,” and “Smart Choices Made Easy” Are Puffery.
To the extent Plaintiffs argue that the statements “wholesome, great-tasting goodness in
every bowl,” “smart choices made easy,” and “quality” are false in their own right, rather than
because they imply that the Products are “healthy,” the allegations should be dismissed because the
statements, taken in their entirety, are puffery.4
4 This Court previously considered the term “wholesome” in isolation, and concluded that “[t]he
insistence that a product with (allegedly) dangerous additives is nonetheless ‘wholesome,’ by
contrast, arguably could mislead a reasonable consumer.” Chacanaca, 752 F. Supp. 2d at 1125-26
(emphasis in original). However, when the statements are considered in the context in which they
actually appear, they are plainly puffery, as described above. See Cook, Perkins & Liehe, Inc. v. N.
Cal. Collection Serv. Inc., 911 F.2d 242, 246 (9th Cir. 1990) (explaining puffing as “claims which
are vague or highly subjective”) (citations, quotations, and alterations omitted). Additionally, the
(Footnote Cont’d on Following Page)
Case5:10-cv-00502-RS Document98 Filed07/29/11 Page17 of 23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
12
NOTICE OF MOTION AND MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF MOTION TO DISMISS CONSOLIDATED COMPLAINT, CASE NO. 5:10-CV-00502-RS
“Wholesome, great-tasting goodness in every bowl”: As alleged, the word “wholesome”
appears on certain Quaker packaging as part of the following phrases:
“With wholesome, great tasting goodness in every bowl, our instant oatmeal is
sure to give everyone in your family something to smile about.” Compl. p. 19.
“Made with the goodness of whole grain Quaker® oats and yummy ingredients
like peanut butter or chocolate chips, they’re a great tasting, wholesome way to
help keep your family going.” Compl. p. 23.
In the first occurrence, “wholesome” is one of two modifiers of the term “goodness” (the
other being “great tasting”, a phrase that is quintessential puffery). See Newcal Indus., Inc. v. Ikon
Office Solution, 513 F.3d 1038, 1053 (9th Cir. 2008) (“[A] general, subjective claim about a product
is non-actionable puffery.”); see also Am. Italian Pasta Co. v. New World Pasta Co., 371 F.3d 387,
392 (8th Cir. 2004) (“great taste” is “unquantifiable and subject to an individual’s fancy”). The
remainder of the sentence -- “sure to give everyone in your family something to smile about” -- is
clear exaggeration; no reasonable customer would conclude that instant oatmeal would cause every
person in every family to smile. See Chacanaca, 752 F. Supp. 2d at 1125-26 (distinguishing Tylka
v. Gerber Prods. Co., No. 96-1647, 1999 WL 495126, at *2 (N.D. Ill. July 1, 1999) on the grounds
that “[it] was surely the idea that there were no more nutritious, safe or wholesome products
available anywhere else around the globe that rose to the level of unbelievable exaggeration”).
In the second occurrence, “wholesome” modifies the “way” that the Products “keep your
family going” and is preceded by additional puffery such as “yummy” and “great tasting.” See
Newcal Indus., 513 F.3d at 1053; Am. Italian Pasta Co., 371 F.3d at 392 (“great taste” is
“unquantifiable and subject to an individual’s fancy”). Again, the full context of the statement
belies any conclusion that the statements are objective or verifiable, or would induce consumer
reliance. Newcal Indus., 513 F.3d at 1053 (“A statement is considered puffery if the claim is
extremely unlikely to induce consumer reliance.”); see also Pizza Hut, Inc. v. Papa John’s Int’l,
(Footnote Cont’d From Previous Page)
Court’s prior conclusion was premised on accepting Plaintiffs’ allegation that trans fats are not safe
in any amount, see Chacanaca, 752 F. Supp. 2d at 1115, 1126, which, as discussed below, infra
Sect. V(C), is as a matter of law implausible.
Case5:10-cv-00502-RS Document98 Filed07/29/11 Page18 of 23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
13
NOTICE OF MOTION AND MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF MOTION TO DISMISS CONSOLIDATED COMPLAINT, CASE NO. 5:10-CV-00502-RS
Inc., 227 F.3d 489, 498 (5th Cir. 2000) (“[B]ecause the phrases ‘better ingredients’ and ‘better
pizza’ are not subject to quantifiable measures, the slogan is non-actionable puffery.”).
“Quality”: Courts have repeatedly found this statement to be non-actionable puffery.
Anunziato v. eMachines, Inc., 402 F. Supp. 2d 1133, 1140 (C.D. Cal. 2005) (“The Court finds that
the word ‘quality’ is non-actionable puffery.”) (citing Corley v. Rosewood Care Center, Inc. of
Peoria, 388 F.3d 990, 1008 (7th Cir. 2004) (holding that the phrase “high quality,” as applied to the
amount of care to residents of a nursing home, “comes under the category of sales puffery upon
which no reasonable person could rely in making a decision . . . .”)); In re Sony Grand Wega KDF-
E A10/A20 Series Rear Projection HDTV Television Litig., 758 F. Supp. 2d 1077, 1089 (S.D. Cal.
2010) (alleged representations that televisions were “higher” or “superior” quality “are mere puffery
and cannot support a claim under the UCL, FAL, or CLRA”); see also Am. Italian Pasta Co., 371
F.3d at 391-94 (the trademarked phrase “Quality Since 1867” is non-actionable puffery).
“Smart Choices Made Easy”: As a threshold matter, “Smart Choices Made Easy” is not
simply a statement on certain Quaker Chewy® Granola Bars labels. “Smart Choices Made Easy®”
is a mark registered with the United States Patent and Trademark Office. Plaintiffs do not -- and
cannot -- allege that the Quaker Chewy® Granola Bar products that displayed the Smart Choices
Made Easy® mark did not meet the requirements of the program.
Furthermore, the following explanatory text appears next to the certification mark on the
specific Quaker Chewy® Granola Bars labels identified by Plaintiffs:
When choosing a granola bar, Quaker Chewy® Granola Bars are a smart choice because
they have 25% less sugar than regular Chocolate Chip Quaker Chewy Granola Bars, have 0g
trans fat and are a good source of fiber. One of over 300 smart choices made easy from
PepsiCo. For more information on our Smart Spot™ nutrition standards and help getting
started with a healthy lifestyle, visit www.smartspot.com.
Compl. p. 25. Plaintiffs do not challenge anything in this text as false. Plaintiffs do not -- and
cannot -- allege that Quaker Chewy® Granola Bars do not have 25% less sugar than regular
Chocolate Chip Quaker Chewy Granola Bars, or that the “0g trans fat” and the “good source of
fiber” claims are not accurate under FDA guidelines. Further, the text clearly indicates why Quaker
considers its Chewy Granola Bars to be a smart choice: they contain 25% less sugar than regular
Chocolate Chip Quaker Chewy Granola Bars, have 0g trans fat, and are a good source of fiber.
Case5:10-cv-00502-RS Document98 Filed07/29/11 Page19 of 23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
14
NOTICE OF MOTION AND MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF MOTION TO DISMISS CONSOLIDATED COMPLAINT, CASE NO. 5:10-CV-00502-RS
Finally -- as with “wholesome” -- Plaintiffs remove the phrase “smart choice” from its
context, and then allege that the presence of “highly refined sugar and simple starches” means
Quaker Chewy® Granola Bars are not a “smart choice.” Compl. ¶ 74. There is no benchmark
against which to determine “smartness,” and thus the use of the term “smart” is mere puffery.
Whiting v. AARP, 701 F. Supp. 2d 21, 30 (D.D.C. 2010) (concluding that the statement “smart
option” is too general and subjective in nature to be considered a misrepresentation and instead is
“mere puffery”) (citing, inter alia, Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911
F.2d 242, 246 (9th Cir. 1990), aff’d, 637 F.3d 355 (D.C. Cir. 2011)).
C. The Consolidated Complaint Does Not Allege Facts Showing a “Plausible Claim
for Relief.”
The facts alleged in the Consolidated Complaint do not state a claim that is “plausible on its
face.” Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 570). A claim is “plausible” when it
pleads facts from which the court can draw a “reasonable inference” that the defendant is liable for
the alleged misconduct. Iqbal, 129 S. Ct. at 1949. Stripped of unsupported legal conclusions, the
factual allegations must do more than “create a suspicion of a legally cognizable right of action”;
they must “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (quotations
and alterations omitted). And, where the facts pled are “merely consistent” with a defendant’s
liability, a court may dismiss the claims if there is a more likely explanation that is lawful. Id. at
557; Iqbal, 129 S. Ct. at 1949.
As described above, the statements identified in the Consolidated Complaint are either
preempted by federal law (i.e. “heart-healthy”), or non-actionable puffery (i.e. claims that imply a
product is “healthy”). Even if any claims are not preempted or puffery, however, the Consolidated
Complaint should still be dismissed because the facts alleged do not support a “reasonable inference
of liability” either standing alone or in conjunction with one another. To the contrary, they support
the lawfulness of the Product packaging.
1. PHOs are Considered “Generally Safe” Under Federal Law.
The Consolidated Complaint alleges that trans fats are “toxic” and “unfit for human
consumption.” Compl. ¶ 73 (“In fact, the trans fat content of Quaker Chewy granola bars renders
Case5:10-cv-00502-RS Document98 Filed07/29/11 Page20 of 23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
15
NOTICE OF MOTION AND MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF MOTION TO DISMISS CONSOLIDATED COMPLAINT, CASE NO. 5:10-CV-00502-RS
them unfit for human consumption”). See also id. ¶¶ 4, 59, 72, 81. The Court accepted this
allegation as true when it ruled on Quaker’s initial motion to dismiss. See Chacanaca, 752 F.
Supp. 2d at 1115 (“[Plaintiffs] insist in their Complaint that trans fats are not safe for human
consumption in any amount.”), id. at 1126 (“Taking plaintiffs’ allegation that trans fats are not safe
in any amount as true . . . .”).
But partially hydrogenated oils have long been listed in the FDA database of food additives
that are “generally regarded as safe” (GRAS).5 This means that, as a matter of federal law,
companies are permitted to add partially hydrogenated oils to products without obtaining pre-
market approval. See, e.g., 21 U.S.C. 348 et seq.; 21 C.F.R. § 170.30.6
Ipso facto, PHOs are not “unfit for human consumption.” In turn, the Court need not and
should not accept Plaintiffs’ allegations to that effect as true. See Lynch v. Rawls, No. 09–17379,
2011 WL 1561801 (9th Cir. Apr. 26, 2011) (explaining that courts are “‘not required to accept as
true conclusory allegations . . . that contradict matters properly subject to judicial notice’”)
(quoting Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)). Thus the
presence of trans fat in the Products -- standing alone -- cannot support a “reasonable inference” of
liability. Indeed, there is a more likely explanation that is lawful. Twombly, 550 U.S. at 567;
Iqbal, 129 S. Ct. at 1950. Namely, that PHOs are not “unfit for human consumption” and may
lawfully be used in food products.
2. The Amounts of Trans Fat in the Products Is Equated to “Zero” by All
Applicable State Laws.
The amounts of trans fat in the Products also undermine any “reasonable inference” that
Quaker is liable. Plaintiffs assert that there is “no safe level of artificial trans fat intake,” see
Compl. ¶ 59, and identify numerous state and locals laws that they say have “banned” the use of
trans fats entirely in restaurants. See Compl. p. 12, ¶¶ 62-63 (“Trans fat is so inherently dangerous
5 See RJN Ex. F (Select Committee on GRAS Substances, Report No. 70 (last updated Oct. 31,
2006), www.accessdata.fda.gov/scripts/fcn/fcnDetailNavigation.cfm?rpt=scogsListing&id=154
(last visited July 29, 2011)).
6 The FDA has denied one citizen petition to revoke the GRAS status of trans fat, while two others
remain pending. See 75 Fed. Reg. 76526, 76543 (Dec. 8, 2010).
Case5:10-cv-00502-RS Document98 Filed07/29/11 Page21 of 23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
16
NOTICE OF MOTION AND MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF MOTION TO DISMISS CONSOLIDATED COMPLAINT, CASE NO. 5:10-CV-00502-RS
that it is being banned in an increasing number of American states and European Countries.”).
But every one of the state and local laws identified in the Consolidated Complaint expressly
permits trans fat at levels of less than 0.5 grams per serving, the precise level of trans fat in the
Products.
California proscribes restaurants from using foods that contain trans fat, but provides that a
food contains artificial trans fat “if the food contains vegetable shortening, margarine, or any
kind of partially hydrogenated vegetable oil, unless the label required on the food,
pursuant to applicable federal and state law, lists the trans fat content as less than 0.5
grams per serving.” Cal. Health & Safety Code § 114377(d) (emphasis added).
New York City prohibits restaurants from using foods that contain trans fat, but provides
that “a food whose nutrition facts label or other documentation from the manufacturer
lists the trans fat content of the food as less than 0.5 grams per serving, shall not be
deemed to contain artificial trans fat.” N.Y.C. Health Code. § 81.08(b) (emphasis added).
Philadelphia prohibits restaurants from using or serving any foods containing artificial trans
fat, and provides that “a food shall be deemed to contain artificial trans fat if the food is
labeled as, lists as an ingredient, contains or is vegetable shortening, margarine or any kind
of partially hydrogenated vegetable oil, except that a food the nutrition facts label of
which, or other documentation from the manufacturer, lists the trans fat content of the
food as less than 0.5 grams per serving shall not be deemed to contain artificial trans fat.”
Philadelphia Health Code § 6-307(2) (emphasis added).
Baltimore Health Code § 6-507 provides: “(a)(1) ‘Food containing trans fat’ defined.
(1) ‘Food containing trans fat’ means, except as provided in paragraph (2) of this subsection,
any food that: (i) is labeled as containing vegetable shortening, margarine, or any kind of
partially hydrogenated vegetable oil; (ii) lists vegetable shortening, margarine, or any kind
of partially hydrogenated vegetable oil as an ingredient; or (iii) contains vegetable
shortening, margarine, or any kind of partially hydrogenated vegetable oil. (2) “Food
containing trans fat” does not include food with a nutrition facts label or other
documentation from the manufacturer that lists the food’s trans fat content as less than
0.5 grams per serving. (b) Prohibited use, etc. (1) Except as provided in paragraph (2) of
this subsection, food containing trans fat may not be stored, distributed, held for service,
used in preparation of any menu item, or served in any food service facility. (2) This
subsection does not apply to food that is served directly to patrons in the original sealed
package of the manufacturer.” (emphasis added).
Montgomery County Bd. Health Res. 16-134, Artificial trans fats in eating and drinking
establishments, (a)(2): “Artificial trans fat” means the specific type of fat formed when hydrogen
is added to liquid vegetable oil to make the oil more solid . . . . However, a food with a nutrition
facts label or other document from the manufacturer that lists the trans fat content of the food
as less than 0.5 grams per serving does not contain artificial trans fat.” (emphasis added).
Stamford Municipal Code Sec. 132-24.1, Foods containing artificial trans fat, “(b) For the
purposes of this section, a food shall be deemed to contain artificial trans fat if the food is
Case5:10-cv-00502-RS Document98 Filed07/29/11 Page22 of 23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
17
NOTICE OF MOTION AND MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF MOTION TO DISMISS CONSOLIDATED COMPLAINT, CASE NO. 5:10-CV-00502-RS
labeled as, lists as an ingredient, or has vegetable shortening, margarine or any kind of
partially hydrogenated vegetable oil. However, a food whose nutrition facts label or other
documentation from the manufacturer lists the trans fat content of the food as less than 0.5
grams per serving, shall not be deemed to contain artificial trans fat.” (emphasis added).
And, as the Court has already found (and Plaintiffs do not dispute), federal law also requires trans
fat at the level of 0.5 grams per serving to be declared as “zero” in the Nutrition Facts Box.
Chacanaca, 752 F. Supp. 2d at 1115 (“Plaintiffs accept that the ‘0 grams’ carried on the nutrition
box complies with FDA regulations. They acknowledge that defendant would violate FDA
regulations if it were to attempt to state a decimal amount smaller than 0.5.”) (emphasis in original).
Accordingly, the Consolidated Complaint itself establishes a broad consensus under federal,
state and local law equating food containing less than 0.5 grams of trans fat per serving -- the
amount contained in the Products -- with food containing no trans fat.
This being the case, the facts alleged in the Consolidated Complaint are fully consistent with
the simple truth that Quaker disclosed the ingredients in the Products and made claims about the
Products that fully comply with all applicable laws. Consequently, the Consolidated Complaint
fails to state a “claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570; Iqbal, 129 S.
Ct. at 1949. It is far more likely that Quaker’s conduct is entirely lawful, and therefore, the
Consolidated Complaint should be dismissed. Id.
VI. CONCLUSION
For the above stated reasons, the Court should dismiss the Consolidated Complaint with
prejudice.
Respectfully submitted,
Dated: July 29, 2011 ARNOLD & PORTER LLP
By: /s/ Angel A. Garganta
Angel A. Garganta
Attorneys for Defendant
Case5:10-cv-00502-RS Document98 Filed07/29/11 Page23 of 23
