Monday, October 07, 2013

another evaporated cane juice plaintiff gets to proceed

Werdebaugh v. Blue Diamond Growers, No. 12–CV–02724, 2013 WL 5487236 (N.D. Cal. Oct. 2, 2013)

The usual California claims, this time directed at Blue Diamond’s almond milk products and snack foods, which allegedly falsely claimed to be “All Natural” despite containing chemical preservatives, synthetic chemicals, added artificial color and other artificial ingredients” and made unlawful and misleading “evaporated cane juice” (sugar) claims.

Werdebaugh argued that “evaporated cane juice” was unlawful and misleading because it violated the FDA’s definition of the term “juice” (since sugar cane isn’t a fruit or vegetable and juice has to come from those); the FDA’s requirements for identifying cane syrup on food labels; and the FDA’s blanket requirement that foods have to be referred to by their common or usual names and not by names “confusingly similar to the name of another food that is not reasonably encompassed within the same name.”  The complaint alleged that the FDA’s position on evaporated cane juice was stated in a 2009 Guidance for Industry letter as well as in warning letters.

The court reached the emerging standard result on Blue Diamond’s preemption and primary jurisdiction arguments: nope.  Werdebaugh didn’t just rely on the 2009 Guidance, but rather on the regulations themselves, and anyway the Guidance expressed the FDA’s view, as reiterated in at least three warning letters over the past nine years.  This made for a consistent position opposing the use of “evaporated cane juice,” which meant that Werdebaugh’s claims were identical to FDA requirements and non-preempted.

Though the FDA hasn’t generally defined “natural,” there was also no preemption there, given existing regulations that did address “natural” in a limited way and the FDA’s statement 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.” Werdebaugh didn’t need to rely on a comprehensive general definition of “natural,” because he relied on a specific regulation prohibiting the use of the term “natural” on foods containing artificial or synthetic ingredients.

The primary jurisdiction doctrine didn’t apply because the court saw no reason to think the FDA’s position on these claims was unsettled, though some courts have found otherwise.

Next, standing: Werdebaugh could assert claims based on “substantially similar” products he didn’t buy.  And he had standing because he adequately alleged that he lost money or property as a result of Blue Diamond’s deceptive and unlawful conduct by buying products he wouldn’t otherwise have bought. 

He also satisfied Rule 9(b) by identifying the regulations that the challenged representations allegedly violated, stating why the representations allegedly violate these regulations, and stating why a reasonable consumer would be misled by these alleged regulatory violations.  The court rejected Blue Diamond’s argument that Werdebaugh should lose because he failed to specify whether he purchased the “refrigerated” or “stable shelf” version of Blue Diamond Almond Breeze Chocolate Almond Milk, as well as when and how many times during the class period Werdebaugh purchased the product.  As for the former, he included pictures of the product he allegedly purchased in the complaint, identifying that product.  And he pled that he bought during the class period, which was good enough as long as there was no suggestion that the label changed during that time.  Nor could the nationwide class claims be dismissed at this point.

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