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December 20, 2005.


The opinion of the court was delivered by: JEFFREY MILLER, District Judge

Defendant Gerber Products Company ("Gerber") moves to dismiss all nine claims alleged in Plaintiff's First Amended Complaint ("FCC"). Plaintiffs Naki Wiliams and Rita Tabiu oppose the motion. Pursuant to Local Rule 7.1(d)(1), this matter is appropriate for decision without oral argument. For the reasons set forth below, the court grants the motion to dismiss all claims and grants Plaintiffs 20 days leave to amend from the date of entry of this order.


  On June 23, 2005 Plaintiffs commenced this action as a purported class action against Gerber and Novartis Corporation ("Novartis"). At issue is the advertising and product labeling used to promote one of Gerber's products known as Gerber Graduates for Toddlers Fruit Juice Snacks ("Snacks"). Plaintiffs allege that Gerber is a "part of the Novartis group of companies." In an unopposed motion, the court granted Novartis's motion to dismiss for lack of personal jurisdiction.

  Plaintiffs allege that Gerber engaged in false advertising by representing that Snacks is "Rich in Vitamin C" and "just one of a variety of nutritious Gerber Graduates foods and juices that have been specially designed to help toddlers grow up strong and healthy." (First Amended Complaint, "FAC" ¶ 15). "According to the packaging, there are 100 calories in each 28-gram packet, or serving size of Graduates. Of those 28 grams, 24 grams are carbohydrates, and 17 of those grams are sugar. The first two ingredients listed are corn syrup and sugar. The vitamin C constitutes only 20 percent of the daily requirement; no other vitamins and mineral levels are listed at more than zero percent. Other than carbohydrates, the only other nutrients listed on the package are protein (less than 1 gram), and sodium and potassium (15 milligrams each)." (FAC ¶ 12). Plaintiffs do not allege that the nutrition label is false or misleading.

  Based upon the two statements set forth above, Plaintiffs allege nine causes of action for violation of Bus. & Prof. Code § 17200 et seq., Bus. & Prof. Code § 17500 et seq., negligent misrepresentation, intentional misrepresentation, breach of express warranty, breach of implied warranty of merchantability, breach of implied warranty of fitness for purpose, violation of the Lanham Act, and violation of California's Consumer Legal Remedies Act, Civil Code § 1750 et. seq. Plaintiffs moves to dismiss all claims pursuant to Fed.R.Civ.Pro 12(b)(6).


  Legal Standards

  Federal Rule of Civil Procedure 12(b)(6) dismissal is proper only in "extraordinary" cases. United States v. Redwood City, 640 F.2d 963, 966 (9th Cir. 1981). Courts should grant 12(b)(6) relief only where a plaintiff's complaint lacks a "cognizable legal theory" or sufficient facts to support a cognizable legal theory. See Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). Courts should not dismiss a complaint "unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle [the party] to relief." Moore v. City of Costa Mesa, 886 F.2d 260, 262 (9th Cir. 1989) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)), cert. denied, 496 U.S. 906 (1990). The defect must appear on the face of the complaint itself. Thus, courts may not consider extraneous material in testing its legal adequacy. See Levine v. Diamanthuset, Inc., 950 F.2d 1478, 1482 (9th Cir. 1991). The courts may, however, consider material properly submitted as part of the complaint. See Hal Roach Studios, Inc. v. Richard Feiner and Co., 896 F.2d 1542, 1555 n. 19 (9th Cir. 1989).

  Finally, courts must construe the complaint in the light most favorable to the plaintiff. See Concha v. London, 62 F.3d 1493, 1500 (9th Cir. 1995), cert. dismissed, 116 S. Ct. 1710 (1996). Accordingly, courts must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them. See Holden v. Hagopian, 978 F.2d 1115, 1118 (9th Cir. 1992). However, conclusory allegations of law and unwarranted inferences are insufficient to defeat a Rule 12(b)(6) motion. See In Re Syntex Corp. Sec. Litig., 95 F.3d 922, 926 (9th Cir. 1996).

  The Motion

  In the motion to dismiss, Defendant sets forth the legal standards for the claims and analyzes perceived deficiencies with each cause of action. Plaintiff's analysis is thorough and targeted to specific deficiencies. Rather than follow Plaintiff's methodical and analytical approach, Defendants do not specifically address all issues raised and repeatedly assert that "Plaintiffs are able and willing to amend the FAC with greater specificity," (Opposition at pp. 4:28; 5:21-22; 6:13-14; 8:16).

  Because each of Plaintiffs' claims necessarily depends upon two allegedly false, misleading, and/or deceptive statements the court first determines whether the two statements can form the basis for any of Plaintiffs' nine causes of action.*fn1 The Rich in Vitamin C Statement

  In order to prevail on any of its claims, Plaintiffs must allege an actionable statement. The court notes that Plaintiffs' Section 17200 claim is linked to the Lanham Act claim whereby a plaintiff must allege a false or misleading description of fact or representation of fact by the defendant in a commercial advertisement about its own or another's product. See Clorox Corp. v. Puerto Rico v. Proctor & Gamble Commercial Co., 228 F.3d 24, 33 (1st Cir. 2000).

  The FDA regulates the disclosure and description of Vitamin C content and limits a State's ability to enact legislation that is not identical to federal requirements. See 21 U.S.C. § 343-1(A)(1)(-5). The FDA regulates the definition of the term "rich in," which provides in pertinent part:
The terms "high," "rich in," or "excellent source" of may be used on the label and in the labeling of foods . . . provided that the food contains 20 percent or more of the RDI of the DRV per reference amount customarily consumed.
21 C.F.R. § 101.54(b)(1). Here, as a matter law, the statement "rich in ...

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