376 F. Supp. 3d 1043
S.D. Cal.2019Background
- Plaintiff, a repeat purchaser, sued General Mills and several advertising/licensor entities alleging fruit snacks marketed as "naturally flavored" and "no artificial flavors" actually contained synthetic d‑l malic acid used as an artificial flavor.
- Complaint asserts violations of California UCL, FAL, CLRA, and breach of express and implied warranties; case removed to federal court under diversity jurisdiction.
- Defendants moved to dismiss under Rule 12(b)(6), arguing (inter alia) that malic acid is not an artificial flavor, that ingredient-label claims are preempted by federal law, and that claims against advertiser/licensor defendants lack factual support.
- FDA regulations define "artificial flavor" and govern characterizing flavor labeling and ingredient naming; regulations identify "malic acid" as the common name and note DL‑malic acid is not naturally occurring and may be used as a flavoring agent or pH control.
- The court accepted plaintiff's factual allegations at the pleading stage that DL‑malic acid was used as a flavoring, found failure-to‑label-as‑artificial claims not preempted, but held ingredient‑naming claims (challenging use of the generic term "malic acid") preempted because the regulation treats "malic acid" as the common name.
- The court dismissed claims against Advertiser and Licensor defendants for insufficient factual allegations and dismissed implied‑fitness warranty theory; granted leave to amend some claims (but not the preempted ingredient‑naming theory).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether "no artificial flavors"/"naturally flavored" is false because DL‑malic acid is an artificial flavor | Product contains synthetic DL‑malic acid that simulates fruit flavor, so label is false/misleading | Malic acid was used only for pH control, not as a flavoring; label complies with federal law | Court: Accepting allegations, DL‑malic acid alleged to function as flavoring; failure‑to‑label‑as‑artificial claim is not preempted and survives pleading stage |
| Whether state claims challenging listing of ingredient as "malic acid" (vs. a more specific name) are preempted by FDCA/NLEA | "Malic acid" is generic; federal law requires listing specific non‑generic name (DL‑malic acid) | FDA regulations allow "malic acid" as the common name for both L and DL forms; state requirement would be not identical and thus preempted | Court: Ingredient‑naming claims are preempted because regs treat "malic acid" as the common name for the forms, so dismissed |
| Sufficiency of UCL/FAL/CLRA claims (reasonable consumer/materiality) | Reasonable consumers would be misled by "no artificial flavors" and "naturally flavored"; statements are material | Plaintiff fails to plead malic acid was used as flavoring; thus not plausibly deceptive | Court: Plaintiff pleaded facts plausibly showing use of DL‑malic acid as flavoring and materiality; consumer‑protection claims survive at pleading stage |
| Warranty and other contract claims (express and implied) | Labels created express warranties; implied merchantability and fitness claims apply | Plaintiff did not plead particular purpose distinct from ordinary food use; insufficient facts for implied‑fitness claim | Court: Express and implied merchantability claims survive; implied warranty of fitness for a particular purpose fails as pleaded but plaintiff granted leave to amend |
| Claims against Advertiser and Licensor defendants (secondary/apparent‑manufacturer liability) | Advertisers/licensors were responsible for false/misleading labels and are liable under California law | Allegations are conclusory and lack factual detail tying these defendants to labeling decisions | Court: Allegations too conclusory under Twombly/Iqbal; claims against Advertiser and Licensor defendants dismissed with leave to amend |
Key Cases Cited
- Navarro v. Block, 250 F.3d 729 (9th Cir.) (Rule 12(b)(6) tests complaint sufficiency)
- Shroyer v. New Cingular Wireless Serv., Inc., 622 F.3d 1035 (9th Cir.) (grounds for dismissal where complaint lacks cognizable theory)
- Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530 (9th Cir.) (dismissal for failure to plead essential facts)
- Huynh v. Chase Manhattan Bank, 465 F.3d 992 (9th Cir.) (court must accept factual allegations as true at pleading stage)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (Rule 8 notice‑pleading requires plausible claim)
- Pareto v. FDIC, 139 F.3d 696 (9th Cir.) (conclusory allegations insufficient to defeat dismissal)
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading standard for factual plausibility; conclusory allegations not presumed true)
- Lilly v. ConAgra Foods, 743 F.3d 662 (9th Cir.) (NLEA preemption analysis; "not identical" standard)
- Reid v. Johnson & Johnson, 780 F.3d 952 (9th Cir.) (preemption inquiry turns on whether challenged statements are authorized by FDA regs)
- Williams v. Taylor, 529 U.S. 362 (tool for statutory/regulatory construction: give effect to every clause and word)
- Williams v. Gerber Prods. Co., 552 F.3d 934 (9th Cir.) (consumer deception questions normally factual; materiality standard)
- Tobacco II Cases, 46 Cal.4th 298 (Cal.) (UCL/FAL deception judged by likelihood that public will be deceived)