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.
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