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Becerra v. Coca-Cola Co.

United States District Court, N.D. California

February 27, 2018

SHANA BECERRA, individually and on behalf of a class of similarly situated persons, Plaintiff,
v.
THE COCA-COLA COMPANY, Defendant.

          ORDER GRANTING MOTION TO DISMISS

          WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         In this putative class action, defendant soft drink manufacturer moves to dismiss the complaint pursuant to FRCP 12(b)(6). Its preemption argument is rejected, but for other reasons stated herein, its motion is Granted.

         STATEMENT

         Plaintiff Shana Becerra brings this putative class action against defendant The Coca-Cola Company over its labeling of “Diet Coke.” Coca-Cola first introduced Diet Coke in 1982, as a sugar- and calorie-free version of its flag-ship cola.

         The following facts are taken from the amended complaint. For many years, Becerra purchased and consumed Diet Coke in part because she believed, based on Coca-Cola's advertising of the product as “diet, ” that it would contribute to weight loss or healthy weight management. But for this belief, Becerra claims she would not have purchased Diet Coke.

         The science, she alleges, now shows Diet Coke consumption actually leads to the exact opposite - weight gain. Becerra's complaint cites numerous scientific studies purportedly suggesting that nonnutritive sweeteners, like those used in Diet Coke, do not assist in weight loss or healthy weight management, because nonnutritive sweeteners like aspartame interfere with the body's ability to properly metabolize calories, leading to weight gain and increased risk of metabolic disease, diabetes, and cardiovascular disease.

         In October 2017, Becerra commenced this action against Coca-Cola seeking to represent a state-wide class of persons in California who purchased Diet Coke in cans or bottles on or after October 26, 2013 for personal or household use. Becerra asserts claims for violations of the California False Advertising Law, the California Consumers Legal Remedies Act, the California Unfair Competition Law, for breach of express warranty, and for breach of implied warranty.

         Coca-Cola now moves to dismiss Becerra's complaint pursuant to FRCP 12(b)(6). This order follows full briefing and oral argument.

         ANALYSIS

         Coca-Cola argues federal law preempts all of Becerra's claims, and that even if not preempted, Becerra's claims are barred by California's safe harbor rule. This order also addresses the pleading standard under FRCP 9(b).

         1. Express Preemption and Safe Harbor.

         In 1990, Congress passed the Nutrition Labeling and Education Act, which amended the Food, Drug and Cosmetic Act, and established uniform food labeling requirements to address the need for “consistent, enforceable rules pertaining to the claims that may be made with respect to the benefits of nutrients in foods.” Pub. L. No. 101-535, 104 Stat. 2353 (1990); H.R. Rep. 101-538, at 8 (1990). In order to achieve its goal of uniformity, the NLEA included an express preemption provision that no state may directly or indirectly establish any requirement for the labeling of food that is “not identical to” certain federal requirements. 21 U.S.C. § 343-1. A state regulation is “not identical to” a federal regulation if it imposes any obligation that differs from those specifically imposed by or contained in the applicable provision (including any implementing regulation). 21 C.F.R. § 100.1(c)(4)(ii).

         One provision with such preemptive effect is Section 343®, which describes when a label containing nutrition content and health-related claims will be deemed misbranded. Section 343(r)(2)(D) provides an exception for the use of the term ...


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