United States District Court, E.D. California
MEMORANDUM DECISION AND ORDER RE DEFENDANT'S
MOTION TO DISMISS (DOC. 11)
LAWRENCE J. O'NEILL UNITED STATES CHIEF DISTRICT JUDGE.
Melanie Kelley brings this proposed class action on behalf of
herself and others who purchased certain Silk Almondmilk
beverages from Defendant WWF Operating Company dba Whitewave
Services, Inc., alleging that Defendant's marketing
practices violated and continue to violate (1)
California's Consumer Legal Remedies Act
(“CLRA”), Cal. Civil Code §§ 1770 et
seq.; (2) California's unfair competition law (“the
UCL”), Cal. Bus. & Prof. Code §§ 17200 et
seq.; and (3) California's False Advertising Law
(“FAL”), Cal. Bus. & Prof. Code § 17500.
Doc. 1. Defendant moves to dismiss the case with prejudice
under Federal Rule of Civil Procedure 12(b)(6) on a number of
grounds, including that the case should be dismissed under
the “primary jurisdiction doctrine.” See
Court took the matter under submission on the papers pursuant
to Local Rule 230(g). Doc. 15. For the following reasons, the
Court agrees with Defendant that the primary jurisdiction
doctrine applies here, but finds it appropriate to STAY this
case pending appropriate administrative proceedings before
the Food and Drug Administration (“FDA”) instead
of dismissing the case.
FACTUAL AND PROCEDURAL
resolve Defendant's motion, Plaintiff's allegations
can be briefly summarized. Defendant makes, among other
things, eight different kinds of Silk Almondmilk beverages,
which Plaintiff alleges contain “false, misleading, and
deceptive” information on their packaging. Doc. 1,
Complaint (“Compl.”), at ¶ 1; id.
at1 n.1. Plaintiff purchased Silk Unsweetened Vanilla
Almondmilk, id. at ¶ 18, which she claims
contained misleading information that, coupled with one of
Defendant's television commercials for Silk Almondmilk
beverages, led her to believe that Silk Amondmilk beverages
are “nutritionally superior to dairy milk and contained
comparable amounts of the essential vitamins and nutrients
contained in dairy milk and contained higher amounts of
protein and vitamin D than dairy milk.” Id. at
¶ 20. But, according to Plaintiff, Silk Almondmilk
beverages are “nutritionally inferior to dairy milk,
” and, had she known that, she would not have purchased
any, or would have paid less for them, or would have bought
an alternative product. See Id. at ¶¶ 12,
therefore claims the Silk Almondmilk products are
“misbranded” under 21 C.F.R. § 101.3(e)
(“§ 101.3(e)”) “because they
substitute for and resemble dairy milk, are nutritionally
inferior to dairy milk, and fail to state ‘imitation
milk' on their labels as required.” Doc. 13 at 11.
According to Plaintiff's opposition, her assertion that
Defendant's products violate § 101.1(e) forms the
basis for all of Plaintiff's claims. See Doc.
13 at 7 (Plaintiff stating her “UCL, FAL and CLRA
claims are principally predicated on Defendant's
violation of FDA regulation, 21 C.F.R. §
101.3(e)”); see also Id. at 9; id. at
moves to dismiss on a number of grounds. As a threshold
matter, Defendant argues Plaintiff does not have standing.
Second, Defendant contends Plaintiff's claims fail as a
matter of law because no reasonable customer would be misled
the use of the term “almondmilk” on its products.
Plaintiff's assertion that Silk Almondmilk beverages'
labeling violate § 101.3(e)-the basis for
Plaintiff's claims-Defendant argues that the beverages
are distinct from dairy milk, their labeling complies with
the applicable regulations, namely, 21 C.F.R. §§
101.3(b)(1)-(3), and is not otherwise misleading. Defendant
therefore contends Plaintiff seeks to impose labeling
requirements on Silk Almondmilk beverages that go beyond what
is required by the Food, Drug, and Cosmetic Act
(“FDCA”), 21 U.S.C. §§ 301-399f, and,
accordingly, Plaintiff's claims are expressly preempted
by the FDCA.
STANDARDS OF DECISION
motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6) is a challenge to the sufficiency of the allegations
set forth in the complaint. A 12(b)(6) dismissal is proper
where there is either a “lack of a cognizable legal
theory” or “the absence of sufficient facts
alleged under a cognizable legal theory.” Balisteri
v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.
1990). In considering a motion to dismiss for failure to
state a claim, the court generally accepts as true the
allegations in the complaint, construes the pleading in the
light most favorable to the party opposing the motion, and
resolves all doubts in the pleader's favor. Lazy Y.
Ranch LTD v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008).
survive a 12(b)(6) motion to dismiss, the plaintiff must, in
accordance with Rule 8, 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). “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.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). “The plausibility
standard is not akin to a ‘probability requirement,
' but it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Id. (quoting
Twombly, 550 U.S. at 556). “While a complaint
attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a Plaintiff's obligation to
provide the ‘grounds' of his ‘entitlement to
relief' requires more than labels and conclusions.”
Twombly, 550 U.S. at 555 (internal citations
omitted). Thus, “bare assertions . . . amount[ing] to
nothing more than a ‘formulaic recitation of the
elements' . . . are not entitled to be assumed
true.” Iqbal, 556 U.S. at 681. “[T]o be
entitled to the presumption of truth, allegations in a
complaint . . . must contain sufficient allegations of
underlying facts to give fair notice and to enable the
opposing party to defend itself effectively.” Starr
v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). In
practice, “a complaint . . . must contain either direct
or inferential allegations respecting all the material
elements necessary to sustain recovery under some viable
legal theory.” Twombly, 550 U.S. at 562.
Plaintiff has standing ...