United States District Court, N.D. California
HOWARD CLARK, TODD HALL, ANGELA PIRRONE, individually and on behalf of all others similarly situated, Plaintiffs,
THE HERSHEY COMPANY, a Delaware corporation, Defendant.
ORDER RE MOTION FOR SUMMARY JUDGMENT AND CLASS
WILLIAM ALSUP, UNITED STATES DISTRICT JUDGE.
food-mislabeling case, defendant moves for summary judgment
to dismiss all plaintiffs' claims. For the following
reasons, the motion is Granted.
The Hershey Company sells small ball-shaped dark chocolates
with a fruit-flavored center called “Brookside Dark
Chocolate.” Each of the Brookside products at issue in
this action are sold in packages with labels that represent
the product is made with “No Artificial Flavors.”
These products contain malic acid, a synthetic chemical (SAC
¶¶ 6, 18).
Howard Clark purchased the Brookside Dark Chocolate Acai
& Blueberry Flavored Product between April and July 2018.
Plaintiff Todd Hall purchased the Brookside Dark Chocolate
Pomegranate Flavored Product, the Brookside Dark Chocolate
Acai & Blueberries Flavored Product, and the Brookside
Dark Chocolate Goji & Raspberry Flavored Product from
around 2014 until approximately June 2018. Plaintiff Angela
Pirrone purchased Brookside Dark Chocolate Acai &
Blueberry Flavored Product and the Brookside Dark Chocolate
Pomegranate Flavored Product from approximately March 2014 to
August 2018 (SAC ¶¶ 63, 67, 71). Based on these
facts, plaintiffs allege defendant's Brookside Dark
Chocolate candy products violate California, New York, and
federal statutes because the “No Artificial
Flavors” labeling statement is false and misleading due
to the presence of malic acid in the product.
filed their initial complaint in October 2018. The operative
complaint, filed in March 2019 alleges twelve claims,
including (1) fraud by omission, Cal. Civ. Code §§
1709-1710, (2) negligent misrepresentation, Cal. Civ. Code
§§ 1709-1710, (3) violation of California's
Consumers Legal Remedies Act (CLRA), Cal. Civ. Code
§§ 1750, et seq., (4) violation of
California's Unfair Competition Law, Cal. Bus. &
Prof. Code §§ 17200, et seq., (5)
violation of California's False Advertising Law, Cal.
Bus. & Prof. Code §§ 17500, et seq.,
(6) breach of express and implied warranties, Cal. Com. Code
§§ 2313 and 2314, (7) violations of §§
349 and 350 of New York General Business Laws, and (8) claims
for breach of express and implied warranties under New York
U.C.C. §§ 2-313 and 2-314.
December 2018, defendant filed a motion to dismiss on the
ground plaintiffs failed to state particularized facts that
the products use malic acid as an “artificial
flavor” for many distinctly flavored products rather
than for its actual use as a pH control aid. The motion was
treated as a summary judgment motion under Rule 12(d) and
denied given the genuine dispute as to whether malic acid
acts as a flavoring agent in the Brookside products (Dkt.
Nos. 18, 44, 84). In September 2019, plaintiffs moved for
class certification. Two weeks later defendant filed the
instant summary judgment motion. This order follows full
briefing and oral argument.
Rule 56(a), a movant is entitled to summary judgment if
“there is no genuine dispute as to any material
fact.” A fact is material when it affects the outcome
of the case. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). Although the moving party bears
“the initial burden of production and the ultimate
burden of persuasion” on summary judgment, Nissan
Fire & Marine Ins. Co., Ltd. v. Fritz Companies,
Inc., 210 F.3d 1099, 1102 (9th Cir. 2000), once it has
discharged that burden, the nonmovant must “go beyond
the pleadings and . . . designate specific facts showing
there is a genuine issue for trial.” Celotex Corp.
v. Catrett, 477 U.S. 317, 323-24 (1986) (internal
citation and quotation marks omitted). The nonmoving
party's evidence must be sufficient such that the record,
taken as a whole, could support a rational trier of fact in
finding for the nonmoving party on that issue. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986). If conflicting inferences may be drawn from the
facts, the case must go to the jury.” LaLonde v.
Cnty. Of Riverside, 204 F.3d 947, 959 (9th Cir. 2000).
initial matter, there is a distinction between the terms
artificial ingredient and artificial flavor. Plaintiffs cite
to various decisions in our district and from the United
States District Court for the Southern and Central Districts
of California to argue that the two terms are
interchangeable. Not so. Although our court of appeals
hasn't yet provided any guidance regarding the two terms,
FDA regulations define artificial flavor as “any
substance, the function of which is to impart flavor.”
“Artificial ingredients, ” by contrast, cover a
wider range of substances. See 7 C.F.R. §
205.2. Put another way, artificial ingredients include all
artificial flavors but artificial flavors do not include all
artificial ingredients. For example, erythrosine is a red,
artificial compound that is used for food coloring.
Erythrosine would be classified as an artificial ingredient.
It would not, however, be classified as an artificial flavor
because it is flavorless and accordingly, not used to impart
flavor in a product.
instant case, plaintiffs have alleged that each of the
Brookside products in question “contain an artificial
flavoring ingredient called d-1 malic acid.” The crux
of plaintiffs' argument based on their second amended
complaint is that they were misled by the “No
Artificial Flavors” label into believing the products
were “flavored only with natural ingredients”
(SAC ¶¶ 6-7).
Injury and Causation.
California consumer protection laws under which plaintiffs
raises claims under allow remedies only to consumers who
suffer an injury as a result of the alleged misconduct. An
injury can occur in instances where a consumer was deceived
by a product's label into spending money to purchase the
product he would not have otherwise purchased. Kwikset
Corp. v. Superior Court, 51 Cal.4th 310, 317 (2011). An
injury can also occur in instances where the product
purchased costs more than similar products without misleading
labeling. Koh v. S.C. Johnson & Son, Inc., No.
C-09-00927 RMW, 2010 WL 94265, at *2 (N.D. Cal. Jan. 6,
2010). Causation is also a necessary element under California
law. Specifically, plaintiff must demonstrate that he or she
would not have bought the product but for the
misrepresentation. Kwikset at 330. The New York laws
plaintiffs raise their claims under similarly provide
remedies only to consumers who are injured “by reason
of” the alleged mislabeling but does not explicitly
require reliance. New York GBL§ 349(h).
Howard Clark, a California resident, claims he suffered an
injury as a result of the alleged product mislabeling because
he would not have purchased the Brookside products if had
known the product contained d-1 malic acid. He stated in his
April 2019 deposition:
Q: Now, you've alleged in this lawsuit that you would not
have purchased the product, or you would have paid less if
you had known that there was DL malic acid in ...