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Werdebaugh v. Growers

United States District Court, N.D. California, San Jose Division

May 23, 2014

CHRIS WERDEBAUGH, individually and on behalf of all others similarly situated, Plaintiff,


LUCY H. KOH, District Judge.

Plaintiff Chris Werdebaugh ("Werdebaugh" or "Plaintiff") brings this putative class action against Blue Diamond Growers ("Blue Diamond" or "Defendant"), alleging that Defendant's package labeling is unlawful, deceptive, and misbranded in violation of California law. Plaintiff moves to certify a nationwide class of consumers who purchased certain Blue Diamond products during the class period ("Mot."). ECF No. 74. Defendant filed an opposition ("Opp'n"), ECF No. 97, and Plaintiff filed a reply ("Reply"), ECF No. 115. The Court held a hearing on the instant motion on May 22, 2014. Having considered the submissions of the parties, the relevant law, the record in this case, and the oral arguments presented at the hearing, the Court hereby GRANTS IN PART and DENIES IN PART Plaintiff Werdebaugh's Motion for Class Certification.


A. Factual Background

Blue Diamond is a California corporation and a leading producer of almond milk products and snack foods. See Mot. at 3. Blue Diamond sells the vast majority of its products-more than 99.9%-to retailers and distributors for eventual sale to consumers at grocery and other retail stores throughout the United States. Declaration of John O'Shaughnessy in Support of Blue Diamond Growers' Opposition to Plaintiffs' Motion for Class Certification ("O'Shaughnessy Decl."), ¶¶ 4, 5.

Werdebaugh is a California consumer who purchased Blue Diamond's shelf stable Chocolate Almond Breeze almond milk product ("Purchased Product") as a healthy "treat" alternative to white dairy milk for his children. See Deposition of Christopher Werdebaugh ("Werdebaugh Depo"), ECF No. 101-1 at 69, 80. Since April 11, 2008, Werdebaugh purchased four cartons of the Purchased Product at $3-4 per carton. Werdebaugh Depo at 75, 107-08, 143-44. Werdebaugh contends that the Purchased Product's label bears false, misleading, and unlawful claims. See Mot. at 2. Specifically, the label statements on the Purchased Product alleged to be false and misleading include: (1) listing the sweetener used in its almond milk products "not as sugar, '... but as evaporated cane juice, '"; and (2) "includ[ing] the statement All Natural' when, in fact, the products contain synthetic ingredients...." Id. at 1. Werdebaugh asserts that he "reasonably relied on those statements for his purchase decision, and would not have bought the product otherwise." Id. at 5.

Werdebaugh seeks to certify a class of purchasers of Blue Diamond products that are substantially similar to the variety Werdebaugh himself purchased. Id. at 1. Plaintiff contends that there are two types of products at issue, Shelf Stable Almond Milk and Refrigerated Almond Milk, both of which come in several flavors. Id. Because the allegedly misleading and unlawful labeling statements found on the cartons of Almond Breeze Chocolate Almond Milk purchased by Werdebaugh are identical to those found on Shelf Stable Almond Milk and Refrigerated Almond Milk products of all flavors (collectively, "Substantially Similar Products"), Plaintiff seeks to certify a class that includes purchasers of all Substantially Similar Products. Id. These Substantially Similar Products include (1) eleven varieties labeled with the ingredient evaporated cane juice; and (2) seven varieties labeled "All Natural" despite containing synthetic ingredients. See ECF Nos. 74-1, 74-2, 74-3, 74-4, 74-5, 74-6, 74-7, 75-1, 75-2, 75-3, 75-4 (Blue Diamond product labels with "Evaporated Cane Juice" statements); 78, 78-1, 78-2, 78-3, 78-4, 78-5, 78-6 (Blue Diamond product labels with "All Natural" statements).

1. Evaporated Cane Juice Claims

Werdebaugh alleges that Blue Diamond's use of the term "evaporated cane juice" as an ingredient on the package labels of the Purchased Product and Substantially Similar Products violates federal regulations and California law. Mot. at 4-5. Specifically, Werdebaugh contends that Defendant's use of the term "evaporated cane juice" violates: (a) the FDA's definition of the term "juice"; (b) the FDA's requirements for identifying cane syrup on food labels; and (c) the FDA's blanket requirement that foods must be referred to by their common or usual names and not by names "confusingly similar to the name of another food that is not reasonably encompassed within the same name." Id. at 3-4 (quoting 21 C.F.R. § 102.5(a)).

First, according to Werdebaugh, 21 C.F.R. § 120.1(a) defines "juice" as "the aqueous liquid expressed or extracted from one or more fruits or vegetables, purees of... fruits or vegetables, or any concentrates of such liquid or puree." Id. (quoting FDA October 2009 Guidance for Industry Letter) (internal quotation marks omitted). Although sugar cane is a vegetable, Werdebaugh represents that the FDA "considers the term vegetable' in the context of the juice definition to refer more narrowly to edible plant parts that consumers are accustomed to eating as vegetables in their diet." Id. Because "the juice or extract of sugar cane is not the juice of a plant that consumers are accustomed to eating as a vegetable in their diet, " sugar cane or any extract of sugar cane does not qualify as "juice" under the regulation defining that term. Id. Second, Werdebaugh asserts that federal regulations not only proscribe identifying sugar cane and cane syrup as "juice, " but mandate that sugar cane be identified as "sugar" or "syrup." First Amended Complaint ("FAC"), ECF No. 38 at ¶¶ 42, 46, 63 (citing 21 C.F.R. §§ 101.4(b)(20) (sugar); 168.130 (cane syrup)). Third, Werdebaugh alleges that use of the term evaporated cane juice violates the FDA's requirement that ingredients be described by their common or usual names, as established by regulation or common usage. Mot. at 4. (citing 21 C.F.R. § 102.5(d)). Because evaporated cane juice is "confusingly similar to the name of [another] food that is not reasonably encompassed within the same name, '" Werdebaugh contends that the term cannot satisfy the FDA's common name or usage requirement, and is misleading and deceptive in violation of California and federal law. Id. (quoting 21 C.F.R. § 102.5(a)).

Plaintiff contends that the FDA's intention to regulate evaporated cane juice based on these requirements is expressed in an October 2009 Guidance for Industry letter on the topic ("2009 Guidance"), see id. at 5; ECF 76-2 (FDA Guidance letter), as well as in "warning letters to the industry" on this issue, ECF 76-3 (warning letter).

2. "All Natural" Claims

Werdebaugh also alleges that Blue Diamond's use of the term "All Natural" on the Purchased Product and Substantially Similar Products violates federal regulations and California law. Mot. at 5-6. Werdebaugh asserts the artificial ingredient potassium citrate is present in the Purchased Product and Substantially Similar Products labeled "All Natural." Id. at 2. Werdebaugh argues that 21 C.F.R. § 101.22 prohibits Defendant from labeling its products as "All Natural" when those products contain potassium citrate. Id. at 17. According to Werdebaugh, the FDA has "repeatedly affirmed" this policy in regulatory publications, see 58 Fed. Reg. 2302-01, 2407 (Nov. 6, 1993), policy guidelines, see FDA Compliance Policy Guide § 587.100, and "numerous warning letters." See FAC ¶¶ 33, 35-36. Werdebaugh contends that Defendant's labeling representation that the Purchased Product and Substantially Similar Products are "All Natural" is false and misleading in violation of California law and federal regulation because these products in fact contain the ingredient potassium citrate. Mot. at 5-7.

B. Putative Class Claims

Werdebaugh alleges that by manufacturing, advertising, distributing, and selling misbranded products, Defendant has violated California Health & Safety Code Sections 110390, 110395, 110398, 110400, 110660, 110720, 110725, 110735, 110740, 110760, 110765, and 110770. See FAC ¶¶ 64-75. In addition, Werdebaugh asserts that Defendant has violated the standards set by 21 C.F.R. §§ 101.4(a)(1), 101.22, 101.30, 102.5(a), 102.5(d), and 120.1(a), as well as by 21 U.S.C. § 343, which have been incorporated by reference into California's Sherman Food, Drug, and Cosmetic Act ("Sherman Law"), Cal. Health & Safety Code §§ 109875 et seq. See FAC ¶¶ 26-27, 76; see also Cal. Health & Safety Code § 110100 ("All food labeling regulations and any amendments to those regulations adopted pursuant to [federal statutes governing food labeling] in effect on January 1, 1993, or adopted on or after that date shall be the food regulations of this state.").

Based on these alleged regulatory and statutory violations, Werdebaugh's FAC 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 (claims 1, 2, and 3); (2) violation of California's False Advertising Law ("FAL"), Cal. Bus. & Prof. Code §§ 17500 et seq., for misleading, deceptive, and untrue advertising (claims 4 and 5); and (3) violation of the CLRA, Cal. Civ. Code §§ 1750 et seq. (claim 6). See FAC ¶¶ 96-155.

Werdebaugh has moved for class certification of these claims pursuant to Federal Rule of Civil Procedure 23(b)(2) and (b)(3). Mot. at 3. Plaintiff seeks to certify the following nationwide class:

All persons in the United States who, from May 19, 2008, until the date of notice, purchased almond milk products manufactured, distributed and/or sold by Blue Diamond Growers containing the label statements "evaporated cane juice" and/or "All Natural."

Mot. at i.

C. Procedural History

Werdebaugh filed his original Complaint on May 29, 2012. ECF No. 1. Blue Diamond filed an Answer on September 25, 2012. ECF No. 20. The Parties stipulated to Plaintiff filing an amended complaint as well as to the Court dismissing with prejudice claims in the original Complaint based on the Magnuson-Moss Warranty Act and Song-Beverly Consumer Warranty Act. ECF Nos. 36, 37.

Werdebaugh filed his FAC on May 24, 2013. ECF No. 38. Blue Diamond filed its Motion to Dismiss or, in the alternative, to strike particular allegations in the FAC on June 24, 2013. ECF No. 46. Blue Diamond moved to dismiss for four reasons, arguing that: (1) Plaintiff's claims are preempted by the Federal Food, Drug, and Cosmetic Act, on the bases of implied preemption, express preemption, and the doctrine of primary jurisdiction; (2) Plaintiff lacks standing to challenge the Substantially Similar Products because he did not purchase them; (3) Plaintiff's claims are not pled with the particularity required under Fed.R.Civ.P. 9(b); and (4) California's conflict-of-laws analysis prohibits non-California plaintiffs from bringing a claim under the UCL, FAL, or CLRA. See id. at i. Blue Diamond moved to strike Werdebaugh's claim for monetary relief under the CLRA arguing that he did not properly seek leave to amend on that basis. Id. On July 22, 2013, Werdebaugh filed his Opposition, ECF No. 48, as well as a request that the Court take judicial notice of certain exhibits, ECF No. 49. Defendant filed its Reply on August 30, 2013. ECF No. 58.

On October 2, 2013, the Court denied Defendant's motion to dismiss and motion to strike. ECF No. 65. The Court denied Blue Diamond's motion to dismiss in full, finding that: (1) Plaintiff's claims were not preempted by federal law and application of the doctrine of primary jurisdiction was not warranted in this case; (2) Werdebaugh had adequately alleged Article III and statutory standing at the pleading stage with respect to the Substantially Similar Products; (3) Plaintiff had met the heightened pleading standards of 9(b) with respect to all of his Purchased Product and Substantially Similar Product claims; and (4) striking the nationwide class allegations at the motion to dismiss stage would be premature. Id. at 14, 16, 18, 20-21; 23-24; 26; 27. Because the Court also found that Werdebaugh's amendment of the CLRA claim was proper, the Court declined to strike Werdebaugh's claim for monetary relief under the CLRA. Id. at 29. Defendant subsequently filed an Answer to the Amended Complaint on November 1, 2013. ECF No. 69.

On January 17, 2014, Werdebaugh moved for class certification. ECF No. 74. Defendants filed an opposition on March 7, 2014, ECF No. 98, along with evidentiary objections to Plaintiff's expert declarations filed in support of class certification, ECF Nos. 102-03.[1] Plaintiff responded to Defendant's evidentiary objections on March 20, 2014, ECF Nos. 110-11, and on March 28, 2014 filed a reply, ECF No. 115. Defendant subsequently filed two statements of recent decision, ECF Nos. 116, 120. The Court held a hearing on May 22, 2014.


Federal Rule of Civil Procedure 23, which governs class certification, has two sets of distinct requirements that Plaintiffs must meet before the Court may certify a class. Plaintiffs must meet all of the requirements of Rule 23(a) and must satisfy at least one of the prongs of Rule 23(b).

Under Rule 23(a), the Court may certify a class only where "(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class." Fed.R.Civ.P. 23(a). Courts refer to these four requirements, which must be satisfied to maintain a class action, as "numerosity, commonality, typicality and adequacy of representation." Mazza v. Am. Honda Motor Co., 666 F.3d 581, 588 (9th Cir. 2012). Further, courts have implied an additional requirement under Rule 23(a): that the class to be certified be ascertainable. See Marcus v. BMW of North America, LLC, 687 F.3d 583, 592-93 (3d Cir. 2012); Herrera v. LCS Fin. Servs. Corp., 274 F.R.D. 666, 671-72 (N.D. Cal. 2011).

In addition to meeting the requirements of Rule 23(a), the Court must also find that Plaintiffs have satisfied "through evidentiary proof" one of the three subsections of Rule 23(b). Comcast Corp. v. Behrend, 133 S.Ct. 1426, 1432 (2013). The Court can certify a Rule 23(b)(1) class when Plaintiffs make a showing that there would be a risk of substantial prejudice or inconsistent adjudications if there were separate adjudications. Fed.R.Civ.P. 23(b)(1). The Court can certify a Rule 23(b)(2) class if "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." Fed.R.Civ.P. 23(b)(2). Finally, the Court can certify a Rule 23(b)(3) class if the Court finds that "questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Fed.R.Civ.P. 23(b)(3) (emphasis added).

"[A] court's class-certification analysis must be rigorous' and may entail some overlap with the merits of the plaintiff's underlying claim.'" Amgen Inc. v. Conn. Ret. Plans and Trust Funds, 133 S.Ct. 1184, 1194 (2013) (quoting Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2551 (2011)); see also Mazza, 666 F.3d at 588 ("Before certifying a class, the trial court must conduct a rigorous analysis' to determine whether the party seeking certification has met the prerequisites of Rule 23.'" (quoting Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186, amended by 273 F.3d 1266 (9th Cir. 2001)). Nevertheless, "Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage." Amgen, 133 S.Ct. at 1194-95. "Merits questions may be considered to the extent-but only to the extent-that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied." Id. at 1195. Within the framework of Rule 23, the Court ultimately has broad discretion over whether to certify a class. Zinser, 253 F.3d at 1186.


Werdebaugh seeks to certify a nationwide class of consumers who purchased Blue Diamond products during the class period under both Rule 23(b)(2) and Rule 23(b)(3). Mot. at i, 8, 14, 15. Plaintiff requests certification of a class seeking restitution and damages under Rule 23(b)(3), and certification of an injunctive relief class under Rule 23(b)(2). The Court addresses Werdebaugh's standing to sue before turning to the requirements of Rule 23(a) and Rule 23(b).

A. Standing

Blue Diamond challenges Werdebaugh's constitutional and statutory standing to bring suit on behalf of the proposed class. Opp'n at 23-25. For the following reasons, the Court finds that Werdebaugh has standing to pursue his claims for damages under Rule 23(b)(3), but not for injunctive relief under 23(b)(2).

1. Article III and Statutory Standing

"In a class action, standing is satisfied if at least one of named plaintiff[s] meets the requirements." Bates v. United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007) (citing Armstrong v. Davis, 275 F.3d 849, 860 (9th Cir. 2001)). Not only must at least one named plaintiff satisfy constitutional standing requirements, but the plaintiff "bears the burden of showing that he has standing for each type of relief sought." Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009). Article III standing to sue requires a plaintiff show "(1) an injury-in-fact that is concrete and particularized, as well as actual or imminent; (2) that the injury is fairly traceable to the challenged action of the defendant; and (3) that the injury is redressable by a favorable ruling." Kane v. Chobani, Inc., 973 F.Supp.2d 1120, 1128 (N.D. Cal. 2014) (citing Monsanto Co. v. Geertson Seed Farms, 130 S.Ct. 2743, 2752 (2010)). Under California's UCL and FAL, a private person has statutory standing only if she "has suffered injury in fact and has lost money or property as a result of the unfair competition." Cal. Bus. & Prof. Code § 17204; see also Kwikset, 51 Cal.4th at 322. Similarly, to bring a case under the CLRA, "[a] plaintiff... must not only be exposed to an unlawful practice but also have suffered some kind of damage." Bower v. AT&T Mobility, LLC, 196 Cal.App.4th 1545, 1556 (2011) (internal quotation marks omitted).

In cases such as this, both Article III standing and standing under the UCL, FAL, and CLRA can be established by showing the plaintiff either: (1) paid a price premium for a mislabeled product; or (2) would not have purchased the product had he known about the misbranding. Chobani, 973 F.Supp.2d at 1128 ("Article III's standing requirements may be satisfied by allegations that a plaintiff purchased a product he otherwise would not have purchased, or spent more on such product, in reliance on the defendant's misrepresentations."); see also Brazil v. Dole Food Co., 935 F.Supp.2d 947, 962 (N.D. Cal. 2013) (holding that "Brazil suffered a concrete and particularized injury... [because] he allegedly was deceived, and then paid money that he would not otherwise have paid had he known about the true nature of Defendants' products"); Mazza, 666 F.3d at 595 ("Plaintiffs contend that class members paid more for the CMBS than they otherwise would have paid, or bought it when they otherwise would not have done so, because Honda made deceptive claims.... To the extent that class members were relieved of their money by Honda's deceptive conduct-as Plaintiffs allege-they have suffered an injury in fact.'"); In re Google AdWords Litig., No. 05-3369, 2012 WL 28068, at *10 (N.D. Cal. Jan. 5, 2012) ("The requirement of concrete injury is satisfied when the Plaintiffs and class members in UCL and FAL actions suffer an economic loss caused by the defendant, namely the purchase of defendant's product containing misrepresentations."); Manchouck v. Mondelez Int'l Inc., No. 13-2148, 2013 WL 5400285, at *2 (N.D. Cal. Sept. 26, 2013) (finding plaintiff had both constitutional and statutory standing where the complaint alleged "plaintiff paid a price premium' because the product claimed to be made with real fruit, '" and that "[p]laintiff would not have purchased the two products at that price point absent the alleged misstatements"); see also Kwikset Corp. v. Superior Court, 51 Cal.4th 310, 329 (2011) ("For each consumer who relies on the truth and accuracy of a label and is deceived by misrepresentations into making a purchase, the economic harm is the same: the consumer has purchased a product that he or she paid more for than he or she otherwise might have been willing to pay if the product had been labeled accurately."); Jones v. ConAgra Foods, Inc., 912 F.Supp.2d 889, 901 (N.D. Cal. 2012) (allegations "that plaintiffs would not have purchased a product if the product had been labeled accurately [were] sufficient to establish injury under California's consumer laws").

"The party invoking federal jurisdiction bears the burden of establishing these elements." Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). Because the elements of Article III standing "are not mere pleading requirements but rather an indispensable part of the plaintiff's case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Id .; see also In re iPhone Application Litig., No. 11-2250, 2013 WL 6212591 (N.D. Cal. Nov. 25, 2013). On a motion for class certification, this means Plaintiff must show standing "through evidentiary proof." Comcast, 133 S.Ct. at 1432; see also Evans v. Linden Research, Inc., No. 11-1078, 2012 WL 5877579 (N.D. Cal. Nov. 20, 2012) (At class certification, "Plaintiffs must demonstrate, not merely allege, that they have suffered an injury-in-fact to establish Article III standing to bring the claims asserted on behalf of the [class]."); Nelsen v. King Cnty., 895 F.2d 1248, 1249-50 (9th Cir.1990) ("Standing is a jurisdictional element that must be satisfied prior to class certification."); In re First Am. Corp. ERISA Litig., No. 07-1357, 2009 WL 928294 (C.D. Cal. Apr. 2, 2009) ("[A]t the class certification stage, ... unlike on a motion to dismiss, the would-be class representative must show standing, rather than merely allege it."); In re Abbott Labs. Norvir Anti-Trust Litig., No. 04-1511, 2007 WL 1689899 (N.D. Cal. June 11, 2007) ("[I]t is well-settled that prior to the certification of a class, and technically speaking before undertaking any formal typicality or commonality review, the district court must determine that at least one named class representative has Article III standing to raise each class subclaim.'" (quoting Wooden v. Bd. of Regents of Univ. Sys. of Georgia, 247 F.3d 1262, 1287-88 (11th Cir. 2001)); cf. Baghdasarian v., Inc., No. 05-8060, 2009 WL 4823368 (C.D. Cal. Dec. 9, 2009) aff'd, 458 F.App'x 622 (9th Cir. 2011) ("At the class certification stage, Plaintiff must make certain allegations concerning standing.... [At] summary judgment, Plaintiff must establish certain facts.").

Accordingly, to establish standing, Werdebaugh must show, and not merely allege, either that he would not have purchased the product had he known about the misbranding or that he paid a price premium. Werdebaugh contends that he has standing to bring his "All Natural" claims and "Evaporated Cane Juice" on both theories. Mot. at 1-2; Reply at 15. Blue Diamond challenges both bases. see Opp'n at 24-25. The Court finds that Werdebaugh's deposition testimony clearly shows that he would not have purchased Blue Diamond almond milk had he known about the misbranding for the reasons stated below. Accordingly, the Court need not address Defendant's price premium arguments.

Werdebaugh claims that he was "misled by Defendant's use of the term evaporated cane juice' because that term falsely suggests that the sweetener was a juice and not what it really was- either sugar or dried cane syrup." Mot. at 3. In essence, "Defendants deceived the Plaintiff about the presence of added sugars that Plaintiff sought to avoid." Id. at 4. Werdebaugh alleges throughout his FAC that he would not have purchased Defendant's products had he known that the label representations were false. See, e.g., FAC ¶ 61 ("Plaintiff was misled by Defendant's unlawful and misleading label on this product. Plaintiff would not have otherwise purchased this product had he known the truth about this product."); id. ¶ 110 ("Plaintiff and members of the Class suffered a substantial injury by virtue of buying Defendant's Purchased Product and Substantially Similar Products that they would not have purchased absent Defendant's [misrepresentations].").

Werdebaugh's deposition testimony bears out the FAC's allegations of reliance. Werdebaugh repeatedly states that he relied on the label statements in purchasing Blue Diamond's almond milk product. When he purchased the almond milk, Werdebaugh was "unfamiliar with the product, " and "the all natural' label stood out" to him. Werdebaugh Depo at 41. He "stood at the shelf and saw this packaging and picked it up, read the labels, and made the purchase." Id. According to Werdebaugh, the "all natural' label was a substantial reason why [he] bought [Defendant's] product and [he] relied on that." Id. at 48. Werdebaugh further testified that he was concerned about seeing "evaporated cane juice" on the ingredients list, but did not know that it is "the equivalent of table sugar." Id. at 35, 63. According to Werdebaugh, discovering this fact affected his subsequent purchase decisions. Id. at 63.

Apparently conceding that Plaintiff has shown reliance on the "All Natural" label statements, Blue Diamond's reliance arguments are limited to Werdebaugh's standing to bring claims based on the "Evaporated Cane Juice" label statements. See Opp'n at 24. According to Blue Diamond, "it is implausible for plaintiffs to think that defendants' products did not contain added sugars or that evaporated cane juice refers to anything other than sugar cane." Id. at 25 (citing Avoy v. Turtle Mountain, LLC, No. 13-236, 2014 WL 587173, at *6 (N.D. Cal. Feb. 14, 2014)). Defendant contends that Werdebaugh's deposition testimony shows that: (1) he saw the evaporated cane juice ingredient statement on the label before purchasing the product and also saw on the nutrition facts panel that the almond milk contained 20 grams of sugars; (2) he did not understand what the term "cane" in "Evaporated Cane Juice" meant, and that he was not aware of the use of "cane" in any other food product; and (3) he does not know what "evaporated cane syrup" or "dried cane syrup" is, and that his purchasing decision likely would not have been impacted by the use of those terms in lieu of "Evaporated Cane Juice." Id.

Defendant's arguments that Werdebaugh cannot show reliance on the allegedly misleading label statements are unavailing. Specifically, the Court finds Chobani and Turtle Mountain, two decisions of this Court upon which Defendant relies, distinguishable.

In Turtle Mountain, the plaintiff sought products with no added sugar, and alleged that the defendant's use of the term "Evaporated Cane Juice" misled her into purchasing defendant's frozen dessert products. Turtle Mountain, 2014 WL 587173, at *5. In that case, the Court found the plaintiff's allegations of reliance implausible for several reasons, none of which apply here. The products at issue in Turtle Mountain contained other ingredients that explicitly used the word "sugar, " which cast doubt on the plaintiff's claims that she was misled into believing the frozen desserts had no added sugars. Id. The plaintiff in that case failed to provide any explanation of how she could have been misled into thinking no sugars were added to the defendant's dessert products given the presence of other ingredients she knew to be sugars or sugar-equivalents. Id. at *6.

With regard to Chobani, plaintiffs in that case disavowed any theory that evaporated cane juice was a healthier form of sugar. Rather, plaintiffs relied on a theory that they believed that evaporated cane juice was "some type of ingredient healthier than sugar." Chobani, 973 F.Supp.2d at 1132. Plaintiffs therefore claimed that they did not know that evaporated cane juice was a sweetener. The Court found the plaintiffs' allegations of reliance on the ECJ label implausible for two reasons. First, plaintiffs in their complaint acknowledged that dried cane syrup was a form of sugar. Id. at 1133. In light of this acknowledgement, plaintiffs did not explain how plaintiffs could have believed that evaporated cane juice was not a form of sugar. Specifically, despite the fact that plaintiffs knew that dried cane syrup was a form of sugar, plaintiffs provided no alternative understanding of what they believed evaporated cane juice to be. Id. at 1133-34. Second, plaintiffs acknowledged in their complaint that fruit juice concentrate is a well-known added sugar. Id. at 1134. The Court found that this undermined plaintiffs' "purported reliance on the word juice' in evaporated cane juice' as denoting something ...

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