Route sued Mead Johnson for violations of the CLRA, UCL,
FAL, and Magnuson Moss Warranty Act, along with breach of express warranty. She
alleged that Mead Johnson falsely and misleadingly represented that certain
baby food products contained a “trademarked blend of prebiotics that provide
digestive health benefits and immunity-related health benefits for infants and
young children like breast milk does.” Not only were these claims not true, she
alleged, but also even if they were true the products didn’t contain enough of
the prebiotic ingredients to provide the advertised health benefits. The court found these allegations contradictory,
though I don’t see why it’s not standard pleading in the alternative: the
health claims might be true about doses 100 times the amount found in the
products, and the ads could still be false/misleading.
The product labels at issue feature the phrase “Natural
Defense Dual Prebiotics” and say that “emerging science suggests that prebiotic
may support your baby's developing immune system,” and that the products are
“designed to act more like breast milk[.]” Route’s claims were based on a
monograph published by Mead Johnson in 2009 that she alleged “indicates that
there is no established direct or indirect relationship between the use of
prebiotics in infant nutrition and immune system benefits for infants.” Moreover,
she alleged that “experts agree that breast milk is immeasurably superior to
baby formula in terms of infant nutrition and other health benefits.”
The complaint alleged that Route bought only one of the four
products challenged in the suit, Enfamil Premium Infant Formula. Mead Johnson sought to strike her allegations
about other products for lack of standing.
The court agreed that the plaintiff could only have suffered an injury
with regard to products she purchased. “Whether or not all four products share
things in common for purposes of demonstrating commonality, typicality or
predominance is effectively irrelevant to the question of whether Plaintiff
herself has suffered an injury in fact with regard to all four products. She
has not.” (I still don’t understand why
this argument doesn’t mean that all class actions should be dismissed for lack
of standing. Route also didn’t spend the
money that other consumers spent buying the products. However, in a footnote, the court stated the
circumstances under which she could possibly, maybe, arguably have standing for
all four products: if they all (1) contained the same contested ingredient in
the same amount, (2) were subject to the same ad campaign/representations, and
(3) differed in ways that were not germane to the claims, e.g., flavor. Why that isn’t just a hyper-rigorous
typicality/commonality etc. analysis performed before any factfinding has been
done remains obscure to me.) Claims
dismissed, unless plaintiff could add additional class representatives.
Insofar as Route alleged only lack of substantiation, the
court would also grant Mead Johnson’s motion to dismiss. Only the government
can make an advertiser submit substantiation, a rule that prevents undue
harassment of advertisers. Mead Johnson
argued that Route’s theory of the case was still lack of substantiation, since
the only evidence of falsity alleged was the existence of the monograph, which
doesn’t indicate that the label claims are false, but instead cites conflicting
studies. Route argued that the monograph
supported her claims by identifying at least one study demonstrating that
prebiotics have no health effect, but the court found that cherry-picking since
the monograph considered “surely most reputable scientific writings do, the
evidence and studies supporting both positions as to the hypothesis of whether
prebiotics have any healthful effect.”
Route needed to provide a specified factual basis for her falsity claims,
which couldn’t be based on the monograph or “unidentified experts or studies.” (Wouldn’t directly citing that study cited by
the monograph suffice, thus making which study was correct a factual matter
unsuited for resolution on a motion to dismiss?) Nor were references to the American Academy
of Pediatrics’ recommendations that breast milk should be the main source of a
baby’s nutrition for the first six months sufficient. The complaint didn’t allege that Mead Johnson
ever denigrated the benefits of breast milk, or represented how much of a
baby’s nutrition should come from its products instead of from breast
milk. Nor did it allege that Mead
Johnson actually marketed its products as near-equivalents of breast
milk—advertising health benefits “analogous to those found in breast milk” was
not inherently and always misleading.
The court would give Route an opportunity to amend the complaint.
On the Magnuson Moss Warranty Act claims, plaintiff didn’t
meet the standards for federal jurisdiction: number of named plaintiffs one
hundred or more and amount in controversy for any individual claim over $25.
However, CAFA allows jurisdiction regardless if CAFA’s requirements are met.
Nonetheless, the claim failed because there was no written warranty as defined
by the statute. Claims that the products were “designed to act more like breast
milk” and had “Natural Defense Dual Prebiotics” were not written warranties
that the they were defect free and would perform in a specified way over a
specified period of time, as required by the statute.
Mead Johnson also moved to strike the request for
certification of a nationwide class, based on Mazza v. Am. Honda Motor Co.,
Inc., 666 F.3d 581 (9th Cir. 2012).
Where an issue is sufficiently obvious from the pleadings, a court can
strike class allegations, and given California’s choice of law rules as applied
to express warranty claims in Mazza,
that was so here. The transactions
forming the subject of the express warranty claims took place nationwide. Route would need to allege further
connections to California; otherwise the court couldn’t see how she could ever
demonstrate that a nationwide class would be appropriate under California
choice of law rules.
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