ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS
INTRODUCTION
Plaintiff 'Scott Miller . bought a package of “Ghirardelli Chocolate Premium Baking Chips Classic White” and then — on behalf of himself and other consumers — sued Ghirardelli Chocolate, complaining that this and four other Ghirardelli Chocolate products were marketed as “White” or “White Chocolate Flavored” when they did not contain any white chocolate, in.violation of the following state laws: (1) the Consumer Legal Remedies Act, Cal. Civ.Code § 1750 et seq.; (2) the False Advertising Law, Cal. Bus. & Prof.Code § 17500 et seq.; (3) common-law fraud; and (4) the Unfair Competition Law, Cal. Bus., & Prof.Code § 17200. Ghirardelli moves to dismiss, arguing that Miller does not have standing regarding the four products he never purchased, other claims are preempted by federal regulations, his false advertising claims concerning several products are insufficiently
The court GRANTS the motion on the ground that Miller lacks standing to challenge the four products he did not buy and DENIES Ghirardelli’s motion otherwise. Plaintiff may file an amended complaint in 21 days.
STATEMENT
I.BACKGROUND ALLEGATIONS
Ghirardelli Chocolate is a California corporation that manufactures and markets premium chocolate products and non-chocolate products. Complaint, ECF No. 1, ¶¶ 3, 15, 17.
On June 24, 2012, Miller wanted to buy white chocolate chips and ultimately bought Ghirardelli Chocolate’s Premium Baking Chips — Classic White” (“baking chips”). Id. ¶ 47. In deciding which product to purchase, Miller reviewed the product packaging to satisfy himself that he was buying white chocolate. Id. ¶ 48. The next day, Miller tasted the baking chips and thought that they did not taste like white chocolate. Id. He reviewed the ingredients list on the packaging and noticed that the white chips contained no white chocolate, cocoa, or cocoa butter. Id. ¶ 49.
“Webster’s Dictionary defines ‘white chocolate’ as ‘a confection of cocoa butter, sugar, milk solids, lecithin, and flavorings.’ ” Id. ¶ 21. Miller also alleges that United States Food and Drug Administration (“FDA”) regulations provide more technical definitions of “white chocolate” and “white chocolate flavor.” Id. ¶ 22. Miller explains that the FDA regulations require products labeled as “white chocolate” to contain a minimum of 20 percent cocoa butter. Id. Other FDA regulations mandate that “a product may cannot be called ‘white chocolate flavored’ unless it has some natural derivative of cocoa butter or cacao fat.” Id. ¶ 23.
Miller claims that he would not have purchased the baking chips or would have paid less for them but for Ghirardelli Chocolate’s allegedly misrepresenting (by omission and commission) their white chocolate content. Id. ¶ 50.
In this lawsuit, Miller alleges that Ghirardelli Chocolate misrepresented the white chocolate content of five products (collectively, the “Products”):
1. Premium Baking Chips — Classic White (“baking chips”);
2. White Chocolate Flavored Confectionary Coating Wafers (“wafers”);
3. Sweet Ground White Chocolate Flavor (“white chocolate flavor”);
4. Premium Hot Beverage — White Mocha (“mocha mix”);
5. Frappé Classico — Classic White (“frappe”).
Id. ¶ 19.
II. THE ALLEGED MISREPRESENTATIONS
Miller alleges that Ghirardelli makes a number of actionable misrepresentations about the Products, both individually and collectively.
A. Premium Baking Chips — Classic White
Miller alleges that the baking chips packaging refers to the product as “Classic White,” and “Premium,” which misleads consumers into believing the baking chips
The luxuriously deep flavor and smooth texture of Ghirardelli Premium Baking Chocolate delivers the ultimate chocolate indulgence. We hand-select the world’s finest cocoa beans and roast them to perfection and then blend the purest ingredients to achieve our award-winning chocolate. For our Classic White Baking Chips, pure vanilla and whole milk powder combine to create rich, melt-in-your-mouth bliss. Experience the Ghirardelli difference:
• All Natural ingredients
• Luxuriously smooth and creamy
• Finest grind for smoothest texture and easiest melting.
Id.; Saunders Decl. Supp. Motion to Dismiss, ECF No. 9 ¶¶ 3-4; id. Ex. A, ECF No. 9-1 at 3; id. Ex. B, ECF No. 9-2.
B. White Chocolate Flavored Confectionary Coating Wafers
The packaging for the wafers allegedly misleads by referring to the wafers as “White Chocolate Flavored Cohfectionary Coating Wafers,” though the wafers are not flavored with white chocolate and contain no cocoa butter or cacao fat. Id. ¶ 26. In addition, this language is allegedly misleading because a chocolate product — Ghirardelli® Chocolate Double Chocolate Flavored Confectionary Coating Wafers — uses a similar label. Because the two products are likely to be shelved'near each other and are marketed for the same price, consumers may be misled to believe that both contain chocolate. Id. ¶ 27.
C. Sweet Ground White Chocolate Flavor
The white chocolate flavor packaging allegedly misleads because the word “flavor” is used in a substantially smaller font than the words “sweet grorfnd white chocolate.” Id. ¶ 28. The label also indicates that the product can be used in white chocolate hot cocoas and white mochas and that it has a “luxuriously rich and complex white chocolate flavor.” Id. Miller alleges this is misleading because the product does not contain a cocoa derivative. Id. As. with the wafers packaging, Miller alleges that the use of the word “flavor” is misleading because the product contains no cocoa butter or cacao fat. -Id. ¶ 29 Finally, Miller alleg
D. Premium Hot Beverage — White Mocha
The mocha mix packaging is allegedly deceptive because it states: “The rich indulgent flavor of Ghirardelli Premium White Mocha creates the pleasurable moment cocoa lovers cherish,” though it contains no cocoa. Id. ¶ 31. In addition, the term “white mocha” implies the combination of white chocolate and coffee. Id.
E. Frappé Classico — Classic White
The frappe packaging states: “The luxuriously rich and complex flavor of Ghirardelli’s Classic White Frappé Classico creates the pleasurable moment cherished by white chocolate lovers.” Id. ¶ 32. Miller alleges that this implies the product is derived from white chocolate. Id. In addition, the frappe is likely sold alongside a similarly labeled product — the Ghirardelli® Chocolate Double Chocolate Frappé, which contains sweetened dark chocolate. Id. ¶ 33.
F. Shared Misrepresentations
In addition to the product-specific allegations, Miller alleges that Ghirardelli makes common misrepresentations across product lines:
• The packaging of the Products “prominently uses the term ‘chocolate’ in the company name ‘Ghirardelli® Chocolate.’ ” Id. ¶¶ 24 (referring to the baking chips), 26 (the wafers), 28 (the white chocolate flavor), 31 (the mocha mix), 32 (the frappe).
• The labels for the baking chips and frappe employ the terms “Classic White” and “Classico,” respectively to deceptively suggest the products are unchanged from an original white chocolate product. Id. ¶ 34.
• Ghirardelli sells the baking chips, wafers, white chocolate flavor, and mocha mix for the same price as a analogous products containing real chocolate. Id. ¶ 35.
G.Other Marketing Materials
Finally, Miller alleges that Ghirardelli makes a variety of false and deceptive misrepresentations on its website and marketing materials and trains its retail store staff to misinform customers that all Ghirardelli’s products contain chocolate. Id. ¶¶ 37-42.
III. CLASS ALLEGATIONS, JURISDICTION, CLAIMS, AND RELIEF SOUGHT
Miller seeks to represent a class of allegedly similarly situated persons, defined as:
All persons who, between August 27, 2008 and the present, purchased, in the United States, any of the following products: “Ghirardelli® Chocolate Premium Baking Chips — Classic White,” “Ghirardelli Chocolate White Chocolate Flavored Confectionary Coating Wafers,” “Ghirardelli® Chocolate Sweet Ground White Chocolate Flavor,” “Ghirardelli® Chocolate Premium Hot Beverage— White Mocha,” or “Ghirardelli® Chocolate Frappé Classico — Classic White.”
Id. ¶ 51. The parties do not dispute that the number of people in the proposed class exceeds 100, the amount in controversy exceeds $5M, jurisdiction is minimally diverse, and jurisdiction exists under the Class Action Fairness Act of 2005 (“CAFA”), 28 U.S.C. § 1332(d). See Notice of Removal, ECF No. 1, ¶¶ 5, 9, 13, 15 (setting forth facts establishing the jurisdictional thresholds). Miller brings four claims. See id. ¶¶ 60-103.
(2) Misrepresenting the source,'sponsorship, approval, or certification of goods or services
(5) Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not have or that a person has a sponsorship, approval, status, affiliation, or connection which he or she does not have.
(7) Representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another.
(8) Disparaging the goods, services, or business of another by false or mislead^ ing representation of fact.
(9) Advertising goods or services with intent not to sell them as advertised.
See id. ¶ 65. Miller states that Ghirardelli led customers to falsely believe that the Products were (or contained) white chocolate and/or cocoa butter. Id. ¶ 66. He specifically alleges that his claims under § 1700(a)(8) are based on Ghirardelli’s online representations. See id. ¶¶ 17, 66. Miller currently seeks only injunctive relief, fees, and costs but may seek to amend the complaint to seek damages. Id. ¶¶ 68-69.
Second, he alleges a violation of the False Advertising Law (“FAL”), Cal. Bus. & Prof.Code § 17500, et seq., based on the misrepresentations alleged throughout the complaint. Id. ¶¶ 70-80. He seeks restitution and injunctive relief. Id., ECF No. 1-1 at 5(B).
Third, he alleges common law fraud, deceit, and/or misrepresentation and seeks compensatory and punitive damages. Id. ¶¶ 81-91, ECF No. 1-1 at 1-2, 5(C).
Finally, Miller claims that Ghirardelli violated the all three prongs of the Unfair Competition Law (“UCL”), Cal. Bus. & Prof.Code § 17200, et seq. Id. ¶¶ 60-103. The UCL claims are based on the misrepresentations alleged throughout'the complaint and, under the unlawful prong, on the CLRA and FAL violations. Id. ¶ 93. Miller also alleges that Ghirardelli is liable under the UCL for violating at least 14 sections of the Sherman Food, Drug and Cosmetic Law, Cal. Health & Saf.Code § 109875, et seq. Miller seeks restitution and declaratory and injunctive relief. Id. ¶ 101; Id. ECF No. 1-1 at 5(B).
IV. PROCEDURAL HISTORY
Miller filed suit in San Francisco County Superior Court on August 17, 2012, see Complaint, ECF No. 1 at 11, and served Ghirardelli on August 23, 2012, see Certificate of Service, ECF No. 1-1 at 20. Ghirardelli timely removed on September 21, 2012. See Notice of Removal, ECF No. 1 at.-l. On October. 19, 2012, Plaintiffs filed their motion to dismiss which was heard on December 6, 2012.
ANALYSIS
I. STANDING
Ghirardelli first argues that Miller does not have standing to bring claims based on the four products that he did not purchase. Motion, ECF No. 7 at 10. On this record, the court finds that Miller lacks standing except for his purchase of the baking chips.
A. Legal Standard Generally
Dismissal of a claim is appropriate under Federal Rule of Givil Procedure Rule 12(b)(1) when the court lacks subject-matter jurisdiction over the claim. Standing is jurisdictional, cannot be waived, and is properly addressed under Rule 12(b)(1).
The doctrine of standing encompasses constitutional requirements and prudential considerations. See Valley Forge Christian College v. Americans United for Separation of Church & State, Inc.,
The prudential limitations on federal court jurisdiction require the following: (1) a party must assert his own legal rights and interests, - not those of others; (2) courts will not' adjudicate “generalized grievances;” and (3) a party’s claims must fall within the zone of interests that is protected or regulated by the statute or constitutional guarantee in question. See Valley Forge Christ. College,
In addition to Article III standing, the named plaintiff must establish standing to bring the UCL, CLRA, and FAL claims. See Cal. Bus. & Prof.Code §§ 17204, 17535; Cal. Civ.Code § 1780(a). These statutes require the plaintiff show that he or she has suffered an “economic injury.” See Kwikset Corp. v. Superior Court,
B. Case Law On Standing to Sue Over Products the Named Plaintiff Never Purchased
Ghirardelli argues that Miller lacks standing for the four products he did not buy. Mot., ECF No. 7 at 10. Miller counters that he has established standing and — in any event — the issue of whether he can bring claims based on the four products he did not purchase should be addressed at the class certification stage. Opp’n, ECF No. 16 at 11-12.
There is no controlling authority on whether Plaintiffs have standing for products they did not purchase. See, e.g., Donohue v. Apple, Inc.,
Other courts have held that the standing inquiry is more appropriately resolved on a motion for class certification. See, e.g., Cardenas v. NBTY, Inc.,
The majority of the courts that have carefully analyzed the question hold that' a plaintiff may have standing to assert claims for unnamed class members based on products he or she did not purchase so long as the products and alleged misrepresentations are substantially similar. See, e.g., Stephenson v. Neutrogena, No. 12-cv-00426 PJH,
For example, in Astiana, the plaintiffs found sufficient similarity where the plaintiffs challenged:
the same kind of food products (i.e., ice cream) as well as the same labels for all of the products — i.e., “All Natural Flavors” for the Dreyer’s/Edy’s products and “All Natural Ice Cream” for the Haagen-Dazs products. That the different ice creams may ultimately have different ingredients is not dispositive as Plaintiffs are challenging the same basic mislabeling practice across different product flavors. .
Where product composition is less important, the cases turn on whether the alleged misrepresentations are sufficiently similar across product lines. For example, in Koh v. S.C. Johnson & Son, Inc, No. C-09000927 RMW,
Where the alleged misrepresentations or accused products are dissimilar, courts tend to dismiss claims to the extent they are based on products not purchased. For example, in Larsen v. Trader Joe’s Co., No. 11-cv-5188-SI (Docket No. 41),
This court finds the approach in Astiana, Jamba Juice, and Stephenson to be persuasive and considers whether there are substantial similarities in the accused products and whether there are similar misrepresentations across product lines.
C. Whether Miller Has Standing
The issue is whether the five products and the alleged misrepresentations about them are sufficiently similar so that Miller has standing as to the four products he did not buy. The court holds that they are not sufficiently similar and that Miller does not have standing.
The products have some similarities in packaging, composition, and labeling: they are branded “Ghirardelli Chocolate,” they do not contain cacao butter, they are packaged, priced, and sold next to products that contain chocolate or white chocolate, the products’ labeling (by juxtaposition to the brand “Ghirardelli Chocolate”) suggests a connection to chocolate even though the products are not white chocolate, and they use words that create a connection to white chocolate (such as “classic white” for the chips and frappe, “white chocolate” for the wafers and ground white chocolate flavor drink product, and “white mocha” for the hot beverage mix). But these similarities and Miller’s other allegations about the labeling of the products do not establish the kind of similarity that courts find persuasive in conferring standing over similar (but unpurchased) products.
First, the products are different: baking chips, three drink powders, and wafers. They may all be Ghirardelli products, but they are otherwise dissimilar. They look different, they are labeled differently (white mocha for a drink, Frappe Classico Classic White for another drink), and only one other product looks like a baking product (the confectionary wafers) but confectionary wafers are different than chips for cookies. They also — based on their labels — have different customers in that two of the drink powders on their labels say that they are marketed to retailers. Saunders Deck Exs. D & F, EOF Nos. 9^4 and 9-6. The court recognizes Miller’s argument that questions of similarity are better reserved for the class certification stage. Still, the dissimilarity of the products is considered by courts in assessing standing for products not purchased.
Of the other products, only the frappe label uses the words “Classic White.” See Saunders Decl. .Ex. F, ECF No. 9-6 at 2. That product, which according to the label is “[djesigned exclusively for specialty coffee retailers,” has very different “romance language” about “luxuriously rich and complex flavor ... that creates the pleasurable moment cherished by white chocolate lovers.” See Saunders Decl. Ex. F, ECF No. 9-6 at 3. The mocha mix product has similar language of “the pleasurable moment cocoa lovers cherish.” Id. Ex. E, ECF No. 9-5. The wafers label has no romance language at all. Id. Ex. C, ECF No. 9-3. Even if the court did not take judicial notice of the labels, Miller does not allege the sort of similarity of representation or product that make the products more like the Jamba Juice mixes or ice cream flavors that involved “the same basic mislabeling practice across different product flavors.” Astiana,
Miller also alleges that the white chips are sold alongside a Ghirardelli product that actually contains white chocolate. He does not allege that about the other products (although the white chocolate flavor and the frappe are allegedly sold next to and priced equivalently to a similarly-labeled and equivalent chocolate product, thereby enhancing the chocolate connection). See Complaint,' ECF No-. 1, ¶¶ 30 (“Sweet Ground White Chocolate Flavor” mix sold next to “Sweet Ground Chocolate and Cocoa”), 31, 33 (“Classic White” Frappe sold next to “Double Chocolate” Frappe).
Then, Miller alleges that the labels for the wafers and white chocolate flavor employ the words “flavor” and “flavored” in a manner that violates FDA regulations and the Sherman Food, Drug and Cosmetic Law. See Complaint, ECF No. 1 ¶¶22-2326, 29. But those words are absent from the baking chips packaging. The mocha mix also has little discernable similarity to the baking chips.
In the end, the court does not believe that the “common misrepresentations and omissions” that Miller points to are enough. See Opp’n, ECF No. 16 at 15-16. Miller never alleges in the FAC that the products affirmatively state that they are white chocolate (and Ghirardelli’s exhibits show that they do not). Miller’s best argument is that the labels imply white chocolate content, but the alleged misrepresentations vary widely.
Miller similarly says that the products are similar because “none of the Fake White Chocolate Products affirmatively state that they do not contain chocolate, cocoa or cocoa butter.” Id. at 14. Miller compares this case to Koh v. S.C. Johnson & Son,
Miller makes two sets of allegations in the complaint about false marketing. The first is that Ghirardelli “advertised and marketed all of the Fake White Chocolate Products as ‘white chocolate,’ including on the marketing materials that it provided to its retailers, on its Website and in the keywords it purchased online.” Opp’n, ECF No. 16 at 14. He also alleges that Ghirardelli “trained all of its employees to inform all consumers that it only sells chocolate products.” Id. at 14-15. But Miller does not claim that he was misled by any of these marketing materials or by a Ghirardelli employee and alleges only that he considered the baking chips label. See Compl., ECF No. 1, ¶¶ 47-50. Accordingly, these allegations do not establish standing. See Johns v. Bayer Corp., No. 09CV1935 DMS,
In sum, the products are too different, and their labeling is dissimilar. Unlike Astiana and Jamba Juice, this is not the type of case where similar products or similar misrepresentations injured Miller in the same way as the unnamed plaintiffs. In a closer case, the court would resolve the question on class certification. On this record, however, the court GRANTS Ghirardelli’s motion to dismiss Miller’s claims based on the four products he did not purchase.
At oral argument, Plaintiff raised arguments under 21 C.F.R. § 101.22(c)(i)(3), arguing that the combination of the “Ghirardelli Chocolate” branding on the front of the label on top of the characterization of the product means that — under the FDA regulations and standards — the harm is identical across product lines, making it closer to the “Greenlist” case or even the iPhone case (with identical harms in different but similar products). The parties agreed that the court should consider the arguments in the context of a motion to dismiss an amended complaint with factual allegations supporting this theory.
II. MOTION TO DISMISS
The court turns next to the sufficiency of the remaining allegations as to the baking chips, the only remaining product.
A. Legal Standards
1. Rule 12(b)(6)
A court may dismiss a complaint under Federal Rule of Civil Procedure 12(b)(6) when it does not contain enough facts to state a claim to relief that is plausible on its face. See Bell Atlantic Corp. v. Twombly,
In considering a motion to dismiss, a court must accept all of the plaintiffs allegations as true arid construe them in the light "most favorable to the plaintiff. See id. at 550; Erickson v. Pardus,
2. FAL Claim Standard
In order to state a false advertising claim, a plaintiff must allege that (1) the statements in the advertising are untrue or misleading, and (2) the defendants knew, or by the exercise of reasonable care should have known, that the statements were untrue or misleading. Cal. Bus. and Prof.Code § 17500; see also National Council Against Health Fraud, Inc. v. King Bio Pharms., Inc.,
The “reasonable consumer” test governs false advertising and unfair or fraudulent business practice claims under the UCL, FAL, or CLRA. Williams v. Gerber Prods. Co.,
B. Whether Miller States Claims Based on the Baking Chips
Ghirardelli argues that Miller’s allegations about the baking chips are not legally sufficient to state a claim. Ghirardelli identifies three misrepresentation allegations: (1) the use of the word chocolate in the Ghirardelli Chocolate label on the face of all packaging, (2) the Romance Language, and (3) the packaging’s “failure to.disclose” that the baking chips are not white chocolate. See Motion, ECF No. 7 at 18-24.
On page 11, the court summarizes the labeling and how it establishes a connec
Ghirardelli’s cases about customer confusion (or the lack of it on the face of a complaint) do not compel a different conclusion. For example, in Rooney v. Cumberland Packing Corp., No. 12-CV0033-H (DHB),
Ghirardelli also picks apart the “Romance Language” (quoted in full in the facts section) to establish that the labeling could not deceive a reasonable consumer. See Motion, ECF No. 7 at 19-22. Ghirardelli’s primary arguments are as follows:
1. The product is labeled “Classic White Baking Chips” and not “white chocolate chips.” Id. at 19.
2. The label’s “melt-in-your-mouth bliss” language is mere puffing that cannot support liability in tort. Id. at 20 (citing Consumer Advocates v. Echostar Satellite Corp.,113 Cal.App.4th 1351 , 1361,8 Cal.Rptr.3d 22 (2003)).
3. “Finest grind for smoothest texture” describes the product’s consistency and does not imply chocolate content. Id. at 20.
4. “A reasonable consumer ... would not likely assume that the ‘finest grind’ referred to cacao beans.” Id. at 21.
5. No reasonable consumer would think the label’s reference to the flavor and texture of Ghirardelli’s Premium Baking Chocolate implied that the baking chips had similar properties because the relevant sentence begins, “For our Classic White Baking Chips.” Id.
6. By referring to the baking chips as containing “pure vanilla and whole milk powder,” the label disclosed that it contained no white chocolate. Id. at 22.
These are fact questions that should not be decided on a motion to dismiss. The court does not disagree with Ghirardelli that “assessing a label’s deceptiveness requires evaluating label statements in context.” Reply, ECF No. 17 at 12. Reading this label as a whole and in context with the allegations about the marketing, the court cannot say, as a matter of law, that no reasonable copsumer would be deceived by the baking chips label.. See Williams v. Gerber Products Company,
In reaching this conclusion, the court disregards Miller’s allegations about Ghirardelli employees or the website because he did not allege that he relied on those factors in his purchasing decisions.
C. Miller’s Fraud Claim
Finally, Ghirardelli moves to dismiss Miller’s fraud claim for failing to
Miller responds that a fraud claim can be based either by misrepresentation or omission. Opp’n, ECF No. 16 at 24. He cites 28 paragraphs in the complaint, which he claims show that “Defendant knowingly misrepresented the Fake White Chocolate Products as ‘chocolate’ and/or “white chocolate,’ when they are not.” Id. (citing Complaint, ECF No. 1, ¶¶ 16-20, 24-42, 55, 66, 72, 82).
At this stage of the case, and considering Rule 9(b)’s heightened pleading requirements, Miller’s allegations — summarized in the previous sections — are sufficient to state a claim for fraud. In Williams v. Gerbér Products, for example, the Ninth Circuit reversed the dismissal of claims for misleading labels that-included a common-law fraud claim.
CONCLUSION
For the reasons discussed above, the court GRANTS Ghirardelli’s motion on the ground that Miller lacks standing for the products he did not purchase and DENIES the motion in all other respects. Miller may file an amended complaint within 21 days.
This disposes of ECF No. 7.
IT IS SO ORDERED.
Notes
. Citations are to the Electronic Case File ("ECF”) with pin cites to the electronically-generated page numbers at the top of the page.
. The quoted language is taken from the FAC and from the products and labels submitted with Ghirardelli’s motion. Ghirardelli requests the court take judicial notice of the products and labels because they are referenced in,' but not attached to, the complaint. See Request for Judicial Notice, ECF No. 8 'at 2 (citing In re Cornerstone Propane Partners, L.P. Securities Litig.,
. Because Miller has no standing to raise claims about the products he did not purchase, the court need not reach the sufficiency of the allegations concerning these products.