United States District Court, N.D. California
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS RE:
DKT. NO. 9
HAYWOOD S. GILLIAM, JR. United States District Judge.
before the Court is Defendant Biscomerica Corporation's
motion to dismiss the Class Action Complaint
(“Compl.”). Dkt. No. 9. Because the Court finds
that Plaintiff Troy Backus' claims are preempted by
federal law, the Court GRANTS the motion to dismiss.
brings this purported nationwide class action against
Biscomerica for manufacturing, distributing, and selling
packaged cookies that contain partially hydrogenated oil
(“PHO”), an artificial form of trans fat. Compl.
¶¶ 4-6, 97. Plaintiff alleges that “trans fat
is a toxic carcinogen” and PHO is consequently an
“illegal, dangerous additive.” Id.
¶¶ 6-7. According to Plaintiff, PHO “causes
cardiovascular heart disease, diabetes, cancer, and
Alzheimer's disease” and also “accelerates
memory damage and cognitive decline.” Id.
¶ 17; see also Id. ¶¶ 24-55.
Plaintiff cites several medical publications to support his
allegation that “[t]here is ‘no safe level'
of artificial trans fat intake.” Compl. ¶ 18. He
alleges that because of these negative health effects he
consequently “suffered physical injury when he
repeatedly consumed Defendant's [cookies] . . . .”
Id. ¶ 89.
Federal Food, Drug, and Cosmetic Act (“FDCA”)
prohibits “[t]he introduction or delivery for
introduction into interstate commerce of any food . . . that
is adulterated . . . .” 21 U.S.C. § 331(a). This
includes food additives that are “not generally
recognized, among [qualified] experts . . . to be safe under
the conditions of its intended use.” Id.
§ 321(s); see also 21 C.F.R. 170.3(i) (defining
“safe” as “a reasonable certainty in the
minds of competent scientists that the substance is not
harmful under the intended conditions of use.”).
Sections 342 and 348 further describe the conditions under
which food and food additives may be considered
“unsafe” or “adulterated.”
Id. §§ 342(a)(1), 342(a)(2)(C)(i), 348.
November 8, 2013, the federal Food and Drug Administration
(“FDA”) “tentatively determined that there
is no longer a consensus among qualified scientific experts
that PHOs . . . are safe for human consumption . . . .”
Tentative Determination Regarding Partially Hydrogenated
Oils, 78 Fed. Reg. 67169-01, 67170 (Nov. 8, 2013). The FDA
confirmed this determination on June 17, 2015. Final
Determination Regarding Partially Hydrogenated Oils
(“Final Determination”), 80 Fed. Reg. 34650-01
(June 17, 2015). The President then signed the Consolidated
Appropriations Act (“Act”) into law on December
18, 2015, which - consistent with the FDA's Final
Determination - stated that PHO would not be considered
unsafe or adulterated under Federal law until the June 18,
2018, compliance date. Consolidated Appropriations Act, 2016,
Pub. L. No. 114-113, § 754, 129 Stat 2242, 2284 (2015).
faults Defendant for continuing to use PHO in its cookies,
even after the FDA's Final Determination in June 2015.
Compl. ¶¶ 7-8. Relying on the FDA's findings,
Plaintiff brings several causes of action under state law,
including violations of: (1) California's Unfair
Competition Law (“UCL”); (2) Nuisance; and (3)
the Implied Warranty of Merchantability. Plaintiff has
brought similar actions in this district against other
manufacturers of products that contain PHO. Several district
courts have dismissed such claims. See, e.g.,
Backus v. Conagra Foods, Inc., No. C 16-00454 WHA,
2016 WL 3844331, at *1 (N.D. Cal. July 15, 2016); Backus
v. Nestlé USA, Inc., 167 F.Supp.3d 1068, 1069
(N.D. Cal. 2016).
Federal Rule of Civil Procedure 12(b)(6), the Court must
dismiss a complaint if it fails to state a claim upon which
relief can be granted. To survive a Rule 12(b)(6) motion to
dismiss, the plaintiff must allege “enough facts to
state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). This “facial plausibility” standard
requires the plaintiff to allege facts that add up to
“more than a sheer possibility that a defendant has
acted unlawfully.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). The Court accepts as true a plaintiff's
well-pleaded factual allegations and construes all factual
inferences in the light most favorable to the plaintiff.
Id. However, a plaintiff must provide “more
than labels and conclusions.” Twombly, 550
U.S. at 555. The Court does not credit allegations that are
“merely conclusory, unwarranted deductions of fact, or
unreasonable inferences.” Wilson v. Hewlett-Packard
Co., 668 F.3d 1136, 1145 n.4 (9th Cir. 2012) (quotation
UCL prohibits any “unlawful, unfair or fraudulent
business act or practice and unfair, deceptive, untrue or
misleading advertising.” Cal. Bus. & Prof. Code
§ 17200. The three “prongs” of the UCL are
independent of each other and may be asserted as separate
claims. Cel-Tech Commc'ns, Inc. v. Los Angeles
Cellular Tel. Co., 20 Cal.4th 163, 180 (Cal. 1999). The
“unlawful” prong of the UCL incorporates other
laws and treats violations of those laws as unlawful business
practices independently actionable under state law.
McKell v. Washington Mut., Inc., 142 Cal.App.4th
1457, 1474 (Cal.Ct.App. 2006). The “unfair” prong
treats as actionable conduct that “violates established
public policy or . . . is immoral, unethical, oppressive or
unscrupulous and causes injury to consumers which outweighs
its benefits.” Id. at 1473. The UCL cannot,
however, be used to proscribe otherwise permitted conducted.
Cel-Tech, 20 Cal.4th at 182 (“If the
Legislature has permitted certain conduct or considered a
situation and concluded no action should lie, courts may not
override that determination.”). Plaintiff brings UCL
claims under both the “unlawful” and the
argues that both of Plaintiff's UCL claims are
nonetheless preempted by the FDCA because under federal law
there is a grace period for discontinuing the use of PHO in
food products. A federal statute has preemptive effect if it
conflicts with state law. Ting v. AT&T, 319 F.3d
1126, 1135 (9th Cir. 2003). This can occur when
“compliance with both federal and state regulations is
a physical impossibility” or when “state law
stands as an obstacle to the accomplishment and execution of
the full purposes and objectives of Congress.”
Id. The Court must look to the language of the
statute and the overall statutory purpose to determine
whether it is preempted. Id. at 1136.