Taradejna v. Gen. Mills, Inc.

• Decision Date: 10 December 2012
• Docket Number: Civil No. 12–993 (SRN/LIB).
• Parties: Martin TARADEJNA, Individually and on behalf of all others similarly situated, Plaintiff, v. GENERAL MILLS, INC., a Delaware corporation, Yoplait USA, Inc., a Delaware Corporation, Defendants.
• Court: U.S. District Court — District of Minnesota

909 F.Supp.2d 1128

Martin TARADEJNA, Individually and on behalf of all others similarly situated, Plaintiff,

v.GENERAL MILLS, INC., a Delaware corporation, Yoplait USA, Inc., a Delaware Corporation, Defendants.

Civil No. 12–993 (SRN/LIB).

United States District Court, D. Minnesota.

Dec. 10, 2012.

Brian C. Gudmundson and David M. Cialkowski, Zimmerman Reed, PLLP, Minneapolis, MN, Hart L. Robinovitch, Zimmerman Reed, PLLP, Scottsdale, AZ, and Christopher P. Ridout, Ridout & Lyon, LLP, Long Beach, CA, for Plaintiff.

Aaron D. Van Oort, Erin M. Verneris, Sarah L. Brew, and Steven B. Toeniskoetter, Faegre Baker Daniels, LLP, William F. Stute, DLA Piper, LLP, Minneapolis, MN, for Defendants.

MEMORANDUM OPINION AND ORDER

SUSAN RICHARD NELSON, District Judge.

This matter is before the Court on Defendants' Motion to Dismiss [Doc. No. 9], and Plaintiff's Motion to Appoint Interim Class Counsel [Doc. No. 16]. For the reasons stated below, Defendants' Motion is granted in part, and denied as moot in part, and Plaintiff's Motion is denied without prejudice.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Martin Taradejna brings this putative class action alleging violations under the Minnesota Prevention of Consumer Fraud Act, the Minnesota Unlawful Trade Practices Act, and the Minnesota Uniform Deceptive Trade Practices Act, related to the alleged mislabeling of “Yoplait Greek” products marketed by Defendants General Mills and Yoplait. (Compl. ¶¶ 2–3 [Doc. No. 1–1].) As another court has noted, “[u]nlike other types of yogurt sold in this country, Greek yogurt is strained to remove the whey, resulting in a creamier product, richer in protein and lower in lactose.” Stonyfield Farm, Inc. v. Agro–Farma, Inc., No. 08–CV–488–JL, 2009 WL 3255218, *2 (D.N.H. Oct. 7, 2009).

As Plaintiff alleges, prior to 2007, Greek yogurt was not sold and distributed in large quantities in the United States. (Compl. ¶ 65 [Doc. No. 1–1].) Since that time, however, the production and distribution of Greek yogurt in this country has increased dramatically and is now one of the fast-growing segments of the yogurt market. ( Id. ¶¶ 65–66.) Plaintiff contends that Defendants were unprepared for the popularity of Greek yogurt and possessed no facilities at which they could manufacture Greek yogurt using the straining process. ( Id. ¶¶ 27–28.) Instead of constructing new facilities to manufacture strained Greek yogurt, Taradejna alleges that Defendants chose to use Milk Protein Concentrate (“MPC”) when they entered the Greek yogurt market in 2010. A blend of dry dairy products, MPC is sold in a powdered form. (Id. ¶ 31.) It is a form of ultrafiltered milk that typically “retain[s] all protein components of milk.” 70 Fed.Reg. 60751, 60752 (Oct. 19, 2005) (describing the ultrafiltration process in milk, as compared to mico- and nanofiltration processes). Defendants' use of MPC in the manufacture of its Yoplait Greek yogurt results in a product with the thickness and protein content typical of Greek yogurt. (Compl. ¶ 28 [Doc. No. 1–1].) The labeling of Defendant's Yoplait Greek yogurt discloses MPC as an ingredient. (¶ 67.) Taradejna contends, however, that “Yoplait Greek yogurt is neither yogurt nor Greek, as those terms are used in the industry and as defined by regulation.” (Id. ¶ 3.) Rather, Taradejna alleges that Yoplait Greek yogurt fails to comply “with legal and regulatory rules governing the labeling of food because it contains significant amounts of [MPC].” ( Id.)

Under the Federal Food, Drug, and Cosmetic Act (“FDCA”), 21 U.S.C. § 301 et seq., the Food & Drug Administration (“FDA”) is authorized to create reasonable definitions and “standards of identity” for certain foods. 21 U.S.C. § 341. In 1981, the FDA promulgated such standards of identity for yogurt, 21 C.F.R. § 131.200, lowfat yogurt, 21 C.F.R. § 131.203, and nonfat yogurt, 21 C.F.R. § 131.206.¹ The standard of identity defines yogurt as “the food produced by culturing one or more of the optional dairy ingredients specified in [ § 131.200(c) ] with a characterizing bacterial culture that contains the lactic acid-producing bacteria, Lactobacillus bulgaricus and Streptococcus thermophilus.” 21 C.F.R. § 131.200(a). The standard of identity further describes the ingredients and the process for manufacture of yogurt. Permitted optional dairy ingredients that may be cultured to produce yogurt include “cream, milk, partially skimmed milk or skim milk, used alone or in combination.” 21 C.F.R. § 131.200(c). In addition, the standard of identity provides for methods of analysis of yogurt, sets forth standard nomenclature for the product, and provides uniform requirements for the disclosure of the ingredients used to manufacture yogurt. 21 C.F.R. § 131.200(e)- (g).

When the FDA issued the standard of identity for yogurt in 1981, it also proposed to limit “other optional ingredients” that could be included in yogurt. See47 Fed.Reg. 41519 (Sept. 21, 1982). The Agency therefore drafted a provision limiting the use of “other optional ingredients” in yogurt to certain milk-derived ingredients (e.g., concentrated skim milk, nonfat dry milk, buttermilk, whey), sweeteners, flavorings, color additives, and stabilizers. 21 C.F.R. § 131.200(d)(1)-(5). Noteworthy here, the list of “other optional ingredients” does not include MPC. Id. In response to comments and objections, however, the language regarding “other optional ingredients,” 21 C.F.R. § 131.200(d)(1), was stayed, and the limitation, while published, was not put into effect. (Compl. ¶ 54 [Doc. No. 1–1].) Plaintiff alleges that “it is as if that limited section of the standard of identity (i.e., section 131.200(d)(1)) does not exist.” ( Id.) Thus, Plaintiff alleges that because MPC is not an ingredient expressly listed or described within the applicable standards of identity for yogurt, use of this ingredient is not permitted in yogurt. (Id. ¶ 60.)

Defendants, however, contend that the FDA's position is that yogurt may contain MPC. (Defs.' Mem. Supp. Mot. Dismiss at 15 [Doc. No. 13].) ² In support of their argument, Defendants point to the following publically-available response to questions raised with the FDA at a 2004 milk seminar:

May whey protein concentrate (WPC) and/or milk protein concentrate (MPC) be used as ingredients in yogurt to increase the nonfat solids content?

Yes. 21 C.F.R. 131.200(d), which would have precluded WPC or MPC use, was one of several provisions of the standard of identity for yogurt that were stayed in 1982, 47 FR 41510, September 21, 1982.

M–I–04–10: Questions and Answers from a FY'04 Regional Milk Seminar, an Advanced Milk Processing Course, Dec. 27, 2004 (emphasis in original).³

In 2009, the FDA issued a Proposed Rule which would allow for certain modifications to the standards of identity for yogurt, including “the use of reconstituted milk and whey protein concentrate as standard dairy ingredients.” (Compl. ¶ 60 [Doc. No. 1–1]; 74 Fed.Reg. 2443 (Jan. 15, 2009) (2009 Proposed Rule)). The FDA noted that while the published standards do not permit the use of certain ingredients such as preservatives or a reconstituted dairy ingredient as a basic ingredient, “because of the stayed provisions, FDA has not taken enforcement action against the use of these ingredients in yogurt....” 74 Fed.Reg. at 2444. The FDA explained that, as of 2009, it had not held a public hearing to resolve these issues “due to competing priorities and limited resources.” Id. at 2444. Therefore, the FDA stated that yogurt may “deviate from the relevant standards” as to the stayed provisions, which would include “milk-derived ingredients that may be used to increase the nonfat solids content” of yogurt. Id.

As background to the 2009 Proposed Rule, the FDA further described how the 1982 stay came about:

f. Use of safe and suitable milk-derived ingredients as optional dairy ingredients. Stayed portions of the standards of identity for yogurt, lowfat yogurt, and nonfat yogurt listed the optional milk-derived ingredients (i.e., concentrated skim milk, nonfat dry milk, buttermilk, whey, lactose, lactalbumins, lactoglobulins, and whey modified by partial or complete removal of lactose and/or minerals) that can be used for the purpose of increasing the nonfat solids content of these foods above the minimum required 8.25 percent, provided the ratio of protein to total nonfat solids of the food and the protein efficiency ratio of all protein present is not decreased as a result of adding these optional ingredients (§§ 131.200(c)(1), 131.203(c)(1), and 131.206(c)(1); redesignated as §§ 131.200(d)(1), 131.203(d)(1), and 131.206(d)(1)). FDA stayed these provisions in response to objections to the January 30, 1981, final rule that these provisions preclude the use of other safe, nutritional, and functional milk-derived ingredients and that there appears to be no rational factual basis for the omission of traditional ingredients such as partially delactosed skim milk, partially hydrolyzed whey, and other safe and suitable ingredients (47 FR 41519).

Id. at 2450.

In the 2009 Proposed Rule, the FDA also noted the current use and apparent safety of milk-derived ingredients in the manufacture of yogurt, stating

[The National Yogurt Association] stated that manufacturers currently use a variety of safe and suitable milk-derived ingredients for the purpose of increasing the nonfat solids content of yogurts. FDA is not aware of any data or other information that would suggest that expanding the current list of optional milk-derived ingredients to permit the use of any safe and suitable milk-derived ingredient, under the conditions stated in the current standard to maintain the nutritional quality of yogurt, would have an adverse effect on the overall quality or safety of yogurt.

Id. The Agency concluded that “... it is appropriate to incorporate technological flexibility into standards so long as the basic nature and essential characteristics of the food...