State Consumer Protection Laws
The U.S. District Court for the Northern District of California grants in part and denies in part defendant Corsair Gaming, Inc.’s (“Corsair”) motion to dismiss. Corsair manufactures and sells high-speed computer memory sticks. These memory sticks function when they are plugged into the memory slots of a personal computer. In its advertisements and on its packaging for the memory sticks, Corsair lists a speed rating that signifies “how fast the memory can transfer data,” measured in Megahertz (MHz); the higher the number of MHz, the faster the memory (and the computer) performs. Plaintiffs bought Corsair products that displayed a speed of 3200 MHz on the packaging. They alleged that Corsair misrepresented the speed in violation of common law and California’s Unfair Competition Law, False Advertising Law, and Consumers Legal Remedies Act, as well as the consumer protection laws of 43 other states. Specifically, the plaintiffs claimed that the representations of a specific speed indicated to reasonable consumers that the memory would run at the stated speed right out of the box, i.e., after being plugged into a computer without additional action by the consumer. Plaintiffs further asserted that Corsair’s 3200 MHz memory sticks did not operate at the advertised speed out of the box. Their second theory was that, when consumers optimize their system to run the memory, there was a substantial risk that the memory still does not work reliably. A blog post on Corsair’s website admitted that the ability to achieve high speeds through optimizing is a “lottery.” In its decision, the court found that the plaintiffs failed to allege deception as to the online advertising because they did not allege where exactly they viewed Corsair’s purportedly deceptive advertisements, instead claiming generally that they relied on “Corsair’s online ads.” Additionally, the plaintiffs could not state a claim to the extent that they saw and relied on third-party advertisements, because they failed to attribute those statements to Corsair. However, the plaintiffs sufficiently alleged that they relied on the speed designation contained on the memory sticks’ packaging and that Corsair’s products failed to achieve the advertised speeds. The court rejected Corsair’s argument that the “reasonable consumer” test should ask what was reasonable to a “targeted group” of consumers, rather than to the general public because consumers of their high-end memory products were more sophisticated than ordinary memory consumers and would not construe listed speeds as literal out-of-the-box speeds. The court held that the inquiry into whether a targeted reasonable consumer standard should apply was not appropriate at the pleadings stage. Next, the court rejected Corsair’s argument that other statements on its packaging put reasonable consumers on notice about the need for optimizing and that the memory might not run consistently across all systems. For example, the products’ packaging stated, “Intel® XMP Certified,” a designation that the plaintiffs admitted “requires altering the BIOS.” The court found that a representation that signifies a product is “certified” to operate with a certain configuration does not necessarily defeat a reasonable consumer’s belief that the product will operate at the stated speed out of the box. Finally, the court rejected Corsair’s argument that other statements on its website and advertisements put consumers on notice that functionality is not guaranteed across systems or out of the box. Accordingly, the Court denied Corsair’s motion to dismiss with respect to the misrepresentation claims related to statements on the packaging. Finally, the court rejected Corsair’s argument that the class allegations should be partially stricken because the plaintiffs lacked standing to bring claims on behalf of a class. First, Corsair argued that Mazza v. American Honda Motor Co., Inc., 666 F.3d 581 (9th Cir. 2012) held that, because California’s consumer laws differ from those in other states, plaintiffs cannot bring claims arising under the laws of states where the representative neither resides nor suffered injury. Second, Corsair argued that the plaintiffs lacked standing to assert claims involving products that they did not purchase. The court held that Corsair did not provide a sufficient description of other state laws to meet its burden of showing that the plaintiffs lacked standing to bring claims under these other states’ laws. But the court agreed to strike the class claims to the extent they referred to products that the plaintiffs did not buy. (McKinney v. Corsair Gaming, Inc., 2022 WL 2820097(N.D. Cal. July 19, 2022)).
The U.S. District Court for the Western District of Pennsylvania grants in part and denies in part defendant JM Brands, Inc.’s motion to dismiss, granting the motion without prejudice to the claims based on “advertising” and “marketing” materials, but denying the motion as to claims related to, among other things, violation of the state consumer protection statute. Plaintiff claimed that she bought the defendant’s haircare product based on the representation that the product was “natural,” which appeared on the front label. Plaintiff interpreted “natural” to mean that there were “no synthetic ingredients,” even though the product’s back label contained the “full ingredients list in finer print,” which the plaintiff did not examine thoroughly. Plaintiff brought suit for false advertising after she discovered the product’s synthetic ingredients. Defendant argued that the plaintiff’s claims were preempted by federal product-labeling law, that the plaintiff lacked standing, and that the plaintiff failed to state a claim under the applicable heightened pleading standard. The court concluded that the plaintiff’s claims were not preempted because the FDA has not clearly defined “natural” with respect to cosmetics, declined to invoke primary jurisdiction and refer the matter to the FDA because the matter was neither one of first impression nor required the agency’s expertise, and acknowledged that the FDA has failed to take up this issue previously. The court also held that the plaintiff had individual standing because she bought the product; however, the class members’ standing would be determined at the certification phase. (Binakonsky v. JM Brands, Inc., 2022 WL 2757674 (W.D. Pa. July 14, 2022)).
The U.S. District Court for the Northern District of California grants in part and denies in part defendant Sprout Foods, Inc.’s motion to dismiss a complaint alleging that Sprout’s baby and toddler food products make nutrient content claims prohibited by the FDA, such as “3g of Protein” and “4g of Fiber.” FDA regulations do not permit nutrient content claims on products intended for specific use by children below two years of age. Applying Hawkins v. Kroger Company, 906 F.3d 763 (9th Cir. 2018), the court held that the inclusion of statements about levels of a nutrient is a nutrient content claim, even if the information is also included in the Nutrient Facts Panel. Thus, because the plaintiffs alleged that Sprout’s labels contained such statements, they adequately alleged an unlawful practice in violation of California’s Unfair Competition Law (“UCL”). However, the plaintiffs failed to adequately state their fraud-based claims under the California Consumers Legal Remedies Act and False Advertising Law, common-law, and the UCL because they did plausibly allege that the inclusion of nutrient content claims would mislead a reasonable consumer. Plaintiffs theorized that the inclusion of nutrient content claims would mislead consumers into believing that an increased intake of the advertised nutrients is important for their child when, in fact, there is a lack of evidence to support such a claim. But the complaint alleged no facts supporting the proposition that there is a lack of evidence as to the value of the advertised nutrients. Plaintiffs also argued that the claims mislead consumers into believing that the products were superior to others without the nutrient content claims, but the advertised statements were facially true and did not reference competing products. (Davidson v. Sprout Foods, Inc., 2022 WL 2668481 (N.D. Cal., July 11, 2022)).
Consumer Class Actions
The U.S. District Court for the Southern District of New York grants the defendant Kellogg Sales Company’s motion to dismiss a putative class action alleging violations of state consumer protection laws based on the represented “amount of strawberries” in Kellogg’s “Whole Grain Frosted Strawberry” breakfast pastry, “Pop Tarts.” Plaintiff argued that the label was misleading because consumers would expect more strawberries in the product based on its labeling and not “mostly non-strawberry fruit ingredients” (e.g., pears and apples). Plaintiff insisted that the front label showed an image of only strawberries and lacks a percentage of strawberries to other fruits, observed that the ingredient list’s “fine print” revealed that that there is less strawberry than the other fruits, and argued that the product deceives consumers as vegetable juice and paprika extract are used for the product’s red color. Kellogg argued that the front label was not misleading because it did not represent that the product did not contain fruits other than strawberries, that strawberries predominated other fruits in the filling, or that strawberries were included in the filling, as well as that “strawberry” accurately conveyed the strawberry-tasting filling. The court viewed the strawberry photo in context and found that a reasonable customer would not be misled based on the packaging because no reasonable consumer would reasonably expect that “fresh strawberries” are the product’s sole ingredient based on the entire product label, as well as the “Whole Grain Frosted Strawberry” text with an image of the frosted, sprinkled strawberry pastry. Kellogg argued that the “Made With Whole Grain” statement on the packaging was irrelevant to the plaintiff’s claim that the “strawberry” representations were false or misleading. The court agreed. Kellogg also asserted that “the red food coloring does not exaggerate the amount of strawberries in the filling.” The court found that plaintiff could not “plausibly allege that the red filling falsely implies the presence, absence, or specific amount of strawberries or any ingredient.” The court found that all other state claims also failed as there was no material misrepresentation, and denied the plaintiff’s request for leave to amend the complaint. (Russett v. Kellogg Sales Co., 2022 WL 2789837 (S.D.N.Y. July 15, 2022)).
The U.S. District Court for the Southern District of New York grants defendant TomTom North America’s (“TomTom”) motion to dismiss a putative class action, alleging that TomTom misled consumers into believing that the “Lifetime Maps” feature included with one of TomTom’s navigation devices would prevent consumers from having to replace the device every few years. Plaintiff asserted claims for, among other things, violations of New York’s General Business Law (“GBL”) §§ 349 and 350, which prohibits deceptive acts and practices and false advertising. The Court easily dispensed of the majority of the claims, finding that the plaintiff abandoned them by failing to address arguments made in TomTom’s dismissal briefing, leaving only the GBL §§ 349 and 350 and trespass to chattel claims. Ultimately, the Court granted TomTom’s motion to dismiss these claims as well, holding that the plaintiff failed to assert a plausible claim for two reasons. First, the plaintiff did not allege a cognizable injury because the product that he purchased continued to have map updates available. Second, even if the plaintiff’s device was affected, he failed to show that a reasonable consumer would be deceived by the use of the word “Lifetime” on the device’s packaging because he did not account for the “entire context” of the label. Because the plaintiff previously was given lead to amend his complaint, the court dismissed the entire amended complaint with prejudice. (McVetty v. TomTom N. Am., Inc., 2022 WL 2789760 (S.D.N.Y. July 15, 2022)).
The U.S. District Court for the Northern District of California grants in part and denies in part defendants Bath & Body Works, LLC and Bath & Body Words, Inc.’s (together, “BBW”) motion to dismiss the first amended complaint in a putative class action alleging that BBW’s statement that hyaluronic acid “attracts and retains up to 1,000x its weight in water to make skin look smoother and more supple,” and other statements regarding hydration/moisturizing were false. The court, first, granted the motion to dismiss with regard to a statement that did not appear anywhere on hyaluronic acid products marketed or sold by BBW. Next, the court addressed plaintiff’s California Consumers Legal Remedies Act (“CLRA”), False Advertising Law (“FAL”), and Unfair Competition Law (“UCL”) claims. First, the court addressed the claim “Hyaluronic Acid attracts and retains up to 1,000x its weight in water to make skin look smoother and more supple,” finding that the three causes of action were adequately pled. Hyaluronic acid does not absorb anywhere near 1000x its weight in water, and the plaintiff provided allegations of affirmative evidence stating as such. Second, the court addressed the claim “Clinically Tested to Instantly Lock in Moisture.” It found that the plaintiff’s challenges to this claim were based on a lack of substantiation, and thus, dismissed them. Third, the court addressed the claims “Fastabsorbing formula immediately hydrates” and “Hyaluronic acid is a water loving molecule.” It held that the representations were non-actionable puffery, likening them to claims that characterize the speed of an action with terms like “fast,” and with subjective emotion terms like “love.” The court, then, permitted fraud and negligent misrepresentation claims to proceed as they related to the first set of claims, but not to those that were lack of substantiation or puffery claims. With regard to standing, BBW argued that the plaintiff lacked standing to sue over non-purchased products. The court agreed, finding that the plaintiff’s allegations were insufficient to support the inference that the non-purchased and purchased products were substantially similar. (Perez v. Bath & Body Works, LLC, 2022 WL 2756670 (N.D. Cal. July 14, 2022)).
The U.S. District Court for the Southern District of Illinois grants in part and denies in part defendant Hillshire Brands Co.’s motion to dismiss a consumer class action complaint alleging that defendant’s “Jimmy Dean” breakfast sandwich was falsely advertised as being “made with whole grain,” when the predominant grain ingredient in the product was enriched wheat flour. Finding the complaint “substantially similar to Mantikas v. Kellogg Co.,” and recognizing that a plaintiff “need only nudge . . . claims across the line from conceivable to plausible,” the court held that the plaintiff stated a claim under the Illinois Consumer Fraud and Deceptive Practices Act (“ICFDPA”) by plausibly alleging that the product was advertised as containing primarily whole grain when, in reality, it was primarily wheat flour. However, the court dismissed the common law fraud claim, finding that the plaintiff’s allegations did not meet the particularity requirement of Fed. R. Civ. P. 9(b). It also dismissed the negligent misrepresentation claim because the plaintiff alleged only a loss to an economic interest, and dismissed the request for injunctive relief because it is not possible for plaintiff to be harmed in the same manner in the future now that she understands that the product’s ingredient list discloses the true composition of the product.
(Sanders v. Hillshire Brands Co., 2022 WL 2643974 (S.D. Ill. July 8, 2022)).
The U.S. District Court for the Eastern District of New York grants defendant Igloo Products Corp.’s (“Igloo”) motion to dismiss a putative class action complaint, alleging that portable ice coolers manufactured by Igloo do not retain ice the way Igloo markets and advertises. Specifically, Igloo represented that its various coolers retain ice for three days, five days, seven days, or 120 hours, respectively. Igloo defined “ice retention” as “the amount of time that it takes ice to reach 39 degrees and begin to melt,” and its labels included clarifying language that the coolers retain ice “Under Controlled Conditions in 90 degrees constant.” Plaintiffs purchased, and took issue with, Igloo’s cooler that claimed to retain ice for 120 hours. The product’s label specified that it retained ice in “5 DAYS 32°C (90°f) HEAT. CONTINUOUS HEAT UNDER CONTROLLED CONDITIONS.” Plaintiffs both purchased the product after seeing its 120-hour ice retention claim, and they claimed that the product did not retain ice for the amount of time advertised. They contended that Igloo knew this but continued to represent the product’s quality and fitness. Plaintiffs alleged violations of New York General Business Law (“GBL”) §§ 349 and 350, New Jersey’s Consumer Fraud Act (“NJCFA”), negligent misrepresentation, and fraud, among other things. Igloo moved to dismiss for lack of standing and failure to state a claim. First, it argued that the plaintiffs lacked Article III standing to pursue injunctive relief because they could not demonstrate a risk of future harm. The court agreed. As it explained, a plaintiff seeking injunctive relief must prove that the injury, in fact, presents a real and immediate threat of repeated injury, and Second Circuit precedent provides that past purchasers of a product are not likely to encounter future harm of the kind that makes injunctive relief appropriate. The court held that the plaintiffs cannot show an imminent risk of future deception and injury because, even if they did purchase the product again, they would do so with the level of information that they possessed at the outside of the lawsuit, and, therefore, would not be deceived or harmed. Thus, the court held that the plaintiffs lacked standing to seek injunctive relief. Second, Igloo argued that the plaintiffs failed to state claims for damages. With respect to the GBL claim, the court held that the plaintiffs failed to adequately allege an essential element of the claim—that the product’s ice retention claim could deceive a reasonable customer. As the court acknowledged, the product’s label specified that the cooler may only retain ice for “up to” 120 hours and clarified that the ice retention was only applicable in continuous heat under controlled conditions. The court found that this language notified reasonable consumers that the product will only achieve the advertised 120-hour retention claim under specific conditions and, therefore, held that no reasonable consumer would view the labels as misleading. The court added that the plaintiffs also failed to allege that the purportedly deceptive transactions occurred in New York, and that claiming that one plaintiff was a New York resident alone was insufficient to state a claim under the GBL. Thus, the GBL claim was dismissed. Regarding the plaintiffs’ NJCFA claim, the court held that they failed to adequately allege that they suffered an ascertainable loss as a result of the allegedly unlawful conduct. Specifically, although the New Jersey plaintiff claimed that he paid a premium price in reliance on the labeling and that he would not have purchased the product but for the misrepresentations, the court found that he failed to allege facts comparing the product to cheaper alternatives or methods for quantifying his loss. This failure was fatal to the NJCFA claim. More specifically, the court held that, absent allegations concerning price information about comparable ice coolers and about how the price paid was a “price premium,” the allegation that a plaintiff would not have bought the product at a price premium and would have purchased a less expensive cooler was an unsupported conclusory statement insufficient to plead ascertainable loss. Accordingly, the court dismissed the NJCFA claim. The court also dismissed the negligent misrepresentation claims on grounds that the plaintiffs were required, but failed, to show the existence of a special or privitylike relationship imposing a duty on Igloo to impart correct information on them. The court noted that courts consistently have held that advertisements alone are insufficient to form a special relationship. Finally, Igloo argued that the plaintiffs’ fraud claims failed because Igloo did not misrepresent its product’s ice retention capabilities and because the plaintiffs did not adequately allege reliance. One element of their fraud claims was fraudulent intent, but the court held that the plaintiffs’ allegations of fraudulent intent were conclusory. Specifically, they alleged that Igloo intentionally made materially false and misleading representations that the product was tested in a lab to be used in real-life settings, that the product was expected to exceed the claim in laboratory setting, and that the “up to” phrase evinced Igloo’s intent to make consumers believe that the ice retention applies in normal settings. The court held that these allegations were insufficient to establish fraudulent intent. It further found that the plaintiffs failed to allege facts showing that Igloo had a strong motive to commit fraud, or circumstantial evidence of conscious misbehavior or recklessness. Notably, the court held that “simply alleging a defendant’s self-interested desire to increase sales does not give rise to an inference of fraudulent intent.” The fraud claims were therefore dismissed as well. (Chung v. Igloo Prod. Corp., 2022 WL 2657350 (E.D.N.Y. July 8, 2022)).
The U.S. District Court for the Northern District of California denies defendant Whole Food Markets California, Inc.’s motion to dismiss in a putative class action asserting state law false advertising claims arising out of labeling for the defendant’s “365 Everyday Value” brand coffee creamer. Plaintiffs alleged that the defendant misleadingly and deceptively stated, in violation of Food and Drug Administration (“FDA”) regulations, “Vanilla” and “Naturally Flavored” on the front label of the product even though it purportedly contained artificial vanilla flavoring. Plaintiffs contended that the defendant’s labeling of the product misled consumers into believing that “the predominant or exclusive source of the Product’s vanilla taste will be the natural flavor of vanilla, and the product will not contain artificial flavoring.” Plaintiffs alleged, based on scientific testing that they conducted, that the product contains ethyl vanillin, which is made through a non-natural process. As such, the plaintiffs claimed that by omitting “Artificially Flavored” from the product’s front label as required under FDA regulations, and by displaying instead “Naturally Flavored,” the defendant gave consumers a false expectation that most or all the product’s flavoring comes from the natural flavor of vanilla and not any artificial or synthetic flavoring. Plaintiffs brought claims alleging, among other things, violations of California’s Unfair Competition Law (“UCL”), False Advertising Law (“FAL”), and Consumers Legal Remedies Act (“CLRA”), and the Nevada Deceptive Trade Practices Act (“NDTPA”). Defendant moved to dismiss the operative complaint for failing to (1) establish the Nevada class’s Article III standing to sue a California corporation, (2) establish the court’s subject matter jurisdiction over the California class’s claims, (3) state a claim under Fed. R. Civ. P. 12(b)(6), and (4) allege inadequacy of legal remedies that warrants equitable claims. In response, the plaintiffs requested limited jurisdictional discovery and leave to amend the complaint again to name the proper defendant(s) and to cure other deficiencies in their pleadings. The court converted the motion to dismiss to a motion for partial summary adjudication and gave the parties “reasonable opportunity to present all the material that is pertinent to the motion,” and granted the parties a limited right of discovery on the issue of which Whole Foods Market entity may be liable for the alleged mislabeling. Following the court’s order, the parties submitted a joint stipulation regarding substitution of WFM Private Label LP for defendant Whole Food Markets California. The parties also agreed that the Nevada plaintiff would dismiss her claims, as well as the claims of the Nevada class, without prejudice. The parties further agreed that, if the stipulation were granted and the Nevada plaintiff and the other members of the proposed Nevada class were dismissed, that the portion of the defendant’s motion to dismiss regarding personal jurisdiction would be withdrawn as moot, with only the non-jurisdictional arguments remaining for decision by the court. The court granted the stipulation. As to the non-jurisdictional arguments, the court agreed that the plaintiffs plausibly alleged that the product’s label violates federal labeling regulations because it purports to be “naturally flavored” but, in fact, contains an artificial flavoring substance, yet omits the words “Artificially Flavored” from its label. The applicable Food, Drug, and Cosmetic Act section at issue states, “[i]f the food contains any artificial flavor which simulates, resembles or reinforces the characterizing flavor,” then the food must be labeled as “artificial” or “artificially flavored.” Plaintiffs supported their allegation that the product contained high levels of artificial flavoring with a test result showing ethyl vanillin at a high concentration. In addition, they sufficiently alleged that the product contained artificial vanillin, based the absence of expected amounts of key aromatic compounds—methyl cinnamate, cinnamyl alcohol, p-cresol, acetovanillone, p-hydroxybenzoic acid, vanillic acid, and 4-methoxybenzyl alcohol (p-anisyl alcohol). The court, however, found that the plaintiffs failed to plausibly allege that the vanillin in the product is artificial because “the absence of expected amounts of key aromatic compounds.” Defendant also argued that the plaintiffs failed to allege sufficient facts to demonstrate a plausible misrepresentation under UCL, CLRA and FAL because the product’s “vanilla” statement and images, without qualifiers such as “made with vanilla extract,” were mere flavor descriptions. The court found that the phrase “Naturally Flavored” appears to be a qualifier, and the allegation is that consumers would interpret the entire phrase “Vanilla Naturally Flavored” to mean that the flavoring is all-natural. Thus, the court found that the plaintiffs plausibly claimed that the defendant’s “Vanilla Naturally Flavored” representation on the product label was deceptive to a reasonable consumer. The court further concluded that the plaintiffs have a plausible claim of fraudulent or deceptive misrepresentation. The court rejected the defendant’s argument “[a]bsent any plausible allegation that the CLRA’s damages remedy is inadequate to compensate Plaintiff for her alleged harm, Sonner v. Premier Nutrition Corp., 971 F.3d 834 (9th Cir. 2020) bars her from seeking restitution—or any other equitable remedy.” The court explained that the injunctive relief that Plaintiffs request “is prospective” and their “remedy at law, damages, is retrospective,” their claim for an injunction did not appear to be barred by Sonner. (Warren v. Whole Foods Mkt. California, Inc., 2022 WL 2644103 (N.D. Cal. July 8, 2022)).
The U.S. District Court for the Central District of California grants in part and denies in part defendant Ride Aid Corporation’s motion to dismiss a putative class action alleging that Rite Aid cough syrup labeled as “non-drowsy” contained dextromethorphan hydrobromide (“DXM”), which made the plaintiff drowsy. Rite Aid, first, argued that the plaintiff’s claims were expressly preempted by FDA guidance and regulations regarding the labeling of over-the-counter cough medications—specifically, because the FDA does not require a drowsiness warning on medications containing DXM, the plaintiff seeks to impose nonidentical requirements on Rite Aid. The court found that plaintiff’s claims were not preempted because his argument was not that the medication should have carried a drowsiness warning, but rather, that the “non-drowsy” statement was misleading because the DXM in the product could cause drowsiness. Next, Rite Aid argued that the plaintiff’s claims pursuant to laws other than the state of California should be dismissed. Specifically, Rite Aid claimed that there are material differences between states’ consumer protection and warranty laws. Relying on Ninth Circuit precedent, the court agreed, holding that, “[b]ecause Plaintiff pled California, New York, and Rhode Island laws within his consumer protection class, there are material differences among the consumer protection laws Plaintiff seeks to certify into a single class that demonstrate that the class cannot be certified.” The court, then, turned to whether the plaintiff’s allegations met the heightened pleading standard of Fed. R. Civ. P 9(b) and found that they did. Plaintiff’s allegations similarly met the reasonable consumer standard—it was plausible that a reasonable consumer would understand “non-drowsy” to mean that a medication would not cause drowsiness. The court also determined that the plaintiff adequately pled claims for intentional and negligence misrepresentation. Further, the plaintiff met the low bar for pleading knowledge and intent, and the economic loss rule did not bar his claims. Finally, the plaintiff’s equitable relief claims were permitted to proceed; plaintiff alleged that he and other consumers “will not be able to rely on the labels in the future” if the labeling is not changed, and thus, there is a possibility of future harm. (Lemus v. Rite Aid Corp., 2022 WL 2721385 (C.D. Cal. July 7, 2022)).
The U.S. District Court for the Southern District of California grants in part and denies in part defendant Alani Nutrition, LLC’s motion to dismiss and strike class allegations. Plaintiffs filed a consumer class action alleging that the defendant’s “FIT SNACKS Protein Bars” were misleadingly labeled and marketed as healthy based on the term “FIT” on the label of the bars. In fact, the plaintiffs alleged that FIT Bars were high in fat and contained less than the daily value of Vitamin D and potassium, while also violating FDA’s labeling regulations. Based on these allegations, the plaintiffs alleged, among other things, violations of California and New York consumer protection laws. First, the court determined that the plaintiffs’ claims were not preempted. The court observed that, if the claims were premised on the theory that the defendant’s “FIT” labeling violated federal law for not being “healthy,” the claims would likely be preempted. However, the plaintiffs’ alternate theory that the term “FIT” was misleading in violation of federal law was not preempted, because the FDA has not yet defined “FIT.” Next, the court determined that the plaintiffs lacked Article III standing to seek injunctive relief, both because they failed to specifically allege an intent to ever purchase a FIT Bar again, and because they could not plausibly allege they could be deceived again, now that they know the truth. The court also granted dismissal with respect to the plaintiffs’ attempts to challenge advertising they did not see or rely upon, as the plaintiffs only alleged they saw the label on the wrappers of the bars. But the court denied dismissal as to the plaintiffs’ standing to bring claims with respect to six different FIT Bars, reasoning that the plaintiffs may have purchased all six bars, and it appeared that all six were identical in terms of labeling and relevant nutritional composition. The court struck the nationwide class claims, reasoning that the plaintiffs lacked standing to bring claims under the laws of states in which they did not reside and had no connection. The court denied dismissal with respect to the substance of the plaintiffs’ fraud claims, reasoning that the allegations that (i) the plaintiffs thought the “FIT” label meant the bars were healthy, (ii) the bars were not healthy, (iii) the plaintiffs relied on this representation, and (iv) the plaintiffs provided a general timeframe when they purchased the bars, were sufficient to state a fraud claim. The court did carve out the plaintiffs’ claims regarding protein and weight loss, reasoning that nothing in the term “FIT” conveys anything to the reasonable consumer regarding protein or weight loss. (Vitiosus v. Alani Nutrition, LLC, 2022 WL 2441303 (S.D. Cal. July 5, 2022)).
The U.S. District Court for the Northern District of California grants defendant Nestle HealthCare Nutrition, Inc.’s motion to dismiss. Plaintiffs filed a putative class action alleging that the defendant’s health drinks “trick” reasonable consumers into believing the products can prevent and treat diabetes, with representations like “Designed for people with diabetes,” “Boost Glucose Control,” and “Helps manage blood sugar.” Based on these allegations, the plaintiffs asserted claims under California and New York consumer protection laws, breach of express warranty, and unjust enrichment. The court dismissed the complaint. First, it determined that most of the plaintiffs’ claims were not preempted, considering that two of the products with the above three statements collectively constituted a “health claim” that is not preempted. However, for the final product, which only had the statements “BOOST Glucose Control” and “Helps manage blood sugar,” because those two statements did not refer to a specific disease or health-related condition, the challenged product did not make any health claim, and the plaintiffs’ claim, thus, was dismissed as preempted because it fell outside the boundaries of the federal Nutrition Labeling and Education Act. Next, the court granted the motion with respect to the state consumer protection law claims, determining that reasonable consumers, particularly those with diabetes who monitor their blood sugar, “understand that consuming food, including nutritional drinks like Boost, impacts blood sugar levels.” The court was unwilling to accept that a reasonable consumer would take these representations to mean that the challenged products on their own would treat diabetes or maintain healthy glucose levels. The court also noted that, in this case, the plaintiffs did not contend that the product labels misstate the contents, or that they misrepresent the ingredients, sugar, or carbohydrates. The court further determined that the plaintiffs did not sufficiently plead injury, because they did not allege whether they had diabetes, whether they consumed the products, or whether they were injured after ingesting the drinks, and merely “announc[ing] that they have suffered injury based on their payment of a ‘premium price’ was insufficient.” Finally, the court determined that the plaintiffs’ fraud claims could also be dismissed under Fed. R. Civ. P. 9(b), as their allegations did not describe how they were led to believe that the Boost products treated diabetes or otherwise fell short of the representations on the labels. (Horti v. Nestle HealthCare Nutrition, Inc., 2022 WL 2441560 (N.D. Cal. July 5, 2022)).
Recent Filings
Putative nationwide class action filed in the U.S. District Court for the Central District of California against Ambrosia Nutraceuticals LLC, alleging violations of California’s False Advertising Law and Unfair Competition Law, as well as Florida’s Deceptive and Unfair Trade Practices Act. According to the complaint, the defendant’s labeling of its “Planta” protein products as “gluten free” is misleading because the products contain gluten. Plaintiff claims that he discovered that the product contained gluten after he became sick from consumption. (Musa v. Ambrosia Nutraceuticals LLC, No. 22-cv-1330 (C.D. Cal. filed July 18, 2022)).
Putative nationwide class action filed in the U.S. District Court of New Jersey against Cellco Partnership and Verizon Communications Inc., alleging violations of New York’s consumer protection statute covering false advertising and deceptive practices, the Washington Consumer Protection Act, the Oregon Unlawful Trade Practices Act, New Mexico’s Unfair Practices Act, and Hawaii’s Deceptive Practices Act. According to the complaint, the defendant’s sign-up policies and practices regarding its wireless service are misleading because the defendant charges administrative charges on top of the advertised and promised prices. Plaintiff claims that the administrative charges are not adequately disclosed to customers either before or when they agree to purchase the wireless service. (Corsi v. Cellco P’Ship, et al., No. 22-cv-4621 (D.N.J. filed July 18, 2022)).
