Ivie sued Kraft for the usual California claims based onallegedly unlawful and misleading labels or packaging on a variety ofdefendants' consumer food products, including gum, crackers, granola, fruitpunch, cheese, nut mix, lemonade, stuffing mix, Jell–O, and Easy Mac. Shealleged that, had she not been misled, she would’ve foregone purchasing theproducts and bought something else that was cheaper. She also brought claims based on products thatshe didn’t buy but that had similar labels, including Back to Nature ClassicCream Cookes, Fudge Mint Cookies, and Fudge Striped Cookies (“no artificialflavors or preservatives” claims), Halls Refresh Sugar Free Drops (“sugar free”claims); and (4) Trident White Spearmint Sugar Free Gum (“sugar free” claims).
Kraft’s argument that Ivie received gum and nuts and sweetbeverages and thus suffered no injury failed because she alleged that shewouldn’t have bought the products if she’d known the truth, which was economicinjury in fact. However, the court dismissed claims based on products shedidn’t buy, despite recognizing a split on the issue.
The court next turned to Kraft’s argument that Pom WonderfulLLC v. Coca-Cola Co., 679 F.3d 1170 (9th Cir. 2012), precluded the claims,because allowing state law claims would undermine Congress’s decision to limitenforcement of the FDCA to the federal government. Astiana v. Hain Celestial Grp., -- F. Supp.2d --, 2012 WL 5873585 (N.D. Cal. 2012), recently accepted this argument as tothe terms “all natural,” “pure natural,” and “pure, natural, and organic.” Where the FDA has yet to speak on whether aparticular label or claim is unlawful or misleading, the primary jurisdictiondoctrine may justify dismissal of state law claims. But where FDA policy is clearly established,the doctrine doesn’t apply because there’s little risk of undermining the FDA’sexpertise. Here, the doctrine didn’tapply to the vast majority of the state law claims, because Ivie’s arguments werepredicated on violations of California law identical to FDA provisionsrequiring no original judicial interpretation. The exception was the “one mint” serving size claims, where the FDA wascurrently engaged in rulemaking on its requirements for breath mints.
The court then turned to whether Ivie was really assertingclaims identical to those required by the FDCA/FDA and did a regulation byregulation analysis. The “natural lemonflavor” claim was dismissed because, even if the product contained artificialingredients, it wasn’t alleged to contain ingredients contributing to the lemonflavor (which would’ve required a different label). However, the claim against “No artificialsweeteners or flavors” was based on the argument that maltodextrin and sodiumcitrate were sweeteners or flavoring agents; although they were not defined tobe such by the FDA, the FDA definitions also didn’t exclude the possibilitythat they could be used in a drink mix as such, so this was inappropriate for amotion to dismiss. Etc.—some claims weredismissed because the product labels contained the required statements, whileone product didn’t contain “See nutrition information for fat content” whilestill making “reduced fat” claims.
Ivie argued that Kraft’s Back to Nature granola and crackerscontained misleading “evaporated cane juice” claims since that’s just a type ofsugar and shouldn’t be characterized as a type of juice. In 2009, the FDApublished a draft guidance indicating FDA’s view that the term “is not thecommon or usual name of any type of sweetener, including dried cane syrup…. FDA considers such representations to be falseand misleading … because they fail to reveal the basic nature of the food andits characterizing properties (i.e., that the ingredients are sugars orsyrups).” This was a clear FDA position,and though it wasn’t legally enforceable, it was enough to allow the case to goforward by establishing that the labels could be deceptive or misleading to areasonable consumer, and there was no risk of undermining the FDA’s rulemakingexpertise.
Ivie also alleged that the “natural cheese” and “100%natural” labels on Kraft Mexican Style Four Cheese and Back to Nature granolaand crackers respectively were false and misleading because they contained manyartificial ingredients. Many courts in the Northern District of California haverejected arguments that “natural”-based claims are expressly preempted. The FDA has declined to adopt a specific“natural” regulation, but its policy has been that “natural” means that “nothingartificial or synthetic (including all color additives regardless of source)has been included in, or has been added to, a food that would not normally beexpected to be in the food.” This wassufficiently clear to allow the case to proceed without preemption; naturalnesswas a factual determination on a product-by-product basis.
The restitution/unjust enrichment claims were dismissed asduplicative; the Song-Beverly warranty claims were dismissed because that lawdoesn’t apply to consumables; and the Magnuson-Moss warranty claims weredismissed because food labels aren’t warranties against product defects butrather product descriptions.
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