KYM PARDINI and CARRIE WOOD, on behalf of themselves and other others similarly situated, Plaintiffs,
UNILEVER UNITED STATES, INC., Defendant.
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS
SAMUEL CONTI, District Judge.
Plaintiffs Kym Pardini and Carrie Wood (collectively "Plaintiffs") bring this putative class action in connection with Defendant Unilever United States, Inc.'s ("Defendant") marketing of I Can't Believe It's Not Butter! Spray. Defendant now moves to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF No. 33 ("Mot."). The Motion is fully briefed, ECF Nos. 34 ("Opp'n"), 35 ("Reply"), and appropriate for determination without oral argument per Civil Local Rule 7-1(b). For the reasons described below, the Motion is GRANTED in part and DENIED in part.
As it must on a Rule 12(b)(6) motion to dismiss, the Court takes all well-pleaded allegations as true. I Can't Believe It's Not Butter! is the second largest margarine brand in the United States. SAC ¶ 17. The product at issue in this case, I Can't Believe It's Not Butter! Spray ("ICBINBS") is marketed as a "0 Calorie" and "0 Fat" alternative to butter. Id . ¶ 25. The Court takes judicial notice of the fact that the product is dispensed via manual pump, with each pump delivering a squirt of oil. See Compl. Figure 1 ("Front Label").
The front label of the ICBINBS packaging prominently states that the product is "Great for Topping & Cooking" and contains "0 Calories per serving" and "0 g Trans Fat* per serving." Id . The asterisk refers to an explanatory phrase printed in smaller type immediately below: "Contains 0 g fat (0 g saturated fat), and 0 g trans fat per serving, see nutrition information for serving size." Id.
The back of the packaging displays the "nutrition panel, " which states "Calories 0" and "Calories from Fat 0." Compl. Figure 2 ("Back Label"). The nutrition panel states that the serving size is "1 Spray (0.20g) Cooking Spray" or "5 Sprays (1g) per Topping." Id . The nutrition panel also discloses the fat, cholesterol, and sodium per serving and the product's ingredients. Id . The first three listed ingredients are water, liquid soybean oil, and sweet cream buttermilk. Id . Next to "sweet cream buttermilk" in the ingredients list, there is an asterisk, which cites to the following footnote: "Adds a dietarily insignificant amount of cholesterol." Id . Figure 2.
Plaintiffs claim that Defendant's "0 Fat" and "0 Calorie" representations are false and misleading because the listed serving sizes fail to account for the manner in which ICBINBS is customarily used. SAC ¶ 6. Essentially, Plaintiffs allege that Defendant has set an artificially small serving size so that the calories and fat per serving can be rounded down to zero. Plaintiffs allege that each bottle of ICBINBS actually contains 1160 calories and 124 grams of fat, meaning that each recommended serving of cooking spray (one spray) contains about 0.8 calories and 0.08 grams of fat, and each recommended serving of topping (five sprays) contains about 4 calories and 0.4 grams of fat. Id . ¶ 26. Plaintiffs also allege that the label does not disclose that ICBINBS contains ingredients that are fats and which, even in small quantities, add certain amounts of fat and calories per serving. Id . ¶ 7. Plaintiffs allege that the soybean oil and buttermilk ingredients listed in the nutrition panel should have been followed by an asterisk and language disclosing the presence of fat. Id . ¶ 31.
Plaintiff Pardini is from California, and Plaintiff Wood is from Missouri. They represent two putative state classes. Plaintiffs are reasonably diligent consumers who sought to buy fat-free and calorie-free alternatives to butter. Id . ¶ 64. They inspected the ICBINBS bottle and purchased it believing it to be such a product, paying a premium they would not have paid had they known the product's full fat and calorie content. Id . ¶¶ 64-67.
Plaintiffs assert that Defendant violated the Federal Food, Drug, and Cosmetic Act ("FDCA"), 21 U.S.C. § 301 et seq., and its implementing regulations by (1) failing to adequately disclose the level of fat and calories per serving in accordance with 21 U.S.C. § 343(q), and 21 C.F.R. § 101.9(b)(1); and (2) making "fat free" and "zero calorie" nutrient content claims in violation of 21 U.S.C. § 343(r), 21 C.F.R. §§ 101.13(b), 101.62(a)(3), and 101.60(a)(3). Plaintiffs assert the following causes of action against Defendant: (1) fraud by concealment, (2) breach of express warranty, (3) intentional misrepresentation, (4) violations of New Jersey's Consumer Fraud Act ("NJCFA"), N.J. Stat. Ann. § 56:8-1, et seq., (5) violations of California's Consumer Legal Remedies Act ("CLRA"), Cal. Civ. Code § 1750, et seq., (6) violations of California's Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code § 17200, et seq., and (7) violations of the Missouri Merchandising Practices Act ("MMPA"), Mo. Rev. Stat. § 407.010, et seq.
The operative pleading is Plaintiffs' second amended complaint. The original complaint did not include Plaintiff Wood. Plaintiffs Wood and Pardini now allege the same basic facts, though Ms. Pardini's claims arise in California and Ms. Wood's in Missouri. The Court previously dismissed Plaintiff Pardini's complaint in its July 9 Order, ECF No. 24, Case No. 13-1675 SC, 2013 WL 3456872 (N.D. Cal. July 9, 2013). In the July 9 Order, the Court found Ms. Pardini's claims preempted except to the extent that they were predicated on Defendant's failure to provide a notation on the nutrition panel that certain ingredients contain fat (the "asterisk claim"). The Court dismissed all of Plaintiff Pardini's claims with leave to amend, except her unjust enrichment claim, which was dismissed with prejudice.
III. LEGAL STANDARD
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) "tests the legal sufficiency of a claim." Navarro v. Block , 250 F.3d 729, 732 (9th Cir. 2001). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't , 901 F.2d 696, 699 (9th Cir. 1988). "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Ashcroft v. Iqbal , 556 U.S. 662, 679 (2009). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id . (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007)).
Claims sounding in fraud are subject to the heightened pleading requirements of Federal Rule of Civil Procedure 9(b), which requires that a plaintiff alleging fraud "must state with particularity the circumstances constituting fraud." See Kearns v. Ford Motor Co. , 567 F.3d 1120, 1124 (9th Cir. 2009). "To satisfy Rule 9(b), a pleading must identify the who, what, when, where, and how of the misconduct charged, as well as what is false or misleading about [the purportedly fraudulent] statement, and why it is false." United States ex rel Cafasso v. Gen. Dynamics C4 Sys., Inc. , 637 F.3d 1047, 1055 (9th Cir. 2011) (quotation marks and citations omitted).
Defendant's main argument in favor of dismissal is that Plaintiffs' claims are preempted. It also contends that Plaintiffs' individual claims fail for a variety of pleading and legal reasons.
In its July 9 Order, the Court held that Plaintiffs' claims were preempted by 21 C.F.R. § 101.12(b). July 9 Order at *5. Defendant maintains that ...