another fruit seller sued for selling preserved fruit packaged as fresh

Brazil v. Dole Food Company, Inc., No. 12–CV–01831, 2013 WL 5312418 (N.D. Cal. Sept. 23, 2013)

Brazil is a California consumer who “cares about the nutritional content of food and seeks to maintain a healthy diet.” He alleged that he bought 8 misbranded Dole products, and identified 30 substantially similar products.  The allegedly false claims included “natural,” e.g., one product used “All Natural Fruit” even though it contained ascorbic acid, citric acid, malic acid and added flavors, which weren’t natural.  He also challenged “fresh,” which FDA regulations state means raw and not frozen or subjected to any form of thermal processing or any other form of preservation. The regulations also require that foods that have undergone particular forms of processing be labeled as “canned” or “pasteurized” if they are packaged and sold in a manner that “suggest[s] or impl[ies] that the article is other than a canned food,” as when foods are packaged in glass or plastic instead of metal cans.  He argued that Dole products labeled “fresh taste” had been subject to various forms of thermal and chemical processing, and that products packaged in plastic or glass didn’t disclose that they were “canned,” in spite of the fact that they underwent processing that the FDA considers equivalent to canning.  (Shades of a recent Lanham Act case!)

The court found that Brazil could bring claims based on products he didn’t buy that were substantially similar, but not claims based on statements he didn’t view.  As to the former, “where, as here, a plaintiff claims that he was misled by the improper use of the term ‘all natural’ on Dole Mixed Fruit in Cherry Gel, the injury he suffers as a result of that misrepresentation is not meaningfully distinguishable from the injury suffered by an individual who is misled by the use of the term ‘all natural’ on Dole Mixed Fruit in Black Cherry or Peach Gel.”  All the other products he identified were just different flavors or varieties of the products he purchased and used identical representations to those on the products he bought; that sufficed. 

But the court rejected Brazil’s argument that he didn’t need to view website statements in order to have standing to challenge them.  He contended that statements made on websites whose addresses appear on a product label are incorporated into the label as a matter of law, and that misstatements on the website therefore made various blueberry products misbranded and illegal to sell as a matter of law.  His claimed injury was therefore that he bought “illegal” products.  The court doubted that this was enough to establish causation for Article III purposes.  “While Defendants’ website statements may violate federal law by virtue of the FDA’s position that website statements may be incorporated into a product’s labeling by reference, it is far from apparent how this regulatory violation could have caused Brazil to purchase Defendants’ products when he neither saw the allegedly offending statements nor relied on them in deciding to purchase Defendants’ products.” Anyway, even if that theory passed Article III, it wasn’t enough under California’s consumer protection laws, which do require reliance when the underlying misconduct alleged is fraudulent.  And his theory was inconsistent with Proposition 64’s enhanced standing requirements for UCL claims.

Many of Brazil’s claims did survive Rule 9(b) by identifying the particular representations and regulations at issue, specifying why Dole’s representations allegedly violated the regulations, and stating why a reasonable consumer would be misled by the violations.  Brazil didn’t need to spell out the regulatory violations associated with each unpurchased product “with the same degree of exhaustive detail,” because that would be cumbersome and redundant.

Some of the claims were preempted, but others weren’t.  The fact that Dole allegedly sold misbranded products without disclosing the misbranding wasn’t deceptive/actionable in itself, since no regulation required such disclosure (despite Brazil’s attempt to argue that a general disclosure provision in the regulations, mandating disclosure of material facts, did so require).  There was no authority “to support the counterintuitive proposition that a product’s label must disclose the fact of its own illegality.”

The court also declined to dismiss nationwide class claims on a motion to dismiss, without more fact-specific analysis.