Garcia v. Kashi Co., Case No. 12–21678–CIV.

• Decision Date: 05 September 2014
• Docket Number: Case No. 12–21678–CIV.
• Citation: 43 F.Supp.3d 1359
• Parties: Katrina GARCIA, Laura Eggnatz, and Julie Martin, individually, and on behalf of all others similarly situated, Plaintiffs, v. KASHI COMPANY, a California Corporation, and The Kellogg Company, a Michigan Corporation, Defendants.
• Court: U.S. District Court — Southern District of Florida

43 F.Supp.3d 1359

Katrina GARCIA, Laura Eggnatz, and Julie Martin, individually, and on behalf of all others similarly situated, Plaintiffs
v.
KASHI COMPANY, a California Corporation, and The Kellogg Company, a Michigan Corporation, Defendants.

Case No. 12–21678–CIV.

United States District Court, S.D. Florida.

Signed Sept. 5, 2014.

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Benjamin M. Lopatin, Law Offices of Howard W. Rubinstein, P.A., San Francisco,

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CA, Gillian L. Wade, Sara D. Avila, Milstein Adelman & Kreger LLP, Santa Monica, CA, Howard Weil Rubinstein, The Law Offices of Howard W. Rubinstein, P.A., West Palm Beach, FL, L. Dewayne Layfield, Law Office of L. Dewayne Layfield, Beaumont, TX, Robert A. Chaffin, The Chaffin Law Firm, Houston, TX, Angela Valentina Arango–Chaffin, Chaffin Law Firm, Miami, FL, for Plaintiffs.

Dean N. Panos, Richard P. Steinken, Jenner & Block, Chicago, IL, Edward M. Waller, Jr., Fowler White Boggs P.A., Tampa, FL, Kenneth K. Lee, Jenner & Block, LLP, Los Angeles, CA, for Defendants.

OMNIBUS ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS PLAINTIFFS' SECOND AMENDED COMPLAINT (D.E. 74); GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION REQUESTING JUDICIAL NOTICE IN SUPPORT OF THEIR MOTION TO DISMISS (D.E. 72); GRANTING AGREED MOTION TO FILE DOCUMENTS UNDER SEAL (D.E. 73); GRANTING PLAINTIFFS' UNOPPOSED MOTION TO REQUEST JUDICIAL NOTICE IN SUPPORT OF THEIR RESPONSE IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS (D.E. 81); AND GRANTING AGREED MOTION TO FILE DOCUMENTS UNDER SEAL (D.E. 88)

JOAN A. LENARD, District Judge.

THIS CAUSE is before the Court on Defendants Kashi Company and The Kellogg Company's Motion to Dismiss Plaintiffs' Second Amended Complaint (“Motion,” D.E. 74), filed December 4, 2013. Plaintiffs Katrina Garcia, Laura Eggnatz and Julie Martin (“Plaintiffs”) filed a Response on December 23, 2013 (“Response,” D.E. 80), to which Defendants filed a Reply on January 9, 2014 (“Reply,” D.E. 89).

Also before the Court is Defendants' Motion Requesting Judicial Notice in Support of their Motion to Dismiss (D.E. 72), filed December 2, 2013, Plaintiffs' Response in Opposition to the Motion for Judicial Notice (D.E. 82), filed December 23, 2013, and Defendants' Reply thereto (D.E. 83), filed January 2, 2014.

Also before the Court are an Agreed Motion to File Documents Under Seal (D.E. 73), filed December 4, 2013; Plaintiff's Unopposed Motion to Request Judicial Notice in Support of their Response in Opposition to Defendants' Motion to Dismiss (D.E. 81), filed December 23, 2013; and an Agreed Motion to File Documents Under Seal (D.E. 88), filed January 10, 2014.

The agreed and unopposed motions (D.E. 73, 81, and 88) are hereby GRANTED; the Court will address the contested motions separately. And, upon review of the Motions, Responses, Replies, and the record, the Court finds as follows.

I. Relevant Facts¹

Defendants manufacture, market, advertise, distribute, and sell various breakfast cereals, cereal bars, energy bars, and other foodstuffs. (SAC, D.E. 58 ¶ 1.) At issue in this case are Defendants' Kashi brand cereal products, snack bars, cookies, crackers,

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crisps, entrees, pilaf, pizza and waffle products which contain one or more of the following ingredients: Genetically Modified Organisms (“GMOs”) and/or synthetic ingredients, such as GMO soy, GMO soy-derivatives, GMO corn, GMO corn-derivatives, Pyridoxine Hydrochloride, Alpha–Tocopherol Acetate, Hexane–Processed Soy ingredients and Calcium Pantothenate. (Id. ¶¶ 1, 3.) Defendants market these products as “ALL NATURAL” and/or containing “nothing artificial.” (Id. ¶ 2.) Plaintiffs allege that they “were induced to buy the Products by the words ‘all natural’ on the packaging and Defendants' representations that the Products had ‘nothing artificial.’ Plaintiffs expected to purchase products with wholesome ingredients untouched by scientific modifications—only to learn that they were in fact consuming bioengineered, artificial and synthetic ingredients.” (Id. ¶ 4.) Plaintiffs contend that bioengineered organisms do not meet the definition of “all-natural” in the federal regulations, and that Pyridoxine Hydrochloride, Alpha–Tocopherol Acetate, Hexane–Processed Soy ingredients and Calcium Pantothenate are artificial and/or synthetic. (Id. ¶ 10.) Thus, they claim that “Defendants' advertising and labeling is deceptive and likely to mislead the public as a result.” (Id. ¶ 25.)

On May 3, 2012, Plaintiffs Eggnatz and Garcia filed a Complaint in the Southern District of Florida. (See D.E. 1.) On September 14, 2012, Plaintiff Martin filed a Class Action Complaint in the Northern District of California. (See Martin v. The Kellog Company, et al., No. CV 12–04846 CRB (N.D.Cal. Sept. 14, 2012), Compl. (D.E. 1).) On December 7, 2012, The Honorable Charles R. Breyer, United States District Judge for the Northern District of California, ordered Plaintiff Martin's case to be transferred to the Southern District of Florida. (Id. at D.E. 20.) On January 11, 2013, this Court entered an Order consolidating the two cases, and further ordered Plaintiffs to file an amended consolidated complaint. (D.E. 30.) On October 18, 2013, Plaintiffs filed their Amended Consolidated Class Action Complaint (“SAC,” D.E. 58), which is the operative pleading for the instant Motion to Dismiss.

The SAC lists the Florida causes of action as (1) violations of Florida's Deceptive and Unfair Trade Practices Act, Fla. Stat. § 501.201 et seq. (id. ¶¶ 72–87); (2) Negligent Misrepresentation (id. ¶¶ 88–95); (3) Breach of Implied Warranty of Fitness for Purpose (id. ¶¶ 96–103); (4) Breach of Express Warranty (id. ¶¶ 104–111); (5) Declaratory Judgment (id. ¶¶ 112–117); (6) Money Had and Received (id. ¶¶ 118–130); and lists the California causes of action as violations of (7) California's Business and Professions Code § 17500 et seq. (id. ¶¶ 131–141); (8) California Civil Code § 1750 et seq. (id. ¶¶ 142–151); (9) the “unfair” and “fraudulent” prongs of California Business and Professions Code § 17200 et seq. (id. ¶¶ 152–164); and (10) the “unlawful” prong of California Business and Professions Code § 17200 et seq. (id. ¶¶ 165–174). Plaintiffs seek declaratory and injunctive relief in addition to monetary damages and attorneys' fees and costs. (Id. at 44–45.)

II. Motion for Judicial Notice

Because the Court may rely upon some of the documents contained within Defendants' Motion Requesting Judicial Notice (D.E. 72), the Court will address that Motion first. Pursuant to Federal Rule of Evidence 201, a “court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201(b). “The contents of the Federal

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Register shall be judicially noticed....” 44 U.S.C. § 1507 ; see also United States v. Wolny, 133 F.3d 758, 764 (10th Cir.1998).

Defendants ask the Court to take judicial notice of the following:

1. A statement of policy by the Food and Drug Administration (“FDA”), printed in the Federal Register and dated January 6, 1993 (D.E. 72–1);

2. A statement of policy by the FDA, printed in the Federal Register and dated November 27, 1991 (D.E. 72–2);

3. A statement of policy by the FDA titled “Statement of Policy: Foods Derived From New Plant Varieties,” printed in the Federal Register and dated May 29, 1992 (D.E. 72–3);

4. A request for information regarding a statement of policy by the FDA titled “Food Labeling; Foods Derived From New Plant Varieties,” printed in the Federal Register and dated April 28, 1993 (D.E. 72–4);

5. The FDA's “Guidance for Industry Voluntary Labeling Indicating Whether Foods Have or Have Not Been Developed Using Bioengineering, Draft Guidance,” released for comment in January 2001 (D.E. 72–5);

6. The FDA's “Guidance on Consultation Procedures, Foods Derived From New Plant Varieties,” dated October 1997 (D.E. 72–6);

7. A “transcript of testimony” presented by the FDA before the House Subcommittee on Basic Research, dated October 19, 1999 (D.E. 72–7); and

8. A letter from the United States Department of Agriculture (“USDA”) to a supplier of hexane-processed soy dated August 23, 2006 (D.E. 73–1).

(See Motion Requesting Judicial Notice, D.E. 72 at 1–2.)

Plaintiffs argue that the Court should deny the Motion in toto, because (1) “the ‘facts' that Defendants request to take judicial notice of are subject to reasonable dispute;” and (2) “because, to the extent the Exhibits shed any light at all on the issues at hand, they contradict Defendants' arguments in their Motion.” (Response to Defendant's Motion Requesting Judicial Notice, D.E. 82 at...