Route sued Mead Johnson for violations of the CLRA, UCL,FAL, and Magnuson Moss Warranty Act, along with breach of express warranty. Shealleged that Mead Johnson falsely and misleadingly represented that certainbaby food products contained a “trademarked blend of prebiotics that providedigestive health benefits and immunity-related health benefits for infants andyoung children like breast milk does.” Not only were these claims not true, shealleged, but also even if they were true the products didn’t contain enough ofthe prebiotic ingredients to provide the advertised health benefits. The court found these allegations contradictory,though I don’t see why it’s not standard pleading in the alternative: thehealth claims might be true about doses 100 times the amount found in theproducts, and the ads could still be false/misleading.
The product labels at issue feature the phrase “NaturalDefense Dual Prebiotics” and say that “emerging science suggests that prebioticmay support your baby's developing immune system,” and that the products are“designed to act more like breast milk[.]” Route’s claims were based on amonograph published by Mead Johnson in 2009 that she alleged “indicates thatthere is no established direct or indirect relationship between the use ofprebiotics in infant nutrition and immune system benefits for infants.” Moreover,she alleged that “experts agree that breast milk is immeasurably superior tobaby formula in terms of infant nutrition and other health benefits.”
The complaint alleged that Route bought only one of the fourproducts challenged in the suit, Enfamil Premium Infant Formula. Mead Johnson sought to strike her allegationsabout other products for lack of standing. The court agreed that the plaintiff could only have suffered an injurywith regard to products she purchased. “Whether or not all four products sharethings in common for purposes of demonstrating commonality, typicality orpredominance is effectively irrelevant to the question of whether Plaintiffherself has suffered an injury in fact with regard to all four products. Shehas not.” (I still don’t understand whythis argument doesn’t mean that all class actions should be dismissed for lackof standing. Route also didn’t spend themoney that other consumers spent buying the products. However, in a footnote, the court stated thecircumstances under which she could possibly, maybe, arguably have standing forall four products: if they all (1) contained the same contested ingredient inthe same amount, (2) were subject to the same ad campaign/representations, and(3) differed in ways that were not germane to the claims, e.g., flavor. Why that isn’t just a hyper-rigoroustypicality/commonality etc. analysis performed before any factfinding has beendone remains obscure to me.) Claimsdismissed, unless plaintiff could add additional class representatives.
Insofar as Route alleged only lack of substantiation, thecourt would also grant Mead Johnson’s motion to dismiss. Only the governmentcan make an advertiser submit substantiation, a rule that prevents undueharassment of advertisers. Mead Johnsonargued that Route’s theory of the case was still lack of substantiation, sincethe only evidence of falsity alleged was the existence of the monograph, whichdoesn’t indicate that the label claims are false, but instead cites conflictingstudies. Route argued that the monographsupported her claims by identifying at least one study demonstrating thatprebiotics have no health effect, but the court found that cherry-picking sincethe monograph considered “surely most reputable scientific writings do, theevidence and studies supporting both positions as to the hypothesis of whetherprebiotics have any healthful effect.” Route needed to provide a specified factual basis for her falsity claims,which couldn’t be based on the monograph or “unidentified experts or studies.” (Wouldn’t directly citing that study cited bythe monograph suffice, thus making which study was correct a factual matterunsuited for resolution on a motion to dismiss?) Nor were references to the American Academyof Pediatrics’ recommendations that breast milk should be the main source of ababy’s nutrition for the first six months sufficient. The complaint didn’t allege that Mead Johnsonever denigrated the benefits of breast milk, or represented how much of ababy’s nutrition should come from its products instead of from breastmilk. Nor did it allege that MeadJohnson actually marketed its products as near-equivalents of breastmilk—advertising health benefits “analogous to those found in breast milk” wasnot inherently and always misleading. The court would give Route an opportunity to amend the complaint.
On the Magnuson Moss Warranty Act claims, plaintiff didn’tmeet the standards for federal jurisdiction: number of named plaintiffs onehundred or more and amount in controversy for any individual claim over $25.However, CAFA allows jurisdiction regardless if CAFA’s requirements are met.Nonetheless, the claim failed because there was no written warranty as definedby the statute. Claims that the products were “designed to act more like breastmilk” and had “Natural Defense Dual Prebiotics” were not written warrantiesthat the they were defect free and would perform in a specified way over aspecified period of time, as required by the statute.
Mead Johnson also moved to strike the request forcertification of a nationwide class, based on Mazza v. Am. Honda Motor Co.,Inc., 666 F.3d 581 (9th Cir. 2012). Where an issue is sufficiently obvious from the pleadings, a court canstrike class allegations, and given California’s choice of law rules as appliedto express warranty claims in Mazza,that was so here. The transactionsforming the subject of the express warranty claims took place nationwide. Route would need to allege furtherconnections to California; otherwise the court couldn’t see how she could everdemonstrate that a nationwide class would be appropriate under Californiachoice of law rules.
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