Werdebaugh v. Growers
| Decision Date | 02 October 2013 |
| Docket Number | Case No.: 12-CV-02724-LHK |
| Parties | CHRIS WERDEBAUGH, individually and on behalf of all others similarly situated, Plaintiff, v. BLUE DIAMOND GROWERS, Defendant. |
| Court | U.S. District Court — Northern District of California |
MOTION TO DISMISS AND MOTION
Plaintiff Chris Werdebaugh ("Werdebaugh" or "Plaintiff") brings this putative class action against Blue Diamond Growers ("Blue Diamond" or "Defendant"), alleging that Defendant's package labeling is unlawful and deceptive and thus misbranded in violation of federal and state law. Defendant moves to dismiss Werdebaugh's First Amended Complaint and moves to strike Werdebaugh's claim for damages under the California Consumers Legal Remedies Act, Cal. Civ. Code ("CLRA") §§ 1750 et seq., ("Mot.") ECF No. 46; Werdebaugh opposes, ("Opp'n") ECF No. 48; and Blue Diamond replies, ("Reply") ECF No. 58. Having considered the submissions of the parties, the relevant law, and the record in this case, the Court hereby DENIES Defendant's Motion to Dismiss the First Amended Complaint and DENIES Defendant's Motion to Strike PlaintiId. CLRA damages claim.
Blue Diamond is a California corporation and a leading producer of almond milk products and snack foods. See First Am. Compl. ("FAC") ¶¶ 4, 17-18. Blue Diamond sells its products to consumers via grocery and other retail stores throughout the United States. Id. ¶¶ 17-18.
Werdebaugh is a California consumer who "cares about the nutritional content of food and seeks to maintain a healthy diet." Id. ¶¶ 16, 77. Since April 11, 2008, Werdebaugh has purchased more than $25.00 of Defendant's Almond Breeze Chocolate Almond Milk ("Purchased Product"), id. ¶ 77, the label of which, Werdebaugh contends, bears "false and misleading" label claims, id. ¶ 7. Specifically, the FAC alleges that false and misleading statements on the Purchased Product include: (1) "[r]epresenting food products to be 'All Natural,' when they contain chemical preservatives, synthetic chemicals, added artificial color and other artificial ingredients," (2) "[m]aking unlawful and misleading 'evaporated cane juice' claims," and (3) "[m]aking unlawful health claims on [Blue Diamond's] website." Id. ¶ 15. In his Opposition, however, "Plaintiff expressly states that he is not asserting a claim on website representations." Opp'n at 21. Because Werdebaugh has affirmatively abandoned any claims based on representations on Defendant's websites, the Court DISMISSES these claims with prejudice. The Court will consider only Plaintiff's "All Natural" and evaporated cane juice claims.
Werdebaugh asserts that he "read and reasonably relied on the labels on Defendant's Purchased Product before purchasing it." FAC ¶ 78. He further claims that he "based and justified the decision to purchase Defendant's product, in substantial part, on the label." Id. Finally, Werdebaugh asserts that he "did not know, and had no reason to know that the Purchased Product was unlawful and misbranded," and that he "would not have bought the product had he known the truth about it." Id. ¶ 79.
Werdebaugh also contends that numerous other Blue Diamond products (collectively, the "Substantially Similar Products") "make the same label misrepresentations [and] . . . violate the same regulations of [federal and California law]" as the Purchased Product. Id. ¶ 3. These Substantially Similar Products include (a) eleven "products labeled with the ingredient 'evaporatedcane juice,'" and (b) eighteen "products labeled 'All Natural' despite containing artificial or synthetic ingredients, flavorings, coloring, and/or chemical preservatives." See id. ¶ 4 ().
Werdebaugh alleges that Blue Diamond's use of the term 'evaporated cane juice' as an ingredient on the package labels of the Purchased Product and Substantially Similar Products violates federal regulation and California law. See id. ¶¶ 41-53. Specifically, Werdebaugh contends that Defendant's use of the term evaporated cane juice violates: (a) the FDA's definition of the term "juice;" (b) the FDA's requirements for identifying cane syrup on food labels; and (c) the FDA's blanket requirement that foods must be referred to by their common or usual names and not by names "confusingly similar to the name of another food that is not reasonably encompassed within the same name." Id. ¶¶ 43-46 (quoting 21 C.F.R. § 102.5(a)).
First, according to Werdebaugh, 21 C.F.R. § 120.1(a) defines "juice" as "the aqueous liquid expressed or extracted from one or more fruits or vegetables, purees of . . . fruits or vegetables, or any concentrates of such liquid or puree." Id. ¶ 46 (emphasis added) (quoting FDA October 2009 Guidance for Industry Letter) (internal quotation marks omitted). As sugar cane is not a fruit or vegetable, Werdebaugh claims, any liquid or syrup derived from sugar cane cannot lawfully be identified as "juice." Id. ¶¶ 46, 63. Second, Werdebaugh asserts, federal regulations not only proscribe identifying sugar cane and cane syrup as "juice," but mandate that it be identified as "sugar" or "syrup." Id. ¶¶ 42, 46, 63 (citing 21 C.F.R. §§ 101.4(b)(20) (sugar); 168.130 (cane syrup)). Finally, Werdebaugh alleges that use of the term evaporated cane juice violates the FDA's requirement that ingredients be described by their common or usual names, as established by regulation or common usage. Id. ¶¶ 43-44 (citing 21 C.F.R. §§ 101.4(b)(20), 102.5(d)). Because evaporated cane juice is "'confusingly similar to the name of [another] food that is not reasonably encompassed within the same name,'" Werdebaugh contends that the term cannot satisfy the FDA's common name or usage requirement. Id. ¶ 45 (quoting 21 C.F.R. § 102.5(a)).
The FAC alleges that the FDA's intention to regulate evaporated cane juice based on these requirements is expressed in an October 2009 Guidance for Industry letter on the topic ("2009Guidance"), see id. ¶ 46; see also Ex. U, as well as in "warning letters to the industry" on this issue, FAC ¶ 28.
Werdebaugh also alleges that Blue Diamond's use of the term "All Natural" on the Purchased Product and Substantially Similar Products violates federal regulations and California law. See id. ¶¶ 30-40. Werdebaugh claims that 21 C.F.R. § 101.22 requires that "natural" may only be used on a label where "nothing artificial or synthetic (including all color additives regardless of source) has been included in[] or . . . added to" the food. Id. ¶¶ 32-33. According to Werdebaugh, the FDA has "repeatedly affirmed" this policy in regulatory publications, see 58 Fed. Reg. 2302-01, 2407 (Jan. 6, 1993), policy guidelines, see FDA Compliance Policy Guide § 587.100, and "numerous warning letters." See FAC ¶¶ 33, 35-36. Moreover, Werdebaugh claims, a reasonable consumer would expect that under the "common use" of the word "natural," products labeled "All Natural" "do not contain synthetic, artificial, or excessively processed ingredients." Id. ¶ 38.
Werdebaugh asserts that six artificial ingredients are present in the Purchased Product and Substantially Similar Products labeled "All Natural," including "coco (Dutch process), potassium citrate, Vitamin A Palmitate, Vitamin D-2 and Vitamin D-Alpha-Tocopherol." Id. ¶ 62; see also ¶ 85 (). Werdebaugh contends that Defendant's claim that the Purchased Product and certain Substantially Similar Products are "All Natural," when in fact they contain the "artificial ingredients and flavorings, artificial coloring[,] and chemical preservatives" listed above, is "false and misleading" in violation of federal regulation and California law. Id. ¶¶ 31, 37.
Werdebaugh seeks to bring this putative class action, pursuant to Federal Rule of Civil Procedure 23(b)(2) and (b)(3), on behalf of the following proposed class:
All persons in the United States who, within the last four years, purchased Defendant[']s[] almond milk and substantially related products (1) labeled 'All Natural' despite containing artificial or synthetic ingredients, flavorings, coloring and/or chemical preservatives and/or (2) labeled with the ingredient 'EVAPORATED CANE JUICE.'
Werdebaugh alleges that by manufacturing, advertising, distributing, and selling misbranded products, Defendant has violated California Health & Safety Code Sections 110390, 110395, 110398, 110400, 110660, 110720, 110725, 110735, 110740, 110760, 110765, and 110770. See FAC ¶¶ 64-75. In addition, Werdebaugh asserts that Defendant has violated the standards set by 21 C.F.R. §§ 101.4(a)(1), 101.22, 101.30, 102.5(a), 102.5(d), and 120.1(a), as well as by 21 U.S.C. § 343, which have been incorporated by reference into California's Sherman Food, Drug, and Cosmetic Act ("Sherman Law"), Cal. Health & Safety Code §§ 109875 et seq. See FAC ¶¶ 26-27, 76; see also Cal. Health & Safety Code § 110100 ().
Based on these alleged regulatory and statutory violations, Werdebaugh's FAC alleges the following causes of action: (1) violation of California's Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code §§ 17200 et seq., for unlawful, unfair, and fraudulent business acts and practices (claims 1, 2, and 3); (2) violation of California's False Advertising Law ("FAL"), Cal. Bus. & Prof. Code §§ 17500 et seq., for misleading, deceptive, and untrue advertising (claims 4 and 5); and (3) violation of the CLRA, Cal. Civ. Code §§ 1750 et seq. (claim 6). See FAC ¶¶ 96-155.
Werdebaugh filed an...
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