KATHY RICHBURG, ADRIANA GAMBOA, JEFFREY KOENIG, and CINDY MCGLONE, individually and on behalf of all others similarly situated, Plaintiffs, v. CONAGRA BRANDS, INC., Defendant. JULIE RUIZ, individually and on behalf of all others similarly situated, Plaintiff, v. CONAGRA BRANDS, INC., Defendant.
Case No. 22 CV 2420; Case No. 22 CV 2421
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION
February 8, 2023
Judge Robert W. Gettleman
Before this court are motions from two related cases: Richburg v. Conagra Brands, Inc., 22 CV 2420 (Richburg), and Ruiz v. Conagra Brands, Inc., 22 CV 2421 (Ruiz). In Richburg, plaintiffs Kathy Richburg, Adriana Gamboa, Jeffrey Koenig, and Cindy McGlone (collectively, the Richburg plaintiffs), individually and on behalf of all others similarly situated, bring a ten-count class action complaint against defendant Conagra Brands, Inc. (Conagra or defendant).1 The Richburg plaintiffs allege that defendant falsely and misleadingly marketed and labeled its Orville Redenbacher‘s® microwave popcorn products
In Ruiz, plaintiff Julie Ruiz (Ruiz), individually and on behalf of all others similarly situated, brings a five-count class action complaint against defendant. Ruiz alleges that defendant falsely and misleadingly marketed and labeled its Angie‘s BOOMCHICKAPOP® microwave popcorn products (BOOMCHICKAPOP products) and brings individual and class claims under California consumer fraud and deceptive trade practice statutes (Counts I, II, and III), in addition to a multi-state consumer protection class (Count IV) and nationwide class (Count V).3
In both Richburg and Ruiz, defendant moves to dismiss all counts of each complaint (Doc. 19, 22 CV 2420; Doc. 17, 22 CV 2421), in addition to requesting judicial notice of the Food & Drug Administration‘s document entitled Authorized Uses of PFAS in Food Contact Applications in each case (Doc. 21, 22 CV 2420; Doc. 19, 22 CV 2421). For the reasons explained below, the court grants defendant‘s requests for judicial notice (Doc. 21, 22 CV 2420; Doc. 19, 22 CV 2421). The court also grants defendant‘s motions to dismiss all counts of both complaints (Doc. 19, 22 CV 2420; Doc. 17, 22 CV 2421).
BACKGROUND
The factual backgrounds of Richburg and Ruiz are very similar, so the court outlines
The Richburg plaintiffs and Ruiz (collectively, plaintiffs) claim that microwave popcorn creates a unique risk of exposure to per- and polyfluoroalkyl substances (PFAS) because PFAS are used in food contact materials like microwave popping bags. According to plaintiffs, PFAS are a category of human-made chemicals with a toxic, persistent, bioaccumulative nature which are associated with numerous health concerns. Plaintiffs explain that manufacturers usе PFAS to treat food contact materials, such as wrappers and packaging, because it increases their water and grease resistance, in addition to enhancing their non-stick properties. They cite studies that have confirmed that PFAS [in food contact materials] migrates to food, where it is then ingested by consumers.
Defendant requests that the court take judicial notice of the Food & Drug Administration‘s (FDA) document entitled, Authorized Uses of PFAS in Food Contact Applications, which is available at https://www.fda.gov/food/chemical-contaminants-food/authorized-uses-pfas-food-contact-applications. This document states that the FDA has authorized specific PFAS for use in specific food contact applications, expressly including microwave popcorn bags. The document states that the FDA conducts a rigorous scientific review before they are authorized for the market, which includes data on migration of the food contact substance from its intended use and other sources of dietary exposurе. Moreover, food contact substances are generally regulated by the FDA as food additives due to their potential to migrate into food. According to the document, in paper and paperboard packaging, small PFAS
Plaintiffs base the factual conclusions in their complaints on independent third-party testing of the microwave popping bags used in the Redenbacher and BOOMCHICKAPOP products. According to plaintiffs, such testing was conducted in accordance with accepted industry standards for detecting whether the Products contain organic fluorine, which they claim is a widely-accepted method of determining whether a sample contains PFAS. Plaintiffs claim that defendant‘s products contain a significant level of PFAS, because the testing detected the presence of organic fluorine in the microwave popping bags. Plaintiffs did not submit the actual products that they purchased for testing. Rather, the Richburg рlaintiffs allege that all Redenbacher utilize a substantially similar microwave popping bag, and Ruiz makes the same allegation for defendant‘s BOOMCHICKAPOP products.4
In addition, plaintiffs claim that defendant intentionally utilizes the marketing on its microwave popcorn products to drive sales and increase profits from health-conscious consumers. They allege that defendant‘s marketing and labeling strategies are deceitful because defendant utilizes misleading representations to aggressively and strategically convince consumers that the Products are free of unnatural or artificial ingredients. According to the Richburg plaintiffs, for example, defendant labels its Redenbacher products as containing only real ingredients and 100% ingredients from natural sources, when instead they allegedly contain harmful PFAS levels. Similarly, according to Ruiz, defendant labels its BOOMCHICKAPOP products as containing only real ingredients, ingredients sourced from
Plaintiffs bring the instant suits to halt [defendant]‘s dissemination of false and misleading representations and to correct the false and misleаding perception that [defendant]‘s representations have created in the minds of reasonable consumers. Plaintiffs claim that they, and the putative class members, were harmed when they purchased defendant‘s Redenbacher and BOOMCHICKAPOP products due to defendant‘s material representations (i.e., that defendant‘s products are made with only natural and real ingredients) and omissions (i.e., that defendant‘s products are packaged in bags containing significant levels of migrating PFAS).
Plaintiffs complain about the disclosures оn defendant‘s packaging and the price and corresponding value of the Redenbacher and BOOMCHICKAPOP products. They allege that they, and other reasonable consumers, would not have purchased, or would have paid less for, the products if defendant had disclosed the alleged presence of PFAS when following [defendant‘s] cooking instructions. Moreover, they allege that they did not obtain the full value of the advertised Products because they paid a price premium for empty promises. Plaintiffs indicatе that they would consider buying the products in the future if defendant takes corrective action.
DISCUSSION
The court begins by taking judicial notice of the FDA document entitled, Authorized Uses of PFAS in Food Contact Applications. A court can take judicial notice of matters of public record on a motion to dismiss without converting that motion into a motion for summary judgment. See Doss v. Clearwater Title Co., 551 F.3d 634, 640 (7th Cir. 2008). The
Next, the court evaluates defendant‘s motions to dismiss all counts of the complaints. Defendant argues that the court should dismiss the complaints for various reasons: (1) plaintiffs lack standing under
The court starts by evaluating defendant‘s argument in both motions that plaintiffs lack standing to bring their claims under Article III, which limits the court‘s judicial power. As a threshold requirement, the parties seeking federal jurisdiction must establish that they have standing to do so. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 562 (1992). To have standing, a plaintiff must have suffered an injury in fact that is traceable to the defеndant‘s challenged conduct and redressable by a favorable decision from the court. See id. at 560-61. An injury in fact is an invasion of a legally protected interest that is concrete and particularized, and actual or imminent. Id. at 560.
Defendant facially challenges plaintiffs’ standing based on the allegations in the complaints. When considering a facial challenge to standing, courts apply the same standard as reviewing a motion to dismiss for failure to state a claim under
Plaintiffs have multiple standing obligations in the instant cases. They must establish standing to bring their individual claims, based on the products that they themselves purchased. They must establish standing to bring their claims on behalf of the putative class members, which is a separate obligation that is distinct from class certification under
Defendant argues that plaintiffs do not have standing to bring their individual claims in federal court because they have not alleged concrete or particularized economic harms under either the benefit-of-the-bargain or price premium theories. The court emphasizes that plaintiffs do not allege physical injuries stemming from the alleged presence of PFAS in the Redenbacher and BOOMCHICKAPOP products that they purchased; rather, they allege economic injuries based on the money that they spent on the products. As discussed above, plaintiffs claim that they would not have purchased the Redenbacher or BOOMCHICKAPOP products, or would have paid less for them, if defendant had disclosed the alleged presence of PFAS when following defendant‘s cooking instructions. Plaintiffs claim related, but distinct, injuries by claiming that they did not obtain the full value of the products as advertised because they paid a price premium for empty promises.
According to defendant, plaintiffs have not alleged concrete injuries because they have not alleged that they purchased products that were actually worth less than what they paid for [them]. Defendant cites In re Johnson & Johnson Talcum Powder, 903 F.3d 278, 287 (3d Cir. 2018), to support its argument. In Johnson & Johnson, the court determined that the plaintiff
Johnson & Johnson is not binding upon this court, but its reasoning is instructive and persuasive. In the instant cases, plaintiffs do not allege that defendant‘s microwavе products failed to work as intended—for example, the complaints do not contain any indication that the microwave popcorn products at issue did not pop correctly, or that plaintiffs were otherwise unable to consume the popcorn. Without such an allegation, the court is not persuaded that plaintiffs have established concrete injuries based on the benefit-of-the-bargain theory. As defendant argues, plaintiffs purchased popcorn and they received popcоrn; they have offered only conclusory allegations to suggest that the products had diminished value. Thus, the court does not need to evaluate whether plaintiffs have plausibly alleged that the products contained PFAS.
Whether plaintiffs have established standing under the price-premium theory is a separate issue. Defendant argues that the Richburg plaintiffs provide only threadbare allegations that they paid a premium for defendant‘s Redenbacher products because the products’ packaging indicated thаt they were made with only real ingredients and 100% ingredients from natural sources. Similarly, defendant argues that Ruiz provides only threadbare allegations that she
The court next evaluates whether plaintiffs have alleged their concrete economic harms in a particularized manner. For an injury to be particularized, it must affect the plaintiff in a personal and individual way. See Spokeo v. Robins, 578 U.S. 330, 340 (2016). According to defendant, plaintiffs’ injuries are not particularized because they have not alleged that the laboratory tested the actual products that they purchased, rather than Redenbacher and BOOMCHICKAPOP products generally. Relatedly, defendant argues that plaintiffs’ allegations of harm are highly speculative because it is merely possible that the presence of organic fluorine in the popcorn bags suggests the presence of PFAS in the popcorn, and that the PFAS allegedly present in the popcorn is the type of PFAS that may cause adverse health effects at certain levels.
The court agrees with plaintiffs that they have alleged particularized and non-speculative injuries based on economic harm. At this stage, it is irrelevant whether plaintiffs can prove with
Plaintiffs’ ability to establish standing for their individual harms, however, is distinct from their ability to establish standing for harm to the respective putative classes, as well as harm to the public at large. Plaintiffs do not establish standing for injunctive relief for their individual claims, putative class claims, or claims on behalf of the public. An allegation of future injury must be certainly impending to confer standing. See Whitmore v. Arkansas, 495 U.S. 149, 158 (1990). While plaintiffs allege that they would consider purchasing defendant‘s products in the future, they indicate only that they would purchase the products again if defendant t[ook] correctivе action. This allegation presupposes injunctive relief, rather than compelling it. Because plaintiffs lack standing to seek injunctive relief for their individual harms, they cannot seek injunctive relief for the putative classes or the public.
Whether plaintiffs have standing to pursue their claims for monetary damage on behalf of the putative multi-state classes is a more difficult question, and courts in this district have ruled
Thus, the state of defendant‘s motions to dismiss is the following: in both Richburg and Ruiz, plaintiffs have established standing for their alleged economic harm based on the premium-price theory, but only for monetary damages, not injunctive relief. At this stage, plaintiffs have sufficiently established standing on behalf of the putative classes for monetary damages, but they are unable to establish standing for injunctive relief on behalf of the putative classes or the public. Plaintiffs have not established standing for putative class members in states where they did not reside or purchase the product. The court now evaluates whether plaintiffs’ claims plausibly state a claim for relief under the reasonable consumer standard.
To survive a motion to dismiss [for failure to state a claim], a complaint must allege sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). For a claim to have facial plausibility, a plaintiff must plead factual content that allows the court to draw the reasonable inference that the
According to defendant, the court should dismiss the complaints because plaintiffs have not plausibly alleged the presencе of PFAS in defendant‘s products, which defendant characterizes as a necessary factual predicate to plaintiffs’ allegations under state law. Defendant argues that plaintiffs’ allegations regarding the third-party laboratory testing of the products are too conclusory and insufficiently detailed to be given any credit. Defendant attacks contextual details about the tests, such as the fact that the laboratory tested the microwave popcorn bags, rather than the popcorn itself, for organic fluorine, rather than PFAS.
The court rejects defendant‘s arguments at this stage. The court agrees with plaintiffs that their allegations regarding testing methodology and analytics would be proper subjects for discovery, and defendant‘s arguments require the court to inappropriately delve into the merits of this action. Cosmetique, Inc. v. ValueClick, Inc., 753 F. Supp. 2d 716, 722 (N.D. Ill. 2010). As plaintiffs note, defendant does not argue that PFAS are real or natural; instead, defendant acknowledges that PFAS are artificial. The real dispute is whether the allegеd presence of migratory PFAS in the Redenbacher and BOOMCHICKAPOP products makes PFAS an ingredient. For the purposes of the instant motion, the court accepts plaintiffs’ allegation that the industry considers organic fluorine to be a surrogate for PFAS, and the type of PFAS allegedly present in the products is irrelevant.5
The court agrees with defendant that plaintiffs have not plausibly alleged that reasonable consumers would be deceived by defendant‘s representations or omissions on the Redenbacher or BOOMCHICKAPOP products. As a matter of law, plaintiffs have not plausibly alleged that reasonable consumers would be deceived by defendant‘s packaging. A practice is deceptive if it creates a likelihood of deception or has the capacity to deceive. Bober v. Glaxo Wellcome PLC, 246 F.3d 934, 938 (7th Cir. 2001). Courts apply a reasonable consumer standard to examine the likelihood of deception. See Benson v. Fannie May Confections Brands, Inc., 944 F.3d 639, 646 (7th Cir. 2019). This standard requires a probability that a significant portion of the general consuming public or targeted consumers, acting reasonably under the circumstances, could be misled. See Bell v. Publix Super Markets, Inc., 982 F.3d 468, 474-75 (7th Cir. 2020). Relevant circumstances include all the information available to consumers and the context in which thаt information is provided and used. Id. at 477. [W]here plaintiffs base deceptive advertising claims on unreasonable or fanciful interpretations of labels or other advertising,
According to defendant, reasonable consumers understand ingredients to be those items listed in the ingredient list that is mandated by the FDA pursuant to the
The court agrees with defendant and grants defendant‘s motion to dismiss аll counts of both complaints. Assuming as true that the microwave popping bags contain PFAS, that such PFAS migrates into the popcorn, and that the popcorn subsequently contains non-incidental, harmful PFAS levels, the question is whether reasonable consumers would consider such undisputedly artificial, migratory chemicals to be an ingredient in the challenged food products based on the packages’ representation that the products contain only real ingredients and 100% ingredients from natural sources. (Emphasis added). The сourt concludes that such an interpretation is implausible in light of the FDA‘s exemption of migratory substances from the mandated list of ingredients on food product packaging. Put another way, the representation on the packaging is correct as a matter of law. Thus, the court does not need to evaluate whether plaintiffs’ claims are preempted by federal statute. Moreover, because plaintiffs do not allege
CONCLUSION
For the reasons stated above, the court grants defendant‘s requests for judicial notice (Doc. 21, 22 CV 2420; Doc. 19, 22 CV 2421) and grants defendant‘s motions to dismiss both complaints (Doc. 19, 22 CV 2420; Doc. 17, 22 CV 2421), with prejudice.
DATE: February 8, 2023
ENTER:
Robert W. Gettleman
United States District Judge