ORDER
Plaintiff Chris Chavez purports to represent a class of consumers against defendants Blue Sky Natural Beverage Co, Hansen Beverage Company and Hansen Natural Corp. for claims arising from allegedly false or deceptive labeling of beverages. The parties have filed motions for judgment on the pleadings or, in the alternative, summary judgment. Plaintiff has also filed a motion for class certification.
On May 27, 2010 the court heard oral argument on the motions. For the reasons set forth below, Plaintiffs motion for judgment on the pleadings and motion for class certification are GRANTED. Defendants’ motion for judgment on the pleadings is DENIED.
I
Defendants develop, market, distribute and sell beverages throughout the United States including the “Blue Sky” line of sodas and juices. Doe. # 1-1 at 3, 8. In September 2000 defendants acquired the Blue Sky natural soda business from the Blue Sky Natural Beverage Co. which had been based in and operated from Santa Fe, New Mexico since approximately 1980. Id. at 8. Until May 2006 the labels of Blue Sky beverage cans and bottles stated “SANTA FE, NEW MEXICO” OR “SANTA FE, NM.” The Blue Sky beverage containers also stated “CANNED FOR THE BLUE SKY NATURAL BEVERAGE COMPANY SANTA FE, NM 87501” or “CANNED UNDER THE AUTHORITY OF BLUE SKY NATURAL BEVERAGE CO., SANTA FE, NM USA.” Id. Plaintiff alleges that the packaging of Blue Sky beverages also presents “a particularly Southwestern look and feel including without limitation (stylized) Southwestern Indian tribal bands across the top and bottom of the cans and bottles and pictures of what appear to be the Sangre de Cristo mountains that border Santa Fe, New Mexico on the eastern side of the city.” Id. Plaintiff further alleges that until May 2006 the homepage of defendants’ website (www.blueskysoda.com) prominently stated “Santa Fe, New Mexico, U.S.A.” and listed a phone number with an area code assigned to Santa Fe, New Mexico. Id.
Plaintiff contends that since October 2000 there has not been any company named “Blue Sky Natural Beverage Co” operating in Santa Fe and that Blue Sky beverages are not manufactured or bottled in Santa Fe or anywhere else in the state of New Mexico. Id. at 9. Plaintiff alleges that from 1999 to summer of 2003 he purchased Blue Sky beverages over other comparable brands on the basis of defendants’ representations about the geographic origin of these beverages. Id. at 9-10. Plaintiff claims that he relied on defendants’ misrepresentations and thus lost the full value of the price he paid for the Blue Sky beverages which he would not have paid had he known the true geographic origin of the products. Id. at 10,13.
Defendants removed the case to this court and promptly filed a motion to dismiss on several grounds including preemption of state law claims by the Food, Drug and Cosmetic Act. The court granted the motion to dismiss on grounds other than preemption. Doc. #40. On appeal, the Ninth Circuit reversed the dismissal and remanded the case. Doc. ##50, 55. It was thereafter assigned to the undersigned, Doc. # 52, following recusal of the prior judge. Doc. # 51.
On remand Plaintiff filed a motion to strike the affirmative defenses which the court denied. Doc. # 72. Plaintiff now seeks judgment on the pleadings or summary judgment on the affirmative defense of preemption. Doc. #82. Defendants seek judgment on the pleadings or summary judgment on the claim for relief under the CLRA. Doc. # 84. Plaintiff has also filed a motion for class certification. Doc. # 94.
II
A
The standard applied on a motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure is the same standard applied on a motion to dismiss under Rule 12(b)(6): accepting the allegations of the non-moving party as true, judgment on the pleadings is proper when the moving party clearly establishes on the face of the pleadings that no material issue of fact remains to be resolved and that it is entitled to judgment as a matter of law. Hal Roach Studios, Inc. v. Richard Feiner and Co., Inc.,
B
The question whether plaintiffs’ claims are preempted by federal law is presented in an unusual procedural posture by plaintiff moving for judgment on the preemption issue rather than defendants moving for dismissal on preemption grounds. Plaintiff earlier filed a motion to strike the affirmative defense of preemption. Doc. # 57. Upon denial of plaintiffs motion to strike, the court determined that plaintiff had failed to demonstrate that the preemption defense could not succeed under any set of circumstances. Doc. #72 at 6. On plaintiffs motion for summary adjudication the parties do not dispute that the preemption defense may be decided as a matter of law. Doc. # 107 at 26. The court determines that federal laws and regulations do not preempt plaintiffs state law claims and therefore grant plaintiffs motion for summary adjudication of the affirmative defense of preemption.
Pursuant to the Supremacy Clause, U.S. Const Art VI cl 2, federal law preempts state law when (1) Congress enacts a statute that explicitly preempts state law; (2) federal law occupies a legislative field to such an extent that it is reasonable to conclude that Congress left no room for state regulation in that field; or (3) state law actually conflicts with federal law. Chae v. SLM Corp.,
1
Where Congress enacts an express preemption provision indicating its intent to preempt at least some state law, the court must nonetheless “identify the domain expressly pre-empted by that language.” Med-
In Bates v. Dow Agrosciences LLC,
Congress passed the Nutrition Labeling and Education Act of 1990 amending the FDCA to prescribe national uniform nutrition labeling for foods. HR Rep 101-538 (June 13, 1990). The NLEA included the explicit preemption provision codified as section 343-l(a): no State or political subdivision of a State may directly or indirectly establish under any authority or continue in effect as to any food in interstate commerce—* * * any requirement for the labeling of food of the type required by [section 343(b)-(f), (h), (i)(1)-(2), or (k) of the FDCA] that is not identical to the requirement of such section * * *.
21 USC § 343-1(a)(2) and (3). Section 343-1 lists provisions of the FDCA that expressly preempt state law which do not include the relevant prohibition on “false or misleading” labeling set forth in 21 USC § 343(a) which deems food to be misbranded if “its labeling is false or misleading.” The express preemption provision of the FDCA contained in section 343-1 therefore does not preempt the claims arising from false or misleading labels regulated by section 343(a).
2
In the absence of explicit statutory language, state law is preempted where it regulates conduct in a field that Congress intended to occupy exclusively. English v. General Electric Co.,
The FDCA gives the FDA authority to promulgate regulations to enforce the provisions of the FDCA. 21 USC § 371. The parties do not dispute that pursuant to that authority the FDA has promulgated regulations governing misbranding of food and providing that food is misbranded if its label
expresses or implies a geographical origin of the food or any ingredient of the food except when such representation is either:
(1) A truthful representation of geographical origin.
(2) A trademark or trade name provided that as applied to the article in question its use is not deceptively misdescriptive. A trademark or trade name composed in whole or in part of geographical words shall not be considered deceptively misdescriptive if it:
(i) Has been so long and exclusively used by a manufacturer or distributor that it is generally understood by the consumer to mean the product of a particular manufacturer or distributor; or
(ii) Is so arbitrary or fanciful that it is not generally understood by the consumer to suggest geographic origin.
*371 (3) A part of the name required by applicable Federal law or regulation.
(4) A name whose market significance is generally understood by the consumer to connote a particular class, kind, type, or style of food rather than to indicate geographical origin.
21 CFR § 101.18(c). Plaintiff identifies another FDA regulation that governs specification of the name and place of business:
(a) The label of a food in packaged form shall specify conspicuously the name and place of business of the manufacturer, packer, or distributor.
(b) The requirement for declaration of the name of the manufacturer, packer, or distributor shall be deemed to be satisfied, in the case of a corporation, only by the actual corporate name, which may be preceded or followed by the name of the particular division of the corporation. In the ease of an individual, partnership, or association, the name under which the business is conducted shall be used.
(c) Where the food is not manufactured by the person whose name appears on the label, the name shall be qualified by a . phrase that reveals the connection such person has with such food; such as “Manufactured for _”, “Distributed by _”, or any other wording that expresses the facts.
(d) The statement of the place of business shall include the street address, city, State, and ZIP code; however, the street address may be omitted if it is shown in a current city directory or telephone directory. The requirement for inclusion of the ZIP code shall apply only to consumer commodity labels developed or revised after the effective date of this section. In the case of nonconsumer packages, the ZIP code shall appear either on the label or the labeling (including invoice).
(e) If a person manufactures, packs, or distributes a food at a place other than his principal place of business, the label may state the principal place of business in lieu of the actual place where such food was manufactured or packed or is to be distributed, unless such statement would be misleading.
21 CFR 101.5. Plaintiff contends that his state law claims do not impose additional or different requirements from either of these regulations and are therefore not expressly preempted. Doe. # 114 at 14. The question before the court, however, is whether congressional intent to preempt plaintiffs state law claims may be implied.
The FDCA provides that any proceeding “for the enforcement, or to restrain violations, of this chapter shall be by and in the name of the United States” except that a state may bring a proceeding for civil enforcement after giving notice to the federal government. 21 USC § 337(a). Plaintiff concedes that private litigants may not bring suits for noncompliance with the FDCA. Doc. # 82 at 14. See Buckman Co. v. Plaintiffs’ Legal Committee,
Plaintiff cites Farm Raised Salmon Cases,
Defendants argue that labeling that complies with applicable FDA regulations cannot be attacked under California consumer protection statutes. Doc. # 107 at 14. To support their proposition that plaintiffs state claims are preempted by FDA regulations, defendants cite In re Pepsico, Inc.,
Although section 343(a) and the regulations promulgated by the FDA may raise an inference that federal law preempts individual state laws governing food labeling, defendants have not met their burden to
demonstrate “clear and manifest” intent by Congress to occupy the entire field of food labeling so as to preempt state consumer protection laws which are traditionally within the realm of state police power. Medtronic,
3
Even where Congress has not completely displaced state regulation in a specific area, state law is nullified to the extent that it actually conflicts with federal law either when “compliance with both federal and state regulations is a physical impossibility” or when state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” Hills borough County v. Automated Medical Laboratories, Inc.,
Impossibility preemption is a demanding defense. Wyeth,
Defendants also suggest that requiring the Blue Sky labels to comply with state laws governing consumer protection and unfair business practices would obstruct the purposes and objectives of federal regulations governing food labeling. Citing section 337 defendants argue that by passing the FDCA Congress intended that the federal government, not private parties, enforce the FDCA.
As the Supreme Court recognized in Wyeth, “Congress enacted the FDCA to bolster consumer protection against harmful products [and] did not provide a federal remedy for consumers harmed by unsafe or ineffective drugs in the 1938 statute or in any subsequent amendment.”
Plaintiff cites several recent district court decisions determining that the FDCA did not preempt state law claims: Lockwood v. Conagra Foods, Inc.,
The statutory provision deeming food misbranded if “its labeling is false or misleading in any particular” was enacted in 1938 as section 403(a) of the FDCA and codified as 21 USC 343(a)(1). 75 Pub L 717, 52 Stat 1040 (June 25, 1938). In view of the Supreme Court’s determination in Wyeth that Congress did not intend FDA oversight to be exclusive means of ensuring drug safety and effectiveness, and in the absence of authority to the contrary in the food labeling regulatory scheme, defendants have not persuaded the court that plaintiffs state law claims obstruct federal regulation of food labeling, particularly statements of geographic origin.
C
Defendants further suggest that the court should refrain from deciding issues committed to the FDA’s primary jurisdiction. Doc. # 107 at 23-26. “The primary jurisdiction doctrine allows courts to stay proceedings or to dismiss a complaint without prejudice pending the resolution of an issue within the special competence of an administrative agency.” Clark v. Time Warner Cable,
Defendants cite several decisions in support of their argument that the court should apply the primary jurisdiction doctrine. Most recently the Ninth Circuit affirmed summary judgment on Lanham Act claim premised on violation of the FDCA in PhotoMedex, Inc. v. Irwin,
In Sandoz Pharmaceuticals Corp. v. Richardson-Vicks, Inc.,
In Perez v. Nidek Co. Ltd.,
Unlike PhotoMedex, Sandoz Pharmaceuticals Corp., Summit Technology and Perez, plaintiffs state law claims do not require an
If defendants suggest that the FDA regulations would allow Blue Sky labels to mislead consumers about the geographic origin of those beverages, then the federal regulations act as a floor setting minimum standards that do not prevent the states from passing laws that further protect eonsumérs absent express or implied preemption. As the court recognized in Wyeth, the FDA has traditionally regarded state law as an additional layer of consumer protection that complements FDA regulation.
Ill
For their part defendants seek judgment on the pleadings on plaintiffs third claim for relief under the CLRA for failure to comply with the statutory 30-day notice requirement under Civil Code section 1782 and failure to file an affidavit of venue stating facts showing that this action was commenced in a county described in section 1780. Defendants have waived their objections by failing to raise them in their earlier motion to dismiss. Doc. # 6.
IV
Plaintiff seeks certification of the following class:
All persons who, any time between May 16, 2002 and June 30, 2006, purchased in the United States any beverage bearing the Blue Sky mark or brand.
Plaintiff also seeks his appointment as class representative and appointment of the Gutride Safier LLP firm as class counsel.
A court may certify a class only if: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. FRCP 23(a). In addition to meeting these requirements, parties seeking certification must meet at least one requirement of FRCP 23(b). Rodriguez v. Hayes,
A
As a threshold matter defendants contend that plaintiff has not demonstrated that any purported class member other than himself suffered an injury-in-fact so as to confer Article III standing. Doc. # 106 at 14-20. Defendants do not dispute that plaintiff has sufficiently alleged injury, as recognized by the Ninth Circuit, Doc. # 106 at 12-13 (citing Doc. # 50), but challenge the standing of the unnamed class members. Defendants rely on Lee v. American National Ins. Co.,
Though federal courts are not bound by the decisions of the state supreme court on matters of federal law, the court notes that in In re Tobacco II Cases the California Supreme Court concluded after a reasoned analysis that unnamed class members in an action under the Unfair Competition Law (“UCL”), as amended in 2004 by the passage of Proposition 64, are not required to establish standing.
B
Defendants further challenge the proposed definition of the class as unascertainable and “hopelessly broad.” Doc. # 106 at 20-22. “ ‘Although there is no explicit requirement concerning the class definition in FRCP 23, courts have held that the class must be adequately defined and clearly ascertainable before a class action may proceed.’ ” Schwartz v. Upper Deck Co.,
Defendants contends that “ ‘[a]n identifiable class exists if its members can be ascertained by reference to objective criteria, but not if membership is contingent on the prospective member’s state of mind.’ ” Doc. # 106 at 20 (quoting Schwartz v. Upper Deck Co.,
As to the CLRA claim reliance on the alleged misrepresentations may be inferred as to the entire class if the named plaintiff can show that material misrepresentations were made to the class members. Steroid Hormone Product Cases,
As to the common law fraud claim, the state supreme court applied the same reasonableness standard for materiality and reliance in support of a fraud claim: “Reliance is proved by showing that the defendant’s misrepresentation or nondisclosure was ‘an immediate cause’ of the plaintiffs injury-producing conduct. A plaintiff may establish that the defendant’s misrepresentation is an Immediate cause’ of the plaintiffs conduct by showing that in its absence the plaintiff ‘in all reasonable probability’ would not have engaged in the injury-producing conduct.” Tobacco II,
To support their argument that individual determinations would predominate over common questions, defendants rely on Schwartz in which the district court denied class certification upon finding that the action would focus on each individual plaintiffs state of mind in buying defendant’s trading cards. There plaintiffs raised RICO claims alleging that defendants engaged in illegal lottery or gambling by inserting “chase” cards in their trading card packs.
To establish that the class claims share common questions, plaintiff offers the expert opinion of Dean Fueroghne as to the materiality of Blue Sky’s product labeling and marketing. Doc. # 96. Defendants object to the admissibility of Mr Fueroghne’s opinion testimony pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc.,
Plaintiff proposes a class of all persons who (1) purchased any beverage bearing the Blue Sky mark or brand (2) in the United States (3) between May 16, 2002 and June 30, 2006. By these objective criteria the members of the proposed class can be ascertained by “tangible and practicable standards for determining who is and who is not a member of the class.” 5 James W Moore, Moore’s Federal Practice 3d § 23.21 [1] at 23-48 (2007).
C
Having considered defendants’ underlying objections to the individual class members’ standing and reliance on the alleged misrepresentations, the court proceeds to find that plaintiff has satisfied the requirements of Rule 23(a).
1
Defendants dispute whether plaintiff has satisfied the numerosity requirement of Rule 23(a)(1). Although the parties have not identified the number of possible class members, the court infers from the allegation that Blue Sky sold over $20 million of product, or over 500,000 cases per year, that there are numerous purchasers who are potential class members so as to satisfy the numerosity requirement.
2
Defendants contend that individual issues of motivation and damages defeat the commonality required under Rule 23(a)(2). Those arguments focus more on the question whether the common issues predominate under Rule 23(b)(3), rather than the less rigorous determination of whether the class shares legal issues or facts. See Hanlon v. Chrysler Corp.,
3
Defendants argue that plaintiffs claims are not typical of the purported class,
4
Defendants raise no opposition to the requirement under Rule 23(a)(4) that the representative parties will fairly and adequately protect the interests of the class. In view of plaintiffs rigorous prosecution of the class claims in this court and on appeal and finding no conflicts of interest with other class members, the court determines that the adequacy requirement is satisfied. Staton,
D
If Rule 23(a) is satisfied Rule 23(b)(3) permits class certification upon a determination that “questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed R Civ Proc 23(b)(3). To determine whether the requirements of Rule 23(b)(3) are met the court must consider the following factors: (A) the class members’ interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action. Id. Plaintiff sufficiently demonstrates that the proposed class action satisfies the requirements of Rule 23(b)(3).
1
The predominance inquiry focuses on the relationship between the common and individual issues. Hanlon,
Defendants argue that individual factual issues predominate over common issues. The court has already considered defendants’ argument that individual class members would have to prove reliance on the alleged misrepresentations and determined that under Tobacco II and state law, relief is available without individual showing of reliance. Defendants contend that not all potential class members relied on the Santa Fe representations and may have had other reasons to buy Blue Sky beverages. The state supreme court made clear, however, that “[t]he substantive right extended to the public by the UCL is the right to protection from fraud, deceit and unlawful conduct, and the focus of the statute is on the defendant’s conduct.” Tobacco II,
At class certification, plaintiff must present “ ‘a likely method for determining class damages,’ ” though it is not necessary to show that his method will work with certainty at this time. In re Tableware Antitrust Litigation,
Defendants further contend that the law applicable to the proposed nationwide class is not uniform because California consumer protection laws do not apply to nonresident plaintiffs. Doc. # 106 at 30-31. Defendants concede that they are subject to personal jurisdiction in California but contend that the forum state’s laws cannot have extraterritorial effect unless the forum state has “significant contact or [ ] aggregation of contacts to the claims asserted by each member of the plaintiff class.” Id. at 30 (citing Norwest Mortgage, Inc. v. Superior Court,
The Clothesrigger court, applying the [Phillips Petroleum Co. v. Shutts,472 U.S. 797 ,105 S.Ct. 2965 ,86 L.Ed.2d 628 (1985) ] test, concluded application of California law was constitutionally permissible there because the defendant’s principal offices were in California and because the claims asserted by every nationwide class member related to the alleged fraudulent misrepresentations contained in literature prepared in California; thus the conduct occurred in California. * * *
In contrast to the claims of class members in Clothesrigger and Diamond, the only contact between the claims of Category III members and California is Norwest Mortgage’s state of incorporation.
Norwest Mortgage,
2
Although defendants object generally to the superiority of the class action to other available methods of adjudicating this dispute, the court determines that the class action is superior to maintaining individual claims for a small amount of damages and concludes that this action satisfies Rule
E
Having determined that plaintiff has satisfied the Rule 23 requirements for class certification, the court proceeds to appoint plaintiff Chris Chavez as representative of the following class:
All persons who, any time between May 16, 2002 and June 30, 2006, purchased in the United States any beverage bearing the Blue Sky mark or brand.
Having considered the work plaintiffs counsel has done in identifying or investigating potential claims in the action and litigating these claims in this court and before the court of appeals, counsel’s representation as to their experience in handling class actions and other complex litigation (Doc. # 97 1118 and Ex. R), counsel’s knowledge of the applicable law as evidenced by their briefs submitted in this action, and the resources that counsel will commit to representing the class, the court also appoints Gutride Safier LLP as counsel for the class pursuant to Rule 23(g)(1).
Within 14 days of this order the parties must meet and confer on the notice to be issued to the class, and must file with the court a draft notice that complies with Rule 23(c)(2)(B) within 30 days of this order.
V
For the reasons stated above, the court ORDERS as follows:
(1) Plaintiffs motion for judgment on the pleadings on the affirmative defense of preemption (Doc. # 82) is GRANTED;
(2) Defendants’ motion for judgment on the pleadings (Doc. # 84) is DENIED;
(3) Plaintiffs motion for class certification (Doc. #94) is GRANTED. Plaintiff Chris Chavez is appointed as class representative and Gutride Safier LLP is appointed as class counsel.
IT IS SO ORDERED.
Notes
. Defendants cite several opinions deducing that state law claims were preempted because the