Clancy alleged that he bought Bromley’s products, including Pure
Green Tea and 100% Organic Pure Black Tea, after relying on the packaging
labels as well as Bromley’s website, both of which make health claims,
including the label phrase “natural source of antioxidants.” The website makes
such claims as “Antioxidants in Green and Black Tea is brimming with
Antioxidants, the disease-fighting compounds that help your body stave off
illness” and “Green Tea Extract May Lower Blood Pressure....” He alleged the
usual California claims.
Bromley argued that Clancy lacked standing to assert claims
based on products he never bought and website statements he never saw. There’s no controlling precedent, and the
cases are mixed. Some cases agree with
Bromley (except that of course a class representative always brings claims
based on events s/he didn’t personally experience). Others look for sufficient similarity between
the purchased and unpurchased products; standing exists when an individualized
factual inquiry wouldn’t be needed for each product (which again shows how we’ve
shoved questions like commonality/predominance into the useless label “standing”). A third rule is that, as long as the named
plaintiff has standing for products s/he actually bought, the question of
whether the class includes claims related to other products is properly
addressed at the certification stage, where it will be evaluated in terms of
typicality/adequacy. The court analyzed
the relevant Supreme Court precedents, and concluded that they only stated that
a named plaintiff must have suffered injury in fact. And, citing the Supreme Court’s recent case
on affirmative action, “if the named plaintiffs in Gratz had ‘standing’ to seek to prospective relief against a school
to which they were not applying, then Mr. Clancy has ‘standing’ to assert
claims relating to products he did not buy.”
Sauce for the goose?
The court continued—winning my heart—that “‘standing’ does
not seem to be the proper framework for that question or for this one.
Transmogrifying typicality or commonality into an issue of standing would
undermine the well-established principles that ‘[i]n a class action, standing
is satisfied if at least one named plaintiff meets the requirements.’” The court was unwilling to decide on the pleadings
that Clancy couldn’t represent a class who purchased any different products,
given the usual requirements that typicality exists when claims are “reasonably
coextensive” and need not be substantially identical. Sufficient similarity is an appropriate
inquiry, “but it does not relate to standing: a plaintiff has no more standing
to assert claims relating to a ‘similar’ product he did not buy than he does to
assert claims relating to a ‘dissimilar’ product he did not buy. Seen this way,
analyzing the ‘sufficient similarity’ of the products is not a standing inquiry, but rather an early analysis of the typicality,
adequacy, and commonality requirements of Rule 23” (emphasis added). Defendants’ best argument is that they shouldn’t
be burdened with discovery regarding class allegations not specifically defined
or directly connected to the named plaintiff’s alleged injiury. But the court could address that valid
concern with careful case management.
In summary:
The named plaintiff has standing to
assert claims relative to the products he purchased. He does not claim to have
standing to assert claims related to other products. What he does claim is that
he may be a potential representative of a class of people who have such
standing. He may or may not be able to certify such a class, and he may or may
not be an adequate representative. But applying the concept of standing to
dismiss proposed class action allegations is a category mistake.
What about statements he didn’t see before purchase? Well,
he specifically pled that he read statements on Bromley’s website before
buying, which should be sufficient under normal pleading standards. To the extent Bromley sought more
specificity, this was about Rule 9(b), not about standing. And to the extent Bromley argued that more
was required under the UCL, the court didn’t agree. Bromley relied on Rice v. Fox Broad. Co., 330
F.3d 1170 (9th Cir. 2003), in which the Ninth Circuit found a plaintiff failed
to allege a valid Lanham Act and UCL claim “because there is no evidence that a
potential consumer could view the offending videotape jacket prior to purchase,
[and thus] any deception relating to advertisement of the videos must be
immaterial.” Rice didn’t hold that
the named plaintiff must see the ads; “it holds that it must have been possible
for potential customers to see them.”
Plus, Tobacco II provided
controlling authority, and under that case the degree of specificity in the
complaint was sufficient under the UCL. When
“a plaintiff alleges exposure to a long-term advertising campaign, the
plaintiff is not required to plead with an unrealistic degree of specificity
that the plaintiff relied on particular advertisements or statements.” As for whether he could represent class
members who relied on different ads, that too was a class certification issue.
Bromley also asked the court to dismiss the nationwide class
allegations under Mazza. But Mazza
didn’t establish a bright-line rule against nationwide California law classes.
The fact-heavy choice of law inquiry should occur during the class
certification stage, after discovery.
The court turned to Bromley’s preemption arguments. The FDCA, though it has no private right of
action, does not preempt claims to enforce California’s labeling requirements,
which are identical to federal requirements.
Here, Clancy was suing for conduct that allegedly violated the FDCA, but
not (merely) because the conduct violated the FDCA; the duties imposed by
California law exist independently of the FDA, and would still operate if the
FDA ceased to exist. Pom Wonderful was not to the contrary;
it was a Lanham Act case and left open state-law claims.
Clancy’s claims would be preempted if they sought to impose
requirements different from those imposed by the FDA. Under the relevant regulations, a nutrient
content claim regarding the level of antioxidants in a food may be used on a
food label only if certain conditions are met, e.g., the label must exist the
specific nutrient, and may only do so if a Reference Daily Intake (RDI) has
been established for the nutrient.
Bromley argued that its terms, “contain” and “source of,” weren’t
defined by federal regulation as characterizing the level of a nutrient, and
thus that Clancy was seeking to impose additional requirements. But the FDA hadn’t been silent about them: it
had sent a warning letter to someone else indicating that “source” claims were (barred)
nutrient content claims. Thus, the claim
was not preempted at this stage (stay tuned for a case finding the exact
opposite!).
The court also rejected Bromley’s 9(b) challenge. The who was Bromley; the what was nine
discrete types of unlawful/deceptive claims on Bromley’s labeling, packaging,
and website; the when was since 2008 through the class period; and the where
was the labels and websites. Clancy
alleged violation of the law and his reasonable reliance thereon to buy
products he wouldn’t have bought absent the deceptive statements, which was the
how. That was enough.
Clancy’s unjust enrichment claims didn’t survive as a
separate cause of action. The breach of warranty claims were also thrown out:
the Song-Beverly Act didn’t apply because Bromley’s products are consumables. The Magnuson-Moss Act didn’t apply because
the representations here were product descriptions, not promises of freedom
from defect or of a level of performance over a specific period; because Magnuson-Moss
is “expressly ‘inapplicable to any written warranty the making or content of
which is otherwise governed by Federal law,’” here the FDCA; and because Clancy
failed to allege that the products at issue cost more than $5.
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