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Backus v. Biscomerica Corp.

United States District Court, N.D. California

March 27, 2017

TROY BACKUS, Plaintiff,
v.
BISCOMERICA CORPORATION, Defendant.

          ORDER GRANTING DEFENDANT'S MOTION TO DISMISS RE: DKT. NO. 9

          HAYWOOD S. GILLIAM, JR. United States District Judge.

         Pending before the Court is Defendant Biscomerica Corporation's motion to dismiss the Class Action Complaint (“Compl.”).[1] Dkt. No. 9. Because the Court finds that Plaintiff Troy Backus' claims are preempted by federal law, the Court GRANTS the motion to dismiss.

         I. BACKGROUND

         Plaintiff 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.

         The 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.

         On 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).

         Plaintiff 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).

         II. LEGAL STANDARD

         Under 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 omitted).

         III. ANALYSIS

         A. UCL Claims

         California's 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 “unfair” prongs.

         Defendant 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.

         1. Unlawful ...


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