Lanovaz filed a putative class action under the UCL, FAL,CLRA, Song-Beverly Act, and Magnuson-Moss Warranty Act, based on claims thatTwining’s green tea was allegedly misbranded. The box label describes the tea as a “natural source of antioxidants.”Lanovaz alleged that Twinings was making unlawful nutrient content claims,unlawful antioxidant claims, unlawful/unapproved health claims, and unlawfuldisease prevention/treatment claims.
Twinings moved to strike claims about statements Lanovazdidn’t see and products she didn’t buy, since she only bought the 1.41 oz. boxof Green Tea and didn’t specifically identify other products or otherinformation on which she relied, despite references to buying other Twiningsproducts and viewing its website. In general, a person can’t expand claims toinclude products not purchased or ads not relied on. Acknowledging the judicialsplit on the issue, the court held that there could be no injury, as required,where the plaintiff didn’t herself buy the product at issue. So she could only proceed based on the greentea product bearing the label “natural source of antioxidants.” (I assume she’s allowed to represent those whobought 4 oz. boxes … or is she?)
Twinings then argued that her claims were preempted by theFDCA/NLEA. Lanovaz rejoined that she wassuing under California state law, which adopts rules identical to those of theFDCA/NLEA/FDA regulations, something specifically allowed by the NLEA’s preemptionprovisions. Twinings relied on PomWonderful LLC v. Coca–Cola Co., 679 F.3d 1170 (9th Cir. 2012), where the NinthCircuit barred a Lanham Act claim against a label that apparently wasauthorized under FDA regulations. If theFDA declined to impose labeling requirements, the Lanham Act couldn’t doso. Pomwas inapposite. First, it wasn’t aboutstate law claims and indeed remanded the UCL/FAL claims to the districtcourt. The NLEA has been repeatedlyinterpreted not to preempt state law requirements that parallel or mirror theNLEA. “[T]he purpose of the NLEA is notto preclude all state regulation of nutritional labeling, but to prevent Stateand local governments from adopting inconsistent requirements with respect tothe labeling of nutrients.”
So the question was whether Lanovaz was seeking to enforcethe FDA regulations, incorporated into California law, or whether she wasasserting claims beyond what the regulations require. The difficult questionwas whether “natural source of antioxidants” was a federally regulated nutrientcontent claim. A claim that expressly orimplicitly characterizes the level of a nutrient of a type required to be inthe nutrition labeling is a regulated nutrient content claim. Twinings argued that “natural source” didn’tcharacterize the level of antioxidant. Under the regulations, an antioxidant nutrient content claim can be usedwhen there’s a reference daily intake for the nutrient, the nutrient hasrecognized antioxidant activity, the level of the nutrient was sufficient toqualify for the claim, and the names of the nutrients were included. Twinings’ “natural source of antioxidants”label didn’t meet those requirements. Soif it was a nutrient content claim, the state UCL/FAL claims were viable.
The FDA hasn’t officially defined “source of” or “naturalsource of” as making a nutrient content claim, but it has identified similarterms such as “excellent source of,” “good source of,” “contains,” and“provides” as the operative words in nutrient content claims. In a 2011 warning letter, it advised thatclaims using “source” were nutrient content claims. Thus, the court found that the allegations ofthe complaint sufficed to set forth a nonpreempted claim.
Twinings also challenged Lanovaz’s Article III standing. Itargued that she got tea that didn’t injure her in any way. Lanovaz responded that she was misled intobuying the tea, and buying a product you wouldn’t otherwise have bought is aneconomic injury in fact. Whether she wasactually misled was a factual question.
Twinings argued that her claim to rely on a“hyper-technical” violation of FDA regulations was implausible. Lanovaz alleged that she thought she wasbuying tea that met the minimum threshold to make an antioxidant claim, andthat buying healthy products was important to her. But, Twinings contended, the statement wasliterally true and a reasonable consumer wouldn’t know that the FDA has defined“source”/“natural source,” so they’re not meaningful. The court found the allegationsplausible. (I think it’s clearlyplausible to have a general belief that the government regulates product claimsand thus wouldn’t allow them if they don’t meet a minimum threshold, even ifyou don’t know the numerical etc. details of those regulations.)
However, the Song-Beverly Consumer Warranty Act claim failedbecause the Act exempts consumables, which the tea is. The Magnuson-Moss Act claim also failedbecause the “natural source” claim wasn’t a warranty against a product defect.And the unjust enrichment/restitution claim failed as superfluous/duplicativeof statutory claims.
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