United States District Court, N.D. California, San Jose Division
NATALIA BRUTON, individually and on behalf of all others similarly situated, Plaintiff,
GERBER PRODUCTS COMPANY, Defendant.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S SECOND AMENDED COMPLAINT
LUCY H. KOH, District Judge.
Plaintiff Natalia Bruton ("Bruton" or "Plaintiff") brings this putative class action against Gerber Products Company ("Gerber" or "Defendant"), alleging that Gerber violated federal and state law by making false and misleading claims on its food product labels. Presently before the Court is Gerber's Motion to Dismiss Bruton's Second Amended Complaint. ECF No. 65. Bruton opposes, ECF No. 77, and Gerber replied, ECF No. 78. Having considered the submissions of the parties and the relevant law, the Court hereby GRANTS in part and DENIES in part Gerber's Motion to Dismiss the Second Amended Complaint.
A. Factual Allegations
Gerber claims to be "the world's most trusted name in baby food, " and reportedly controls between 70 and 80 percent of the baby food market in the United States. Second Am. Compl. ("SAC") ECF No. 62 ¶ 27. Gerber packages and sells retail food products, such as puree baby food, snacks, yogurts, side dishes, and beverages, specifically intended for infants and children under two years of age. Id. ¶ 28. Gerber organizes its products by "stages, " including: "Birth, " "Supported Sitter, " "Sitter, " "Crawler, " "Toddler, " and "Preschooler." Id. All of the Gerber product categories other than "Preschooler" describe children under two years of age. Id.
Bruton is a California resident who is "concerned about the nutritional content of the food she purchase[s] for her child's consumption." Id. ¶¶ 20, 81. At various times within the past four years, Bruton purchased many of Gerber's food products that are intended for children under the age of two. Id. ¶¶ 20, 82. Specifically, Bruton contends that she purchased the following products ("Purchased Products"): (1) Gerber Nature Select 2nd Foods Fruit-Banana Plum Grape; (2) Gerber Nature Select 2nd Foods Fruit-Apples and Cherries; (3) Gerber Nature Select 2nd Foods Vegetables-Carrots; (4) Gerber Nature Select 2nd Foods Spoonable Smoothies-Mango; (5) Gerber Yogurt Blends Snack-Strawberry; (6) Graduates Lil' Crunchies-Mild Cheddar; (7) Graduates Fruit Puffs-Peach; (8) Graduates Wagon Wheels-Apple Harvest; (9) Graduates for Toddlers Animal Crackers-Cinnamon Graham; (10) Graduates for Toddlers Fruit Strips-Strawberry; (11) Gerber Nature Select 2nd Foods Vegetables-Sweet Potatoes & Corn; (12) Gerber Organic SmartNourish 2nd Foods-Banana Raspberry Oatmeal; (13) Gerber Organic SmartNourish 2nd Foods-Butternut Squash & Harvest Apple with Mixed Grains; (14) Gerber Organic SmartNourish 2nd Foods-Farmer's Market Vegetable Blend with Mixed Grains; and (15) Gerber Single Grain Cereals-Oatmeal. Id. ¶ 2. In addition to bringing claims regarding the Purchased Products, Bruton also asserts claims related to dozens of additional products that Bruton alleges are substantially similar to the Purchased Products, in that they are similar products that make similar label misrepresentations and violate the same federal and California labeling laws. Id. ¶ 3. Bruton refers to these additional products as the "Substantially Similar Products." Id. ; see also SAC Ex. A, ECF No. 62-1 (identifying the Substantially Similar Products).
Before purchasing Defendants' products for her child, Bruton allegedly read and relied on Gerber's labels, which she contends are "misbranded." Id. ¶¶ 7, 17, 83. At the point of sale, Bruton contends that she "did not know, and had no reason to know, that Defendant's products were misbranded" and "would not have bought the products had she known the truth about them." Id. ¶ 87. Bruton alleges that Gerber made, and continues to make, two types of unlawful and deceptive claims on its product labels: "nutrient content claims, " id. ¶¶ 59-68, and "sugar-related claims, " id. ¶¶ 69-80.
1. Nutrient Content Claims
First, Bruton challenges Gerber's use of "nutrient content claims, " which are claims about specific nutrients contained in a product that, pursuant to Section 403 of the Food, Drug, and Cosmetic Act ("FDCA"), must be made in accordance with federal regulations. Id. ¶¶ 51-53; see 21 U.S.C. § 343(r)(1)(A) (defining "nutrition levels and health-related claims" as pertaining to "a food intended for human consumption which is offered for sale and for which a claim is made in the label or labeling of the food which expressly or by implication... characterizes the level of any nutrient"). California expressly adopted the requirements of Section 403 of the FDCA in Section 110670 of the Sherman Food, Drug, and Cosmetic Law (the "Sherman Law"). See Cal. Health & Safety Code § 110670 ("Any food is misbranded if its labeling does not conform with the requirements for nutrient content or health claims as set forth in Section 403(r) (21 U.S.C. Sec. 343(r)) of the [FDCA] and the regulations adopted pursuant thereto.").
Bruton alleges that Gerber makes nutrient content claims on virtually all Gerber food products, despite the fact that the Food and Drug Administration ("FDA") authorizes nutrient content claims on foods for adults that are not permitted on foods for children under age two. See SAC ¶ 60 ("Nutrient content claims on products intended to be consumed by children under two are barred because the nutritional needs of children are very different from those of adults, and thus such nutritional claims on infant and toddler food can be highly misleading."); see 21 C.F.R. § 101.13(b)(3) ("Except for claims regarding [certain] vitamins and minerals... no nutrient content claims may be made on food intended specifically for use by infants and children less than 2 years of age unless the claim is specifically provided for" by particular regulations).
Bruton specifically asserts that Defendants make misbranded nutrient content claims that fall into three categories: (a) "Excellent Source" and "Good Source" claims; (b) "Healthy" claims; and (c) "No Added Sugar" claims.
"Excellent Source" and "Good Source" claims : Bruton contends that Gerber food products intended for children under two that claim to be an "Excellent Source" or a "Good Source" of various vitamins and minerals are "misbranded within the meaning of the FDCA § 403(r)(1)(A) and 21 U.S.C. § 343(r)(1)(A) because their labeling includes unauthorized nutrient content claims." SAC ¶ 59(a).
"Healthy" claims : Bruton also asserts that Gerber food products intended for children under two that make statements such as, "As Healthy As Fresh, " "Nutrition for Healthy Growth & Natural Immune Support, " and "Supports Healthy Growth & Development" are misbranded because they bear the nutrient content claim "healthy" despite the fact that federal regulations do not allow such claims for products specifically intended for children under two years of age. Id. ¶ 59(b).
"No Added Sugar" claims : Bruton further alleges that Gerber food products that claim to have "No Added Sugar" or "No Added Refined Sugar" are misbranded because "[s]uch nutrient content claims may not be made on food products intended for children under two." Id. ¶ 59(c).
2. Sugar-Related Claims
Bruton additionally alleges that many of Gerber's products that are labeled with a "No Added Sugar" or "No Added Refined Sugar" nutrient content claim contain sufficiently high levels of calories that federal law requires that the claims be accompanied by a disclosure statement warning of the higher caloric level of the products. Id. ¶ 69 (citing 21 C.F.R. § 101.60(c)(2)). Because Gerber does not place a disclosure statement on food products containing sufficient calories to trigger the FDA's disclosure requirement, Bruton asserts that Gerber's product labels violate federal and California law. SAC ¶¶ 69-74. Bruton contends that, "[b]ecause consumers may reasonably be expected to regard terms that represent that the food contains no added sugar' or sweeteners as indicating a product which is low in calories or significantly reduced in calories, consumers are misled when foods that are not low-calorie as a matter of law are falsely represented." Id. ¶ 76.
B. Putative Class Claims
Bruton seeks to bring this putative class action, pursuant to Federal Rule of Civil Procedure 23(b)(2) and 23(b)(3), on behalf of a nationwide class consisting of all persons who, within the last four years, purchased any of the Gerber food products identified in Exhibit A of the SAC. Id. ¶ 103.
Bruton contends that, by manufacturing, advertising, distributing, and selling misbranded food products, Gerber has violated California Health & Safety Code Sections 109885, 110390, 110395, 110398, 110400, 110660, 110665, 110670, 110705, 110760, 110765, and 110770. Id. ¶¶ 94-100. In addition, Bruton asserts that Gerber has violated the standards set by 21 C.F.R. §§ 101.13, 101.54, 101.60, and 101.65, which have been adopted by reference into the Sherman Law. Id. ¶ 101. Consequently, the SAC alleges the following causes of action: (1) violation of California's Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code §§ 17200 et seq., for unlawful, unfair, and fraudulent business acts and practices (Counts 1, 2, and 3), SAC ¶¶ 114-140; (2) violation of California's False Advertising Law ("FAL"), Cal. Bus. and Prof. Code §§ 17500 et seq., for misleading, deceptive, and untrue advertising (Counts 4 and 5), SAC ¶¶ 141-156; and (3) violation of the Consumers Legal Remedies Act ("CLRA"), Cal. Civ. Code §§ 1750 et seq. (Count 6), SAC ¶¶ 157-173.
C. Procedural History
Bruton filed her Original Complaint against Gerber, Nestle Holdings, Inc., and Nestle USA, Inc. on May 11, 2012. ECF No. 1. On July 2, 2012, Bruton filed a Notice of Voluntary Dismissal of Defendant Nestle Holdings, Inc. ECF No. 9. Gerber and Nestle USA, Inc. then filed a Motion to Dismiss on August 31, 2012. ECF No. 18. Rather than responding to the Motion to Dismiss, Bruton filed a First Amended Complaint on September 21, 2012. ECF No. 26.
Gerber and Nestle USA, Inc. subsequently withdrew their Motion to Dismiss the Original Complaint as moot, ECF No. 27, and filed a Motion to Dismiss the First Amended Complaint, ECF No. 28. On September 6, 2013, the Court Granted in part and Denied in part Gerber and Nestle USA, Inc.'s Motion to Dismiss. ("MTD Order") ECF No. 57.
Bruton filed the SAC on October 7, 2013, this time naming Gerber as the sole defendant. ECF No. 62. Gerber filed the instant Motion to Dismiss the SAC on October 31, 2013. ("Mot.") ECF No. 65. Gerber accompanied its Motion with a Request for Judicial Notice. ECF No. 66. Bruton filed an Opposition to Gerber's Motion to Dismiss on November 26, 2013, ("Opp'n") ECF No. 77, to which Gerber replied on December 16, 2013, ("Reply") ECF No. 78.
II. LEGAL STANDARDS
A. Rule 12(b)(1)
A defendant may move to dismiss an action for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). A motion to dismiss for lack of subject matter jurisdiction will be granted if the complaint on its face fails to allege facts sufficient to establish subject matter jurisdiction. See Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003). If the plaintiff lacks standing under Article III of the U.S. Constitution, then the court lacks subject matter jurisdiction, and the case must be dismissed. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 101-02 (1998). In considering a Rule 12(b)(1) motion, the Court "is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction." McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). Once a party has moved to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), the opposing party bears the burden of establishing the court's jurisdiction, see Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010), by putting forth "the manner and degree of evidence required" by whatever stage of the litigation the case has reached, ...