Grab bag of food claims survives preemption, not Rule 9(b)

Samet v. Procter & Gamble Co., 2013 WL 3124647 (N.D. Cal.)

Plaintiffs bought a bunch of allegedly misbranded foods, including Pringles, Kellogg's MorningStar Farms Hickory BBQ Riblets, and Kellogg's Fruity Snacks Mixed Berry, alleging that they reasonably relied on the nutritional content claims on the related website and labels.  They brought the usual California claims on behalf of a putative class of consumers who bought (1) potato chip snacks labeled “0 Grams Trans Fat,” but containing more than 13 grams of fat per 50 grams; (2) products labeled with the ingredient “evaporated cane juice;” (3) Products labeled or advertised as “healthy” despite being disqualified under 21 C.F.R. 101.65; (4) fruit and fruit-flavored snacks; and (5) products sold in a slack-filled container.

Although plaintiffs quickly learned to plead standing, we must nonetheless deal with P&G’s standing challenge, which was that plaintiffs lacked standing because none of the products were alleged to have been “tainted, spoiled, adulterated, or contaminated.”  This is not required; plaintiffs pled that, as health-conscious consumers, they relied on the misleading labels, and that had they known the truth they wouldn’t have bought the products at the premium price they paid.  Whether this was all true was for a later stage of litigation.

To avoid preemption in situations like these, a plaintiff must be suing for conduct that violates the FDCA, but must not be suing because the conduct violates the FDCA, but rather to vindicate an independent right under state law.

One claim was that Fruity Snacks’ packaging was misleading because it displayed pictures of berries next to “made with real fruit,” implying that the product contains the fruits pictured when in fact the only fruit in the product was apple puree concentrate (yum!).  But this complied with the FDA’s fruit vignette rules, which allow manufacturers to use the name/image of fruit to describe flavor even if the product doesn’t contain that particular fruit, as long as the label says “artificially flavored.” Even if the proximity of the statement “Made with Real Fruit” was misleading, the claim was expressly preempted.

However, the slack fill claims against Pringles and Fruity Snacks weren’t preempted.  Federal regulations ban “nonfunctional” slack fill which does not exist for permissible purposes such as “[p]rotection of the contents of the package,”“[u]navoidable product settling during shipping and handling,” and the like.  Though plaintiffs didn’t expressly plead nonfunctionality, the complaint did reference the relevant regulation, including the functional exceptions, and stated that defendants had “no lawful justification” for the slack fill.  Thus, the court declined to find express preemption.

The court also rejected defendants’ field preemption argument.  Here, plaintiffs weren’t trying to enforce the FDCA, which lacks a private right of action, but rather to vindicate their separate and independent right to be free of false advertising.  Pom Wonderful was not to the contrary; it didn’t bar state-law claims.  “Plaintiffs' claims for damages arise from state-made common law duties that also happen to coincide with the federal statutory scheme, which ensures that these claims will not conflict with or impair the FDA's regulatory power.”

Likewise, the court rejected the application of the primary jurisdiction doctrine.  “Allegations of deceptive labeling do not require consultation of the expertise of the FDA as ‘every day courts decide whether conduct is misleading.’”  Specifically, with respect to “evaporated cane juice,” defendants argued that the FDA was in the process of developing a position on use of the term, but its draft guidance from 2009 was nonbinding and was circulated for the purpose of soliciting comments only. Plus, there was already a specific regulation requiring that “[t]he common or usual name of a food” shall be used to “identify or describe, in as simple and direct terms as possible, the basic nature of the food or its characterizing properties or ingredients.”  Plaintiffs’ allegations that the products at issue contained “sugar,” which should be cited by its “common or usual name” under the regulations, was sufficient to proceed no matter what the FDA did next.

Turning to failure to state a claim, defendants argued that “0g Trans Fat” wasn’t misleading as a matter of law.  Plaintiffs argued that Pringles failed to contain a required disclosure: When a “nutrient content claim” is made, and the product contains more than the maximum levels of total fat, saturated fat, sodium, or cholesterol prescribed by FDA regulations, then the nutrient content claim must be accompanied by the statement “See nutrition information for [the exceeding ingredient] content,” but Pringles didn’t add that disclosure.  Defendants nonetheless argued that the statement wouldn’t mislead a reasonable consumer.  Though the statement wasn’t false, it could be misleading.  However, plaintiffs failed to allege in sufficient detail how they were actually misled; they needed more than an allegation that they were “unaware” that the products were “misbranded” and contained fat content in excess of the amounts set forth in FDA regulations.

As for the slack fill claim, plaintiffs alleged that they were deceived into thinking they were receiving more of the products than they actually did.  “Defendants argue that as a matter of law a reasonable consumer would know that there is extra air in a bag of snacks. While this may be true, the amount of slack-fill expected by the reasonable consumer is a debatable factual question that is inappropriate to resolve at the motion to dismiss stage.”

However, plaintiffs failed to plead some of their claims with the specificity required by Rule 9(b).  They didn’t provide the entire statements they alleged were misleading, which products were at issue, or how they were misled; they needed to provide at least sample labels, since a single out of context phrase wasn’t enough to provide fair notice.  Nor did they properly allege that defendants’ website was “labeling” under the FDCA.  (If it’s not, I don’t think that matters—it’s not the case that false and misleading non-labeling material is immune from regulation under state law.)

Similarly, the claim that sugar was misleadingly identified as evaporated cane juice wasn’t specific enough.  Plaintiffs didn’t specify the deceptive products and labels, how they relied on those labels, or why a reasonable consumer would be likely to be deceived; alleging “misbranding” wasn’t enough.

The warranty claims also failed because the statements targeted weren’t “warranties” as defined by Magnuson-Moss, and the products at issue were “consumables” and outside the scope of the California Song-Beverly Act.