Brazil v. Dole Food Co.

• Decision Date: 23 September 2013
• Docket Number: Case No.: 12-CV-01831-LHK
• Court: U.S. District Court — Northern District of California
• Parties: CHAD BRAZIL, an individual, on his own behalf and on behalf of all others similarly situated, Plaintiff, v. DOLE FOOD COMPANY, INC., DOLE PACKAGED FOODS, LLC, Defendants.

CHAD BRAZIL, an individual,on his own behalf and on behalf of all others similarly situated, Plaintiff, v. DOLE FOOD COMPANY, INC.,DOLE PACKAGED FOODS, LLC, Defendants.

Case No.: 12-CV-01831-LHK

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

Dated: September 23, 2013

ORDER GRANTING IN PART AND

DENYING IN PART DEFENDANTS'

MOTION TO DISMISS THE SECOND

AMENDED COMPLAINT AND

MOTION TO STRIKE

Before the Court is Dole Food Company and Dole Packaged Foods, LLC's (collectively, "Dole" or "Defendants") Motion to Dismiss and Motion to Strike Plaintiff Chad Brazil's ("Brazil") Second Amended Complaint ("SAC"). ECF No. 62. Brazil opposes the Motion, ECF No. 68, and Defendants replied, ECF No. 71. Having considered the submissions of the parties, the relevant law, and the record in this case, the Court hereby GRANTS in part and DENIES in part Defendants' Motion to Dismiss and Motion to Strike.

I. BACKGROUND

A. Factual Allegations

Defendants are "leading producers of retail food products" who sell their products "through grocery and other retail stores throughout the United States." SAC ¶ 18. Defendant Dole Food Company is a Delaware corporation while Defendant Dole Packaged Foods, LLC, is a California limited liability corporation. SAC ¶¶ 16-17. Both Defendants have their principal place of business in Westlake Village, California. Id. Brazil alleges that "[a]ll of the misconduct alleged [in the SAC] was contrived in, implemented in, and has a shared nexus with California." SAC ¶ 19.

Brazil is a California consumer who "cares about the nutritional content of food and seeks to maintain a healthy diet." SAC ¶¶ 15, 193. From April 2008 to the present, Brazil has spent over $25.00 on Defendant's food products, which he contends are "misbranded" in violation of federal and state law. SAC ¶¶ 5, 193. Specifically, Brazil alleges that he purchased the following eight food products: (1) Dole Frozen Wildly Nutritious Signature Blends—Mixed Berries (12 oz. Bag); (2) Dole Frozen Wildly Nutritious Signature Blends—Mixed Fruit (12 oz. bag); (3) Dole Frozen Blueberries (12 oz. bag); (4) Dole Frozen Blueberries (3 oz. plastic cups); (5) Dole Mixed Fruit in 100% Fruit Juice (4 oz. cups); (6) Dole Fruit Smoothie Shakers—Strawberry Banana (4 oz.); (7) Dole Mixed Fruit in Cherry Gel (4.3 oz. plastic cups); (8) Dole Tropical Fruit in Light Syrup & Passion Fruit Juice (15.25 oz. can). SAC ¶ 2. Brazil refers to these products collectively as the "Purchased Products." Id. The SAC also alleges claims based on thirty additional products that Brazil did not purchase, but which are, Brazil claims, substantially similar to those that he did, in that they "(i) make the same label representations . . . as the Purchased Products and (ii) violate the same regulations of the Sherman Food Drug & Cosmetic Law, California Health & Safety Code § 109875, et seq." SAC ¶¶ 3-4. Brazil refers to this group of products as the "Substantially Similar Products." SAC ¶ 3.

Brazil alleges that Defendants make numerous representations concerning their products—both on the products' labels and on Defendants' website, the address of which (www.dole.com) appears on many of the products' labels—that are unlawful, as well as false and misleading, under federal and California law. SAC ¶¶ 8-14. Specifically, the SAC alleges that the following types of representations are false and misleading.

1. All Natural Claims

Brazil challenges Defendants' claims that certain of their products are "all natural." SAC ¶ 30 (identifying which of the Purchased Products make All Natural Claims); ¶ 201 (identifying which of the Substantially Similar Products make All Natural Claims). According to Brazil, regulations issued by the Food and Drug Administration (FDA) dictate that Defendants may not claim that a product is "all natural," if it contains "unnatural ingredients such as added color, [or] synthetic and artificial substances." SAC ¶ 31; see also 21 C.F.R. § 101.22 (setting forth the circumstances under which added colors and artificial flavors must be disclosed on a package's label). Defendants' products are mislabeled, Brazil alleges, because they contain ingredients that preclude the use of the term "natural." SAC ¶ 37-39; see also ¶ 125 (label on Dole Frozen Wildly Nutritious Signature Blends—Mixed Fruit unlawfully "uses the phrase 'All Natural Fruit' even though this product contains the following artificial ingredients: ascorbic acid, citric acid, malic acid and added flavors").

2. Fresh Claims

Brazil next challenges the use of the term "fresh" on various Dole product labels. SAC ¶ 41 (identifying which of the Purchased Products make Fresh Claims); ¶ 201 (identifying which of the Substantially Similar Products make Fresh Claims). Under FDA regulations:

The term 'fresh,' when used on the label or in labeling of a food in a manner that suggests or implies that the food is unprocessed, means that the food is in its raw state and has not been frozen or subjected to any form of thermal processing or any other form of preservation. . . .

21 C.F.R. § 101.95(a); see also SAC ¶ 46 (quoting an FDA Compliance Policy Guide, which states that "[t]he term fresh should not be applied to foods which have been subjected to any form of heat or chemical processing"). FDA regulations further require that foods that have undergone particular forms of processing be labeled as "canned" or "pasteurized" if they are packaged and sold in a manner that "suggest[s] or impl[ies] that the article is other than a canned food," as when foods are packaged in glass or plastic instead of metal cans. SAC ¶ 46 (quoting FDA Compliance Policy Guide).

The SAC asserts that Defendants' product labels violate these federal regulations for two reasons. First, products that bear the term "fresh" have in fact been subject to "thermal processing, freezing, [or] chemical preservation." SAC ¶ 52; see also ¶ 169 (Dole Mixed Fruit in Cherry Gel is unlawful and misleading because it uses the term "fresh taste" despite having been subject to various forms of thermal and chemical processing). Second, products packaged in plastic or glass do not disclose that they are "canned," in spite of the fact that they have undergone processing that the FDA considers equivalent to canning. SAC ¶ 48; see also ¶¶ 152-154 (Dole Mixed Fruit in 100% Fruit Juice is unlawful and misleading because it is packed in plastic, and yet the "label fails to disclose that chemicals are used as preservatives or that the product is a canned food item").

3. Failure to Disclose Preservatives and Artificial Flavors

Brazil contends that certain of Defendants' products fail to disclose that they contain "artificial additives and chemical preservatives and other artificial ingredients." SAC ¶ 56; see also SAC ¶ 54 (identifying which of the Purchased Products fail to disclose such ingredients); ¶ 201 (identifying which of the Substantially Similar Products fail to disclose such ingredients). Because federal law requires that a product containing artificial flavors, artificial colors, or chemical preservatives disclose that fact "as may be necessary to render such statement likely to be read by the ordinary person under customary conditions of purchase and use," 21 C.F.R. § 101.22(c), Brazil asserts that Defendants' failure to disclose the use of preservatives and artificial flavors on their products is unlawful and misleading. SAC ¶¶ 56-58; see also ¶ 178 (Dole Tropical Fruit in Light Syrup & Passion Fruit Juice unlawfully "fails to disclose that chemicals are used as preservatives").

4. Nutrient Content Claims

Brazil's next set of claims alleges that various of Defendants' products bear unlawful "nutrient content claims." SAC ¶ 62 (identifying which of the Purchased Products make Nutrient Content Claims); ¶ 201 (identifying which of the Substantially Similar Products make Nutrient Content Claims). Pursuant to Section 403 of the Food, Drug, and Cosmetic Act ("FDCA") and accompanying regulations, a "nutrient content claim" is a statement made in a food's labeling that "expressly or by implication . . . characterizes the level of any nutrient" present in the food. 21U.S.C. § 343(r)(1)(A); 21 C.F.R. §§ 101.13(b), 101.54. Such claims are authorized only if they comply with federal regulations. For instance, in order to state that a food is a "good source" of, "contains," or "provides" a given nutrient, the food must contain between 10% and 19% of the FDA's recommended daily value for that nutrient. 21 C.F.R. § 101.54(c)(1); see also SAC ¶ 70. If the claim is that the food is "rich in," an "excellent source" of, or contains "high" amounts of a given nutrient, then the food must contain 20% or more of the FDA's recommended daily value. 21 C.F.R. § 101.54(b)(1); see also SAC ¶ 69.

Brazil alleges that Defendants' Nutrient Content Claims violate these regulations by making Nutrient Content Claims for foods that do not contain nutrient quantities sufficient to merit such claims. See, e.g., SAC ¶ 116 (Dole Frozen Wildly Nutritious Signature Blends—Mixed Berries "is misleading and deceptive because the label uses the phrase[] 'Rich in Nutrients' because there is not more than one nutrient that is capable of qualifying for a claim which must be at least 20% daily value. This phrase states that there are [sic] more than one nutrient at sufficient levels in the product.").

5. Antioxidant Claims

Brazil further alleges that Defendants make unlawful claims regarding antioxidants. SAC ¶ 77 (identifying which of the Purchased Products make Antioxidant Claims); ¶ 201 (identifying which of the Substantially Similar Products make Antioxidant Claims). 21 C.F.R. § 101.54(g) provides special requirements for antioxidant nutrient content claims. Under this regulation, a food product label may characterize the level of antioxidants present in the food only if: (1) the nutrient providing the antioxidants has an established recommended daily value; (2) the nutrient has...