Williams v. Gerber Products Co.
| Decision Date | 22 May 2006 |
| Docket Number | No. 05CV1278JM(JFS).,05CV1278JM(JFS). |
| Citation | 439 F.Supp.2d 1112 |
| Court | U.S. District Court — Southern District of California |
| Parties | Nakia WILLIAMS and Rita Tabiu, Plaintiffs, v. GERBER PRODUCTS COMPANY, Defendant. |
William F. Boyer, Sharp and Barnes, Washington, DC, Harold M. Hewell, Hewell Law Firm, San Diego, CA, for Plaintiffs.
Bryan A. Merryman, White and Case, Los Angeles, CA, for Defendant.
ORDER GRANTING MOTION TO DISMISS ALL CLAIMS WITH PREJUDICE AND WITHOUT LEAVE TO AMEND
Defendant Gerber Products Company ("Gerber") moves to dismiss all eight claims alleged in Plaintiff's Third Amended Complaint ("TCC"). Plaintiffs Nakia Williams and Rita Tabiu oppose the motion. Pursuant to Local Rule 7.1(d)(1), this matter is appropriate for decision without oral argument. For the reasons set forth below, the court grants the motion to dismiss all claims with prejudice and without leave to amend.
On June 23, 2005 Plaintiffs commenced this action as a purported class action against Gerber and Novartis Corporation ("Novartis"). At issue is the advertising and product labeling used to promote one of Gerber's products known as Gerber Graduates for Toddlers Fruit Juice Snacks ("Snacks"). Plaintiffs allege that Gerber is a "part of the Novartis group of companies." In an unopposed motion, the court granted Novartis's motion to dismiss for lack of personal jurisdiction.
Plaintiffs allege that the packaging for Snacks is deceptive in the following ways: (1) the principal display panel features the words "Fruit Juice" and images of oranges, peaches, strawberries, cherries, pineapple, and other berries but the juice only contains "white grape juice from concentrate" and no juice from the fruits and berries displayed on the label; (2) the side panel features the words "made with real fruit juice and other all natural ingredients" but the product is mostly corn syrup and sugar; (3) the side panel states that Snacks is "one of a variety of nutritious Gerber Graduates foods and juices" but the product is not a nutritious food or juice; (4) the principal display panel describes the product as "Fruit Juice Snacks" but the product is mostly corn syrup and sugar and therefor a candy; (5) the descriptive phrase "Naturally Flavored" does not comply with applicable type size requirements. (TAC ¶ 1).
Based upon these five allegedly misleading, deceptive, and false statements Plaintiffs allege eight causes of action for violation of Bus. & Prof.Code § 17200 et seq., Bus. & Prof.Code § 17500 et seq., negligent misrepresentation, intentional misrepresentation, breach of express warranty, breach of implied warranty of merchantability, breach of implied warranty of fitness for purpose, and violation of California's Consumers Legal Remedies Act, Civil Code § 1750 et. seq. For the third time, Plaintiffs moves to dismiss all claims pursuant to Fed.R.Civ.Pro 12(b)(6).
Federal Rule of Civil Procedure 12(b)(6) dismissal is proper only in "extraordinary" cases. United States v. Redwood City, 640 F.2d 963, 966 (9th Cir.1981). Courts should grant 12(b)(6) relief only where a plaintiff's complaint lacks a "cognizable legal theory" or sufficient facts to support a cognizable legal theory. See Balistreri v Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.1990). Courts should not dismiss a complaint "unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle [the party] to relief." Moore v. City of Costa Mesa, 886 F.2d 260, 262 (9th Cir.1989) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)), cert. denied, 496 U.S. 906, 110 S.Ct. 2588, 110 L.Ed.2d 269 (1990). The defect must appear on the face of the complaint itself. Thus, courts may not consider extraneous material in testing its legal adequacy. See Levine v. Diamanthuset, Inc., 950 F.2d 1478, 1482 (9th Cir. 1991). The courts may, however, consider material properly submitted as part of the complaint. See Hal Roach Studios, Inc. v. Richard Feiner and Co., 896 F.2d 1542, 1555 n. 19 (9th Cir.1989).
Finally, courts must construe the complaint in the light most favorable to the plaintiff. See Concha v. London, 62 F.3d 1493, 1500 (9th Cir.1995), cert. dismissed, 517 U.S. 1183, 116 S.Ct. 1710, 134 L.Ed.2d 772 (1996). Accordingly, courts must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them. See Holden v. Hagopian, 978 F.2d 1115, 1118 (9th Cir. 1992). However, conclusory allegations of law and unwarranted inferences are insufficient to defeat a Rule 12(b)(6) motion. See In re Syntex Corp. Sec. Litig., 95 F.3d 922, 926 (9th Cir.1996).
In order to state a claim under California's Bus. Prof.Code § 17200 et seq. or the Consumers Legal Remedies Act, Civil Code § 1750, et seq., Plaintiffs must allege that Defendants' statements are likely to deceive a reasonable consumer. See Consumer Advocates v. Echostar Satellite Corp., 113 Cal.App.4th 1351, 1358-60, 8 Cal.Rptr.3d 22 (2003); Freeman v. Time, Inc., 68 F.3d 285, 289 (9th Cir.1995). The term "likely" means probable, not just possible. Freeman, 68 F.3d at 289. If the alleged misrepresentation would not mislead a reasonable consumer, then the allegation may be dismissed on a motion to dismiss. See Haskell v. Time, Inc., 857 F.Supp. 1392, 1399 (E.D.Cal.1994). The court properly considers the alleged deceptive product labeling as the product packaging is specifically attached to the TAC. See Hal Roach Studios, 896 F.2d at 1555 n. 19. In determining whether a statement is misleading under Section 17500, "the primary evidence in a false advertising case in the advertising itself." Brockey v. Moore, 107 Cal.App.4th 86, 100, 131 Cal. Rptr.2d 746 (2003).
Advertisements that amount to "mere" puffery are not actionable because no reasonable consumer relies on puffery. See Cook Perkiss & Liehe v. N. Cal. Collection Serv., 911 F.2d 242, 245 (9th Cir. 1990) (). As noted in Cook,
The common theme that seems to run through cases considering puffery in a variety of contexts is that consumer reliance will be induced by specific rather than general assertions. `[A]dvertising which merely states in general terms that one product is superior is not actionable.' . `However, misdescriptions of specific or absolute characteristics of a product are actionable.'
Id. at 246; Consumer Advocates v. Echostar Satellite Corp., 113 Cal.App.4th 1351, 8 Cal.Rptr.3d 22 (2003) ().
Plaintiffs allege the words "Fruit Juice" and images of oranges, peaches, strawberries, cherries, pineapple, and other berries displayed on the packages creates confusion and misrepresents the product's contents because the product only contains a small portion of grape juice and no juice from the fruits displayed on the packaging. (Compl.¶ 1(a)). To place this claim in context, the court notes that the words are displayed in a banner and read in full "Fruit Juice Snacks," not "Fruit Juice." The fruit displayed on the package includes pictures of both real fruit and fruit-like substances that appear to be fruit flavored candy such as gum drops or hard candy in the shape of fruit. Plaintiffs do not dispute that the packaging truthfully identifies "white grape juice from concentrate" as the third most prominent ingredient, following corn syrup and sugar. (Request for Judicial Notice Exh. D).1
Plaintiffs contend that these statements are deceptive because Snacks does not contain any of the fruit depicted on the packaging. One difficulty with this argument is that the mere depiction of fruit, or fruit like substances, is not a specific affirmative representation that the product contains those fruits. Another difficulty with Plaintiff's argument is that no reasonable consumer upon review of the package as a whole would conclude that Snacks contains the juice from the actual and fruit-like substances displayed on the packaging particularly where the ingredients are specifically identified. Plaintiffs repeatedly assert—perhaps correctly— that Snacks is primarily flavored sugar water, a characterization even if true, would not mean that Snacks is deceptively advertised. Where a consumer can readily and accurately determine the nutritional value and ingredients of a product, and the product packaging does not affirmatively mislead the consumer by means of specific representations, no reasonable consumer would be misled by the words "Fruit Juice Snack" or deceived by depictions of fruit and fruit-like substances on the primary packaging label.
Furthermore, as argued by Gerber, the images are not deceptive because the depiction of the fruit and fruit-like images indicates that Snacks is fruit flavored and the FDA authorizes the manner in which Gerber labels Snacks. The depictions of the fruit suggest that the product is fruit flavored and, as indicated on the packaging label, Snacks is a naturally flavored drink containing grape juice and natural flavors, along with corn syrup, sugar, Vitamin C, and other listed ingredients.
Finally, the court rejects Plaintiffs' contention that Gerber's subsequent alteration of the packaging demonstrates the deceptive qualities of the packaging at issue. Whether the packaging at issue is actionable depends on the deceptive qualities of the particular packaging, and not subsequent alterations to that packaging.
In sum, the court finds that these statements are not deceptive as a matter of law. The "Made with Real Fruit Juice and Other...
To continue reading
Request your trial
-
Buckland v. Threshold Enterprises, Ltd.
......: "I do not make in this litigation any personal injury claims (though in using one of the products at issue in this litigation, I did suffer a skin rash). Rather, I am acting in this matter on my ...eMachines, Inc., supra, 402 F.Supp.2d at pp. 1136-1139; Williams . 66 Cal.Rptr.3d 557 . v. Gerber Products Co. (S.D.Cal.2006) 439 F.Supp.2d 1112, 1114-1118.) ......
-
Abbit v. ING USA Annuity & Life Ins. Co.
...relies on puffery.” See Stickrath v. Globalstar, Inc., 527 F.Supp.2d 992, 998 (N.D.Cal.2007) (quoting Williams v. Gerber Prods. Co., 439 F.Supp.2d 1112, 1115 (S.D.Cal.2006) (Miller, J.)). That said, taking Plaintiff's allegations as true, the Court finds Plaintiff has sufficiently pled misr......
-
Abbit v. Ing U.S. Annuity & Life Ins. Co., Case No. 13cv2310–GPC–WVG.
...relies on puffery.” See Stickrath v. Globalstar, Inc., 527 F.Supp.2d 992, 998 (N.D.Cal.2007) (quoting Williams v. Gerber Prods. Co., 439 F.Supp.2d 1112, 1115 (S.D.Cal.2006) (Miller, J.)). That said, taking Plaintiff's allegations as true, the Court finds Plaintiff has sufficiently pled misr......
-
Stickrath v. Globalstar, Inc.
...that amount to `mere' puffery are not actionable because no reasonable consumer relies on puffery." Williams v. Gerber Prods. Co., 439 F.Supp.2d 1112, 1115 (S.D.Cal.2006). Factual representations, however, are actionable. Echostar, 113 Cal.App.4th at 1361-62, 8 Cal.Rptr.3d 22. Thus, for exa......