The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER GRANTING REQUEST FOR JUDICIAL NOTICE [doc. #17- 5]; GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS [doc. #17]; DENYING AS MOOT ALTERNATIVE MOTION TO STRIKE; and GRANTING LEAVE TO FILE A SECOND AMENDED COMPLAINT
Defendant moves to dismiss plaintiff's first amended complaint ("FAC") or in the alternative, to strike the FAC. The motion has been fully briefed. Additionally plaintiff has provided several notices of new authority relevant to the motion to dismiss to which defendant has filed responses.*fn1 The Court finds this matter suitable for determination on the papers submitted and without oral argument pursuant to Civil Local Rule 7.1(d)(1).
General Mills markets, advertises, promotes, and sells "Nature Valley" crunchy granola bar products and "Nature Valley" chewy-trail-mix bar products (collectively "Nature Valley products"). At some point prior to the filing of this action, the Nature Valley products were sold as "100% Natural" even though the "products contain[ed] one or more non-natural or artificial ingredient[s], such as high fructose corn syrup ("HFCS")." (FAC at 2, ¶1.) Plaintiff asserts that to consumers "natural" implies that the product is not highly processed, not chemically altered and is a superior product worth a premium price. Id., §2. Because HFCS does not occur in nature and is a man-made sweetener, plaintiff contends that the use of "100% Natural" on the package and in the advertising for the Nature Valley products is false, misleading and deceptive. As a result of the alleged false and misleading labeling and advertising, plaintiff and the class she seeks to represent purchased defendant's products believing that they were superior to other products on the market. Because defendant's products were labeled as "100% natural" and may have been more expensive because of that labeling and advertising as "100% natural," plaintiff asserts she and class members suffered economic injury.
The FAC alleges violations of California Business and Professions Code §§ 17200 et ., Unfair Competition Law ("UCL"); Business and Professions Code, §§ 17500 et seq., False Advertising Law ("FAL"); and the Consumers Legal Remedies Act ("CLRA"), Civil Code §§ Defendant moves to dismiss the FAC contending that federal law occupies the field of food labeling and therefore, preempts all of plaintiff's claims; the primary jurisdiction doctrine bars plaintiff's claims; and each of plaintiff's claims rests on an inaccurate premise that defendant may not describe products containing HFCS as "100% natural." Defendant also moves to dismiss plaintiff's claims of entitlement to injunctive relief and punitive damages. Finally, defendant contends that the FAC claims fail to meet current pleading standards and fail to state claims on which relief may be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
Defendant moves to dismiss the FAC on the ground that plaintiff's claims are impliedly preempted by regulations promulgated by the Food and Drug Administration ("FDA") pursuant to the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301, et seq. ("FDCA").
The FDCA gives the FDA the authority to regulate certain aspects of food and beverage safety and labeling. 21 U.S.C. § 371. Congress passed the Nutrition Labeling and Education Act of 1990 ("NLEA"), which amended the FDCA, by providing a preemption provision which created express preemption for state laws, including certain labeling requirements that were added in the NLEA. Section 343-1 expressly preempts state regulation of specific topics related to food labeling and provides that states may not establish any requirement respecting these specified topics "that is not identical" to the requirements in the FDCA. 21 U.S.C. § 343-1(a). In a note to section 343-1, Congress stated that "[t]he [NLEA] shall not be construed to preempt any provision of State law, unless such provision is expressly preempted under section 403A of the Federal Food, Drug, and Cosmetic Act." Pub. L. No. 101-535, § 6(c), 104 Stat. 2535, 2364 (21 U.S.C. § 343-1 note).
General Mills first argues plaintiff's claims are impliedly preempted because Congress intended the federal government to occupy the field of food and beverage labeling. Defendant bases this argument on the FDA's enactment of "a detailed, rigorous, and comprehensive system for labeling food products through the FDCA . . . and related regulations." (MTD Ps&As at 7.)
A federal law impliedly preempts a state law "where it regulates conduct in a field that Congress intended the Federal Government to occupy exclusively." English v. Gen. Elec. Co., 496 U.S. 72, 79 (1990). Field preemption may be implied from a "'scheme of federal regulation . . . so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it,' or where an Act of Congress 'touches a field in which federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.'" Id. (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)).
But the inclusion of an express preemption provision that permits state regulations that are identical to federal law demonstrates that state regulation and enforcement can exist along with federal regulation. See Freightliner Corp. v. Myrick, 514 U.S. 280, 288 (1995) ("an express definition of the pre-emptive reach of a statute 'implies' -- i.e., supports a reasonable inference that Congress did not intend to pre-empt other matters ...."). There is an express savings clause in the amended FDCA that provides: "The [NLEA] shall not be construed to preempt any provision of State law, unless such provision is expressly preempted under [21 U.S.C. § 343-1(a)]." PUB. L. NO. 101-535, § 6(c)(1) (21 U.S.C. § 343-1 note).
Although the FDA has promulgated several food-labeling requirements, Congress has specifically indicated that it does not intend to occupy the field of food and beverage nutritional labeling and states are permitted to regulate matters covered by the NLEA and its regulations provided that such state laws do not fall within the FDCA's express preemption provisions. See In re Farm Raised Salmon Cases, 42 Cal. 4th 1077, 1091 (2008) ("Congress made clear that the preemptive scope of section 343-1 was to sweep no further than the plain language of the statute itself.").
Accordingly, plaintiff's state law claims are not barred by ...