Wednesday, May 29, 2013

Particularity dooms another food case

Maxwell v. Unilever U.S., Inc., 2013 WL 1435232 (N.D. Cal.)

Maxwell sued defendants alleging that several food/beverage labels (mainly tea in bottles and bags) and related websites contained statements amounting to misbranding, in violation of California and federal law. The court granted defendants’ motion to dismiss.  She sought to define the products she was attacking as “1) any carbonated beverage manufactured, distributed or bottled under the authority of the Defendants that contained an artificial flavoring, artificial coloring, or chemical preservative but failed to bear a statement on its label disclosing that fact, or 2) any Lipton or Brisk tea products.”  She alleged various false/misleading/unlawful statements, including nutrient content claims, “natural” claims, failure to disclose artificial ingredients, and health claims/use of “healthy.” She alleged that she read and relied on these statements and wouldn’t have bought the products if she’d known the truth.

The court first dismissed her breach of warranty claims. The Song-Beverly Act provides a right of action for violations of express or implied warranties, but excludes consumables.  Maxwell argued that express warranties against a product defect for consumables were covered, but the claims at issue weren’t express warranties against a product defect, but rather product descriptions.  For similar reasons, there was no federal Magnuson-Moss Warranty Act claim.

Rule 9(b) applied to the remaining California claims.  And they weren’t clear and particular enough.  They didn’t unambiguously specify the particular products violating particular labeling requirements, the allegedly unlawful representations, or the particular statements on which Maxwell relied.  The carbonated beverage/Lipton or Brisk tea groups were “non-definite.”  Maxwell enumerated at least eight products that she bought, but also claimed to buy “Lipton Brisk tea products such as Lipton Brisk Lemon Iced Tea and Pepsi carbonated beverages such as Pepsi,” and “Misbranded Food Products.”  “The placement of the ambiguous assertion that she purchased a non-definite group of products alongside the enumerated list creates ambiguity and confusion as to precisely which products Plaintiff purchased.”

Similarly, she alleged that “Defendants have made multiple unlawful antioxidant claims about their tea and other beverage products,” and that “[t]he antioxidant labeling for Lipton Tea products violates federal and California law.” But while the complaint had a “thorough” discussion about the state and federal labeling requirements for antioxidant-related labeling statements, it failed to “unambiguously” identify which particular products' labeling violated these requirements and “present the precise language that constitutes misrepresentation.”  And in the section titled “Causes of Action,” she didn’t mention a single particular or specific product with allegedly unlawful labeling, only the indefinite “Misbranded Food Products.”

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