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Videtto v. Kellogg USA

May 20, 2009


The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge


Plaintiff initiated this putative class action on June 9, 2008, and, on October 6, 2008, filed the operative First Amended Complaint ("FAC"), alleging causes of action arising under California Business & Professions Code §§ 17200, et seq., and 17500, et seq., for Intentional Misrepresentation, Breach of Implied Warranty, and violation of the Consumer Legal Remedies Act, California Civil Code § 1770. Presently before the Court is Defendant's Motion to Dismiss the FAC. For the following reasons, Defendant's Motion is granted.*fn1


Plaintiff is an individual consumer and resident of California. Defendant manufactures, markets, and promotes Froot Loops cereal ("the Product").

In addition to the use of the word "Froot" in the Product name, pictures of brightly colored cereal made to resemble fruit, as well as pictures of actual fruit, are depicted on the principal display panel ("PDP") of the Product. In truth, however, the product contains no actual fruit of any kind. The fruit-like flavor derives from "natural flavors," which provide no nutritional value.

If the consumer takes the box from the shelf and examines the fine print of the ingredient list, he will discover that the only fruit content is a small amount of "natural orange, lemon, cherry, raspberry, blueberry, lime, and other natural flavors," that appear tenth in order on the ingredient list, just after "reduced iron" and just before "red #40."

Accordingly, Plaintiff contends, inter alia, that Defendant's marketing of the Product is deceptive and likely to mislead and deceive a reasonable consumer. Additionally, Plaintiff claims that, during the past four years, he purchased the Product in large part because he had been exposed to the advertising and representations of Defendant.

Plaintiff was allegedly misled by the packaging and marketing, which he argues convey the message that the Product contains real, nutritious fruit. He contends that he trusted Defendant's label because the company has a long history of producing wholesome breakfast cereals.

Since Plaintiff began purchasing the Product, the Strategic Alliance for Healthy Food and Activity Environments published the results of a study examining the ingredients of widely advertised foods that reference fruit on the packaging. The study concluded, among other things, that despite advertising and packaging that suggests the presence of fruit, more than half of the food products studied, including the Product at issue here, contain no fruit at all. According to Plaintiff, had he known that the Product contained no fruit, he would not have purchased it.


On a motion to dismiss for failure to state a claim under Rule 12(b)(6), all allegations of material fact must be accepted as true and construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Rule 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief" in order to "give the defendant fair notice of what the...claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, --- U.S. ----, 127 S.Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the "grounds" of his "entitlement to relief" requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Id. at 1964-65 (internal citations and quotations omitted). Factual allegations must be enough to raise a right to relief above the speculative level. Id. at 1965 (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-36 (3d ed. 2004) ("The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action")).

A court granting a motion to dismiss a complaint must then decide whether to grant leave to amend. A court should "freely give" leave to amend when there is no "undue delay, bad faith[,] dilatory motive on the part of the movant, . . . undue prejudice to the opposing party by virtue of . . . the amendment, [or] futility of the amendment...." Fed. R. Civ. P. 15(a); Foman v. Davis, 371 U.S. 178, 182 (1962). Generally, leave to amend is denied only when it is clear the ...

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