Ivie sued Kraft for the usual California claims based on allegedly unlawful and misleading labels or packaging on a variety of defendants' consumer food products, including gum, crackers, granola, fruit punch, cheese, nut mix, lemonade, stuffing mix, Jell–O, and Easy Mac. She alleged that, had she not been misled, she would’ve foregone purchasing the products and bought something else that was cheaper. She also brought claims based on products that she didn’t buy but that had similar labels, including Back to Nature Classic Cream Cookes, Fudge Mint Cookies, and Fudge Striped Cookies (“no artificial flavors or preservatives” claims), Halls Refresh Sugar Free Drops (“sugar free” claims); and (4) Trident White Spearmint Sugar Free Gum (“sugar free” claims).
Kraft’s argument that Ivie received gum and nuts and sweet beverages and thus suffered no injury failed because she alleged that she wouldn’t have bought the products if she’d known the truth, which was economic injury in fact. However, the court dismissed claims based on products she didn’t buy, despite recognizing a split on the issue.
The court next turned to Kraft’s argument that Pom Wonderful LLC v. Coca-Cola Co., 679 F.3d 1170 (9th Cir. 2012), precluded the claims, because allowing state law claims would undermine Congress’s decision to limit enforcement of the FDCA to the federal government. Astiana v. Hain Celestial Grp., -- F. Supp. 2d --, 2012 WL 5873585 (N.D. Cal. 2012), recently accepted this argument as to the terms “all natural,” “pure natural,” and “pure, natural, and organic.” Where the FDA has yet to speak on whether a particular label or claim is unlawful or misleading, the primary jurisdiction doctrine may justify dismissal of state law claims. But where FDA policy is clearly established, the doctrine doesn’t apply because there’s little risk of undermining the FDA’s expertise. Here, the doctrine didn’t apply to the vast majority of the state law claims, because Ivie’s arguments were predicated on violations of California law identical to FDA provisions requiring no original judicial interpretation. The exception was the “one mint” serving size claims, where the FDA was currently engaged in rulemaking on its requirements for breath mints.
The court then turned to whether Ivie was really asserting claims identical to those required by the FDCA/FDA and did a regulation by regulation analysis. The “natural lemon flavor” claim was dismissed because, even if the product contained artificial ingredients, it wasn’t alleged to contain ingredients contributing to the lemon flavor (which would’ve required a different label). However, the claim against “No artificial sweeteners or flavors” was based on the argument that maltodextrin and sodium citrate were sweeteners or flavoring agents; although they were not defined to be such by the FDA, the FDA definitions also didn’t exclude the possibility that they could be used in a drink mix as such, so this was inappropriate for a motion to dismiss. Etc.—some claims were dismissed because the product labels contained the required statements, while one product didn’t contain “See nutrition information for fat content” while still making “reduced fat” claims.
Ivie argued that Kraft’s Back to Nature granola and crackers contained misleading “evaporated cane juice” claims since that’s just a type of sugar and shouldn’t be characterized as a type of juice. In 2009, the FDA published a draft guidance indicating FDA’s view that the term “is not the common or usual name of any type of sweetener, including dried cane syrup…. FDA considers such representations to be false and misleading … because they fail to reveal the basic nature of the food and its characterizing properties (i.e., that the ingredients are sugars or syrups).” This was a clear FDA position, and though it wasn’t legally enforceable, it was enough to allow the case to go forward by establishing that the labels could be deceptive or misleading to a reasonable consumer, and there was no risk of undermining the FDA’s rulemaking expertise.
Ivie also alleged that the “natural cheese” and “100% natural” labels on Kraft Mexican Style Four Cheese and Back to Nature granola and crackers respectively were false and misleading because they contained many artificial ingredients. Many courts in the Northern District of California have rejected arguments that “natural”-based claims are expressly preempted. The FDA has declined to adopt a specific “natural” regulation, but its policy has been that “natural” means that “nothing artificial or synthetic (including all color additives regardless of source) has been included in, or has been added to, a food that would not normally be expected to be in the food.” This was sufficiently clear to allow the case to proceed without preemption; naturalness was a factual determination on a product-by-product basis.
The restitution/unjust enrichment claims were dismissed as duplicative; the Song-Beverly warranty claims were dismissed because that law doesn’t apply to consumables; and the Magnuson-Moss warranty claims were dismissed because food labels aren’t warranties against product defects but rather product descriptions.