Monday, March 04, 2013

Another food case gets cut back

Lanovaz v. Twinings North America, Inc., 2013 WL 675929 (N.D. Cal.)

Lanovaz filed a putative class action under the UCL, FAL, CLRA, Song-Beverly Act, and Magnuson-Moss Warranty Act, based on claims that Twining’s green tea was allegedly misbranded.  The box label describes the tea as a “natural source of antioxidants.” Lanovaz alleged that Twinings was making unlawful nutrient content claims, unlawful antioxidant claims, unlawful/unapproved health claims, and unlawful disease prevention/treatment claims.

Twinings moved to strike claims about statements Lanovaz didn’t see and products she didn’t buy, since she only bought the 1.41 oz. box of Green Tea and didn’t specifically identify other products or other information on which she relied, despite references to buying other Twinings products and viewing its website. In general, a person can’t expand claims to include products not purchased or ads not relied on. Acknowledging the judicial split on the issue, the court held that there could be no injury, as required, where the plaintiff didn’t herself buy the product at issue.  So she could only proceed based on the green tea product bearing the label “natural source of antioxidants.”  (I assume she’s allowed to represent those who bought 4 oz. boxes … or is she?)

Twinings then argued that her claims were preempted by the FDCA/NLEA.  Lanovaz rejoined that she was suing under California state law, which adopts rules identical to those of the FDCA/NLEA/FDA regulations, something specifically allowed by the NLEA’s preemption provisions.  Twinings relied on Pom Wonderful LLC v. Coca–Cola Co., 679 F.3d 1170 (9th Cir. 2012), where the Ninth Circuit barred a Lanham Act claim against a label that apparently was authorized under FDA regulations.  If the FDA declined to impose labeling requirements, the Lanham Act couldn’t do so.  Pom was inapposite.  First, it wasn’t about state law claims and indeed remanded the UCL/FAL claims to the district court.  The NLEA has been repeatedly interpreted not to preempt state law requirements that parallel or mirror the NLEA.  “[T]he purpose of the NLEA is not to preclude all state regulation of nutritional labeling, but to prevent State and local governments from adopting inconsistent requirements with respect to the labeling of nutrients.”

So the question was whether Lanovaz was seeking to enforce the FDA regulations, incorporated into California law, or whether she was asserting claims beyond what the regulations require. The difficult question was whether “natural source of antioxidants” was a federally regulated nutrient content claim.  A claim that expressly or implicitly characterizes the level of a nutrient of a type required to be in the nutrition labeling is a regulated nutrient content claim.  Twinings argued that “natural source” didn’t characterize the level of antioxidant.  Under the regulations, an antioxidant nutrient content claim can be used when there’s a reference daily intake for the nutrient, the nutrient has recognized antioxidant activity, the level of the nutrient was sufficient to qualify for the claim, and the names of the nutrients were included.  Twinings’ “natural source of antioxidants” label didn’t meet those requirements.  So if it was a nutrient content claim, the state UCL/FAL claims were viable.

The FDA hasn’t officially defined “source of” or “natural source of” as making a nutrient content claim, but it has identified similar terms such as “excellent source of,” “good source of,” “contains,” and “provides” as the operative words in nutrient content claims.  In a 2011 warning letter, it advised that claims using “source” were nutrient content claims.  Thus, the court found that the allegations of the complaint sufficed to set forth a nonpreempted claim.

Twinings also challenged Lanovaz’s Article III standing. It argued that she got tea that didn’t injure her in any way.  Lanovaz responded that she was misled into buying the tea, and buying a product you wouldn’t otherwise have bought is an economic injury in fact.  Whether she was actually misled was a factual question.

Twinings argued that her claim to rely on a “hyper-technical” violation of FDA regulations was implausible.  Lanovaz alleged that she thought she was buying tea that met the minimum threshold to make an antioxidant claim, and that buying healthy products was important to her.  But, Twinings contended, the statement was literally true and a reasonable consumer wouldn’t know that the FDA has defined “source”/“natural source,” so they’re not meaningful.  The court found the allegations plausible.  (I think it’s clearly plausible to have a general belief that the government regulates product claims and thus wouldn’t allow them if they don’t meet a minimum threshold, even if you don’t know the numerical etc. details of those regulations.)

However, the Song-Beverly Consumer Warranty Act claim failed because the Act exempts consumables, which the tea is.  The Magnuson-Moss Act claim also failed because the “natural source” claim wasn’t a warranty against a product defect. And the unjust enrichment/restitution claim failed as superfluous/duplicative of statutory claims.


Anonymous said...

What with vaporizing the value of plaintiff's $8.2M of marketing since 2009 and opening up a nascent market for zirconia crowns to copycat dental labs from India to China, I can hear businesses gnashing their teeth over this decision.

And, for what? Will future competitors really feel constrained to add a letter or three to the beginning of the allegedly infringing word "bruxer" --e.g., Z-Bruxer crowns?

And, what possible value is there in providing one of a 1,000 possible surveys in a matter where the root of the matter is genericness of the mark when the plaintiff can prove actual confusion?

Did the defendant have survey to show genericness? If nothing else, this looks like a case that should have gone to the jury. Based on the sarcastic opening of the opinion it sounds like the judge has a problem with dentists that he took it out on the plaintiff.

Rebecca Tushnet said...

Note: I'm pretty sure anonymous meant to comment on a previous post. As always, comments reflect the opinion of the commenter, not mine.