United States District Court, N.D. California
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION TO DISMISS
THELTON E. HENDERSON United States District Judge
This
matter came before the Court on July 18, 2016, on Defendant
General Mills, Inc.’s motion to dismiss. After
carefully considering the parties’ written and oral
arguments, the Court GRANTS IN PART and DENIES IN PART the
motion for the reasons discussed below.
BACKGROUND
Plaintiffs
Nancy Coe, Tori Castro, and Pamela Mizzi filed this putative
class action against Defendant General Mills, Inc. to
challenge the labeling and advertising of its Cheerios
Protein product. They contend that the name “Cheerios
Protein” is misleading because it implies that the
product is essentially the same as Cheerios, only with added
protein. While Plaintiffs acknowledge that Cheerios Protein
does have more protein than regular Cheerios (7 grams per
serving versus 3 grams per serving), they contend that the
amount of additional protein is not material, particularly
considering the larger serving size and calories per serving
of Cheerios Protein. Based on the Nutrition Facts panels of
both products - the accuracy of which Plaintiffs do not
challenge - Plaintiffs calculate that 200 calories of
Cheerios contains 6 grams of protein, whereas 200 grams of
Cheerios Protein contains 6.4 or 6.7 grams of protein,
depending on the flavor (Oats & Honey or Cinnamon Almond,
respectively).
In
addition, Plaintiffs argue that the “Cheerios
Protein” name is misleading because it says nothing
about added sugar. Whereas a single serving of Cheerios
contains only 1 gram of sugar, a single serving of Cheerios
Protein contains 16 or 17 grams of sugar (Cinnamon Almond or
Oats & Honey, respectively).
Plaintiffs
also challenge certain statements on the label as false or
misleading: that the product provides “a great start to
your day, ” enables you to “start your school day
right, ” and allows you to “kick-start your
day.” Compl. ¶ 40. Similarly, Plaintiffs challenge
as false or misleading a “Fuel Up” advertisement,
viewable at
https://www.youtube.com/watch?v=EWFfBSeuTiI, in
which a NASCAR driver picks up a child and races him to
school, where “he is fed Cheerios Protein pit-stop
style.” Id. ¶ 53.
Plaintiffs
seek relief for both California and New York classes of
consumers. The first four claims are asserted under
California laws that prohibit “unlawful, unfair or
fraudulent” business acts or practices, Cal. Bus. &
Prof. Code §§ 17200 et seq. (“Unfair
Competition Law” or “UCL”); false or
misleading advertising, Cal. Bus. & Prof. Code
§§ 17500 et seq.; and deceptive business
practices, Cal. Civ. Code §§ 1750 et seq.
(“Consumers Legal Remedies Act”). The remaining
two claims are asserted under New York laws that prohibit
deceptive acts or practices and false advertising. N.Y. Gen.
Bus. Law §§ 349-50. Defendant seeks dismissal of
the entire complaint.
LEGAL
STANDARD
Dismissal
is appropriate under Federal Rule of Civil Procedure 12(b)(6)
when a plaintiff’s allegations fail “to state a
claim upon which relief can be granted.” To survive a
motion to dismiss, a plaintiff must plead “enough facts
to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007). Plausibility does not equate to
probability, but it requires “more than a sheer
possibility that a defendant has acted unlawfully.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. “Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Id.
In
ruling on a motion to dismiss, courts must “accept all
material allegations of fact as true and construe the
complaint in a light most favorable to the non-moving
party.” Vasquez v. Los Angeles County, 487
F.3d 1246, 1249 (9th Cir. 2007). However, courts are not
“bound to accept as true a legal conclusion couched as
a factual allegation.” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 555).
DISCUSSION
I.
Preemption
Defendant
first argues that Plaintiffs’ claims are expressly
preempted by the federal Nutrition Labeling and Education Act
(“NLEA” or “Act”). The NLEA
“established uniform food labeling requirements,
including the familiar and ubiquitous Nutrition Facts Panel
found on most food packages.” Lilly v. ConAgra
Foods, Inc., 743 F.3d 662, 664 (9th Cir. 2014). The
Act’s express preemption clause provides that “no
State or political subdivision of a State may directly or
indirectly establish . . . any requirement for the labeling
of food . . . that is not identical to” certain federal
requirements, including nutrition information claims under 21
U.S.C. § 343(q) and nutrition levels and health-related
claims under 21 U.S.C. § 343(r). 21 U.S.C. §
343-1(a).
Plaintiffs
contend that their claims are not preempted because they
“are identical to the federal labeling
requirements.” Reid v. Johnson & Johnson,
780 F.3d 952, 959 (9th Cir. 2015). Specifically, Plaintiffs
contend that the labeling of Cheerios Protein violates two
federal regulations - 21 C.F.R. § 101.18(b) and 21
C.F.R. § 102.5(c) - as well as 21 U.S.C. §
343(a)(1), which provides that a food is
“misbranded” if its “labeling is false or
misleading in any particular.” Compl. ¶
86.[1]
The Court considers each contention in turn.
A.
21 C.F.R. ...