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Tamas v. Safeway, Inc.

California Court of Appeals, Fourth District, Third Division

February 23, 2015

ASHLEY TAMAS, Plaintiff and Appellant,
v.
SAFEWAY, INC. et al., Defendants and Respondents.

Appeal from a judgment of the Superior Court of Riverside County, No. RIC1206341 Daniel A. Ottolia, Judge.

Page 295

COUNSEL

Ridout Lyon Ottoson, Christopher P. Ridout, Caleb LH Marker; Zimmerman Reed and Bradley C. Buhrow for Plaintiff and Appellant.

Fulbright & Jaworski, Jeffrey B. Margulies, William L. Troutman and Margot M. Fourqurean for Defendants and Respondents.

Page 296

OPINION

RYLAARSDAM, ACTING P. J.

Ashley Tamas appeals from the judgment entered in favor of defendants Safeway, Inc. and Lucerne Foods, Inc. (collectively Safeway) after the trial court sustained a demurrer to Tamas’ proposed class action complaint without leave to amend. In her complaint, Tamas alleged Safeway was culpable for misbranding its Lucerne brand of Greek yogurt as “yogurt” because the food’s ingredients included “milk protein concentrate” (MPC), which is not included on the list of allowable optional ingredients for “yogurt” under the applicable regulation promulgated by the federal Food and Drug Administration (FDA). The trial court disagreed, concluding that MPC was an allowable ingredient in yogurt, as the restrictive regulation relied upon by Tamas had been stayed, and the FDA had informally agreed to allow the use of MPC in yogurt until the stay was resolved.

We affirm. The regulation relied upon by Tamas to preclude the use of MPC in yogurt is one that she admits was stayed by the FDA shortly after it was enacted, in response to concerns the rule was unduly restrictive. The glacial pace at which the FDA has moved in attempting to resolve those concerns and redraft a new formal regulation did not, as Tamas seems to suggest, operate as a stealth reenactment of the stayed rule.

FACTS

Tamas filed her complaint in April 2012, on behalf of herself and a class of similarly situated consumers who have purchased “Lucerne Greek yogurt” from Safeway stores, believing it was “classic Greek yogurt” which achieves its thicker consistency and high protein content as a result of straining. She alleged Safeway had misbranded its “Lucerne Greek yogurt” as yogurt, because the product’s listed ingredients include MPC, which was used as an artificial thickener, and to increase its protein content, but is not an ingredient permitted in any product labeled as “yogurt.”

Specifically, Tamas alleged the FDA has promulgated a regulation specifying the “Standard of Identity” (SOI) for yogurt. This SOI sets forth the definition of “yogurt” and follows it with a restrictive list of the ingredients that may be included within any product labeled as “yogurt.” She also alleged that pursuant to the federal Nutrition Labeling and Education Act of 1990 (Pub.L. No. 101-535 (Nov. 8, 1990) 104 Stat. 2353), the states are preempted from adopting their own standards for food labeling which are inconsistent with the federal SOI. Thus, California has adopted the federal SOI for yogurt as California’s own pursuant to the Sherman Food, Drug, and Cosmetic Law (Health & Saf. Code, § 109875, et seq.)

Page 297

As set forth in Tamas’ complaint, the SOI for yogurt describes yogurt as being made by “culturing one or more of the optional diary [sic] ingredients [cream, milk, partially skimmed milk, or skim milk, used alone or in combination]” and allows the addition of “[o]ne or more of the other optional ingredients specified in paragraphs (b) [referring to allowable vitamins] and (d) of this section.”

Tamas notes that paragraph (d), in turn, specifies the “other optional ingredients” which may be included in yogurt, including “[c]oncentrated skim milk, nonfat dry milk, buttermilk, whey, lactose, lactalbumins, lactoglobulins, or whey modified by partial or complete removal of lactose and/or minerals, to increase the nonfat solids content of the food.” As Tamas alleges, MPC is not included on that list. (21 C.F.R. § 131.200(d)(1) (2014) (all further regulatory references are to this title of the Code of Federal Regulations.)

Tamas also acknowledges that subparagraph (d)(1) of the yogurt SOI, which lists the foregoing “other optional ingredients” that may be included in the product, has been stayed since 1982. She alleges, however, that the effect of that stay was to further restrict the ingredients allowed in yogurt, such that even those ingredients listed in the stayed subparagraph (which would otherwise be allowed) are prohibited.

Thus, under Tamas’ construction of the SOI for yogurt, MPC is not currently a permitted ingredient in any food labeled as “yogurt.” Consequently, she alleges Safeway misbranded its “Lucerne Greek yogurt” as yogurt, and based on that allegation she stated causes of action for violation of the Consumers Legal Remedies Act (Civ. Code, § 1750, et seq.) and violation of the Unfair Competition Law (Bus. & Prof. Code, § 17200, et seq.). Tamas prayed for a court order declaring that Safeway had misbranded its “Lucerne Greek yogurt” product as “yogurt, ” an injunction prohibiting Safeway from continuing to sell their product as “yogurt, ” and an award of restitution.

Safeway demurred to the complaint. It acknowledged using MPC in its “Lucerne Greek yogurt, ” but denied that doing so was prohibited by the partially stayed SOI. Specifically Safeway disputed Tamas’ contention that the FDA’s 1982 stay of the “other optional ingredients” provision of the yogurt SOI operated as a further restriction on the ingredients allowed in yogurt. Instead, Safeway contended that the stay of part 131.200(d)(1) operated to lift that restriction on “other optional ingredients, ” leaving it free to include MPC as an ingredient and still call its product “yogurt.”

In support of its demurrer, Safeway asked the court to take judicial notice of various federal regulations, FDA rulings contained in the federal register,

Page 298

and a memorandum summarizing questions and answers from a 2004 “Regional Milk Seminar, an Advanced Milk Processing Course and a Special Problems in Milk Protection Course” available on the FDA website. The court granted that request in its entirety.

Tamas opposed the demurrer, and asked the court to take judicial notice of various documents as well. The court granted this request in part, and denied it in part.

After considering the arguments, as well as the documents of which it took judicial notice, the court sustained the ...


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