The court affirmed the dismissal of UCL/FAL claims based onNestle’s Juicy Juice Immunity, finding “nothing false, deceptive, or misleading”about the challenged materials, but revived claims based on Juicy Juice BrainDevelopment. Plaintiffs adequately pledthat members of the public were likely to be deceived by the labels and ads,including the name of the product; they pled their reliance; and they allegedthat the product actually contained very small amounts of the toutedingredient, DHA. They then pled that “in order to obtain enough DHA from theJuicy Juice to promote potential brain development, young children need toconsume an impractical and extremely high quantity of juice—more than abottle's worth each day.” These allegations, along with allegations of lostmoney, were sufficient. The primaryjurisdiction doctrine was not an alternative basis for dismissal, since theclaims didn’t necessarily implicate primary jurisdiction, “and the FDA hasshown virtually no interest in regulating DHA in this context.”
Judge Kleinfeld dissented and would have affirmed thedismissal in its entirety. He found thepleadings conclusory, especially given Rule 9(b). The complaint didn’t suggest that anything inJuicy Juice was bad for children’s brain development, just that the scientificevidence was mixed about whether there was a benefit. Private plaintiffs can’t demandsubstantiation, and nothing in the ads said that all a child needed was a fewounces of Juicy Juice a day; instead, they said the opposite: “Juicy JuiceBrain Development ... [is an] additional resource for parents to incorporatemuch needed nutrients into their child's diet.” It wasn’t plausible for any reasonable person to understand the ads tomean that all a child needs is Juicy Juice. “When a child's mother tells him to eat his broccoli because it is goodfor him, she is not misleading the child, even though eating only broccoli andnothing else would probably be bad for the child.” Williams v. Gerber Prods. Co., 552 F.3d 934 (9thCir. 2008), was not to the contrary, because in Gerber, Gerber showed pictures of several different fruits alongwith the phrase “fruit juice” on the package, which “could likely deceive areasonable consumer” into thinking that the fruits in the picture were also inthe snack, even though most of the depicted fruits weren’t. Here, the plaintiffs didn’t dispute that thejuice contained 16 milligrams of DHA, as Nestle claimed.
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