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Bruton v. Gerber Products Co.

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

June 23, 2014

NATALIA BRUTON, individually and on behalf of all others similarly situated, Plaintiff.


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 Defendant's product labeling is unlawful, deceptive, and misbranded in violation of federal and California law. Plaintiff moves to certify a class of California consumers who purchased Gerber products from May 11, 2008 to the date of notice to the class. ("Mot.") ECF No. 82 at i. Defendant opposes the Motion, ("Opp'n") ECF No. 88, and Plaintiff replies, ("Reply") ECF No. 110. Pursuant to Civil Local Rule 7-1(b), the Court finds this matter appropriate for resolution without oral argument and hereby VACATES the hearing scheduled for June 26, 2014. ECF No. 114. Having considered the submissions of the parties, the relevant law, and the record in this case, the Court hereby DENIES Plaintiff's Motion for Class Certification.[1]


A. Factual Background

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 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, " and "Toddler." See The Gerber Nutrition Journey, GERBER.COM, (last visited June 20, 2014).[2]

Bruton is a California resident who purchased various Gerber food products intended for children under the age of two over the past four years. SAC ¶¶ 20, 82. Specifically, Bruton 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 Nature Select 2nd Foods Vegetables-Sweet Potatoes & Corn; (6) Gerber Organic SmartNourish 2nd Foods-Banana Raspberry Oatmeal; (7) Gerber Organic SmartNourish 2nd Foods-Butternut Squash & Harvest Apple with Mixed Grains; and (8) Gerber Organic SmartNourish 2nd Foods-Farmer's Market Vegetable Blend with Mixed Grains. See Stipulated Chart of Products at Issue in this Case ("Chart") ECF No. 117. 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. SAC ¶ 3. Bruton refers to these additional products as the "Substantially Similar Products." Id. ; see also Chart at 1-4.

Bruton alleges that Gerber's food products are "misbranded" in violation of federal and California labeling laws because Gerber makes two types of unlawful and deceptive claims on its product labels. 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 21U.S.C. § 343(r)(1)(A). Bruton alleges that Gerber makes nutrient content claims on virtually all Gerber food products, despite the fact that the Food and Drug Administration ("FDA") does not authorize nutrient content claims on foods intended for children under age two. SAC ¶ 60; 21 C.F.R. § 101.13(b)(3). Bruton specifically asserts that Defendant makes the following unlawful nutrient content claims: (1) claims that a product is an "Excellent Source" or a "Good Source" of various vitamins and minerals, ("Excellent/Good Source Statements") SAC ¶ 59(a); (2) claims that a product is "As Healthy As Fresh, " provides "Nutrition for Healthy Growth & Natural Immune Support, " or "Supports Healthy Growth & Development, " ("Healthy Statements") id. ¶ 59(b); and (3) claims that a product contains "No Added Sugar" or "No Added Refined Sugar, " ("No Sugar Added Sugar Statements") id. ¶ 59(c).

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 high caloric value of the products. Id. ¶ 69 (citing 21 C.F.R. § 101.60(c)(2)). Because Gerber does not place a disclosure statement on these food products, Bruton asserts that Gerber's product labels violate federal and California law. Id. ¶¶ 69-74.

Bruton contends that, by manufacturing, advertising, distributing and selling misbranded food products, Gerber has violated California Health and 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. 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, SAC ¶¶ 114-140; (2) violation of California's False Advertising Law ("FAL"), Cal. Bus. & Prof. Code §§ 17500 et seq., for misleading, deceptive, and untrue advertising, SAC ¶¶ 141-156; and (3) violation of the Consumers Legal Remedies Act ("CLRA"), Cal. Civ. Code §§ 1750 et seq., SAC ¶¶ 157-173.

Bruton now seeks to certify the following class pursuant to Federal Rules of Civil Procedure 23(b)(2) and 23(b)(3):

All persons in the state of California who, from May 11, 2008, until the date of notice, purchased [Gerber baby food products identified in the Chart] which were labeled with one or more of the following claims: "Excellent Source of, " "Good Source of, " "Healthy, " "No Added Sugar" and/or "No Added Refined Sugar."

Mot. at i.[3]

B. Procedural History

Bruton filed her Original Complaint on May 11, 2012, ECF No. 1, and a First Amended Complaint on September 21, 2012, ECF No. 26. On September 6, 2013, the Court granted in part and denied in part Defendant's Motion to Dismiss. ("First MTD Order") ECF No. 57. Bruton filed the SAC on October 7, 2013. ECF No. 62. Gerber filed a Motion to Dismiss the SAC on October 31, 2013, ECF No. 65, which the Court granted in part and denied in part on January 15, 2014, ECF No. 83.

On January 10, 2014, Bruton moved for class certification. ECF No. 82. Defendant filed an opposition on March 11, 2014, ECF No. 88, and Plaintiff replied on April 3, 2014, ECF No. 110.


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 ...

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