United States District Court, N.D. California
SHANA BECERRA, individually and on behalf of a class of similarly situated persons, Plaintiff,
THE COCA-COLA COMPANY, Defendant.
ORDER GRANTING MOTION TO DISMISS
WILLIAM ALSUP UNITED STATES DISTRICT JUDGE
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.
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
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
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
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.
now moves to dismiss Becerra's complaint pursuant to FRCP
12(b)(6). This order follows full briefing and oral argument.
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).
Express Preemption and Safe Harbor.
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).
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