Coe v. General Mills, Inc.

          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. ...