Sonia Perez v. The Kroger Co., et al

NOTICE OF MOTION AND MOTION to Dismiss Case

C.D. Cal.May 5, 2017

DEFENDANT THE KROGER CO.’S MOTION TO DISMISS sf-3764313 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 PURVI G. PATEL (CA SBN 270702) PPatel@mofo.com KELSEY M. STRICKER (CA SBN 300955) KStricker@mofo.com 707 Wilshire Boulevard Los Angeles, California 90017-3543 Telephone: 213.892.5200 Facsimile: 213.892.5454 SARAH N. DAVIS (CA SBN 275145) SarahDavis@mofo.com MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 Telephone: 415.268.7000 Facsimile: 415.268.7522 Attorneys for Defendant THE KROGER CO. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SONIA PEREZ, individually, and on behalf of a class of similarly situated individuals, Plaintiff, v. THE KROGER CO., an Ohio corporation; and DOES 1-10, inclusive, Defendants. Case No. 2:17-cv-2448 ODW (AGRx) DEFENDANT THE KROGER CO.’S NOTICE OF MOTION AND MOTION TO DISMISS Date: July 10, 2017 Time: 1:30 pm Ctrm: 5D Hon. Otis D. Wright, II Case 2:17-cv-02448-ODW-AGR Document 10 Filed 05/05/17 Page 1 of 27 Page ID #:82 DEFENDANT THE KROGER CO.’S MOTION TO DISMISS sf-3764313 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 PLEASE TAKE NOTICE that on July 10, 2017, at 1:30 pm, or as soon thereafter as the matter may be heard, in Courtroom 5D of this Court, located at 350 W. 1st Street, Los Angeles, California, Defendant The Kroger Co. will and hereby does move this Court, pursuant to Federal Rules of Civil Procedure 8, 9(b), and 12(b)(6) for an order dismissing Plaintiff’s Class Action Complaint because: (a) Plaintiff fails to satisfy Rule 9(b)’s pleading standards; (b) Plaintiff cannot state a claim for relief for her causes of action under California’s Unfair Competition Law (Cal. Bus. & Prof. Code § 17200), False Advertising Law (Cal. Bus. & Prof. Code § 17500), or Consumers Legal Remedies Act (Cal. Civ. Code § 1750); and (c) Plaintiff’s claims are preempted or fall within the Food and Drug Administration’s primary jurisdiction. The motion is based upon this Notice; the accompanying Memorandum of Points and Authorities, Request for Judicial Notice, and Declarations of John P. Pugh and Purvi G. Patel; the pleadings, files, and records in this action; and such additional evidence and arguments as may be presented at the hearing of this motion. This motion is made following a conference of counsel pursuant to L.R. 7-3, which took place on April 28, 2017. Dated: May 5, 2017 MORRISON & FOERSTER LLP By: /s/ Purvi G. Patel Purvi G. Patel Attorneys for Defendant The Kroger Co. Case 2:17-cv-02448-ODW-AGR Document 10 Filed 05/05/17 Page 2 of 27 Page ID #:83 TABLE OF CONTENTS Page i DEFENDANT THE KROGER CO.’S MOTION TO DISMISS sf-3764313 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. INTRODUCTION ........................................................................................... 1 II. LEGAL STANDARD ..................................................................................... 2 III. RELEVANT BACKGROUND ....................................................................... 3 A. Plaintiff’s Conclusory Allegations ........................................................ 3 B. Kroger Apple Juice Is Correctly Labeled in Compliance with Directly Applicable FDA Regulations .................................................. 3 IV. PLAINTIFF HAS NOT COMPLIED WITH RULE 9(B) .............................. 4 V. PLAINTIFF CANNOT STATE A CLAIM UNDER THE UCL, FAL, AND CLRA ..................................................................................................... 6 A. “NO SUGAR ADDED” Is Not False or Misleading ............................ 6 B. Plaintiff Cannot Satisfy the Statutory Standing Requirements Under the UCL, FAL, and CLRA ....................................................... 10 VI. PLAINTIFF’S “NO SUGAR ADDED” CLAIMS ARE PREEMPTED OR SUBJECT TO THE FDA’S PRIMARY JURISDICTION. ................... 12 A. The FDCA and NLEA Preempt Plaintiff’s State Law Claims. .......... 13 B. The FDA Has Primary Jurisdiction .................................................... 16 C. Cel-Tech’s Safe Harbor Bars Plaintiff’s UCL, FAL, and CLRA Claims ................................................................................................. 17 VII. CONCLUSION ............................................................................................. 18 Case 2:17-cv-02448-ODW-AGR Document 10 Filed 05/05/17 Page 3 of 27 Page ID #:84 ii DEFENDANT THE KROGER CO.’S MOTION TO DISMISS sf-3764313 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 TABLE OF AUTHORITIES Page(s) CASES Alvarez v. Chevron Corp., 656 F.3d 925 (9th Cir. 2011) ............................................................................... 18 Ashcroft v. Iqbal, 556 U.S. 662 (2009) .............................................................................................. 3 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) .............................................................................................. 2 Boysen v. Walgreen Co., No. C 11-06262, 2012 WL 2953069 (N.D. Cal. July 19, 2012) .................................................................................... 12 Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336 (9th Cir. 1996) ................................................................................... 3 Cardenas v. NBTY, Inc., 870 F. Supp. 2d 984 (E.D. Cal. 2012) ................................................................... 5 Cel-Tech Commc’ns, Inc. v. L.A. Cellular Tel. Co., 20 Cal. 4th 163 (1999) ......................................................................................... 18 Clemens v. DaimlerChrysler Corp., 534 F.3d 1017 (9th Cir. 2008) ............................................................................... 2 Delacruz v. Cytosport, Inc., No. C 11-3532 CW, 2012 WL 2563857 (N.D. Cal. June 28, 2012) ...................................................................................... 7 Gordon v. Church & Dwight Co., No. C 09-5585 PJH, 2010 WL 1341184 (N.D. Cal. Apr. 2, 2010) ...................................................................................... 17 Hairston v. S. Beach Beverage Co., Inc., No. CV 12-1429-JFW, 2012 WL 1893818 (C.D. Cal. May 18, 2012) .................................................................................... 16 Case 2:17-cv-02448-ODW-AGR Document 10 Filed 05/05/17 Page 4 of 27 Page ID #:85 iii DEFENDANT THE KROGER CO.’S MOTION TO DISMISS sf-3764313 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 Hall v. Time Inc., 158 Cal. App. 4th 847 (2008) .............................................................................. 12 Hillsborough Cty., Fla. v. Automated Med. Labs. Inc., 471 U.S. 707 (1985) ............................................................................................ 13 In re In re Ferrero Litig., 794 F. Supp. 2d 1107 (S.D. Cal. 2011) ............................................................... 14 In re In re Pepsico, Inc., Bottled Water Mktg. & Sales Practices Litig., 588 F. Supp. 2d 527 (S.D.N.Y. 2008) ................................................................. 14 In re In re Sony Grand Wega KDF-E A10/A20 Series Rear Projection HDTV Television Litig. 758 F. Supp. 2d 1077 (S.D. Cal. 2010) ................................................................. 5 Ivie v. Kraft Foods Global, Inc., No. C-12-02554-RMW, 2013 WL 685372 (N.D. Cal. Feb. 25, 2013) .................................................................................... 17 Kane v. Chobani, No. 12-CV-02425-LHK, 2013 WL 5289253 (N.D. Cal. Sept. 19, 2013) ............................................................................. 5, 8, 9 Kearns v. Ford Motor Co., 567 F.3d 1120 (9th Cir. 2009) ............................................................................... 4 Kwikset Corp. v. Super. Ct., 51 Cal. 4th 310 (2011) ............................................................................... 8, 11, 12 Lavie v. Procter & Gamble Co., 105 Cal. App. 496 (2003) ...................................................................................... 7 Law v. Gen. Motors Corp., 114 F.3d 908 (9th Cir. 1997) ............................................................................... 13 McKinnis v. Kellogg USA, No. CV 07-2611 ABC, 2007 WL 4766060 (C.D. Cal. Sept. 19, 2007) ..................................................................................... 9 Mills v. Giant of Md., LLC, 441 F. Supp. 2d 104 (D.D.C. 2006) .................................................................... 14 Case 2:17-cv-02448-ODW-AGR Document 10 Filed 05/05/17 Page 5 of 27 Page ID #:86 iv DEFENDANT THE KROGER CO.’S MOTION TO DISMISS sf-3764313 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 Mut. Pharm. Co. v. Watson Pharm., Inc., No. CV 09-5700, 2009 WL 3401117 (C.D. Cal. Oct. 19, 2009) ..................................................................................... 17 Park v. Welch Foods, Inc., No. 5:12-cv-06449-PSG, 2013 WL 5405318 (N.D. Cal. Sept. 26, 2013) ..................................................................................... 8 Pelayo v. Nestle USA, Inc., 989 F. Supp. 2d 973 (C.D. Cal. 2013) ................................................................... 7 Peviani v. Hostess Brands, Inc., 750 F. Supp. 2d 1111 (C.D. Cal. 2010) ............................................................... 15 POM Wonderful LLV v. Coca-Cola Co., No. CV 08-06237 SJO, 2013 WL 543361 (C.D. Cal. Feb. 13, 2013) .................................................................................... 18 Rahman v. Mott’s LLP, No. CV 13-3482, 2014 WL 325241 (N.D. Cal. Jan. 29, 2014) ....................................................................................... 8 Red v. Gen. Mills., Inc., No. 2:15-cv-02232-ODW(JPR), 2015 WL 9484398 (C.D. Cal. Dec. 29, 2015) ................................................................................ 5, 11 Red v. Kraft Foods, Inc., No. CV 10-1028-GW(AGRx), 2012 WL 5504011 (C.D. Cal. Oct. 25, 2010) ....................................................................................... 9 Simpson v. Cal. Pizza Kitchen, Inc., 989 F. Supp. 2d 1015 (S.D. Cal. 2013) ............................................................... 12 Sprewell v. Golden State Warriors, 266 F.3d 979 (9th Cir. 2001), amended, 275 F.3d 1187 (9th Cir. 2001) .............................................................. 3 Suzuki v. Hitachi Global Storage Techs., Inc., No. C 06-07289 MHP, 2007 WL 2070263 (N.D. Cal. July 17, 2007) .................................................................................... 18 Syntek Semiconductor Co. v. Microchip Tech., Inc., 307 F.3d 775 (9th Cir. 2002) ............................................................................... 16 Case 2:17-cv-02448-ODW-AGR Document 10 Filed 05/05/17 Page 6 of 27 Page ID #:87 v DEFENDANT THE KROGER CO.’S MOTION TO DISMISS sf-3764313 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 Taradejna v. Gen. Mills, Inc., 909 F. Supp. 2d 1128 (D. Minn. 2012) ............................................................... 17 Thomas v. Costco Wholesale Corp., No. 12-cv-02908, 2013 WL 1435292 (N.D. Cal. Apr. 9, 2013) ........................................................................................ 7 Trazo v. Nestle USA, Inc. No. 5:12-CV-2272 PSG, 2013 WL 4083218 (N.D. Cal. Aug. 9, 2013) ....................................................................................... 8 Turek v. Gen. Mills, Inc., 662 F.3d 423 (7th Cir. 2011) ............................................................................... 13 United States v. Gen. Dynamics Corp., 828 F.2d 1356 (9th Cir. 1987) ............................................................................. 16 Vess v. Ciba-Geigy Corp., USA, 317 F.3d 1097 (9th Cir. 2003) ............................................................................... 4 Viggiano v. Hansen Natural Corp. 944 F. Supp. 2d 877 (C.D. Cal. 2013) ....................................................... 9, 13, 16 Wilson v. Frito-Lay N. Am., Inc, No. 12-1586 SC, 2013 WL 5777920 (N.D. Cal. Oct. 24, 2013) ...................................................................................... 8 Wright v. Gen. Mills, Inc., No. 08-cv-1532, 2009 WL 3247148 (S.D. Cal. Sept. 30, 2009) .................................................................................... 12 Statutes & Regulations 21 U.S.C. § 301 et seq. ......................................................................................................... 13 § 341 et seq. ......................................................................................................... 13 § 343 .................................................................................................................... 13 § 343-1 ................................................................................................................. 16 § 343-1(a)(4) ........................................................................................................ 13 § 343(q) ................................................................................................................ 13 § 393(b)(2)(A) ..................................................................................................... 16 Case 2:17-cv-02448-ODW-AGR Document 10 Filed 05/05/17 Page 7 of 27 Page ID #:88 vi DEFENDANT THE KROGER CO.’S MOTION TO DISMISS sf-3764313 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 Cal. Bus. & Prof. Code § 17200 .................................................................................................................. 1 § 17204 ................................................................................................................ 10 § 17500 .................................................................................................................. 1 § 17535 ................................................................................................................ 10 Cal. Civ. Code § 1750 .................................................................................................................... 1 § 1770(a)(5) ........................................................................................................... 8 § 1770(a)(5) ........................................................................................................... 8 § 1770(a)(7) ........................................................................................................... 8 § 1770(a)(7) ........................................................................................................... 8 § 1770(a)(9) ........................................................................................................... 8 § 1780(a) .............................................................................................................. 10 21 C.F.R. § 10.25(b) ............................................................................................................. 17 § 100.1 ................................................................................................................. 16 § 100.1(c)(4) ........................................................................................................ 14 § 101.30(a) ........................................................................................................... 15 § 101.60(c)(2) .................................................................................................. 4, 14 81 Fed. Reg. 33,741 (May 27, 2016) ........................................................................ 17 Congressional Materials H.R. Rep. 101-538 (1990), reprinted in 1990 U.S.C.C.A.N. 3336 .......................... 13 Rules Fed. R. Civ. P. 8(a)(2) .................................................................................................................... 3 9(b) ................................................................................................................ passim 12(b)(6) .................................................................................................................. 2 Case 2:17-cv-02448-ODW-AGR Document 10 Filed 05/05/17 Page 8 of 27 Page ID #:89 1 DEFENDANT THE KROGER CO.’S MOTION TO DISMISS sf-3764313 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. INTRODUCTION In this putative class action, Plaintiff Sonia Perez challenges the “NO SUGAR ADDED” claim on three varieties of private-label apple juice: Kroger 100% Apple Juice, Kroger 100% Natural Apple Juice, and Simple Truth Organic 100% Apple Juice.1 Plaintiff does not challenge the sugar content of Kroger Apple Juice. Nor do she allege that the “NO SUGAR ADDED” label is factually inaccurate; she does not (and cannot) claim that sugar was, in fact, added to the juices she purchased. Plaintiff also does not allege that she was physically harmed by consuming the juice or that her expectations were in any way not met. The inescapable fact is that Plaintiff received exactly what Kroger represented - fruit juice with no added sugar. Instead, the gravamen of the complaint is that Kroger Apple Juice is mislabeled as “NO SUGAR ADDED” because the juice does not resemble and substitute for foods that normally contain added sugar, one of five criteria required by applicable U.S. Food and Drug Administration regulations. Plaintiff is wrong; Kroger Apple Juice fully complies with the FDA’s “NO SUGAR ADDED” regulations. Nevertheless, based on this single, conclusory allegation, Plaintiff asserts that the “NO SUGAR ADDED” claim is “illegal and deceptive” and seeks relief under three California consumer protection statutes.2 The Court should reject Plaintiff’s invitation to litigate an alleged hyper-technical violation of the FDA regulations via the UCL, FAL, and CLRA for several reasons. First, Plaintiff’s barebones allegations regarding what products she purchased, when and where she purchased them, and why she purchased them fail to pass muster under Rule 9(b)’s heightened pleading requirements. As a threshold 1 Plaintiff collectively refers to these three varieties as “Kroger Apple Juice,” which Kroger adopts for purposes of this motion. 2 Plaintiff asserts causes of action under the Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 (UCL), the False Advertising Law, Cal. Bus. & Prof. Code § 17500 (FAL), and the Consumers Legal Remedies Act, Cal. Civ. Code § 1750 (CLRA). Case 2:17-cv-02448-ODW-AGR Document 10 Filed 05/05/17 Page 9 of 27 Page ID #:90 2 DEFENDANT THE KROGER CO.’S MOTION TO DISMISS sf-3764313 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 matter, she does not specifically allege whether she purchased all three varieties of Kroger Apple Juice at issue. On the critical issue of reliance, she pleads conclusory allegations only-recycling the same allegations that she makes against another defendant in another “NO SUGAR ADDED” lawsuit. Rule 9(b) requires more. Second, Plaintiff fails to state a claim under the UCL, FAL, or CLRA. She cannot establish either that (1) the “NO SUGAR ADDED” claim is false or misleading or (2) that she was injured in any way. The statement is indisputably true (there actually is no sugar added), and Plaintiff clearly received the full benefit of her bargain. Moreover, a “reasonable consumer” would not interpret “NO SUGAR ADDED” to mean that Kroger Apple Juice is low in sugar or low in calories. This is especially true where-as here-all three labels contain an additional disclosure that the juice is “NOT A LOW CALORIE FOOD” and direct the consumer to see “THE NUTRITION INFORMATION FOR SUGAR AND CALORIE CONTENT.” Third, even if Plaintiff could sufficiently allege facts to state a claim, her “NO SUGAR ADDED” claims still fail because they are preempted or subject to the FDA’s primary jurisdiction. Contrary to Plaintiff’s conclusory allegations, Kroger Apple Juice labels fully comply with FDA’s regulations on the use of “NO SUGAR ADDED.” FDA permits the use of “NO SUGAR ADDED” where substitute and similar products usually contain added sugar. FDA has stated both that it compares juices across varietals and that other types of juices, nectars, and fruit drinks frequently contain added sugar. Plaintiff cannot use state law to challenge conduct FDA permits. The deficiencies in Plaintiff’s complaint are not curable, requiring dismissal of her complaint with prejudice. II. LEGAL STANDARD A court must dismiss a complaint under Rule 12(b)(6) where a plaintiff fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Clemens v. DaimlerChrysler Case 2:17-cv-02448-ODW-AGR Document 10 Filed 05/05/17 Page 10 of 27 Page ID #:91 3 DEFENDANT THE KROGER CO.’S MOTION TO DISMISS sf-3764313 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 Corp., 534 F.3d 1017, 1022 (9th Cir. 2008); Fed. R. Civ. P. 8(a)(2). While a court assumes the truth of all factual allegations properly pleaded in the complaint as true, Cahill v. Liberty Mutual Insurance Co., 80 F.3d 336, 337-38 (9th Cir. 1996), it need not “accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001), amended, 275 F.3d 1187 (9th Cir. 2001); see also Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009) (“bare assertions . . . amount[ing] to nothing more than a ‘formulaic recitation of the elements’ . . . are not entitled to be assumed true”) (quoting Twombly, 550 U.S. at 555).3 III. RELEVANT BACKGROUND A. Plaintiff’s Conclusory Allegations Plaintiff sues on behalf of herself, a putative nationwide class, and a putative California subclass of buyers of Kroger Apple Juice. (Compl. ¶ 1.) She alleges she purchased “one or more bottles” of Kroger Apple Juice, at unspecified times within the last four years, after “observ[ing]” the “NO SUGAR ADDED” claim on the label. (Id. ¶¶ 9-10.) She alleges the “NO SUGAR ADDED” claim is “illegal and deceptive,” and that she “reasonably relied” on the claim in deciding to purchase Kroger Apple Juice. She provides no facts supporting any of these conclusory allegations. Plaintiff asserts three causes of action against Kroger under California’s consumer protection statutes, claiming that she would not have purchased, or paid less for, whichever of the three varieties of Kroger Apple Juice she bought “had Kroger Apple Juice not included” the “NO SUGAR ADDED” claim on the label. (Id. ¶ 12.) B. Kroger Apple Juice Is Correctly Labeled in Compliance with Directly Applicable FDA Regulations The FDA permits use of the phrase “NO SUGAR ADDED” as long as five 3 The legal standard applicable to motions to dismiss under Rule 9(b) is discussed in Section IV. Case 2:17-cv-02448-ODW-AGR Document 10 Filed 05/05/17 Page 11 of 27 Page ID #:92 4 DEFENDANT THE KROGER CO.’S MOTION TO DISMISS sf-3764313 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 specifically delineated criteria are met. 21 C.F.R. § 101.60(c)(2)(i)-(v).4 Only one criterion - that the food the product resembles and for which it substitutes normally contains added sugars - is at issue in this case. (Compl. ¶¶ 7, 25.) Thus, Plaintiff concedes that Kroger Apple Juice labels substantially comply with FDA’s “NO SUGAR ADDED” labeling requirements - including the requirement that the product does not in fact contain any “added sugar.” With respect to the sole criterion at issue, Plaintiff offers only conclusory allegations, which, in any event, are contradicted by FDA regulations and guidance. IV. PLAINTIFF HAS NOT COMPLIED WITH RULE 9(B) Because all of Plaintiff’s allegations sound in fraud (e.g., Compl. ¶¶ 40-41, 52-53, 63-67), she must meet the heightened level of specificity required by Rule 9(b). Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir. 2009); Vess v. Ciba-Geigy Corp., USA, 317 F.3d 1097, 1105 (9th Cir. 2003). As set forth below, Plaintiff falls far short of the Rule’s particularity requirements, failing to “articulate the who, what, when, where, and how of the misconduct alleged.” Kearns, 567 F.3d at 1125-27. Who and What: Plaintiff purports to seek relief as to three different varieties of private-label apple juice: Kroger 100% Apple Juice, Kroger 100% Natural Apple Juice, and Simple Truth Organic 100% Apple Juice. (Compl. ¶ 1.) Yet she does not specifically allege purchasing any of the three varieties; instead she lumps them together and vaguely alleges that she bought “one or more bottles” of “Kroger Apple Juice.” (Id. ¶ 9.) It is unclear from this allegation, however, whether Plaintiff even purchased all three varieties at issue, given that if she bought one bottle (as she alleges she may have done), she could only have bought one variety. When and Where: Except to say she purchased “one or more bottles” of Kroger Apple Juice over the last four years (the longest statute of limitations 4 (See also Compl. ¶¶ 5, 23 (setting forth requirements under 21 C.F.R. § 101.60(c)(2)(i)-(v) for “no sugar added” labeling).) Case 2:17-cv-02448-ODW-AGR Document 10 Filed 05/05/17 Page 12 of 27 Page ID #:93 5 DEFENDANT THE KROGER CO.’S MOTION TO DISMISS sf-3764313 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 applicable to her consumer protection claims) after “observ[ing]” the “NO SUGAR ADDED” claim, Plaintiff fails to specify when (and how often) she made her purchases or when she was allegedly misled by the “NO SUGAR ADDED” label. See Cardenas v. NBTY, Inc., 870 F. Supp. 2d 984, 993 (E.D. Cal. 2012) (dismissing claim under Rule 9(b) because plaintiffs failed to plead “when they knew, or should have known, that the representations were unsubstantiated”). She also fails to provide any details regarding where she purchased the Kroger Apple Juice, other than to say she went to a Ralphs grocery store. (Compl. ¶ 9.) How: Critically, Plaintiff alleges no facts explaining how she was misled by the “NO SUGAR ADDED” claim. She states, in conclusory fashion, that she “observed” the statement before making her purchase, she “reasonably relied” on it in deciding to make her purchase, and that the statement was important to her decision. (Compl. ¶¶ 10-12.)5 Rule 9(b) requires far more, particularly regarding Plaintiff’s expectations and knowledge at the time of purchase. Kane v. Chobani, No. 12-CV-02425-LHK, 2013 WL 5289253, at *4 (N.D. Cal. Sept. 19, 2013) (“The plaintiff must set forth what is false or misleading about a statement, and why it is false.”); 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) (For a statement to be deceptive or misleading, “consumers must have held expectations about the matter in question.”). What Plaintiff knew prior to making her purchase matters, both as it relates to Kroger Apple Juice and other juices. See Red v. Gen. Mills., Inc., No. 2:15-cv-02232-ODW(JPR), 2015 WL 9484398, at *4-5 (C.D. Cal. Dec. 29, 2015) (finding that plaintiff lacked standing where she knew that the product contained 5 Plaintiff makes nearly identical allegations in similar “NO SUGAR ADDED” suit against Naked Juice Co. involving its coconut water. (Request for Judicial Notice (“RJN”’), Ex. A (Complaint, Perez v. Naked Juice Co. of Glendora, Inc., No. BC649296, ¶¶ 12-14 (Los Angeles Super. Ct. filed Mar. 30, 2017)).) Like here, in the Naked Juice action, Plaintiff allegations are conclusory, and fail to explain how she was misled or what, if any, expectations she had about the sugar content in the beverage. (See id. ¶¶ 11-14.) Case 2:17-cv-02448-ODW-AGR Document 10 Filed 05/05/17 Page 13 of 27 Page ID #:94 6 DEFENDANT THE KROGER CO.’S MOTION TO DISMISS sf-3764313 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 the challenged ingredients as “self-inflicted harm doesn’t satisfy the basic requirements of standing”). Here, Plaintiff only alleges that the statement was “illegal and deceptive,” without any explanation of why or how it deceived or misled her. Nor does she allege any facts showing that she had any expectations about the sugar content in Kroger Apple Juice, whether apple or other juices usually contain added sugars, how the “NO SUGAR ADDED” label informed her expectations, or how that those expectations were somehow not met. To the contrary, Plaintiff does not allege any connection between the “NO SUGAR ADDED” label and any expectation regarding the presence of added sugars in Kroger Apple Juice or other juices. Her complaint is devoid of any facts demonstrating how and why the “NO SUGAR ADDED” label purportedly induced her to purchase Kroger Apple Juice. Elsewhere in her complaint, she references the obesity epidemic and that the consumption of foods high in sugar has played a role in the epidemic. (E.g., Compl. ¶ 3.) But at no point does she tie these references to the reasons she bought Kroger Apple Juice or allege that the obesity epidemic or the desire to avoid sugar played any role at all in her purchase decisions. Even if Plaintiff can cure these pleading defects, as discussed below, she will still be unable to state a claim for violation of the UCL, FAL, or CLRA. V. PLAINTIFF CANNOT STATE A CLAIM UNDER THE UCL, FAL, AND CLRA Particularity in pleading will not save Plaintiff’s consumer protection claims. Her UCL, FAL, and CLRA claims all fail because the representation at issue -NO SUGAR ADDED-is neither false nor misleading. As a consequence, she separately cannot meet the statutory standing requirements because she cannot demonstrate injury “as a result of” the alleged mislabeling. A. “NO SUGAR ADDED” Is Not False or Misleading To avoid dismissal of her UCL, FAL, and CLRA claims, Plaintiff must plead Case 2:17-cv-02448-ODW-AGR Document 10 Filed 05/05/17 Page 14 of 27 Page ID #:95 7 DEFENDANT THE KROGER CO.’S MOTION TO DISMISS sf-3764313 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 sufficient facts to demonstrate that a reasonable consumer is likely to be deceived by Kroger’s factually true “NO SUGAR ADDED” claim. Pelayo v. Nestle USA, Inc., 989 F. Supp. 2d 973, 978 (C.D. Cal. 2013) (dismissal of UCL, FAL, and CLRA claims appropriate on motion to dismiss “where a Court can conclude as a matter of law that members of the public are not likely to be deceived by the product packaging[,” and collecting cases). “Likely to deceive” means more than “a mere possibility” that a “few consumers viewing [the statement] in an unreasonable manner” might conceivably misunderstand it. Lavie v. Procter & Gamble Co., 105 Cal. App. 496, 508-09 (2003). Here, Plaintiff alleges in conclusory fashion that the “NO SUGAR ADDED” claim is “deceptive.” (See, e.g.Compl. ¶¶ 12, 26.) She further alleges, again, in conclusory fashion, that she expects Kroger “to provide accurate and truthful representations regarding the sugar content contained in [its] products, especially as compared to those in competitors’ similar products.” (Id. ¶¶ 40, 68.) These allegations are insufficient to show a “likelihood of deception,” much less “that a significant portion of the general consuming public” could be misled. Lavie, 105 Cal. App. 4th at 508. First, “NO SUGAR ADDED” is a factually accurate statement. Plaintiff does not allege or assert otherwise. Dismissal is mandated where, as here, it is undisputed that the label is factually accurate. See Thomas v. Costco Wholesale Corp., No. 12-cv-02908, 2013 WL 1435292, at *5 (N.D. Cal. Apr. 9, 2013) (plaintiff could not state a “fraudulent” prong claim because there was no allegation that the challenged representations were untruthful); see also Delacruz v. Cytosport, Inc., No. C 11-3532 CW, 2012 WL 2563857, at *8 (N.D. Cal. June 28, 2012) (trans fat claim alone “does not amount to a false statement or misrepresentation and, thus, is not an actionable claim”].)6 6 As the “NO SUGAR ADDED” claim on Kroger Apple Juice is indisputably true, Plaintiff’s CLRA claims under § 1770 subdivisions (a)(5), (a)(7), and (a)(9) fail. All three subdivisions of Case 2:17-cv-02448-ODW-AGR Document 10 Filed 05/05/17 Page 15 of 27 Page ID #:96 8 DEFENDANT THE KROGER CO.’S MOTION TO DISMISS sf-3764313 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 Second, a bare regulatory violation is not enough. Plaintiff does not explain how the “NO SUGAR ADDED” claim misled her - she only alleges that the labels are “illegal” because they purportedly violate an FDA regulation. (Compl. ¶¶ 7, 25.) This does not suffice. To state a claim, Plaintiff must “connect the dots showing how the alleged misbranding misled [her] in a way that a reasonable consumer would be deceived.” Trazo v. Nestle USA, Inc. No. 5:12-CV-2272 PSG, 2013 WL 4083218, at *10 (N.D. Cal. Aug. 9, 2013); Park v. Welch Foods, Inc., No. 5:12-cv-06449-PSG, 2013 WL 5405318, at *5 (N.D. Cal. Sept. 26, 2013) (dismissing UCL, FAL, and CLRA claims consisting only of “a long summary of the FDCA and its food labeling regulations, a formulaic recitation of how these regulations apply to Defendants’ products, and conclusory allegations regarding Defendants’ ‘unlawfulness’”) (citation omitted).7 Here, “NO SUGAR ADDED” is a narrow factual assertion that no sugar is added to Kroger Apple Juice. Plaintiff does not dispute the accuracy of this claim, and there is nothing misleading about it. Plaintiff’s inability to “connect the dots” - to explain how a “reasonable consumer” would be deceived by the “NO SUGAR ADDED” label or how the alleged misbranding affected her purchasing decision - is fatal to her claims. Rahman v. Mott’s LLP, No. CV 13-3482, 2014 WL 325241, at *7-8 (N.D. Cal. Jan. 29, 2014) (dismissing similar allegations where the plaintiff failed the CLRA require that the product’s qualities were misrepresented. See Cal. Civ. Code § 1770(a)(5) (“Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that they do not have”) (emphasis added); id. § 1770(a)(7) (“Representing that goods…are of a particular standard, quality, or grade…if they are of another.”) (emphasis added); § 1770(a)(9) (“Advertising goods or services with intent not to sell them as advertised.”) (emphasis added). Because it is undisputed that Kroger Apple Juice conformed to the label, i.e., were apple juices with “NO SUGAR ADDED,” Plaintiff’s CLRA claims should be dismissed for this additional reason. 7 For this same reason, courts regularly dismiss UCL “unlawful” prong claims that are predicated on the same “illegal products” theory Plaintiff puts forward here. Kane, 2013 WL 5289253, at *6, *9 (“Plaintiffs’ ‘illegal product’ theory would eviscerate the enhanced standing requirements imposed by Proposition 64 and . . . Kwikset”); see also Wilson v. Frito-Lay N. Am., Inc, No. 12-1586 SC, 2013 WL 5777920, at *8 (N.D. Cal. Oct. 24, 2013) (dismissing an “unlawful” prong claim arising from an alleged “violation of labeling laws alone”). Case 2:17-cv-02448-ODW-AGR Document 10 Filed 05/05/17 Page 16 of 27 Page ID #:97 9 DEFENDANT THE KROGER CO.’S MOTION TO DISMISS sf-3764313 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 to explain how the alleged regulatory violation regarding the “NO SUGAR ADDED” labeling was likely to mislead the reasonable consumer). Third, a “reasonable consumer” would not be deceived by the “NO SUGAR ADDED” label. There is no “likelihood of deception,” as a matter of law, where a plaintiff’s subjective interpretations of product labels are implausible. See Viggiano v. Hansen Natural Corp. 944 F. Supp. 2d 877, 892 n.38 (C.D. Cal. 2013) (“In cases where a product’s front label is accurate and consistent with the statement of ingredients, courts routinely hold that no reasonable consumer could be misled by the label”); Kane, 2013 WL 5289253, at *10 (a reasonable consumer would not be misled by the words “all natural” and “only natural ingredients” to believe that yogurt did not contain added fruit juice when the juice was explicitly disclosed on the label); Red v. Kraft Foods, Inc., No. CV 10-1028-GW(AGRx), 2012 WL 5504011, at *3-4 (C.D. Cal. Oct. 25, 2010) (dismissing claims alleging that the phrase “made with real vegetables” could mislead consumers to believe that crackers contained significant amounts of vegetables). The Complaint is devoid of any facts establishing that a reasonable consumer would be misled by the “NO SUGAR ADDED” label. Indeed, if Plaintiff was focused on the amount of sugar in the juices, she simply had to look at the Nutrition Facts box at her fingertips to see the total amount of sugar in the juices. (RJN, Exs. D-F); see McKinnis v. Kellogg USA, No. CV 07-2611 ABC (RCx), 2007 WL 4766060, at *4 (C.D. Cal. Sept. 19, 2007) (Nutrition Facts are “familiar to a reasonable consumer”). Each “NO SUGAR ADDED” claim on Kroger Apple Juice is accompanied by a “NOT A LOW CALORIE FOOD” disclosure and statement directing consumers to “SEE NUTRITIONAL INFORMATION FOR SUGAR AND CALORIE CONTENT.” (Compl. at 2-4; RJN, Exs. D-F (emphasis added).) These disclosures are both clear and in close proximity to the “NO SUGAR ADDED” claim: Case 2:17-cv-02448-ODW-AGR Document 10 Filed 05/05/17 Page 17 of 27 Page ID #:98 10 DEFENDANT THE KROGER CO.’S MOTION TO DISMISS sf-3764313 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 Thus, if, as Plaintiff contends consumers are “increasingly aware of their sugar consumption” (Compl. ¶ 3), information regarding sugar (and calorie) content is readily available. If anything, Plaintiffs’ allegations demonstrate conclusively that for consumers interested in sugar content, there is nothing misleading about “NO SUGAR ADDED.” Finally, there is no merit to Plaintiff’s conclusory allegation that the “NO SUGAR ADDED” label somehow misrepresents the sugar content in Kroger Apple Juice versus (unspecified) competitor products. (Compl. ¶¶ 26, 40, 68.) The “NO SUGAR ADDED” label does not explicitly or impliedly compare Kroger Apple Juice to any other juice product. “NO SUGAR ADDED” does not mean “less sugar than” or “sugar free” or “no sugar”; any reasonable consumer would understand that the product contains sugar, which the Nutrition Facts label confirms. B. Plaintiff Cannot Satisfy the Statutory Standing Requirements Under the UCL, FAL, and CLRA To assert claims under the UCL, FAL, and CLRA, Plaintiff must first establish that she has standing. See Cal. Bus. & Prof. Code §§ 17204, 17535; Cal. Civ. Code § 1780(a). To do so, she must plead that she suffered injury in fact as a result of Kroger’s allegedly wrongful business practices. Red v. Gen. Mills., Inc., Case 2:17-cv-02448-ODW-AGR Document 10 Filed 05/05/17 Page 18 of 27 Page ID #:99 11 DEFENDANT THE KROGER CO.’S MOTION TO DISMISS sf-3764313 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 2015 WL 9484398, at *4 (“[T]he alleged unfair business practice must give rise to an economic injury.”) (citing Kwikset Corp. v. Super. Ct., 51 Cal. 4th 310, 322 (2011)). Absent a cognizable injury, Plaintiff’s statutory claims fail as a matter of law. Id. Here, Plaintiff attempts to manufacture an injury by alleging that she would not have purchased or would have paid less for Kroger Apple Juice if the “NO SUGAR ADDED” claim was not “illegal and deceptive.” (See Compl. ¶ 12.) She does not explain how the label statement deceived her or how the alleged FDA regulatory violation harmed her. Nor does she allege any other harm resulting from purchasing (and presumably consuming) Kroger Apple Juice. In addition to failing to meet Rule 9(b)’s heightened pleading standard (discussed above), these limited, conclusory allegations are insufficient to establish injury for multiple reasons. First, Plaintiff received the full benefit of her bargain. She received exactly what she expected to receive and paid money to receive - apple juice with no added sugar. Kwikset is instructive. There, a putative class of consumers brought claims under the UCL and FAL against a company for falsely marketing and selling locksets labeled “Made in U.S.A.” because those products contained screws or pins made in Taiwan or involved sub-assembly performed in Mexico. Kwikset, 51 Cal. 4th at 317-18. Plaintiffs alleged that had they known the locksets they purchased were not “Made in U.S.A.”, they would not have purchased them. Id. at 327-28. The California Supreme Court determined that plaintiffs had adequately alleged “economic injury” necessary to confer statutory standing because the accuracy of labels matters, and the products plaintiffs received (ones containing foreign-made parts) differed from those that were advertised (ones that were “Made in U.S.A.”). Id. at 329-30. Here, by contrast, Plaintiff suffered no “economic injury” because the fruit juices she received and consumed (juices without added sugar) conformed precisely to what was promised on the label (juices with “NO SUGAR ADDED”). See Case 2:17-cv-02448-ODW-AGR Document 10 Filed 05/05/17 Page 19 of 27 Page ID #:100 12 DEFENDANT THE KROGER CO.’S MOTION TO DISMISS sf-3764313 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 Boysen v. Walgreen Co., No. C 11-06262, 2012 WL 2953069, at *4 (N.D. Cal. July 19, 2012) (Plaintiffs received benefit of their bargain where they “paid for fruit juice and they received fruit juice, which they consumed without suffering harm”); see also Simpson v. Cal. Pizza Kitchen, Inc., 989 F. Supp. 2d 1015, 1022 (S.D. Cal. 2013) (“An economic injury typically requires a loss of the plaintiff’s benefit of the bargain, such as by overpayment, loss in value, or loss of usefulness.”); Hall v. Time Inc., 158 Cal. App. 4th 847, 855 (2008) (affirming book seller’s demurrer to UCL claim because the consumer received the item he requested and did not plausibly allege it was not worth the price he paid). Second, Plaintiff’s formulaic recitation of Kwikset is insufficient to meet the injury requirement. As discussed above, she only alleges in conclusory fashion that she “would not have purchased the Kroger Apple Juice or would have paid less for it” if it did not have the “NO SUGAR ADDED” claim on it. (Compl. ¶¶ 12, 42, 67.) This threadbare attempt to assert “economic injury” is inadequate. See Wright v. Gen. Mills, Inc., No. 08-cv-1532, 2009 WL 3247148, at *5 (S.D. Cal. Sept. 30, 2009) (nearly identical allegations that plaintiff “purchased, purchase[d] more of, or [paid] more for” allegedly mislabeled products were held too “sparse” to constitute injury-in-fact; “[factual] allegations must provide more than labels and conclusions”].) Here, Plaintiff has not even alleged why the “NO SUGAR ADDED” label was important to her or how it affected her purchasing of the product. Her general allegations that “consumers are increasingly aware of the sugar consumption” and that the “obesity epidemic has been fueled, in part, by increased consumption of foods high in sugar” are irrelevant, particularly where Plaintiff received exactly what she expected to receive. (Compl. ¶ 3 (emphasis added).) VI. PLAINTIFF’S “NO SUGAR ADDED” CLAIMS ARE PREEMPTED OR SUBJECT TO THE FDA’S PRIMARY JURISDICTION. “The Supremacy Clause empowers Congress to supplant decentralized, state- by-state regulation with uniform national rules.” Law v. Gen. Motors Corp., Case 2:17-cv-02448-ODW-AGR Document 10 Filed 05/05/17 Page 20 of 27 Page ID #:101 13 DEFENDANT THE KROGER CO.’S MOTION TO DISMISS sf-3764313 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 28 114 F.3d 908, 909 (9th Cir. 1997) (citing U.S. Const. art. VI, cl. 2). Federal law may preempt state law under express preemption, field preemption, or implied conflict preemption. E.g., Hillsborough Cty., Fla. v. Automated Med. Labs. Inc., 471 U.S. 707, 713 (1985). The Food, Drug, and Cosmetic Act (FDCA), 21 U.S.C. § 301 et seq., establishes a comprehensive and uniform federal scheme of food regulation to ensure that food is labeled in a manner that does not mislead consumers. See 21 U.S.C. § 341 et seq. In 1990, Congress amended the FDCA through the passage of the Nutrition Labeling and Education Act (NLEA), 21 U.S.C. § 343, to “clarify and to strengthen the [FDA’s] legal authority to require nutrition labeling on foods, and to establish the circumstances under which claims may be made about nutrients in foods.” Viggiano, 944 F. Supp. 2d at 888 (citations omitted); see also H.R. Rep. 101-538, at 7 (1990), reprinted in 1990 U.S.C.C.A.N. 3336, 3337. The FDCA’s and NLEA’s uniform federal food and beverage labeling system avoids a patchwork of state regulations that would force manufacturers to “print 50 different labels.” Turek v. Gen. Mills, Inc., 662 F.3d 423, 426 (7th Cir. 2011). A. The FDCA and NLEA Preempt Plaintiff’s State Law Claims. To ensure uniform labeling, the NLEA contains an express preemption clause, providing that “no State or political subdivision of a State may directly or indirectly establish under any authority or continue in effect as to any food in interstate commerce” any “requirement for nutrition labeling of food that is not identical to the requirement of [21 U.S.C.] section 343(q).” 21 U.S.C. § 343- 1(a)(4). NLEA is clear: “not identical to” does not refer to “the specific words in the requirement but instead means that the State requirement directly or indirectly imposes obligations or contains provisions” that are “not imposed by or contained in” or that “[d]iffer from those specifically imposed by or contained in” the statute or its implementing regulations. 21 C.F.R. § 100.1(c)(4); see In re Pepsico, Inc., Bottled Water Mktg. & Sales Practices Litig., 588 F. Supp. 2d 527, 532 (S.D.N.Y. Case 2:17-cv-02448-ODW-AGR Document 10 Filed 05/05/17 Page 21 of 27 Page ID #:102 14 DEFENDANT THE KROGER CO.’S MOTION TO DISMISS sf-3764313 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 2008) (states cannot impose standards that go “beyond, or [are] different from” what Congress has established). FDCA, NLEA, and implementing regulations preempt California consumer protection laws. Under this standard, state consumer protection laws like the UCL, FAL, and CLRA are “preempted if they seek to impose requirements that contravene the requirements set forth by federal law.” Peviani v. Hostess Brands, Inc., 750 F. Supp. 2d 1111, 1118 (C.D. Cal. 2010) (interpreting 21 C.F.R. § 100.1(c)(4)); In re Ferrero Litig., 794 F. Supp. 2d 1107, 1113 (S.D. Cal. 2011) (same); see also Mills v. Giant of Md., LLC, 441 F. Supp. 2d 104, 106-09 (D.D.C. 2006) (noting the expansive scope of FDA preemption after NLEA). Here, Plaintiff’s UCL, FAL, and CLRA claims are expressly preempted because Plaintiff cannot seek to impose, though California’s consumer protection law, requirements “not identical to” those imposed by the directly applicable “NO SUGAR ADDED” regulations. Kroger Apple Juice labels comply with FDA regulations. It is undisputed that FDA has implemented regulations governing the use of “NO SUGAR ADDED” claims. (See Compl. ¶ 5.) As Plaintiff acknowledges, to make a “NO SUGAR ADDED” claim, the product must meet five specific criteria. See 21 C.F.R. § 101.60(c)(2). Plaintiff only challenges Kroger’s compliance with one of the five criteria: she alleges that “the food that [apple juice] resembles and for which it substitutes normally [does not] contain added sugars.” (See Compl. ¶¶ 5, 7.) Plaintiff has not identified the food product for which Kroger Apple Juice substitutes, but even if she had, FDA guidance on this subject confirms Kroger’s labels are in compliance. The FDA Inspection guide makes clear that FDA views “substitute” products for “juices, nectars, and fruit drinks” as “all fruit juices (excluding lemon and lime juice), nectars, noncarbonated drinks containing any amount of fruit juice or nectar.” (RJN, Ex. B (FDA Inspection Guide, Attachment 26, Product Categories Case 2:17-cv-02448-ODW-AGR Document 10 Filed 05/05/17 Page 22 of 27 Page ID #:103 15 DEFENDANT THE KROGER CO.’S MOTION TO DISMISS sf-3764313 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 and Products). As such, FDA permits the use of “NO SUGAR ADDED” on apple juice-even assuming that apple juice does not normally contain added sugar- because other juices, nectars, and fruit drinks do frequently contain added sugar. (See RJN, Ex. C (“Changes to the Final Nutrition Facts Label: Questions and Answers”) at 54 (noting that “American get about 13 percent of their total calories from added sugars, with the major sources being sugar-sweetened beverages (including soft drinks, fruit drinks, coffee and tea, sports and energy drinks, and alcoholic beverages).”).8 Moreover, it makes sense that apple juice should be compared with other juices. When consumers are in the juice aisle, they are not just looking at apple juice, they looking at juice cocktails, other juices, and combination juices-many of which contain added sugars. (See RJN, Ex. C.) FDA acknowledges this reality in other juice regulations. For example, it treats juice drinks with 100% juice (e.g., apple juice) the same as juice drinks with less than 100% juice (e.g., apple juice blends). See 21 C.F.R. § 101.30(a). For both of these types of juices FDA requires the product to disclose the specific percentage juice. Just as the percent juice declaration communicates to consumers whether they are buying a product that is 10% or 100% juice, the “no sugar added” statement signals to consumers whether sugar is added.9 Plaintiff does not claim (nor can she) that the “NO SUGAR ADDED” claim is factually inaccurate. Given that Kroger has complied with the applicable FDA regulations in making the “NO SUGAR ADDED” claim on Kroger Apple Juice, Plaintiff’s claims are preempted. Viggiano, 944 F. Supp. 2d at 892 (UCL, FAL, 8 Also available at https://www.fda.gov/Food/GuidanceRegulation/ GuidanceDocumentsRegulatoryInformation/LabelingNutrition/ucm385663.htm 9 As such, it is useful to the consumer for a product label to communicate when it does not contain added sugars-This information is especially useful where it is appropriately accompanied with the “not a low calorie food” disclosure and the label specifically directs the consumer to more information on sugar and calorie content. Case 2:17-cv-02448-ODW-AGR Document 10 Filed 05/05/17 Page 23 of 27 Page ID #:104 16 DEFENDANT THE KROGER CO.’S MOTION TO DISMISS sf-3764313 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 CLRA claims preempted where FDA regulations “expressly permitted” labeling); Hairston v. S. Beach Beverage Co., Inc., No. CV 12-1429-JFW (DTBx), 2012 WL 1893818, at *3-4 (C.D. Cal. May 18, 2012) (same). Her complaint should be dismissed with prejudice. B. The FDA Has Primary Jurisdiction Even if Plaintiff’s claims were not preempted, the FDA has primary jurisdiction to regulate labeling. The primary jurisdiction doctrine applies when “protection of the integrity of a regulatory scheme dictates preliminary resort to the agency which administers the scheme.” United States v. Gen. Dynamics Corp., 828 F.2d 1356, 1362 (9th Cir. 1987) (citation omitted). In this case, the FDA is the agency with the specialized expertise to determine whether Kroger Apple Juice is correctly labeled. See, e.g., 21 U.S.C. § 343-1 (expressly preempting food labeling “requirements” in favor of FDA regulations); 21 C.F.R. § 100.1 (providing limited circumstances in which states may petition FDA to provide alternative food labeling requirements). The Court has discretion to apply the primary jurisdiction doctrine, considering the following factors: “(1) the need to resolve an issue that (2) has been placed by Congress within the jurisdiction of an administrative body having regulatory authority (3) pursuant to a statute that subjects an industry or activity to a comprehensive regulatory authority that (4) requires expertise or uniformity in administration.” Syntek Semiconductor Co. v. Microchip Tech., Inc., 307 F.3d 775, 781 (9th Cir. 2002). Each of these factors supports application of the doctrine here. Congress vested the FDA with primary jurisdiction to ensure that “foods are . . . properly labeled” to protect consumers. See 21 U.S.C. § 393(b)(2)(A) (FDA’s “mission” includes protecting public health by ensuring foods are safe and properly labeled); 21 C.F.R. § 10.25(b) (“FDA has primary jurisdiction to make the initial determination on issues within its statutory mandate”). As noted, FDA labeling Case 2:17-cv-02448-ODW-AGR Document 10 Filed 05/05/17 Page 24 of 27 Page ID #:105 17 DEFENDANT THE KROGER CO.’S MOTION TO DISMISS sf-3764313 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 regulations impose extraordinarily specific requirements for “NO SUGAR ADDED” claims. Moreover, FDA is actively regulating in this area. On May 27, 2016, FDA issued a final rule on how “added sugars” should be listed on the Nutrition Facts Panel. Food Labeling: Revision of the Nutrition and Supplement Facts Panel, 81 Fed. Reg. 33,741 (May 27, 2016). The new rule requires various revisions to the Nutrition Facts label, demonstrating that FDA is focused on “added sugar” disclosures. The rule provides manufacturers a two-year grace period to comply, and FDA continues to issue guidance on the impending labeling requirement and what will constitute “added sugar.” (See, e.g., RJN, Ex. C.) This too weighs in favor of deferring to FDA’s primary jurisdiction. Through this lawsuit, Plaintiff improperly seeks to interfere with the primary jurisdiction of the FDA by asking this Court to stand in the FDA’s shoes to regulate the labeling for Kroger Apple Juice. The Court should defer (as many others have done) to the FDA, which has exclusive jurisdiction over food labeling.10 C. Cel-Tech’s Safe Harbor Bars Plaintiff’s UCL, FAL, and CLRA Claims Plaintiff’s UCL, FAL, and CLRA claims must be dismissed because none of those statutes authorizes a claim for relief when specific legislation provides a “safe harbor” for the conduct at issue. See Cel-Tech Commc’ns, Inc. v. L.A. Cellular Tel. 10 See, e.g., Ivie v. Kraft Foods Global, Inc., No. C-12-02554-RMW, 2013 WL 685372, at *7 (N.D. Cal. Feb. 25, 2013 (dismissing UCL, FAL, and CLRA claims where FDA was currently in the process of amending its regulations as to claim at issue); Taradejna v. Gen. Mills, Inc., 909 F. Supp. 2d 1128, 1135 (D. Minn. 2012) (dismissing consumer fraud claim regarding yogurt labeling under the primary jurisdiction doctrine when FDA was in the process of revising its guidance because, “it would be imprudent for the Court, at this juncture, to substitute its judgment for that of the Agency’s while revision of the standard of identity is pending.”); Gordon v. Church & Dwight Co., No. C 09-5585 PJH, 2010 WL 1341184, at *2 (N.D. Cal. Apr. 2, 2010) (dismissing UCL, FAL and CLRA claims where, inter alia, “the FDA has stated that it is still considering public comments and other data in connection with warnings similar to those that plaintiffs seek to have the court impose”); see also Mut. Pharm. Co. v. Watson Pharm., Inc., No. CV 09-5700, 2009 WL 3401117, at *5 (C.D. Cal. Oct. 19, 2009) (“[D]isputes concerning the content of [the product’s] labels and inserts falls even more squarely within the primary jurisdiction of the FDA”). Case 2:17-cv-02448-ODW-AGR Document 10 Filed 05/05/17 Page 25 of 27 Page ID #:106 18 DEFENDANT THE KROGER CO.’S MOTION TO DISMISS sf-3764313 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 Co., 20 Cal. 4th 163, 180, 182 (1999) (“When specific legislation provides a ‘safe harbor,’ plaintiffs may not use the general unfair competition law to assault that harbor.”). When the legislature has clearly permitted certain conduct, courts may not override that determination. See id. at 182-83. Thus, when a claim for violation of the UCL, FAL, or CLRA is based on conduct expressly permitted by another law, the claim is barred. See, e.g., Alvarez v. Chevron Corp., 656 F.3d 925, 931 (9th Cir. 2011) (affirming dismissal of UCL and CLRA claims because conduct was “clearly permitted” by California law). As discussed, the FDCA “clearly permit[s]” the “NO SUGAR ADDED” labeling on Kroger Apple Juice. As such, the FDCA provides a safe harbor for the conduct Plaintiff alleges violates the UCL, FAL, and CLRA. See, e.g., POM Wonderful LLV v. Coca-Cola Co., No. CV 08-06237 SJO (FMOx), 2013 WL 543361, at *5 (C.D. Cal. Feb. 13, 2013) (safe harbor doctrine provides a “separate and independent basis” for dismissal because defendant “complied with the relevant FDA regulations”); Suzuki v. Hitachi Global Storage Techs., Inc., No. C 06-07289 MHP, 2007 WL 2070263, at *4 (N.D. Cal. July 17, 2007) (product packaging “clearly permitted by the legislature, thus bringing it within the safe harbor doctrine of Cel-Tech”). By complying with federal law, Kroger cannot violate state law. VII. CONCLUSION For all the foregoing reasons, Kroger respectfully requests that the Court dismiss Plaintiff’s complaint in its entirety, with prejudice. Dated: May 5, 2017 MORRISON & FOERSTER LLP By: /s/ Purvi G. Patel Purvi G. Patel Attorneys for Defendant The Kroger Co. Case 2:17-cv-02448-ODW-AGR Document 10 Filed 05/05/17 Page 26 of 27 Page ID #:107 19 DEFENDANT THE KROGER CO.’S MOTION TO DISMISS sf-3764313 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 CERTIFICATE OF SERVICE The undersigned hereby certifies that on the 5th day of May, 2017, the foregoing document was filed electronically on the CM/ECF system, which caused all CM/ECF participants to be served by electronic means. /s/ Purvi G. Patel Purvi G. Patel Attorneys for Defendant The Kroger Co. Case 2:17-cv-02448-ODW-AGR Document 10 Filed 05/05/17 Page 27 of 27 Page ID #:108 [PROPOSED] ORDER GRANTING DEFENDANT’S MOTION TO DISMISS sf-3766061 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 PURVI G. PATEL (CA SBN 270702) PPatel@mofo.com KELSEY M. STRICKER (CA SBN 300955) KStricker@mofo.com 707 Wilshire Boulevard Los Angeles, California 90017-3543 Telephone: 213.892.5200 Facsimile: 213.892.5454 SARAH N. DAVIS (CA SBN 275145) SarahDavis@mofo.com MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 Telephone: 415.268.7000 Facsimile: 415.268.7522 Attorneys for Defendant THE KROGER CO. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SONIA PEREZ, individually, and on behalf of a class of similarly situated individuals, Plaintiff, v. THE KROGER CO., an Ohio corporation; and DOES 1-10, inclusive, Defendants. Case No. 2:17-cv-2448 ODW (AGRx) [PROPOSED] ORDER GRANTING DEFENDANT THE KROGER CO.’S MOTION TO DISMISS Date: July 10, 2017 Time: 1:30 pm Ctrm: 5D Hon. Otis D. Wright, II Case 2:17-cv-02448-ODW-AGR Document 10-1 Filed 05/05/17 Page 1 of 3 Page ID #:109 1 [PROPOSED] ORDER GRANTING DEFENDANT’S MOTION TO DISMISS sf-3766061 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 Defendant The Kroger Co.’s Motion to Dismiss Plaintiff’s Class Action Complaint pursuant to Federal Rules of Civil Procedure 8, 9(b), and 12(b)(6) was heard on July 10, 2017, at 1:30 p.m., in Courtroom 5D before the Honorable Otis D. Wright, II. Having considered the papers filed in support of, and in opposition to, the motion, and the oral argument of counsel, the files and records in this action, and for good cause shown, IT IS HEREBY ORDERED THAT Defendant The Kroger Co.’s Motion to Dismiss is GRANTED, and Plaintiff’s Complaint is dismissed with prejudice. Dated: ____________________ The Honorable Otis D. Wright, II United States District Judge Case 2:17-cv-02448-ODW-AGR Document 10-1 Filed 05/05/17 Page 2 of 3 Page ID #:110 2 [PROPOSED] ORDER GRANTING DEFENDANT’S MOTION TO DISMISS sf-3766061 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 CERTIFICATE OF SERVICE The undersigned hereby certifies that on the 5th day of May, 2017, the foregoing document was filed electronically on the CM/ECF system, which caused all CM/ECF participants to be served by electronic means. /s/ Purvi G. Patel Purvi G. Patel Attorneys for Defendant The Kroger Co. Case 2:17-cv-02448-ODW-AGR Document 10-1 Filed 05/05/17 Page 3 of 3 Page ID #:111