Lynch v. Tropicana Prods., Inc.

Decision Date12 June 2013
Docket NumberCivil Action No. 2:11-cv-07382 (DMC) (JAD)
PartiesDENNIS LYNCH, et. al., Plaintiffs, v. TROPICANA PRODUCTS, INC., a division of PepsiCo, Inc., and PEPISCO, INC., Defendants.
CourtU.S. District Court — District of New Jersey


Hon. Dennis M. Cavanaugh



This matter comes before the Court upon the motion of Defendant Tropicana Products, Inc. ("Tropicana" or "Defendant") to dismiss the Consolidated Amended Complaint ("CAC") of Plaintiffs Bernadette Salerno, Michael Marti mice i, Sandra Jablons, Yxia Olivares, Angela Lewis, Dezzi Rae Marshall, and Aleksander Simic, individually, collectively, and on behalf of all purchasers in the United States of Tropicana orange juice (collectively "Plaintiffs"), pursuant to FED. R. CIV. P. 12(b)(6). (Def.'s Mot. to Dismiss, Sept. 25, 2012, ECF No. 37). Oral arguments were heard in this matter on May 14, 2013. After considering the submissions of the parties and the the parties' respective oral arguments, and based upon the following, it is the finding of this Court that Defendant's Motion to Dismiss is granted in part, and denied in part.


The named Plaintiffs in this action are seven purchasers of Tropicana's orange juice whoassert that Tropicana has been falsely claiming that its modified "not-from-concentrate" orange juice ("NFC juice" or "the product") is 100% pure and natural orange juice. Despite Tropicana's "100% pure and natural claim," Tropicana's NFC juice, according to Plaintiffs, is processed, colored, and flavored.

Plaintiffs take issue, specifically, with the processes used to create Tropicana's NFC juice, including that it is pasteurized, deaerated, stripped of flavor and aroma, stored for long periods of time before available to the public, and colored and flavored before being packaged. (CAC ¶ 6). Some of the processes that Plaintiffs believe deviate from natural processing include:

(1) the removal of naturally present air from the intercellular spaces of the juice through the deaeration process;
(2) the reduction and deactivation of naturally occurring enzymes and microbial activity through pasteurization;
(3) long-term storage of deaerated and pasteurized juices for a year or longer;
(4) the addition of chemically engineered "flavor packs" derived from sources other than those used to make the juice, including oils from peels of oranges imported from Mexico, Brazil and other foreign countries to mimic the flavor that natural orange juice has;
(5) the addition of chemically engineered coloring derived from the flavedo or outer section of the orange peels from oranges other than those used to make the juice to enhance the color; and
(6) the mixing of numerous types of orange cultivars from Florida and Brazil that are then colored and/or flavored to cover up quality, varietal, seasonal, and geographic differences in the fruit used to make Tropicana orange juice.

(CAC ¶ 6).

Plaintiffs allege that they saw and read Tropicana's misrepresentations that the NFC juice was "100% pure and natural" and relied upon these representations in deciding to purchase the product. (CAC ¶¶ 18-24). Plaintiffs pinpoint what they allege to be a misrepresentative imageof an orange pierced by a straw on Tropicana's NFC juice container and representations made on Tropicana's website, including the statement that:

Tropicana Pure Premium is 100% pure and natural juice, with 16 fresh-picked oranges squeezed into every 59 oz. container. No water, sugar, or preservatives are ever added and it is never from concentrate, so you can get only the freshest, most delicious straight-from-the-orange taste.

(CAC ¶ 49). Tropicana also utilizes marketing phrases such as "Grove to Glass" and states there is "absolutely no space" for anything but sixteen fresh-squeezed oranges. (CAC ¶¶ 51-52). Plaintiffs assert that Tropicana's use of such marketing strategies confuses and misleads consumers and that Tropicana understands that such phrasing suggests or implies that their product is unprocessed, in its raw state, and without additives. (CAC ¶¶ 54-55). Tropicana does not disclose the use of flavor packing on its label nor is it mentioned in its advertising. (CAC ¶¶ 147-48).

Based on the foregoing factual allegations, along with the others contained in the Complaint, Plaintiffs assert claims for: (1) unjust enrichment; (2) breach of express warranty; (3) violation of the New Jersey Consumer Fraud Act; (4) violation of N.Y. GEN BUS. LAW § 349; (5) violation of N.Y. GEN. BUS. LAW § 350; (5) violation of N.Y. GEN. BUS. LAW § 350; (6) violation of the Consumers Legal Remedies Act (“CLRA”), Cal. Civ. Code § 1750, et. seq.; (7) violation of the Unfair Competition Law, Cal. Bus. & Prof. Code § 17200, et. seq.; (8) violation of the California False Advertising Law, Cal. Bus. & Prof. Code § 17500, et. seq.; (9) violation of the Wisconsin Fraudulent Representations and Deceptive Trade Practices Law, WIS. STAT. § 100.18(1); (10) violation of the Wisconsin Unfair Methods of Competition and Trade Practices Law, WIS. STAT. § 100.20(1); (11) punitive damages under Wisconsin Law; (12) violation of the State Consumer Protection laws of various states; and (13) for injunctive relief and declaratoryrelief pursuant to 28 U.S.C § 2201.

Oral arguments in this case were held on May 14, 2013. The predominant focus of oral arguments was the parties' differing interpretations of the law concerning federal preemption of state labeling requirements, as it applies to pasteurized orange juice.

Aside from the preemption issue, several other claims are the subject of the instant motion; (a) whether Plaintiffs adequately allege a reasonable expectation that Tropicana NFC juice was "100% Pure and Natural;" (b) whether the Complaint satisfies Rule 9(b); (c) whether Plaintiffs' unjust enrichment claim is well pled; (d) whether Plaintiff Simic adequately states a claim for punitive damages; (e) whether Plaintiff Simic adequately states a claim for unfair trade practices under Wisconsin law; (f) whether Plaintiff Simic adequately states a claim for breach of express warranty under Wisconsin law.


In deciding a motion under Rule 12(b)(6), a district court is "required to accept as true all factual allegations in the complaint and draw all inferences in the facts alleged in the light most favorable to the [Plaintiff]." Phillips v. Cnty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008). "[A] complaint attacked by a . . . motion to dismiss does not need detailed factual allegations." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). However, the Plaintiff's "obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. (internal citations omitted). "[A court is] not bound to accept as true a legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 286 (1986). Instead, assuming that the factual allegations in the complaint are true, those "[f]actual allegations must be enough to raise a right torelief above a speculative level." Twombly, 550 U.S. at 555.

"A complaint will survive a motion to dismiss if it contains sufficient factual matter to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 570). "A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for misconduct alleged." Id. "Determining whether the allegations in a complaint are 'plausible' is a 'context-specific task that requires the reviewing court to draw on its judicial experience and common sense," Young v. Speziale, Civ. No. 07-03129, 2009 WL 3806296, at *3 (D.N.J. Nov. 10, 2009) (quoting Iqbal, 129 S. Ct. at 1950). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'shown-that the pleader is entitled to relief." Iqbal, 129 S.Ct. at 1950.

A. Preemption

The Food, Drug, and Cosmetic Act ("FDCA"), 21 § U.S.C. 301, as amended In 1990 by the Nutrition Labeling and Education Act ("NLEA"), provides that the FDA shall "promote the public health by promptly and efficiently reviewing clinical research and taking appropriate action on the marketing of regulated products in a timely manner." 21 § U.S.C. 393(b)(2)(A). Encompassed within the FDA's mission is to ensure that "foods are safe, whole, sanitary, and properly labeled." 21 § U.S.C. 393(b)(2)(A).

Tropicana's motion focuses on the express preemption provision found in the Nutrition Labeling Education Act of 1990 ("NLEA"). During oral arguments, Tropicana's counsel asserted that the core claim made by Plaintiffs is that consumers were misled because Tropicanadid not disclose specific information about the production process for its pasteurized orange juice. (Oral Argument Tr. at 5:20-22). Tropicana's counsel spoke of the six processing steps that Plaintiffs contend required disclosure and argued that each of those processing steps was contemplated by the FDA-established standard of identity in regulation of pasteurized orange juice. (Oral Argument Tr. at 5:24-25, 6:2-4). In Tropicana's view, the FDA standard requires only that the label identify that the product is pasteurized, a requirement that Tropicana has fulfilled. (Oral Argument Tr. at 6:6-7). Tropicana asserts, both in their briefings and during oral argument that, to ensure that federally-regulated foods like Tropicana's NFC juice would not be subject to a patchwork of state labeling requirements, Congress provided under the NLEA that the FDA's rule expressly and broadly preempts any state labeling rules that would impose requirements "not identical to" those imposed on such foods by the FDA. (Def.'s Mot. Br. 12, Sept. 25, 2012, ECF No. 37-1; Oral Argument Tr....

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