ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
Plaintiff Stephen Hadley (“Plaintiff’) brings the instant suit against Defendant Kellogg Sales Company (“Defendant”) for allegedly misleading statements on Defendant’s food product packaging. Before the Court is Defendant’s Motion to Dismiss. ECF No. 44 (“Mot.”). Having considered the parties’ briefing, the relevant law, and the record in this case, the Court GRANTS Defendant’s Motion to Dismiss.
I. BACKGROUND
Á. Factual Background
Defendant is a “multi-billion dollar food company that manufactures, markets, and sells a wide variety of cereals and bars, among other foods.” ECF No. 27, First Amended Complaint (“FAC”) ¶ 109. Defendant is allegedly “the world’s leading producer of cereal.” Id. Defendant allegedly has “positioned itself in the market as a purportedly ‘health/ brand of processed food, by using various labeling statements to suggest its foods, especially its cereals and bars, are healthy choices.” Id. ¶ 113.
Plaintiff “has been a frequent cereal eater for many years.” Id. ¶366. Over the past several years, Plaintiff has purchased Defendant’s breakfast cereals and cereal bars. Id. ¶ 367-68. During that time period, Plaintiff allegedly “tried to choose
This case concerns statements on the packaging for breakfast cereals and cereal bars sold by Defendant that allegedly indicate that Defendant’s products are healthy when “excess sugar” allegedly causes those products to be unhealthy. Plaintiff alleges that twelve of Defendant’s product lines are sold with misleading packaging. See FAC ¶¶ 122-23. Those product lines are (1) Kellogg’s Raisin Bran, (2) Kellogg’s Krave, (3) Kellogg’s Frosted Mini-Wheats, (4) Kellogg’s Smart Start—Original Antioxidants, (5) Kellogg’s Crunchy Nut, (6) Nutri-Grain Cereal Bars, (7) Nutri-grain Soft-Baked Breakfast Bars, (8) Nutri-Grain Oat & Harvest Bars, (9) Nutri-Grain Harvest Hearty Breakfast Bars, (10) Nu-tri-Grain Fruit Crunch Granola Bars, (11) Nutri-Grain Crunch Crunchy Breakfast Bars, and (12) Nutri-Grain Fruit & Nut Chewy Breakfast Bars. Id. Some of these product lines have multiple variants such that there are 53 products total that Plaintiff alleges are being sold with packaging that is misleading. Id.
In general, Defendant’s products are alleged to contain 10 to 19 grams of total sugar per serving and are 20 to 40% sugar by calorie. Id. However, the FAC indicates that there is a difference between “total sugar,” which is composed of all sugar in a product, including those provided by fruit, and “added sugar,” which is composed of sugar that does not naturally occur in the ingredients of the product. Id.
The FAC alleges that the consumption of added sugar (as opposed to total sugar) can have significant health impacts on individuals. Specifically, the FAC alleges that people in the United States consume excess added sugar, that people can become addicted to added sugar, and that excess added sugar consumption is linked to metabolic syndrome, type 2 diabetes, cardiovascular disease, liver disease, obesity, inflammation, high cholesterol, hypertension, Alzheimer’s disease, and some cancers. FAC ¶¶ 9-108. This link allegedly has been shown in multiple studies where the subjects of the study consumed 35 to 75 grams of added sugar (the amount of sugar in 1 to 2 cans of soda) per day. Id.
Moreover, the FAC alleges that the American Heart Association (“AHA”) has found that a person is “safe” to consume up to 5% of his or her daily calories in added sugar, which amounts to approximately 25 grams of added sugar on a 2000 calorie diet. Id. ¶ 25. On the other hand, the United States Food and Drug Administration (“FDA”) has concluded that the Daily Recommended Value (“DRV”) of added sugars is 10% of a person’s daily calories, or approximately 50 grams of added sugar. Based on these values, Plaintiff alleges that Defendant’s products have a higher percentage of total sugar per serving (2(M0% of total calories per serving) than the daily “safe” percentage of added sugar recommended by the AHA or the DRV recommended by the FDA. Id. The FAC does not explain why the per-serving total sugar percentage in the products should be compared to the recommended daily added sugar consumption percentage suggested by the AHA and the FDA.
Plaintiff alleges that the packaging for Defendant’s products contains multiple statements touting the health and wellness benefits of consuming Defendant’s products. For example, the packaging for Defendant’s products contains statements like “Heart Healthy,” “Great taste that does your heart good,” “Start with a healthy spoonful,” “Invest in your health invest in yourself,” “nutritious,” “Good source'* of whole grains,” and “good source of fiber.” FAC ¶¶ 127-219.
a. “HEART HEALTHY”
b. “Kellogg’s Heart Healthy Selection”
c. “GREAT TASTE THAT DOES YOUR HEART GOOD”
d. “HEART HEALTHY / Whole grains can help support, a healthy lifestyle.”
e. “+ HEART HEALTH + / Kellogg’s Raisin Bran / With crispy bran flakes made from whole grain wheat, all three varieties of Kellogg’s Raisin Bran are good sources of fiber.”
f. “Start with a healthy Spoonful”
g. “Invest in your health invest in yourself’
h. “Get health & nutrition tips at Kel-loggs.com/Healthylnvestments”
i. “Kellogg’s offers a full breakfast portfolio that features essential nutrients to help you start right and make the most of.every day.” [picturing Raisin Bran]
j. “NUTRIENTS FOR EVERY DAY/ Kellogg’s breakfasts offer the nutrients our bodies want to work and feel their best.”
. k. “A serving of Kellogg’s cereals with one cup of low-fat milk offers a tasty combination of carbs and protein that helps recharge your body. Protein helps you rebuild and carbs help you refuel.”
l. “A great wаy to START THE DAY / A breakfast of Kellogg’s cereal and milk is nutritious at its most delicious; Every spoonful has ■ grains to help recharge your body. So go ahead, .pour your favorite bowl of crunchy goodness. It just ■fuels right!”
m. “Goodness of Simple Grain”
n. Whole Grains Council Stamp
o. “FIBER / Fiber, like bran fiber, plays a very important party in your digestive health and overall well-being,”
p. “MADE WITH REAL FRUIT” ■
q, “REAL FRUIT / Delicious raisins add a sweetness you’ll love to every morning”
r. “BREAKFAST BRAINPOWER”
Id. ¶ 128. In contrast, other products such as Defendant’s Nutri-Grain Fruit Crunch Granola ’ Bars- and Nutri-Grain Crunch-Crunchy Breakfast Bars contain only a single challenged statement: “MADE WITH Real Fruit.” Id. ¶ 280.
B. Procedural History
On August 29, 2016, Plaintiff filed a complaint. ECF No. 1. On October 31, 2016, Defendant filed a motion to dismiss. ECF No. 22. In lieu of filing a response, on November 14, 2016, Plaintiff filed a First Amended Complaint. ECF No. 27 (“FAC”). The FAC alleged five causes of action including (1) violation of the California False Advertising Law (“FAL”), (2) violation of-the California Consumers Legal Remedies Act (“CLRA”), (3) violation of the California Unfair Competition Law (“UCL”) under the fraudulent, unfair, and unlawful prongs, (4)' breach of express warranty, and (5) breach of the implied warranty of merchantability. Id.
On December 8, 2016, Defendant filed the instant motion to dismiss the FAC. ECF No. 44’ (“Mot.”). On January 6, 2017, Plaintiff filed an opposition, ECF No. 49 (“Opp’n”), and on January 19, 2017, Defendant filed a reply, ECF No. 60 (“Reply”).
II. LEGAL STANDARD
A. Rule 8(a)
Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a complaint to include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A complaint that fails to meet this standard may be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6), The United States Supreme Court has held that Rule
However, a court need not accept as true allegations contradicted by judicially noticeable facts, Shwarz v. United States,
B. Rule 9(b)
Claims sounding in fraud or mistake are subject to the heightened pleading requirements of Federal Rule of Civil Procedure 9(b), which requires that a plaintiff alleging fraud “must state with particularity the circumstances constituting fraud.” Fed. R. Civ. P. 9(b); see Kearns v. Ford Motor Co.,
C. Leave to Amend
If the Court determines that the complaint should be dismissed, it must then decide whether to grant leave to amend. Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend “should be freely granted when justice so requires,” bearing in mind that “the underlying purpose of Rule 15 ... [is] to facili
III. DISCUSSION
The main thrust of Plaintiffs FAC is that Defendant represents that its products are healthy even though Defendant’s products contain excess, unhealthy amounts of added sugar. Defendant challenges Plaintiffs causes of action by arguing that (1) Plaintiffs causes of action under the FAL, the CLRA,. and the UCL fail because Plaintiff has inadequately alleged fraud, (2) Plaintiffs cause of action fails under the unlawful prong of the UCL because Plaintiff has not adequately alleged a violation of any law or regulation, (3) the statements on Defendant’s packaging are puffеry, and therefore cannot create an express warranty, and (4) that the implied warranty of merchantability has not been violated. Defendant also argues that Plaintiff does not have standing to seek injunc-tive relief. Plaintiff and Defendant both include requests for judicial notice in support of the instant motion. The Court first addresses the parties’ requests for judicial notice and then addresses each of the above arguments in turn.
A. Requests for Judicial Notice
The Court first addresses Defendant’s request for judicial notice, ECF No. 45, and Plaintiffs request for judicial notice, ECF No. 49-1. The Court may take judicial notice of matters that are either “generally known within the trial court’s territorial jurisdiction” or “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). Public records, including judgments and other publicly filed documents, are proper subjects of judicial notice. See, e.g., United States v. Black,
However, to the extent any facts in documents subject to judicial notice are subject to reasonable dispute, the Court will not take judicial notice of those facts. See Lee v. City of L.A.,
In ECF Number 45, Defendant requests judicial notice of the following documents:
• An image of the packaging for Kellogg’s Raisin Bran during the alleged class period;
• Food Labeling; General Requirement for Health Claims for Food, 58 Fed. Reg. 2478 (Jan. 6,1993);
• Food Labeling: Nutrient Content Claims, Definition of Term: Healthy, 59 Fed. Reg. 24232 (May 10,1994);
• Food Labeling: Added Sugars; Availability of Citizen Petition, 65 Fed. Reg. 39414 (June 26, 2000);
• Food Labeling: Revision of the Nutrition and Supplement Facts Labels, 81 Fed. Reg. 33742 (May 27, 2016);
• Food Labeling: Revision of the Nutrition and Supplement Facts Labels, 79 Fed. Reg. 11880 (Mar. 3, 2014);
• Food Labeling; Serving Sizes, 58 Fed. Reg. 2229, 2284 (Jan. 6, 1993).
■ • H.R. Rep. No. 101-538 (1990), reprinted in 1990 U.S.C.C.A.N. 3336, 3337;
• H.R. Rep. No. 114-205 (2015-2016);
As to Defendant’s request for judicial notice of an image of the packaging for Raisin Bran, the Court notes that the FAC already contains an image of the packaging in question, but omits the nutrition labeling on the side of the packaging for Raisin Bran. “A district court ruling on a motion to dismiss may consider documents ‘whose contents are alleged in a complaint [or whose contents are essential to a claim] and whose authenticity no party questions, but which are not physically attached to the [plaintiffs] pleading.’ ” Parrino v. FHP, Inc.,
As to Defendant’s request for judicial notice of the remaining documents, six of the documents are published in the Federal Register and the remaining two documents are publicly available congressional records. The documents in the federal register are subject to judicial notice. See 44 U.S.C. § 1507 (“The contents of the Federal Register shall be judicially noticed .... ”). Similarly, courts regularly take judicial notice of congressional records. See, e.g., Morning Star Packing Co. v. S.K. Foods, L.P.,
In ECF No. 49-1, Plaintiff requests judicial notice of eighteen different “facts” from various sources, such as a website, a book, newspapers, and a scientific report. These eighteen facts originate from the following five sources:
• Raisin Bran Deconstructed—Sugar and Fiber Math, HUFFINGTON POST BLOG (June 28, 2010), available at http://www.huffingtonpost. com/hemi-weingarten/raisin-brand econstructed_b_552981.html.
• Anahad O’Connor, How the Sugar Industry Shifted Blame to Fat, N.Y. TIMES (Sept. 12, 2016)
• Gary Taubes and Cristen Couzens, Big Sugar's Sweet Little Lies, Hoiv the Industry Kept Scientists from Asking: Does Sugar Kill?, MOTHER JONES (November/December 2012).
• FREDERICK J. STARE, ADVENTURES IN NUTRITION (1991).
• Scientific Report of the 2015 Dietary Guidelines Advisory Committee, available on the Office of Disease Prevention and Health Promotion’s website at https://health.gov/dietary guidelines/2015-scientific-report/
As to the first four sources, a Court may only take judicial notice of publications to “indicate what was in the public realm at the time, not whether the
From these first four publications, Plaintiff seeks judicial notice of the fact that these publications' have published factual statements about the level of sugar in Raisin Bran and various actions taken by the “sugar industry” to suppress research on the health effects of sugar. See, e.g., ECF No. 49-1 (seeking judicial notice of the fact that “[according to a September 12, 2016 New York Times article, ‘internal sugar industry documents ... suggest that five decades of research into the role of nutrition and heart disease, including many of today’s dietary recommendations, may havе been largely shaped by the sugar industry.’ ”). Indeed, Plaintiff specifies that he is only seeking judicial notice of the fact that certain statements were made in the publications, not for the truth of those statements. ECF No. 49-2.
However, the fact that publications made statements about the sugar industry or about the level of sugar in Raisin Bran, thus putting that information in the public realm, is not relevant to determining whether the labeling on Defendant’s packaging is actually false or misleading, or whether an express warranty or the implied warranty of merchantability has been breached. Gerritsen v. Warner Bros. Entm’t Inc.,
However, as to the Scientific Report of the 2015 Dietary Guidelines Advisory Committee, the Court GRANTS judicial notice of the document because it is a document published on a government website. See id. at 1033 (“[T]he court can take judicial notice of ‘[p]ublic records and government documents available from reliable sources on the Internet,’ such as websites run by governmental agencies.”). However, as noted above, the Court does not take judicial notice of facts subject to reasonable dispute within the document. See Lee,
B. The FAL, CLRA, and UCL Causes of Action
Plaintiff brings causes of actions under the FAL, the CLRA, and the UCL, for .allegedly misleading statements on Plaintiffs product packaging,
The CLRA prohibits certain “unfair methods of competition and unfair or deceptive acts or practices undertaken by any person in a transaction intended to result or which results in the sale or lease of goods or services to any consumer.” Cal. Civ. Code § 1770(a). One practice proscribed by the CLRA is “[Representing that goods or services are of a particular standard, quality, or grade ... if they are of another.” Id. § 1770(a)(7).
The UCL creates a cause of action for business practices that are- (1) unlawful, (2) unfair, or (3) fraudulent. Cal. Bus. & Prof. Code § 17200. Each “prong” of the UCL provides a separate and distinct theory of liability. Lozano v. AT & T Wireless Servs., Inc.,
1. The FAL, CLRA, and the Fraudulent Prong of the 1 UCL
Under the FAL, the CLRA, and the. fraudulent prong of the UCL, conduct is considered deceptive or misleading if the conduct is “likely to deceive” a “reasonable consumer.” Williams v. Gerber Prods. Co.,
The parties do not dispute that Plaintiffs causes of action under the FAL, the CLRA, and the fraudulent prong of the UCL rise or fall together. Accordingly, the Court considers these three causes of action together. In. the instant case, Plaintiff alleges that .Defendants misrepresented that Defendant’s products are healthy when they allegedly are not healthy due to either: (1) the presence of excess, unhealthy amounts of .added sugar, and (2) as to a small subset of products, the use of trans
a. Causes of Action Based on Added Sugar
Plaintiff’s added sugar-based FAL, CLRA, and UCL fraudulent prong causes of action are based on the following logical steps: (1) Defendant’s labeling indicates that Defendant’s cereals and cereal bars are healthy, (2) Defendant’s cereals and cereal bars contain excessive added sugar, (3) excessive added sugar is unhealthy, and therefore ■ (4) Defendant’s statements that its cereal and cereal bars are healthy are false or misleading. Mot. at 7 (“Plaintiffs entire [FAC] is predicated on the assumption that ‘[e]xcessive consumption of added sugar is toxic to the human body,’ and that [Defendant’s] Products cannot be marketed as healthy because they contain ‘excessive’ added sugar.”). Plaintiff agrees in his opposition that his causes of action are largely premised on Defendant’s “excessive” use of added sugar. Opp’n at 3-4.
Defendant argues that Plaintiff has failed to state a claim because Plaintiff has inadequately alleged the amount of added sugar in Defendant’s products, as opposed to total sugar, and that Plaintiff has inadequately alleged that the amount of added sugar is excessive to the point of being unhealthy. The Court agrees. Plaintiff has inadequately alleged the amount of added sugar in Defendant’s products, and thus has inadequately alleged that the amount of added sugar could plausibly be considered excessive and unhealthy.
Federal Rule of Civil Procedure 9(b) requires specific factual pleading that indicates why allegedly fraudulent statements are false or misleading. See In re Glenfed,
Plaintiffs FAC also alleges in a footnote that “even discounting sugars that are not added, Kellogg’s products still contain high levels of added sugar that greatly exceed science-based recommendations for maximum caloric consumption.” FAC ¶ 114 n.91. This conclusory allegation is insufficient to satisfy the requirements of Rule 9(b). Moreover, Plaintiff refers to science-based recommendations in plural without specifying what “science-based” recommendation for added sugar has been exceeded by Defendant’s products. The Court notes that Plaintiff often refers in the FAC to the American Heart Association’s recommendation that a person limit his or her added sugar intake to 5% of daily calories. However, the FAC contains no allegation that, after subtracting the sugar from fruit from the total sugar, the amount of added sugar exceeds that specific benchmark. Instead, the FAC states merely that the amount of added sugar after subtracting the sugar from fruit is still “excessive” or greater than “science-based recommendations.” Id. ¶¶ 114 n.91, 224, 225, 228.
Moreover, despite Plaintiffs argument that he has no knowledge of how much added sugar is in each of Defendant’s products—and the lack of such information in the FAC—Plaintiffs opposition to the instant motion provides an estimate of the amount of added sugar in Raisin Bran. Plaintiff uses information from a newspaper article about the number of raisins in Raisin Bran, and the sugar content of raisins, to estimate the amount of added sugar in Raisin Bran. These calculations show that added sugar composes only half of Raisin Bran’s alleged quantity of total sugar per serving. Opp’n at 4 (noting that the alleged 18 grams of total sugar per serving in Raisin Bran is only composed of 9 grams of added sugar).
The Ninth Circuit has stated that “Rule 9(b) serves three purposes: (1) to provide defendants with adequate notice to allow them to defend the charge and deter plaintiffs from the filing of complaints ‘as a pretext for the discovery of unknown wrongs’; (2) to protect those whose reputation would be harmed as a result of being subject to fraud charges; and (3) to ‘prohibit [] plaintiff[s] from unilaterally imposing upon the court, the parties and society enormous social and economic costs absent some factual basis.’” Kearns,
Thus, the Court GRANTS Defendant’s motion to dismiss on Plaintiffs causes of action for violation of the FAL, CLRA, and the fraudulent prong of the UCL.
The Court notes that Defendant moved to dismiss Plaintiffs original complaint based on Plaintiffs failure to adequately plead the amount of added sugar and that the amount of added sugar is unhealthy. ECF No. 22 at 14. After Plaintiff filed the FAC on November 14, 2016, the Court denied Defendant’s motion to dismiss as moot. ECF No. 31. In that order, the Court noted that “Plaintiff has now amended the complaint in light of the deficiencies identified in Defendant’s motion to dismiss” and that “if the Court grants any future motion to dismiss the amended complaint based on these deficiencies, the Court will dismiss the amended complaint with prejudice.” Id. Although the Court is granting Defendant’s motion to dismiss based on deficiencies Defendant identified in Plaintiffs original complaint, the Court provides leave to amend because this information may be in Defendant’s exclusive control.
h. Causes of Action Based on the Presence of Trans Fat
Plaintiff also alleges that two product types—Nutri-Grain Fruit Crunch Granola Bars and Nutri-Grain Crunch Crunchy Breakfast Bars (both types of Nutri-Grain bar come in two flavors, Apple Cobbler and Strawberry Parfait) (collectively, the “Nutri-Grain bars”)—include partially hydrogenated vegetable -oil, which allegedly “is the single worst nutrient (the only nutrient worse than sugar) in terms of its effect on bodily health, and particularly heart health.” FAC ¶¶ 290-91. The only challenged statement on the Nutri-Grain bars’ packaging is “MADE WITH Real Fruit.”
Defendant argues that Plaintiff does not have a cause of action based on these statements because (1) the statement “MADE WITH Real Fruit” is preempted, and (2) the statement is not misleading. The Court finds below that Plaintiff has failed- to adequately allege how “MADE WITH Real Fruit” is misleading and thus need not reach whether a cause of action based on the statement is-preempted.
As noted above, to state a claim under the FAL, the CLRA, or the fraudulent prong of the UCL, Plaintiff must allege that the packaging for Defendant’s products is “likely to deceive” a “reasonable consumer.” Williams,
Here, the statement “MADE WITH Real Fruit” is a factually true statement. Plaintiff does not contest that it is factually true that the Nutri-Grain bars are made •with real fruit. The statement “MADE WITH Real Fruit” does not reference the presence, or lack thereof, of trans fat. In fact, the product packaging for the Nutri-Grain bars does not mention trans fat at all. Defendant’s factually true statement would not cause a reasonable consumer to believe that the Nutri-Grain Bars are free of trans fat.
Indeed, many courts in this circuit have addressed similar factually true statements on product labels and have found that reasonable consumers would not be misled. For example, in Delacruz v. Cytosport, Inc.,
Similarly, in Red v. Kraft Foods, Inc.,
Nevertheless, Plaintiff argues that the statement “MADE WITH Real Fruit” “is ‘calling out’ the supposedly beneficial aspects of its cereals and bars, and particularly their whole grain, fiber, or ‘real fruit’ content.” Opp’n at 7; FAC ¶ 255. However, Plaintiff fails to allege what benefit from real fruit is false. In.addition, Plaintiffs FAC alleges that the “health and wellness” claims on the Nutri-Grain bar packaging are made despite the presence of unhealthy trans fat. FAC ¶ 290. However, Plaintiff fails to provide any authority for the contention that a food manufacturer cannot state that a food product contains a certain ingredient, whether it is real fruit or some other ingredient such as whole grains, if that product also contains trans fat.
The one case Plaintiff cites for the principle that the factually true statement “MADE WITH Real Fruit” could be misleading is Lam v. General Mills, Inc.,
Accordingly, the Court GRANTS Plaintiffs motion to dismiss Plaintiffs claims for violation of the FAL, CLRA, and fraudulent prong of the UCL with respect to Plaintiffs- allegations concerning the claim “MADE WITH Real Fruit” and trans fats. Defendant’s motion to dismiss the original complaint identified the same deficiency with Plaintiffs “MADE WITH Real Fruit” claims. The Court warned Plaintiff that failure to correct the deficiencies identified in Defendant’s motion to dismiss would result in Plaintiffs claims being dismissed with prejudice. Plaintiffs FAC fails to cure the deficiencies with Plaintiffs “MADE WITH Real Fruit” claims. Accordingly, the Court finds that amendment would be futile on this issue. Carvalho,
2. Unlawful Prong of the UCL
Plaintiff alleges that Defendant’s labeling violates the unlawful prong of the UCL. “By proscribing any unlawful business practice, the UCL borrows violations of other laws and treats them as unlawful practices that the unfair competition law makes independently actionable.” Alvarez v. Chevron Corp.,
Where Plaintiff has alleged a “unified course of fraudulent conduct,” Rule 9(b)’s particularity requirement applies to the unlawful and unfair prong of the UCL in addition to the above-discussed fraudulent prong. See Kearns,
Here, Plaintiff alleges that Defendant has violated the unlawful prong of the UCL through Defendant’s violation of four other statutes: (1) the FAL; (2) the CLRA; (3) the California Sherman Food, Drug, and Cosmetic law, Cal. Health & Safety Code § 109875 et seq. (the “Sherman law”); and (4) the federal Food, Drug, and Cosmetics Act, 21 U.S.C. § 301 et seq. (“FDCA”). The Court first addresses the FAL and the CLRA and then addresses the Sherman law and the FDCA.
With respect to Plaintiffs unlawful prong UCL cause of action based on violations of the FAL and the CLRA, Plaintiff alleges the same fraudulent conduct the Court found was inadequately alleged in the prior section. Therefore, because the Court concluded above that Plaintiff has inadequately alleged a violation of the FAL and CLRA under the
Regarding the Sherman law and the FDCA, Plaintiff alleges Defendant violated these statutes by violating FDA regulations promulgated under the FDCA. Through the Sherman law, California has expressly adopted the federal labeling requirements described in the FDCA. See Cal. Health & Safety Code § 110100 (“All food labeling regulations and any amendments to those regulations adopted pursuant to the federal act, in effect on January 1, 1993, or adopted on or after that date shall be the food labeling regulations of this state.”). Accordingly, because the Sherman law adopts federal labeling requirements, whеther Plaintiff has violated the FDCA through violations of implementing FDA regulations will also determine whether Plaintiff has violated the Sherman law.
The FDCA governs whether a product is “misbranded” because of improper labeling. The FDCA identifies multiple ways to misbrand a food product. See 21 U.S.C. § 343(a)-(y). One way to misbrand a food product is to use nutrient content claims or health claims under 21 U.S.C. § 343(r). Under § 343(r), a product is considered to be “misbranded” if it contains a claim that “(A) characterizes the level of any nutrient which is of the type required by paragraph (q)(l) or (q)(2) to be in the label” or “(B) characterizes the relationship of any nutrient which is of the type required by paragraph (q)(l) or (q)(2) ... to a disease or health-related condition” unless the claim is made in accordance with the requirements under the statute. 21 U.S.C. § 343(r).
The FDA regulations that implement § 343(r) specify that there are three types of claims under § 343(r)(A) and (B): expressed nutrient content claims, implied nutrient content claims, and health claims. See 21 C.F.R. §§ 101.13 (addressing express and implied nutrient content claims), 101.65 (implied nutrient content claims), 101.14 (health claims). “An expressed nutrient content claim is any direct statement about the level (or range) of a nutrient in the food, e.g., ‘low sodium’ or ‘contains 100 calories.’ ” Id. § 101.13(b)(1). An implied nutrient content claim, in contrast, encompasses statements that either “[d]escribe[ ] the food or an ingredient therein in a manner that suggests that a nutrient is absent or present in a certain amount (e.g., “high in oat bran”),” or “[s]uggest[] that the food, .because of its nutrient content, may be useful in maintaining healthy dietary practices.” Id. § 101.13(b)(2). A health claim is “any claim ... that expressly or by implication, ... characterizes the relationship of any substance to a disease or health-related condition.” Id. § 101.14(a)(1). These implementing regulations provide specific requirements for making nutrient content claims and health claims.
Plaintiff alleges that Defendant’s products are misbranded because (1) Defendant’s products make forbidden health claims that improperly link fiber and cardiovascular disease; (2) Defendant improperly places intervening material between health claims and required information; (3) Defendant’s nutrient content claims are in a larger font than allowed by FDA regulations; (4) Defendant makes misleading nutrient content claims about the protein content of the products; (5) Defendant makes a misleading nutrient content claim by stating that some products contain “No High Fructose Corn Syrup”; and (6) Defendant omits relevant information from the labels that are required under 21
a. Health Claims Linking Fiber to Cardiovascular Disease
The FAC alleges that' Defendant’s products contain forbidden health claims that link fiber and cardiovascular' disease under 21 U.S.C. § 101.14 and 21 C.F.R. § 101.71(a). Section 101.14 forbids a product’s packaging from making health claims that are not explicitly, authorized under “Subpart E” of the section of "the Code of Federal Regulations concerning food labeling. Subpart E encompasses 21 C.F.R. §§ 101.70-83. There are two relevant provisions under Subpart E that apply to the link between fiber and cardiovascular disease. First, under 21 C.F.R. § 101.71(a), “[h]ealth claims [are] not authorized” that link “[d]ietary fíber and cardiovascular disease.” 21 C.F.R. § 101.71(a). Second, under 21 C.F.R. § 101.77, despite § 101.71(a), a food manufacturer may make health claims that “diets low in saturated fat and cholesterol and high in fruits, vegetables, and grain products that contain fiber ‘may’ or ‘might’ reduce the risk of heart disease.” 21 C.F.R. § 101.77; see In re Quaker Oats Labeling Litig.,
The FAC alleges that one of Defendant’s products, Raisin Bran Cinnamon Almond, contains health claims that im-permissibly link fiber to cardiovascular disease by stating that fiber helps with ‘“weight loss,’ ‘bad’ cholesterol’ levels, ‘blood pressure,’ and ‘blood sugar levels.’ ” See FAC ¶ 299 (“[Fjiber pan help promote weight lo s and healthier eating patterns”; “Fiber-rich diets can help lower ‘bad’ cholesterol, lower blood pressure, and help control blood, sugar levels.”). Moreover, the FAC alleges that other products contain forbidden health claims such as “HEART ■ HEALTHY/Whole grains can help support a healthy lifestyle” because “whole grains implM the presence of fiber.
The Court first addresses whether Plaintiff has alleged a violation of §§ 101.14 and 101.71(a). The Court then turns to whether Plaintiff has alleged “bare technical violations” that do not mislead reasonable consumers,
i. Violation of Federal Regulations
The sole argument Defendant raises in its motion to dismiss with respect to the fiber-related health claims is that the Raisin Bran Cinnamon Almond health claims do not violate 21 C.F.R. § 101.71(a) because those claims do not actually link fiber to heart disease, but solely refer' to risk factors for heart disease. Mot. at 22. The FDA has provided a compliance guide that describes when a claim made on packaging refers to a specific disease. See
In Defendant’s reply brief, Defendant argues for the first time that these health claims actually comply with 21 C.F.R. § 101.77, and therefore are permitted health claims. The Court need not reach arguments that are raised for the first time in a reply brief. See Ellison Framing, Inc. v. Zurich American Ins. Co.,
Defendant argues that Plaintiffs cause of action involves allegations of “a bare violation of a statute or regulation [that] does not entitle a plaintiff to relief absent a showing that a reasonable consumer would be misled or injured as a result.” Mot. at 25. Thus, the Court construes Defendant’s “bare technical violation” argument as an argument that Plaintiff has failed to satisfy the “reasonable consumer test.” Under the reasonable consumer test, “a plaintiff must ‘show that members of the public are likely to be deceived.’ ” Reid v. Johnson & Johnson,
The Court looks to the “gravamen” of Plaintiffs causes of action to determine if the causes of action are grounded in fraud. See Wilson v. Prito-Lay N. Am., Inc.,
Here, as currently alleged in the FAC, Plaintiffs challenge to Defendant’s use of health claims linking fiber and cardiovascular disease is grounded in fraud. As discussed above, the gravamen of Plaintiffs complaint is that Defendant has made deceptive health claims on its product packaging that are false due to the presence of added sugar. Moreover, the particular FDA regulation that prohibits health claims linking fiber and cardiovascular disease are intended to prevent misleading statements about soluble fiber. 58 Fed. Reg. 2552, 2571, 2573 (1993) (“[T]he attribution of [beneficial cardiovascular] effects to soluble fiber per se, when foods contain a wide range of vitamins, minerals, and other substances, is misleading”; “[I]t would be misleading to place undue emphasis on soluble fiber standing alone.”). Plaintiff even concedes that the FDA regulations at issue are intended to prevent the consuming public from being misled. See Opp’n at 19 (“[Plaintiff] alleges Kellogg uses some of the most highly-regulated aspects of food labeling—nutrient content and health claims—in violation of regulations enacted expressly to ensure consumers are not misled.”). Accordingly, Plaintiffs unlawful prong UCL cause of action based on Defendant’s statements linking fiber and cardiovascular disease is grounded in fraud.
The question then is whether a reasonable consumer would be confused by Defendant’s statements concerning soluble fiber. “Generally, the question of whether a business practice is deceptive [under the reasonable consumer standard] presents a question of fact not suited for resolution on a motion to dismiss.” Robert McCrary v. The Elations Co., LLC,
Here, as with the rest of the FAC, the claim could be misleading because the claim linking fiber and cardiovascular disease implies that Raisin Bran Cinnamon Almond is healthy when it is not because of excessive added sugar. However, that cannot be the basis for finding the claims misleading here because, as discussed above, Plaintiff has inadequately alleged the amount of added sugar under Rule 9(b).
Plaintiff has made no other allegation about how the claims linking fiber and heart disease are misleading. Rule 9(b) requires a Plaintiff to “set forth what is false or misleading about a statement, and why it is false.” In re Glenfed,
Thus, because Plaintiff has failed to adequately allege a violation of the reasonable consumer test, the Court GRANTS Defendant’s motion to dismiss the unlawful prong UCL cause of action as to the health claims linking fiber and cardiovascular disease on the packaging for Raisin Bran Cinnamon Almond. The Court provides leave to amend because Plaintiff may be able to allege facts that will satisfy the reasonable consumer test.
b. Intervening Material Between Health Claims and Required Information
Plaintiff alleges that Plaintiff has improperly placed intervening material between Plaintiffs health claims and information that is required to accompany such health claims. See 21 C.F.R. § 101.14(d)(2)(iv) (requiring that “[a]ll information required to be included in [a health] claim appears in one place without other intervening material.”). Defendant argues that it has not violated this provision, and that, even if it has, that violation is a “bare technical violation” that does not give rise to a cause of action under the unlawful prong of the UCL.
Accordingly, the Court GRANTS Defendant’s motion to dismiss -as to Plaintiffs unlawful prong UCL cause of action based on intervening material between health claims and statements required to accompany those health claims. Thе dismissal is with prejudice because Plaintiff has waived the issue. Moreover, Defendant’s motion to dismiss the original complaint identified the same deficiency with Plaintiffs “intervening material” claim. ECF No. 22 at 21 n.4. The Court warned Plaintiff that failure to correct the deficiencies identified in Defendant’s motion to dismiss would result in Plaintiffs claims being dismissed with prejudice. ECF No. 31, Plaintiffs FAC fails to cure the deficiencies with Plaintiffs “intervening material” claim. Accordingly, the Court finds that amendment would be futile. Carvalho,
c. Size of Nutrient Content Claims
Under 21 C.F.R. § 101.13(f), a nutrient content claim “shall be in a type size no larger than two times the statement of identity and shall not be unduly prominent in type style compared to the statement of identity.” Defendant argues that Plaintiff has failed to adequately allege a violation of 21 C.F.R. § 101.13(f) because Plaintiff has failed to identify any statements in the FAC that-violate this provision, and because Plaintiff has only alleged a “bare technical violation” with no allegation as-to why a reasonable consumer would be misled.
A statement of identity is a statement on the product that identifies the product. See Coe v. Gen. Mills, Inc.,
Accordingly, the Court GRANTS Defendant’s motion to dismiss Plaintiffs unlawful prong UCL cause of action to the extent it is based on the type size of nutrient content claims. The Court provides leave to amend because Defendant’s prior motion to dismiss the original complaint did not identify this particular deficiency in Plaintiffs § 101.13(f) cause of action,
d. Protein Content of Products
Under 21 C.F.R. § 101.13(i)(3), an express nutrient content claim is allowed if it “is not false or misleading in any respect.” Plaintiff alleges that Defendant has
Defendant argues that the statement concerning the amount of protein is not misleading. Specifically, Defendant notes that the statement “9g Protein” is part of an infographic in a bordered area on the front of Defendant’s product packaging. Directly below the statement “9g Protein” is a picture of a cereal bowl labeled “5g,” followed by a plus sign, followed by a picture of a milk carton labeled “4g.” Together, the infographic creates the equation “cereal + milk,” with a 5 gram protein contribution from cereal and 4 gram protein contribution from milk to equal the total 9 grams of protein.
The Court agrees with Defendant that Defendant’s protein label is not misleading. Although the label states “9g Protein” in large font, directly below that statement are symbols indicating that the protein contribution of cereal is added to the prb'-tein contribution of milk. Plaintiff argues that this infographic is misleading because the combined protein amount is in a larger font than the protein contributions from the cereal and milk, and therefore will be more likely to catch a shopper’s eye. However, the symbols for cereal and milk are approximately the same size as the lettering indicating “9g Protein” and are located directly below the “9g Protein” amount in the same bordered area. In Morgan v. Wallaby Yogurt Company Inc.,
Accordingly, Plaintiff GRANTS Defendant’s motion to dismiss Plaintiffs unlawful prong UCL cause of action to the extent it is based on the allegations concerning the amount of protein in the product. The Court dismisses this claim with prejudice because amendment'would be futile. See Carvalho,
e. Express Claims Concerning High Fructose Corn Syrup
Plaintiff alleges that the statement “No High Fructose Corn Syrup” used on some of Defendant’s Nutri-Grain cereal bars violates 21 C.F.R. § 101.13(e).
Plaintiff argues that use of the statement “No High Fructose Corn Syrup” is a violation of § 101.13(e) because the Nutri-Grain cereal bars labeled with “No High Fructose Corn Syrup” have not been “specially processed, altered, formulated, or reformulated” to lower the amount of high fructose corn syrup in the cereal bars. As noted above, under § 101.13(e), where a product has not been “specially processed, altered, formulated, or reformulated” to lower the amount of nutrient, a food label cannot state that the product is “free”. of the nutrient, but instead must “indicate that the food inherently” lacks the nutrient. Thus, Plaintiff contends that Defendant’s Nutri-Grain cereal bars should be labeled with a statement like “cereal bars, a high fructose corn syrup free food” rather than the statement “No High Fructose Corn Syrup.”
However, the FAC’s sole allegation that the Nutri-Grain cereal bars, have not been “specially processed, altered, formulated, or reformulated” to lower the amount of high fructose corn syrup is the statement that “none of Kellogg’s food products in their natural state contain high fructose corn syrup, a man-made sweetener.” FAC ¶ 304. Plaintiff does not define Kellogg’s food products’ “natural state.” Moreover, Plaintiffs statement is conclusory and does not plead sufficient facts to conclude that Plaintiffs Nutri-Grain cereal bars have not been “specially processed, altered, formulated, or reformulated” to lower the amount of high fructose corn syrup. See Iqbal,
Furthermore, Plaintiff makes no allegation that other cereal bars do not contain high fructose corn syrup. FDA guidance provides that if other foods of the same type do contain a nutrient, § 101.13(e) cannot be violated by stating that the product lacks that nutrient. See Guidance for Industry: A Food Labeling Guide, Chp. 8: Claims, at 75 (January 2013), available at https://www.fda.gov/downloads/Food/ GuidanceRegulation/U CM265446.pdf (“N24. If a product is made that does not have a regular version, such as a spice mix, and salt is not included in it, may the product be labeled ‘sodium free?’ Answer: Yes. FDA would consider that the food was formulated so as not to include the nutrient in the food and therefore it would be eligible to bear a “sodium free” claim if the product otherwise meets the criteria for the term ‘sodium free.’ ”). Accordingly, the Court finds that Plaintiff has not adequately alleged a violation of § 101.13(e).
Nonetheless, Plaintiff argues for the first time in his opposition that the term “No High Fructose Corn Syrup” is actually an implied nutrient content claim about the level of sugar in the product. Thus, according to Plaintiff, Defendant’s “No High Fructose Corn Syrup” statements are actually statements that Defendant’s products have no sugar at all and thus violate the requirements for stating that a product is “low in sugar” or “sugar free” as defined in 21 C.F.R. § 101.13® and 21 C.F.R. § 101.60(c). However, the FAC contains no allegation that reasonable consumers find statements about high fructose corn syrup to be equivalent to statements about sugar. Regardless, the Court need not consider causes of action that were not raised in the complaint. McMichael v. Napa Cty.,
Accordingly, Defendant’s use of the term “No High Fructose Corn Syrup” cannot be the basis for Plaintiffs UCL cause of action under the unlawful prong. Thus, the Court GRANTS Defendant’s motion to dismiss as to Plaintiffs causes of action based on the statement “No High Fructose Corn Syrup.” The Court provides leave to amend because Plaintiff did not raise UCL unlawful prong violations based on the statement “No High Fructose Corn Syrup” in the original complaint, and thus. Plaintiff has not already amended this particular claim in light of deficiencies identified by Defendant’s motion to dismiss the original complaint. Moreover, Plaintiff may be able to allege a violation of §§ 101.13(e), 101.13®, or 101.60(c) due to Defendant’s use of the term “No High Fructose Corn Syrup.”
f. Omission of Presence of Sugar under 21 C.F.R. § 1.21
Plaintiff alleges that Defendant’s products are misbranded under 21 C.F.R, § 1.21 because Defendant’s products con
As with the FAL and the CLRA, Plaintiffs § 1.21 claim alleges that Defendant has made health and wellness claims that are not true because of excess added sugar in Defendant’s product. As with the FAL and the CLRA, this argument fails because Plaintiff has failed to adequately allege the amount of .added sugar in Defendant’s products and that the amount of added sugar is excessive and unhealthy. Accordingly, the Court GRANTS Plaintiffs unlawful prong UCL cause of action based on § 1.21. The Court provides leave to amend because Plaintiff may be able to allege more details concerning the amount of added sugar in each of Defendant’s ■products and that the amount of added sugar is excessive and unhealthy.
In summary, the Court GRANTS Defendant’s motion to dismiss as to all of the statements Defendant challenged in the FAC.
3. Unfair Prong of the UCL
The unfair prong of the UCL prohibits a business practice that “violates established public policy or if it is immoral, unethical, oppressive or unscrupulous and' causes injury to consumers which outweighs its benefits.” McKell v. Wash. Mut., Inc.,
HSBC Bank Nevada, N.A.,
Under the traditional balancing test, “an act or practice is unfair if the consumer injury is substantial,.is not outweighed by any countervailing benefits to consumers or to competition, and is not an injury the consumers themselves could reasonably have avoided.” Berryman v. Merit Property Management, Inc.,
Regardless of the test, courts in this district have held that where the unfair business practices alleged under the unfair
Here, Plaintiff alleges that Defendant violated the unfair prong of the UCL because Defendant “label[ed], adver-tis[ed], and s[old] [] high sugar cereals” and because Plaintiffs product packaging violated the FAL, CLRA, FDCA, and the Sherman law. FAC ¶¶ 421-23. These allegations indicate that Plaintiffs unfair prong UCL cause of action is based on the same contentions discussed above that either (1) Plaintiff fraudulently sold unhealthy products whilе representing they were healthy, or (2) violated specific provisions of the FDA regulations. However, the Court concluded above that Plaintiff has inadequately alleged a violation of the FAL, CLRA, and fraudulent prong of the UCL. Moreover, the Court granted Defendant’s motion to dismiss Plaintiffs unlawful prong UCL cause of action as to all of the statements that Plaintiff alleges are in violation of the FDCA and the Sherman law.
Accordingly, for the same reasons the Court granted Defendant’s motion to dismiss as to the FAL, CLRA, fraudulent prong UCL cause of action, and unlawful prong UCL cause of action, the Court GRANTS Defendant’s motion to dismiss Plaintiffs unfair prong UCL cause of action. The'Court provides leave to amend to the same extent that the Court provided leave to amend for Plaintiffs' claims under the FAL, CLRA, fraudulent prong of the UCL, and unlawful prong of the UCL.
C. Express Warranty
Plaintiff asserts a breach of express warranty under California law. Cal. Com. Code § 2313. Under § 2313, an express warranty is created through “[a]ny affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.” Id. “In order to plead a chuse of action for breach of express warranty, one must allege the exact terms of the warranty, plaintiffs reasonable reliance thereon, and a breach of that warranty which proximately causes plaintiff injury.” Williams v. Beechnut Nutrition Corp.,
Plaintiff has inadequately pled a cаuse of action for breach of implied warranty because Plaintiff has failed to “allege the exact terms of the warranty” for each product at issue. Beechnut,
Accordingly, the Court GRANTS Defendant’s motion to dismiss as to Plaintiffs warranty cause of action with leave to amend. The Court provides leave to amend because Plaintiff may be able to indicate what statements constitute the claimed warranty as to each product.
D. Implied Warranty of Merchantability
Plaintiff also asserts that Defendant has violated the implied warranty of merchantibility. Under California law, the implied warranty can be violated if (1) the product is not “fit for the ordinary purposes for which such good [is] used,” or (2) does not “[c]onform to the promises or affirmations of fact made on the container or label if any.” Cal. Com. Code § 2314(2); see Hauter v. Zogarts,
Plaintiff concedes that Defendant’s products are “fit for the ordinary purpose” for which Defendant’s products are used. Opp’n at 26-27. However, Plaintiff argues that Defendant’s products do not “[c]onform to the promises or affirmations of fact” on the packaging for Defendant’s products. When an implied warranty of merchantability cause of action is based solely on whether the product in dispute “[c]onforms to the promises or affirmations of fact” on the packaging of the product, the implied warranty of merchantability claim rises and falls with express warranty claims brought for the same product. See Hendricks v. StarKist Co.,
Therefore, the Court GRANTS Defendant’s motion to dismiss with leаve to amend as to Plaintiffs cause of action for violation of the implied warranty of merchantability. The Court provides leave to amend because Plaintiff may be able to indicate what statements constitute the claimed warranty as to each product.
E. Standing for Injunctive Relief
Article III standing requires that the Plaintiff “(1) suffered an injury in
In false advertising cases, “where a plaintiff has no intention of purchasing the product in the future, a majority of district courts have held that the plaintiff has no standing to seek prospective injunctive relief, and some have also held that a plaintiff who is aware of allegedly misleading advertising has no standing to seek prospective injunctive relief.” Davidson v. Kimberly-Clark Corp.,
Moreover, this Court has rejected the proposition that a plaintiffs awareness of allegedly misleading advertising eliminates standing to seek prospective injunctive relief. In re Yahoo Mail Litig.,
Here, Plaintiff contends that it has satisfied the standing requirement for injunctive relief by pleading that Plaintiff would “consider purchasing Kellogg products” again in the future “if [P]laintiff could be assured that mhealthy Kellogg products—those high in added sugar—are appropriately priced,” Opp’n at 28. Rather than stating that Plaintiff intends to purchase Defendant’s products again in the future, Plaintiff solely alleges that Plaintiff would consider making such a purchase if the price were to decrease to a level that is “appropriate.”
Courts in this district have indicated that it is sufficient to allege that “willingness to consider a future- purchase is sufficient” to confer standing for injunctive relief. Lilly v. Jamba Juice Co.,
However, the Lilly holding does not address situations where a plaintiff alleges that he or she would-only “consider” purchasing the produсts if they are “appropriately priced.” An injunction on Defendant’s food labeling practices might prevent a plaintiff from consuming a mislabeled product, but the Court has no control over whether the price of a product will be changed to an “appropriate” level. Indeed, Plaintiff fails to even allege what price for Defendant’s products would be “appropriate.” Therefore, the Court finds Plaintiffs allegation for standing to be insufficient.
Accordingly, the Court GRANTS Defendant’s motion to dismiss with respect to Plaintiffs prayer for injunctive relief. The Court provides leave to amend because Plaintiff may be able to allege an intent to purchase Defendant’s products that meets the requirements of Article III.
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS Defendant’s motion to dismiss. Should Plaintiff elect to file an amended complaint curing the deficiencies identified herein, Plaintiff shall do so within thirty (30) days of the date of this Order. Failure to meet the thirty-day deadline to file an amended complaint or failure to cure the deficiencies identified in this Order will result in a dismissal with prejudice of Plaintiffs deficient causes of action. Plaintiff may not add new causes of action or parties without leave of the Court or stipulation-of the parties pursuant to Rule 15 of the Federal Rules of Civil Procedure.
IT IS SO ORDERED.
Notes
. In addition to Defendant's product packaging, the FAC contains multiple allegations concerning statements made on Defendant’s website. FAC ¶¶ 316-53. Defendant argues that Plaintiff does not have standing to bring causes of action under the FAL, CLRA, or ‘ UCL for statements made on Defendant’s website about Defendant's products, Mot. at 27. Article III standing requires Plaintiff to have "(1) suffеred an injury in fact, (2) that is fairly traceable to the challenged conduct of
. Plaintiff provides this information pursuant to a request for judicial notice of a Huffington Post blog post. However, the Court above denied Plaintiff’s request for judicial notice of the Huffington Post blog post. Moreover, Plaintiffs request for judicial notice sought judicial notice solely of the fact that the Huff-ington Post published this information, not the truth of the facts contained in the article. Therefore, these allegations do not satisfy Rule 9(b).
. Defendant argues in the instant motion that, to the extent Plaintiff alleges that the use of the terms ‘‘wholesome,” . “nutritious,” and "healthy" violates 2Í C.F.R. § 101.65 as im-' proper implied nutrient content claims, such an allegation would fail. However, the FAC does not specifically allege a violation of § 101.65, and Plaintiff did not address the argument in its opposition to the instant motion. Accordingly, the Court neеd not reach the issue.
. This allegation includes the following products: Raisin Bran, Raisin Bran Crunch, Ari-sta Bran with Cranberries, and Rais.in Bran Omega-3 250 mg ALA from Flaxseed.
. This FDA guidance was published for a different kind of claim that is regulated under 21 C.F.R. § 101,93 rather than 21 C.F.R. § 101.71(a). However, the Court finds the guidance relevant to the instant inquiry as to whether the claim at issue refers to a specific disease.
. Moreover, even if the Court were to address the argument, Defendant's argument fails because Defendant fails to meet its burden of persuasion as the moving party. See Makah Indian Tribe v. Verity,
. Moreover, the Court notes that Defendant has challenged Plaintiff’s allegations that Defendant violated § 101.71(a) by stating that whole grains are "heart healthy” on Plaintiff's other products. See FAC ¶ 302. Defendant asserts that the heart healthy statements are preempted and do not violate the FDA regulations. ECF No. 44-1. The Court finds Plaintiff’s claims to be defective for the same reason as Plaintiff’s claims about the statements linking fiber and cardiovascular disease on Raisin Bran Cinnamon Almond. Specifically, Plaintiff has not adequately alleged that reasonable consumers would be misled by Defendant's heart healthy statements. Accordingly, the Court GRANTS Defendant’s motion to dismiss Plaintiff's heart healthy claims. The Court provides leave to amend because Plaintiff may be able to allege facts that will satisfy the reasonable consumer test.
. The following products allegedly misrepresent the amount of protein: Raisin Bran,. Raisin Bran Crunch, Raisin Bran Omega-3 250mg ALA From Flaxseed, Raisin Bran with Cranberries, Frosted Mini-Wheats in Original and Blueberry flavors, Frosted Mini-Wheats Little Bites in Original and Chocolate flavors, Frosted Mini-Wheats Fruit in the Middle in Raspberry flavor, and Frosted Mini-Wheats Harvest Delights ■ in Blueberry with Vanilla Drizzle and Cranberry with Yoghurt Drizzle flavors. FAC ¶ 306.
. The statement "No High Fructose Com Syrup” appears on the following products: Nu-tri-Grain Cereal Bars in Apple Cinnamon, Blueberry, Strawberry, Cherry, and ■ Mixed Berry flavors; Nutri-Grain Soft-Baked Breakfast Bars in Blueberry, Strawberry, and Variety Pack flavors; and Nutri-Grain Fruit & Oat Harvest Bars in Country Strawberry and Blueberry Bliss flavors.
. The Court also notes that high fructose corn syrup may be an "ingredient” and not a "nutrient” regulated by § 101.13(e). However, the Court need not reach this issue because even if high fructose com syrup were a nutrient within the meaning of the FDA regulations, Plaintiff has failed to adequately plead a violation of § 101.13(e).