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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