Bruton v. Gerber Prods. Co.

• Citation: 961 F.Supp.2d 1062
• Decision Date: 06 September 2013
• Docket Number: Case No.: 12–CV–02412–LHK
• Parties: Natalia Bruton, individually and on behalf of all others similarly situated, Plaintiff, v. Gerber Products Company and Nestlé U.S.A., Inc., Defendants.
• Court: U.S. District Court — Eastern District of California

961 F.Supp.2d 1062

Natalia Bruton, individually and on behalf of all others similarly situated, Plaintiff,

v.Gerber Products Company and Nestlé U.S.A., Inc., Defendants.

Case No.: 12–CV–02412–LHK

United States District Court, N.D. California. San Jose Division

September 6, 2013

Ben F. Pierce Gore, Pratt & Associates, San Jose, CA, Brian K. Herrington, Don Barrett, P.A., Lexington, MS, David Shelton, Oxford, MS, for Plaintiff.

Bryan Alexander Merryman, Rachel J. Feldman, White and Case LLP, Los Angeles, CA, for Defendants.

ORDER GRANTING–IN–PART AND DENYING–IN–PART DEFENDANTS' MOTION TO DISMISS

LUCY H. KOH, United States District Judge

Plaintiff Natalia Bruton (“Bruton”) brings this putative class action against Gerber Products Company (“Gerber”) and Nestlé U.S.A., Inc. (“Nestlé U.S.A.”) (collectively, “Defendants”), alleging that Defendants violated federal and state law by making false and misleading claims on their food labels. Defendants move to dismiss Bruton's First Amended Complaint, ECF No. 28; Bruton opposes, ECF No. 34, and Defendants replied, ECF No. 36. Having considered the submissions of the parties, the parties' oral arguments at the hearing on this motion, and the relevant law, the Court hereby GRANTS IN PART and DENIES IN PART Defendants' Motion to Dismiss the First Amended Complaint.

I. BACKGROUNDA. Factual Allegations

Gerber claims to be “the world's most trusted name in baby food,” and reportedly controls between 70 and 80 percent of the baby food market in the United States. First Amended Complaint (“FAC”) ¶ 8, ECF No. 26. Through the Gerber brand, Defendants produce, package, and sell retail food products intended to be consumed by infants and children under two years of age, such as puree baby food, snacks, yogurts, side dishes, and beverages for infants and young children. FAC ¶¶ 7, 9. Gerber organizes its products by “stages” including: “Birth+,” “Supported Sitter,” “Sitter,” “Crawler,” “Toddler,” and “Preschooler.” FAC ¶ 9. All of the Gerber product categories other than “Preschooler” describe children under two years of age. Id.

Bruton is a California consumer who is concerned about the nutritional content of the food that she purchases for her child's consumption. FAC ¶ 107. At various times within the past four years, she purchased many of Defendants' food products that are intended for children under the age of two. FAC ¶¶ 22, 108. Specifically, Bruton contends that she purchased the following products: (1) Gerber Nature Select 2nd Foods Fruit—Banana Plum Grape; (2) Gerber Nature Select 2nd Foods Fruit—Apples and Cherries; (3) Gerber Nature Select 2nd Foods Vegetables—Carrots; (4) Gerber Nature Select 2nd Foods Spoonable Smoothies—Mango; (5) Gerber Yogurt Blends Snack—Strawberry; (6) Graduates Lil' Crunchies—Mild Cheddar; (7) Graduates Fruit Puffs—Peach; (8) Graduates Wagon Wheels—Apple Harvest; (9) Graduates for Toddlers Animal Crackers—Cinnamon Graham; and (10) Graduates for Toddlers Fruit Strips—Strawberry. FAC ¶ 110.

Before purchasing Defendants' products for her child, Bruton allegedly read and relied on Defendants' labels, which she contends are “misbranded.” FAC ¶¶ 10, 111. She also allegedly read and relied on Defendants' “unlawful and deceptive misrepresentations at Defendants' website, www.gerber.com.” FAC ¶ 111. At the point of sale, Bruton contends that she “did not know, and had no reason to know, that Defendants' products were misbranded” and “would not have bought the productshad she known the truth about them.” FAC ¶ 113. The types of unlawful and deceptive claims that Defendants allegedly made—and continue to make—on the Gerber products include: (a) nutrient content claims, such as “Excellent Source,” “Good Source,” “As Healthy As Fresh,” and “No Added Sugar,” FAC ¶¶ 58–73; (b) “natural” claims, FAC ¶¶ 74–82; and (c) sugar-related claims, FAC ¶¶ 83–95.

1. Nutrient Content Claims

First, Bruton challenges Defendants' use of “nutrient content claims,” which are claims about specific nutrients contained in a product that, pursuant to Section 403 of the Food, Drug, and Cosmetic Act (“FDCA”) (codified at 21 U.S.C. § 343(r)), must be made in accordance with federal regulations. FAC ¶ 51; see21 U.S.C. § 343(r)(1)(A) (defining “nutrition levels and health-related claims” as pertaining to “a food intended for human consumption which is offered for sale and for which a claim is made in the label or labeling of the food which expressly or by implication ... characterizes the level of any nutrient”). California expressly adopted the requirements of Section 403 of the FDCA in Section 110670 of the Sherman Food, Drug, and Cosmetic Law (the “Sherman Law”). SeeCal. Health & Safety Code § 110670 (“Any food is misbranded if its labeling does not conform with the requirements for nutrient content or health claims as set forth in Section 403(r) (21 U.S.C. Sec. 343(r)) of the federal act and the regulations adopted pursuant thereto.”).

Bruton alleges that Defendants make nutrient content claims on virtually all of their Gerber food products, despite the fact that the Food and Drug Administration (“FDA”) authorizes nutrient content claims on foods for adults that are not permitted for children under age two due to differing nutritional needs. See FAC ¶ 62 (alleging that the nutrient content claims on products intended to be consumed by young children are barred because their nutritional needs are different than those of adults, and therefore nutritional claims on infant and toddler food can be highly misleading); see21 C.F.R. § 101.13(b)(3) (“Except for claims regarding [certain] vitamins and minerals ... no nutrient content claims may be made on food intended specifically for use by infants and children less than 2 years of age unless the claim is specifically provided for” by particular regulations).

Bruton specifically asserts that Defendants make misbranded nutrient content claims that fall into three categories: (a) “Excellent Source” and “Good Source” claims; (b) “As Healthy As Fresh” claims; and (c) “No Added Sugar” claims.

? “Excellent Source” and “Good Source” claims: Bruton contends that “[a]ll ... Gerber products” intended for children under two that claim to be an “Excellent Source” of Iron, Vitamin A, and Vitamin C, and also claim to be a “Good Source” of Calcium, Iron, Zinc, and Vitamins A, D, and E, “among other things,” are “misbranded within the meaning of the FDCA § 403(r)(1)(A) and 21 U.S.C. § 343(r)(1)(A) because their labeling includes unauthorized nutrient content claims.” FAC ¶ 60(a).

? “As Healthy As Fresh” claims: Bruton also asserts that Gerber food products intended for children under two years of age that claim to be “As Healthy As Fresh” are misbranded because they bear the nutrient content claim “healthy” as part of the statement despite the fact that federal regulations do not allow the claim for products specifically intended for children under two years of age. FAC ¶ 60(b).

? “No Added Sugar” claims: Bruton further alleges that Gerber food products that claim to have “No Added Sugar” or “No Added Refined Sugar” are misbranded because “[s]uch nutrient content claims may not be made on food products intended for children under two.” FAC ¶ 60(c).

2. Natural Claims

Second, Bruton asserts that Defendants misleadingly tout their products as being “made with 100% natural” ingredients when they contain artificial ingredients or added ingredients not normally expected to be in food. FAC ¶ 77. According to Bruton, “[a] reasonable consumer would expect that when Defendants label their products as being made with 100% natural ingredients, the product's ingredients are ‘natural’ as defined by the federal government and its agencies.” FAC ¶ 80. In addition, Bruton contends that a reasonable consumer “would also expect products bearing such labels ... [to be] made with natural ingredients under the common use of the word ‘natural.’ ” Id. According to Bruton, “[a] reasonable consumer would understand that ‘natural’ products do not contain synthetic ingredients or ingredients not normally expected to be in food.” Id.

3. Sugar–Related Claims

Finally, Bruton alleges that many of Defendants' products that are labeled with a “No Added Sugar” or similar sugar-related nutrient content claim contain disqualifying levels of calories that prohibit the claim from being made absent a mandated disclosure statement warning of the higher caloric level of the products and thus violate 21 C.F.R. § 101.60(c)(2). See FAC ¶ 83. Bruton asserts that, “[b]ecause consumers may reasonably be expected to regard terms that represent that the food contains ‘no added sugar’ or sweeteners as indicating a product which is low in calories or significantly reduced in calories, consumers are misled when foods that are not low-calorie as a matter of law are falsely represented.” FAC ¶ 90.

B. Putative Class Claims

Bruton now seeks to bring this putative class action, pursuant to Federal Rule of Civil Procedure 23(b)(2) and 23(b)(3), on behalf of a nationwide class consisting of all persons who, within the last four years, “purchased any of Defendants' food products intended specifically for use by infants and children less than 2 years of age.” FAC ¶ 118 (“Nationwide Class”). Bruton also seeks to represent a California subclass of “[a]ll persons in the state of California who purchased any of Defendants' food products intended specifically for use by infants and children less than 2 years of age ... within the last four years.” Id. (“California Subclass”).

Bruton contends that, by manufacturing, advertising, distributing, and selling misbranded products, Defendants have violated California Health & Safety Code Sections 109885, 110390, 110395, 110398, 110660, 110665, 110670, 110705, 110760, 110765, and 110770. See FAC ¶¶ 97–103. In addition, Bruton asserts that Defendants have violated the standards set by 21 C.F.R. §§ 101.2, 101.13, 101.54, and 101.65, which have been adopted by reference...