43 F. Supp. 3d 1359
S.D. Fla.2014Background
- Defendants Kashi and Kellogg move to dismiss Plaintiffs' Second Amended Complaint and related motions (D.E. 74, 72, 73, 81, 88) which the Court grants in part and denies in part; sealing motions granted.
- SAC alleges Defendants market Kashi products as 'ALL NATURAL' or 'Nothing Artificial' despite containing GMOs and synthetic ingredients.
- Plaintiffs claim the labeling is deceptive and misleads consumers into buying products believed to be GMO-free and natural.
- The SAC lists Florida causes of action (FDUTPA, negligent misrepresentation, implied/effective warranties, declaratory judgment, money had and received) and California causes (BPC § 17500 et seq., § 1750 et seq., and UCL/fraud-based claims).
- Procedural history includes formation of consolidated actions, and the Court's delineation of eight purchased products for standing while dismissing others and Kellogg from the SAC.
- The Order addresses preemption, primary jurisdiction, sufficiency under Iqbal/Rule 9, and specific claims (including standing and corporate-liability issues).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Preemption of GMO-based claims | GMO claims are not preempted; state law can regulate deceptive labeling. | FDA/NLEA preempts state labeling requirements for GMO-related 'all natural' claims. | GMO-based claims are not preempted. |
| Primary jurisdiction | FDA expertise not required; courts can decide if labeling misleads reasonable consumers. | FDA should decide labeling issues for uniformity. | Primary jurisdiction not warranted; court will decide consumer-deception issues. |
| Plausibility and fraud pleading (Iqbal/Rule 9(b)) | SAC provides time, place, content, and misrepresentation details; claims are plausible. | Lacks sufficient particularity and factual detail to meet Iqbal/Rule 9(b). | SAC pleads sufficient facts to state plausible claims and satisfy Rule 9(b). |
| Standing to challenge non-purchased products | Named Plaintiffs have standing to challenge similar non-purchased products within the same line. | Eleventh Circuit requires injury-in-fact for each product; non-purchased claims lack standing. | Standing limited to eight purchased products; non-purchased products claims are dismissed. |
| Kellogg liability (alter ego/mere instrumentality) | Kashi is a subsidiary; Kellogg may be liable as parent under piercing theories. | No allegations of mere instrumentality or alter ego; Kellogg should be dismissed. | SAC dismissed as to Kellogg; no sufficient allegations of alter ego/mere instrumentality. |
Key Cases Cited
- Irving v. Mazda Motor Corp., 136 F.3d 764 (11th Cir.1998) (federal preemption requires congressional intent; states' fraud protections favored)
- Holk v. Snapple Beverage Corp., 575 F.3d 329 (3d Cir.2009) (informal FDA policy on 'natural' not entitled to preemptive effect)
- Lockwood v. Conagra Foods, Inc., 597 F. Supp. 2d 1028 (N.D. Cal.2009) (FDA policy on 'natural' not preemptive where no federal definition exists)
- Rikos v. Procter & Gamble Co., 782 F. Supp. 2d 522 (S.D. Ohio 2011) (consumer deception claims assessed by ordinary consumer perception; not technical expert issue)
- Smith v. Wm. Wrigley Jr. Co., 663 F. Supp. 2d 1336 (S.D. Fla. 2009) (express warranty privity discussion; plaintiff survived motion to dismiss)
- In re ConAgra Foods Inc., All Natural Litig., 908 F. Supp. 2d 1090 (C.D. Cal. 2012) (court addressed 'all natural' labeling in falsity context; not a WL cite)