email: [email protected] 6 charles c. …...general mills, inc. 16 united states district court...
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Case3:11cv—05056-SC Document33 FiledO2/17/12 Pagel of 35
1 PERKINS COiEu,pDAVIDT. BIDERMAN (Bar No. 101577)
2 JOREN BASS (Bar No. 208143)Four Embarcadero Center, Suite 2400
3 San Francisco, CA 94111-4131Telephone: (415) 344-7000
4 Facsimile: (415) 344-7050E-rnai 1: DBiderrnanperkinscoie.comEmail: [email protected]
6 CHARLES C. S1POS (Pro hac vice)KATHLEEN lvi O’SULLIVAN (Pro hoc vice)
7 1201 Third Avenue, Suite 4800Seattle, WA 98101-3099
8 Telephone: (206) 359-8000Facsimile: (206) 359-9000
9 E-mail: CSiposperkinscoie.comEmail: KOsui1ivant1perkinscoie.corn
10CARLTON FIELDS
II CHRIS S. COUTROL1S (Pro hac vice pending)ROBERT L. CIOTTI (Pro hac vice pending)
1 2 M. DEREK HARRIS (Pro hoc ‘ice pending)4221 W. Boy Scout Blvd., Suite 1000
1 3 Tampa, FL 33607-5780Telephone: (813) 223-7000
14 Facsimile: (813) 229-4133
1 5 Attorneys for DefendantGENERAL MILLS, INC.
16UNITED STATES DISTRICT COURT
17NORTIILRN DISTRICT OF CALIFORNIA
I.SAN FRANCISCO DIVISION
19Case No. I I -CV-05056 (SC)
20 ANN1E LAM, on behalf of herself, and allothers similarly situated. CLASS ACTiON
DEFENDANT GENERAL MILLS INC.’SPlaintiff, NOTICE OF MOTION AND MOTION TO
DISMISS PLAINTIFF’S FIRST AMENDED
23 COMPLAINT UNDER FED. R. CIV. P.12(b)(6) AND 9(b); MEMORANDUM OF
24 POINTS AND AUTHORITIES INGENERAL MILLS, INC., SUPPORT THEREOF
25Date: April 20, 2012
Defendant. Time: 1:00 P.M.— Place: Courtroom 1, 17th Floor27
_________________________________________
Judge: Hon Samuel Conti
28DEFENDANT GENERAL MILLS’ NOTICE
LEGAL22505762.1 OF’ MOTION AND MOTION1 1—CV-05056 I I-CV-05056 (SC)
Case3:11-cv-O5056SC Document33 FiledO2/17/12 Page2 of 35
I NOTICE OF MOTION
2 TO: THE COURT, ALL INTERESTED PARTIES AND THEIR ATTORNEYS OFRECORD
3
4 PLEASE TAKE NOTICE THAT on April 20, 2012, at 1:00 p.m., or as soon thereafter as
the matter may be heard, in Courtroom 1. 17th Floor of the United States District Courthouse, 450
6 Golden Gate Avenue, San Francisco, California, 94102, before the Flonorable Samuel Conti,
Defendant General Mills, Inc. (“General Mills”) will, and hereby does, move the Court for an
8 order dismissing Plaintiff Annie Lam’s First Amended Complaint (“Complaint” or “FAC”) (Dkt.
No. 27) (filed Jan. 27, 2012). The Motion is made pursuant to Federal Rule of Civil Procedure
1 0 (“Rule”) I 2(b)(6) on the grounds that (a) the claims in the Complaint are barred by the express
11 preemption provision in the Nutritional Labeling and Education Act (the “N LEA”), 21 U.S.C.
12 § 343-1 (a): (b) the Complaint fails to state a claim upon which relief can be granted because
13 Plaintiffs allegations are based on statements that are not likely to deceive a reasonable
14 consumer; (e) Plaintiff cannot claim relief under Minnesota law, because choice of law principles
mandate application of California law to her claims; (d) the Complaint fails to state essential
16 elements of claims for breaches of warranty; and (e) to the extent Plaintiffs claims are not
1 7 dismissed outright, the Complaint fails to satisI’ the pleading requirements of Rule 9(b).
1 8 The Motion is based upon this Notice, the accompanying Memorandum of Points and
1 9 Authorities, the accompanying Request for Judicial Notice, any reply memorandum, the
20 pleadings and files in this action, and such other matters as may be presented at or before the
21 hearing.
22 DATED: February 17, 2012 PERKINS COlE LLP
23By: ./s/ Chcirles C. SipoS
24 CHARLES C. SIPOS, Pro hac vice
25 Attorneys for DefendantGENERAL MILLS, INC.
26
27
28DEFENDANT GENERA.L MILLS’ NOTICE
LEGAL22505762.J OF MOTION AND MOTION To DISMISSii-CV-05056 I i-CV-05056 (SC)
Case3:11cv-05056SC Document33 FiledO2/17/12 Page3 of 35
1 TABLE OF CONTENTSPage
2NOTICE OF MOTION I
MEMORANDUM OF POINTS AND AUTHORITIES I
4 I. INTRODUCTION 1
ii. SUMMARY OF RELE\/ANT ALLEGATIONS 2
A. General Mills and the Fruit Flavored Snacks Products 26 B. Plaintiff’s Allegations Regarding Statements on Fruit Flavored Snacks
7 Labels 4
III. ARGUMENT 58 A. Legal Standard 5
9 B. Plaintiffs Claims Are Expressly Preempted by the NLEA 6
10 1. The NLEA Expressly Preempts Plaintiffs Claims Regarding theTerms “Fruit Flavored” and “Naturally Favored.” 8
II 2. The NLEA Expressly Preempts Plaintiff’s Claims Regarding theTerms “Low Fat,” [Number of] Calories” and “Good Source of
12 Vitamin C.” 10
13 a. “[Number of] Calories” and “Low Fat ii
b. “Good Source of Vitamin C” 1414 C Plamtiff Fails to State a Claim for Relief Undet the UCL CLRA and FAL
Because the Statements Are Not Likely to Deceive a Reasonable Consumer 15
1. “Made With Real Fruit 1616 2. “Gluten Free” 19
1 7 D. Plaintiff Is a California Purchaser Who Cannot State A Claim for Violationof the Minnesota UDTPA 20
18 E. Plaintiff Fails to State a Claim fhr Breach of Warranty 22
19 F. Plaintiffs Complaint Fails to Meet the Pleading Requirements of theFederal Rules 23
20 CONCLUSION 25
21
22
23
24
25
26
27
28DEFENDANT GENERAL MILLS’ NOTIC.E
LEGAL22505762.1 OF MOTION AND MOTION TO DISMISSiiCVM5O56 I i-CV-05056 (SC)
Case3:11-cv-05056-SC Document33 FiledO2/17112 Page4 of 35
1 TABLE OF AUTHORITIES
2 Page
3 CASES
4 Ackerman i’. Coca Cola Co..No. CV-09-0395 (JG). 2010 WL 2925955 (E.D.N.Y. July 21, 2010) 13
6 Aron . U-Haul Co. o/Cal.,143 Cal. App. 4th 796 (2006) 15
7Ashcrofi v. fqhul,
8 556 U.S. 662, 129 S. Ct. 1.937 (2009) 5,23
9 Balistreri ‘. Pacific Police Dept.,901 F.2d 696 (9th Cir. 1988) 5
1.0
Bates ‘. Dow AgrosciencesLLC, 544 U.S. 43 1 (2005) 7, 23
12Bell Atlantic Corp. v. Twombli,
13 550U.S.544(2007) 5,23
1.4 Blv-Magee v. California,236 F.3d 1014 (9th Cir. 200 24
15
Carrea ;. Dreier ‘,c Grand Ice Cream.16 2011 WL .159380 (N.D. Cal. Jan. 10,2011) 16, 19,20
1Chacanaca v. Quaker Oats 7o.,
1.8 752 F. Supp.2d1.lii(N.D.CaI.2010) 7, 13, 14
19 Clark v. Time Warner Cable,523 F.3d 1110 (9th Cir. 2008) 20
20Cooper v. Samsung Elecs. Am., Inc.,
21 No 08-4736, 20.10 W.L 1220946 (3d Cir. Mar. 30, 2010) 21
22Daugherty v. Am. Honda Motor Co.,
23 1.44 Cal. App. 4th $24 (2006) 15
24 Dvora i. Gen. Mills, Inc.,No. CV- Il-i 074-GW(PLAx), 2011 WL 1897349 (C.D. Cal. May 16. 2011) passim
25Freeman v. Time, Inc.,
26 68 F.3d 285 (9th Cir. 1995) 15
27 Haskell v. Time, Inc.,
28 857 F. Supi. 1392 (E..D. Cal. 1994) 16
DEFENDANT GENERAL MILLS’ NOTICELEGAL22505762.1 - OF MOTION AND MOTION To DISMISS
1 l—CV-05056 I 1.-CV-05056 (SC)
Case3;11-cv-05056-SC Document33 FiledO2/17/12 Pages of 35
1 TABLE OF AUTHORITIES(continued)
Page
3 in re McDonald’s French Fries Litig.,257 F.R.D. 669 (N,D. 111. 2009) 19
In re: Pepsico Inc. Bottled Water Mktg. & Sales Practices Litig.,588 F. Supp. 2d 527 (S.D.N.Y. 2008) 7, ii
6Kearns v. Ford Motor Co.,
7 567 E.3d 1120 (9th Cir. 2009) 23, 24. 25
8 Lavie v. Proctor & Gamble Co.,
105 Cal. App. 4th 496 (2003) 15. 16
Mazza i’. Am. Honda Motor Co., Inc.,10 666 F.3d 581, No. 09-55376, 2012 WL 89176 (9th Cir. Jan. 12, 2012) 20. 21,22
iiMcBride v. Boughton,
12 123 Cal. App. 4th379 (2004) 23
McCann v. Foster Wheeler LL C,48 Cal. 4th 68 (2010) 21
14McKjnniss v. General A’Iills, Inc..
15 No. CV 07-2521 GAF, 2007 WL 4762172 (CD. Cal. Sept. 18, 2007) passim
16 Mck inn iss v. A ellogg,
17 No. CV 07-2611 ABC, 2007 WL 4766060 (C.D. Cal. Sept. 19, 2007) 10, 23
1 8 MeKinniss v. Sunny Delight Beverages Co.,No. CV-07-02034-RGK, 2007 WL 4766525 (C.D. Cal. Sept. 4, 2007) 15, 17
19Mills v. Giant of Maryland LLC,
20 441 F. Sup. 2d 104 (D.D.C. 2006), a/f’d, 508 F.3d ii (D.C. Cir. 2007) 7
2 1 Morgan i’. Harmon ix Music S’stems Inc.,
22 No. C08-521 1 BZ. 2009 WL 2031765 (N.D. Cal .July 30, 2009) 16
23 Paduano v. A in. Honda Motor Co.,
169 Cal. App. 4th 1453 (2009) 1724
Peviani v. Hostess Brands, Inc.,25 750 F. Supp. 2d 1111 (CD. Cal. 2010) 13
26 Pilgrim v. Universal Health Carc LLC,
27660 F.3d 943 (6th Cir. 2011) 20
28DEFENDANT GENERAL MILLS’ NOTICE
LEGAL22505762.i -111- OF MOTION AND MOTION TO DISMISS1 I-CV-05056 I] CV-O5O56 (SC)
Case3:11-cv-O5056SC Document33 PiledO2/17/12 Page6 of 35
TABLE OF AUTHORITIES(continued)
2 Page
3 Pisano v. Am. Leasing,146 Cal. App. 3d 194 (1983) 22
Prata v. Superior court,91 Cal. App. 4th 1128 (2001) 15
6Red i:. The Kroger Co..
7 No. 10-cv-0 1025, 2010 WL 4262037 (C.D. Cal. Sept. 2,20.10) 10, 11
8 Spreu’ell v. Golden State Warriors,266 F.3d 979 (9th Cir. 2001) 18
9Thompson v. Am. Tobacco Co.,
10 189 F.R.D. 544 D. Minn. 1999) 21
Turel i’. Gen. Mills, Inc.,
12 662 F.3d 423 (7th Cir. 2011) (Posner, J.) 6,7
13 Turek v. Gen, Mills. Inc.,754 F. Supp. 2d 956 (N.D. IlL 2010), aff’d, 662 F.3d 432 (7th Cir. 201 I.) 7
14United States v. Genera! Dynamics Corp.,
15 828 F.2d 1356 (9th Cir. 1.987) 20
16 United States v. Ritchie,342 F.3d 903 (9th Cir. 2003) 6
1 8 Vess v. Ciba-Giegy Corp.,31.7 F.3d 1097 (9th Cir. 2003) 23, 24,25
19Videtto v. Kellogg USA,
20 No. 2:08-cv-01324-MCE, 2009 WL 1439086 (E.D. Cal. May 21, 2009) 10, 19
2 1 Werhe! i’. Pepsico, Inc.,
22 2010 WL 2673860 (N.D. Cal., Jul. 2, 2010) 16, 19
23 Williams v. Gerber Prods. Co.,552 F.3d 934 (9th Cir. 2008) 18, 19
24Yumu! v. Smart Balance, Inc.,
25 733 F. Supp. 2d 1117 (C,.D. Cal. 2010) 25
26 Zinser v. Accu/ix Research Inst., Inc.,
27253 F.3d 1180 (9th Cir. 2001) 21
28DEFENDANT GENERAL MILLS’ NOTICE
L1GAL225O5762.] -1V- OF MOTION ANI) MOTION To DISMISS.1 .I-CV-05056 I i-CV-05056 (SC)
Case3:11-cv-05056-SC Document33 EiIedO2/17/12 Page7 of 35
1 TABLE OF AUTHORITIES(continned)
2 Page
3 STATUTES
4 21 U.S.C. § 301 elseq 1,6
2]. U.S.C. § 343-i 6
6 21U.S.C.343-I(a)
21 U.S.C. § 343-1(a)(3) 6, 88
21 U.S.C. § 343-l(a)(5) 7, 119
21 U.S.C. § 343(k) 7,1310
21U.S.C.343(q) 6
1221 U.S.C. § 343(q)(l)(D) 14
1321 U.S.C. § 343(r) 7, 8, 11
14 Cal. Civ. Code § 1791.1(a) 23
15 Cal. Corn. Code § 2313(1)(a) 22
1 6 Minnesota Uniform Deceptive Trade Practices Act § 325.D.43 2, 4, 20, 22
17 RuLEs
18 Fed. R. Civ. P. 8(a)(2) 23
1.9 Fed. R. Civ. P. 9 passirn
— Fed. R. C’v. P. 12 , 16, 17,18
21Fed. R. Civ. P. Rule 12(b)(6) 5,25
22OTHER Al HORITIES
2321 C.F.R. 101.22(i) 8,9
2421 C.F.R. § i00.l(c)(4) 7
21 C.F.R. § 101.9(c)(2)(ii) 12, 14
2721 C.F..R. § i01.9S)m 1.4
28 21 C.F.R. § 101.13(b)(l) 11
DEFENDANT GENERAL MILLS’ NOTICEHG \L 22O5762 I V- OF MO] ION AM) MO I ION 10 I)ISMISS
I 1-CV-05056 I i-CV-05056 (SC)
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1 TABLE OF AUTHORITIES(continued)
2 Page
3 21 C.F.R. § 10I.13(b)(2) ii
4 21 C.F.R. § 101.13(h) 12
21 C.F.R. § 101.22 7
6 21 C,F.R. § 10i.22(i)(][)() 9
21 C.F.R. § 101 .22(3) 9, 108
21 C.F.R. § 101.54 89
21 C,F..R. § 1.01.54(c)(1) 1410
21 C.F,R. § 101.60 811
1221 C.F.R. § 10i.60(b)(2) ii
1321 C.F.R. § 101.62 8
14 21 C.F.R. i01.62(bX2) ii
58 Fed.Reg. 2478 (Jan. 6, 1993) 13
16 76Fed.Reg.46671-01(Aug.3.2011) 19,20
17 76Fed.Reg.46671-72 19
18 WR. Rep. No. 101538 (1990), reprinted/n 1990 U.S.C.C.A.N. 3336, 3342 6
19
20
21
77
23
24
25
26
27
28DEFENDANT GENERAL MILLS’ NOTICE
11 ( \L22505762 -V1 OF MO] ]ON AND MOTION TO D[SMISSii -CV-05056 1 i-C V-05056 (SC)
Case3:11-cv-05056-SC Document33 Filed02/17/12 Pageg of 35
MEMORANDUM OF POINTS AND AUTHORITIES
2L INTRODUCTION
Plaintiff Annie Lam claims that the purpose of her Complaint is “to stop Defendant
[General Mills’] misleading practices” in marketing “Fruit Roll-Ups” and “Fruit By The Foot”
and other Fruit Flavored Snacks products refelTed to in the Complaint (collectively, “Fruit
Flavored Snacks”). FAC ¶1 1 0. What Plaintiff seeks to “stop” are lawful, federally compliant6
statements on the labels of these products. Plaintiff alleges that these statements give the
misimpression that Fruit Flavored Snacks are “healthful and nutritious” despite containing fats,
sugars, and artificial colors—a fact that the Fruit Flavored Snacks labels plainly disclose.
10FAC 3. Plaintiffs claims represent an attempted end-run around federal regulations that govern
food labeling. Fruit Flavored Snacks comply with these regulations, and any attempt to impose
1 2non-identical requirements is expressly preempted by the controlling federal regime. To the
13extent that any of her claims are not preempted, Lam has failed to state a claim for relief under
14state law and failed to satisfy the heightened requirements for pleading fraud. In sum, the
Complaint should he dismissed for the following reasons:15
First, nearly all of the statements Lam attacks are truthful and accurate labeling claims16
1that General Mills is authorized to make under the Federal Food, Drug & Cosmetic Act
18(“FDCA”), 21 U.S.C. § 301 etseq., and accompanying regulations. As a result, Lam’s claims
19that these statements are deceptive are preempted by the NLEA, 21 U.S.C. § 343-1(a), an express
preemption provision that prohibits any attempt to impose state-based labeling requirements that
are “not identical” to the requirements of federal law. Numerous cases recoenize the broad reach21
2of NLEA preemption, including cases that have dismissed claims indistinguishable from
Plaintiffs on preemption grounds.
Second, the isolated statements Plaintiff complains of that are not subject to express
25NLEA preernplloi (“Made With Real Fruit” and “Gluten Free”) are nonetheless non-actionable
26because they are not likely to deceive a reasonable consumer. Statements on the packaging of
27 These statements are: “Fruit Flavored,” “Naturally Flavored,” “Low Fat,” “[Number of]Calories.” and “Good Source of Vitamin C.”
28DEFENDANT GENERAL MILLS’ NOTICE
LEGAL22505762.i 1- OF MOTION ANt) MOTION TO DISMISS1i-CV-05056 I l-CV-05056 (SC)
Case3:11-cv-05O56SC Document33 FiIedO2/17/12 PagelO of 35
Fruit Flavored Snacks products that they are “Made With Real Fruit” and are “Gluten Free” are
2true. The Complaint does not allege otherwise. The Fruit Flavored Snacks labels clearly disclose
that the products also contain sugar and likewise fully comply with disclosure regulations
regarding trans fats. So, contrary to the Complaint, a reasonable consumer is not likely to be
deceived by the products’ labels.
6Third, choice of law principles prohibit Lam from claiming relief under the Minnesota
Uniform Deceptive Trade Practices Act (“UDTPA”) § 325 D.43, a Minnesota statute intended to
8protect Minnesota consumers. The Complaint confirms that Lam has no cognizable connection to
Minnesota. She lives in California and allegedly purchased Fruit Flavored Snacks from retail
10stores here. FAC 13.
11Fourth, Plaintiff fails to identify a specific affirmation of fact on the labels the products
did not conform to, and therefore her warranty claims must be dismissed.
13Finally, the Complaint is deficient as a matter of pleading because Lam’s fraud-based
14allegations do not meet the requirements of Rule 9(b). Lam makes general reference to
1 5“representative” statements on Fruit Flavored Snacks labels but does not identify the specific
1 6statements she saw and relied on for her purchases, how those statements or any other marketing
17induced her to purchase Fruit Flavored Snacks, or when and precisely where she made those
18purchases.
19 H. SUMMARY OF RELEVANT ALLEGATIONS
20 A. General Mills and the Fruit Flavored Snacks Products
21General Mills is one of the largest and oldest food companies in the United States and the
22maker of the “Fruit Roll-Ups” and “Fruit By The Foot” products at issue in Plaintiffs Complaint.
23FAC ¶ 1, 14; see a/so Request for Judicial Notice, Exs. A-C (attaching exemplar labels).
Although the packaging of “Fruit Roll-Ups” and “Fruit By The Foot” varies, they often contain a
fanciful depiction of the products themselves along with a statement identifying the product as a
“Fruit Flavored Snack.” An excerpt from the front panel of a Fruit By The Foot” package is
7reproduced below:
28DFFE\O4’\’T (,t NERAL ‘vIILLS \OTI( E
LEGAL22505762.1 OF MOTION AND MOTION TO DISMISS1 1—CV-05056 I I -CV-05056 (SC)
Case3:11-cv-05056-SC Document33 FiIedO2/17/12 Pagell of 35
3
4
6
7
8
9
10
11Request for Judicial Notice. E. A.
1The side panel of Frdit Flavored Snacks contains the FDA-required Nutrition Facts” box
14identifying the product’s nutritional content and ingredients. listed in descending order based on
the amount of the particular ingredient contained in the product. The side panel from the Fruit15
16Rolls-Ups packaging referred to in 23 of the Complaint, is reproduced below:
17
18REAL FRIIIT
19 NutrItion FactsSeroirro See I roil (I4Sen Per cantakier 10
Cato,I.s SOCejaita.
7SdF8FOg 0%lrairO Eat 0
ao 0%Ian 56m0 2%Toat22 Caoh. 12g 4%s4.7g
________
pIiiw-..
10%z3
“I ingrdiontPeeefromCoooeotrnt. Corn iadCorn Synor, Sage,. Ps1,alyHydrogengied Cottonseed OW.Containo 2%or Ie of, C4rAdd.
“ S ,%.rr ut,a%ArlWeOrtPedr,
26 pa
27Id.,Ex.B.
28DLFbM’\NI GFNLRAL MILLS NOlRL
LI (SAl 22O762 1 OF MO I iON ANt) MOfION 10 DISMISSI i-CV-05056 I I.-CV-05056 (SC)
Case3:1i-cv-05056-SC Document33 Filed02/17/12 Pagel2 of 35
1Despite intimations in the Complaint, the labels of Fruit Flavored Snacks do not contain
2affirmative representations that the products are “healthful” or “nutritious.”
B. Plaintiffs Allegations Regarding Statements on Fruit Flavored Snacks Labels3
Plaintiff Lam alleges that the labeling for Fruit Flavored Snacks is “false and misleading,”4
focusing on the following six statements:
Defendant’s misleading and deceptive packaging all prominently6 state on the front of each of the Products the following: (I) FRUIT
FLAVORED SNACKS, (2) NATURALLY FLAVORED, (3)7 GOOD SOURCE OF VITAMIN C; (4) [LOW NUMBER] of
CALORIES (5) LOW FAT, and(6) GLUTLN 1REE8
FAC ¶ 17. The Complaint claims these statements misleadingly portray the products as9
“healthful” and “nutritious,” even though Fruit Flavored Snacks also contain partially10
hydrogenated oil, added sugars, and artificial food dyes, contain “no significant amount of realI’
fruit,” and “have no dietary fiber.” FAC 2 1.
Premised on these allegations, Plaintiff pleads causes of action under (I) Minnesota’s13
UDTPA. § 325 D.43, (2) California’s Consumer Legal Remedies Act (“CLRA”), (3) California’s14
Unfair Competition Law (“UCL”), (4) California’s False Advertising Law (“FAL”), (5) claims15
for breach of express and implied warranties, and (6) unjust enrichment. See FAC ¶ 41-83.16
These claims are brought as a putative nationwide class action “on behalf of all persons in the17
United States who purchased [General Mills’] Fruit Flavored Snacks” from October 25, 2005, to18
the present. See FAC ¶J 2, 25.19
The Complaint does not identify which Fruit Flavored Snacks product Plaintiff purchased,20
which packaging or other marketing she saw or relied on, when she made her purchases, or the21
particular location where the purchases were made. See FAC ¶113. instead, the Complaint
summarily alleges that “During the Class Period. Plaintiff purchased Defendant’s Products for23
herself and her children at a premium price from various grocery and retail stores near her24
neighborhood located in California. Plaintiff viewed the misleading and deceptive statements on25
26— The Complaint alleges a claim for relief under Minnesota’s consumer protection law despite
27 allegations that Lam is a resident of California and that any alleged harm occurred entirely in California asa result of her purchase of Fruit Flavored Snacks there. See FAC ¶] 13. 34-40.
28I)EFENDANT GENERAL MILLS’ NOTICE
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the packaging of the Products—i.e., fruit flavored, naturally flavored, good source of Vitamin C,
2low in calories,3 low fat, and gluten free—as well as Defendant’s widespread advertising and
marketing of the products that represented they were nutritious, healthful, and better than similar
products.” FAC 1 l3.
As to the Complaint’s reference to the statement on Fruit Flavored Snacks packaging that
6the products are “Made With Real Fruit,” FAQ ¶1 22, there is no allegation that Plaintiff relied on
this statement as part of her decision to purchase Fruit Flavored Snacks. What is alleged,
8however, is that the products do contain real fruit. FAQ ¶1 23 (Complaint identifying “Pears from
9Concentrate” as first ingredient in Fruit Flavored Snacks ingredient list).
10 Iii. ARGUMENT
A. Legal Standard
12To survive a motion to dismiss under Rule 1 2(b)(6), the plaintiffs factual allegations
13“must be enough to raise a right to relief above the speculative level,” Be/i At/antic Qoip. j:,
14Twombly, 550 U.S. 544, 555 (2007). The allegations must “plausibly suggest[},” and not merely
be consistent with, the claimed wrongful conduct. Id. at 557. Although the plaintiffs factual
16allegations arc assumed true, the plaintiff must provide “more than labels and conclusions, and a
17formulaic recitation of the elements of a cause of action.” Id. at 555. Courts are “not bound to
18accept as tru.e a legal conclusion couched as a factual allegation,” and “[t]hreadbare recitals of the
19elements of a cause of action, supported by mere conclusory statements, do not suffice.”
Ashc’roji v. iqbai, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009); see a/so Ba/istreci v. Pad/Ic Police
Dept., 901 F.2d 696, 699 (9th Cir. 1988) (Rule 12 dismissal appropriate where there is either a
2“lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable
legal theory”).
As the allegations elsewhere in the Complaint make clear, Fruit Flavored Snacks do notcharacterize the number of calories in the product as “low,” but instead simply identify the number of
25 calories per serving in the product. Compare FAQ ¶i 5. 17 with FAQ ¶ 13.Although Plaintiff references widespread advertising, she provides no specificity whatsoever
26 regarding this allegation, other than to state that “Defendal3t further advertises on the front of thepackaging that the Products arc naturaiiy flavored,’” and that there are “promotions” associated with the
27 sale of certain Fruit Flavored Snacks. FAQ 1f 18-19. There is no allegation that these “promotions” makeany representations about the nutritional content of Fruit Flavored Snacks. FAC ¶ 19.
28DEFENDANT GENERAL MILLS’ NOTICE
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1On a motion to dismiss. a court may consider documents attached to the complaint,
2documents incorporated by reference in a complaint, or documents subject to judicial notice.
United States u. Ritchie, 342 F.3d 903, 908 (9th Cir, 2003) (“Even if a document is not attached to
a complaint, it may he incorporated by reference into a complaint if the plai ntiff refers
extensively to the document or the document forms the basis of the plaintiffs claim.”);
6IvicKinniss v. General Mills, Inc., No. CV 07-2521 GAF, 2007 WL 4762172. at *3 (C.D. Cal..
Sept. 1.8, 2007) (taking judicial notice of packaging in putative consumer class action).
B. Plaintiffs Claims Are Expressly Preempted by the NLEA.8
in 1990, Congress amended the FDCA, 21 U.S.C. § 301 ci seq., enacting the NLEAto9
regulate the information required and permitted on nutrition labels. See 21 U.S.C. § 343-1(a). The10
NLEA was passed to effect Congress’ goal to establish “uniform national standards for the11
nutimonal claims and the requiied nutnent information displayed on food labels ‘H P. Rep No12
101538, at *1.3 (1990), reprinted/n 1990 U.S.C’.C.A T 3336, 3342. Consistentwiththis goal of13
national uniformity, the NLEA contains an express preemption provision that bars any state law14
requirements “not identical” to the NLEA’s labeling requirements:15
[N]o State... may directly or indirectly establish under any1.6 authority...
1 7 (3) any requirement for the labeling of food of the type required bysection . . . 343(k) of this title that is not identical to the
1 8 requirement of such section ; [or](5) any requirement respecting any claim of the type described in
19 section 343(r)(l). . . made in the label or labeling of food that is not
20identical to the requirement of section 343(r).
2121 U.S.C. § 343-1(a)(3), (5) (emphases added).
Courts interpreting the NLEA have given its express preemption provision the broad
23effect intended by the statute’s “not identical” language. See, e.g., Turek v. Gen. Mills, Inc., 662
F.3d 423, 427 (7th Cir. 2011) (Posner, J.) (“Even if the disclaimers that the plaintiff wants added24
woul.d be consistent with the requirements imposed by the Food, Drug, and Cosmetic Act,25
cons’stency is not the test [foi NLEA pleemption] identitx is ‘ ) (affirming dismissal of eonsumei26
protection complaint related to food labeling based on NLEA preemption).
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1As other courts have recognized, a two-step analysis based on the Supreme Court’s
decision in Bates v. Dow Agrosciences LLC, 544 U.S. 431, 443-44 (2005) is used to deterniine
whether a state law claim is preempted under the NLEA. See Tiirek v. Gen. Mills, Inc., 754 F.
Supp. 2d 956, 959 (N.D. iii. 2010) (applying Bates analysis to NLEA preemption), a/J’d. 662
F.3d 432 (7th Cir. 201 1): In re: Pepsico Inc. Bottled Water Mktg. & Sales Practices Lilig., 588 F.
6Supp. 2d 527, 533 (S.D.N.Y. 2008) (same): Mills v. Giant of Maryland LLC, 441 F. Supp. 2d
104, 108 (D.D.C. 2006) (same), af/’d. 508 F.3d 11 (.D.C. Cir. 2007). Specifically, a state law
8claim is expressly preempted by the NLEA if it seeks to impose a “requirement” that (1)
addresses labeling and (2) is “not identical” to those required by the NLEA. See Bates. 544 U.S.
10at443-44.5
The phrase “not identical” is defined broadly in the applicable regulation and refers to any
1 2“[s]tate requirement [that] directly or indirectly imposes obligations or contains provisions
1 3concerning the composition or labeling of food” that are “not imposed by or contained in the
14applicable provision[s].” 21 C.F.R. § l00.1(c)(4) see also Turek, 662 F.3d at 427 (holding that a
state law clanri is preempted even if the labeling requirement sought is consistent with, but not
1 6identical to, the federal requirement).
1 7Thus, states may not impose requirements regarding food labels unless those requirements
1 8are identical to the FDCA labeling requirements enumerated in the NLEA’s preemption
19provision. Two of those categories are placed in issue by the allegations in Plaintiffs Complaint:
20(1) label statements relating to flavoring (21 U.S.C. § 343(k)); and (2) nutrient content claims that
21characterize the level of a particular nutrient in the food (21 U.S.C. § 343(’r)). See 21 U.S.C.
22343-l(a)(3), (5).
23Plaintiffs allegations that the statements on Fruit Flavored Snacks labels that the products
24are “Fruit Flavored” and “Naturally F fall under the FDCA’s labeling requirements
25related to flavoring. See 21 U.S.C. § 343(k); 21 C.F.R. § 101.22 (implementing regulation
26 The term requ1rcments” is construed to include not only the statute itself, but also anyaccompanying regulations and common—1aw duties and judge-made rules.” Chacanaca v. Quakei’ Oats
27 Co., 752 F. Supp. 2d liii, 1118 (N.D. Cal. 2010). Thus, a judicial decision affecting labeling wouldconstitute imposition of a “requirement” for purposes of NLEA preemption. Id,
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regarding food flavoring). Similarly, the label statements that Fruit Flavored Snacks are a “Good
2Source of Vitamin C,” are “Low Fat,” and have “[Number of] Calories” are all nutrient content
claims governed by 21 U.S.C. § 343(r) and related regulations. See 21 U.S.C. § 343(r); 21 C.F.R.
§ 101.54, 101.60, 101.62. in both cases, the statements comply with the requirements imposed
by federal law. Plaintiffs attempt to bar General Mills from including these statements on Fruit
6Flavored Snacks packaging would unquestionably impose requirements “not identical” to federal
law and are therefore preempted.
1. The NLEA Expressly Preempts Plaintiffs Claims Regarding the Terms8 “Fruit Flavored” and “Naturally Favored.”
9 Two of the statements challenged by Plaintiff (“Fruit Flavored Snacks” and Naturally
10 Flavored”) are expressly permitted by FDCA’s labeling requirements related to flavoring. In
11 Plaintiffs view, the products do not contain enough fruit for General Mills to make these
12 statements, General Mills should not be permitted to say “Fruit Flavored” unless the particular
13 fruit contained in the product is the same as the products flavor, and General Mills should be
14 barred from making these claims because Fruit Flavored Snacks also contain artificial colors and
15 corn syrup. FAC J 13, 23. Plaintiffs claims are directly contrary to the relevant FDA
1 6 regulation—which does not in any way condition using the terms “Fruit Flavored” or “Naturally
17 Flavored” on these new criteria Plaintiff seeks to impose—and are therefore preempted. See 21
18 C.F.R. 101.22(i); 21 U.S.C. § 343..l(a)(3).
19 FDA regulations governing the labeling of flavors and flavorings expressly permit a
20 manufacturer to indicate the “characterizing flavor” of a food product and permit a manufacturer
21 to use the name and image of a fruit on a product’s packaging to describe the characterizing
22 flavor of the product even if the product does not contain that fruit. 21 C.F.R. 101.22(i). The
23 regulation states in relevant part:
24 if the label, labeling, or advertising of a food makes any direct orindirect representations with respect to the primary recognizableflavor(s), by word, vignette. e.g., depiction of a fruit. or other
26 means, or if for any other reason the manufacturer or distributor ofa food wishes to designate the type of flavor in the food other than
27 through the statement of ingredients, such flavor shall be
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considered the characterizing flavor and shall be declared in thefollowing way:
2
3 (i) If the food is one that is commonly expected to contain acharacterizing food ingredient, e.g., strawbelTies in “strawberry
4 shortcake”, and the food contains natural flavor derived from suchingredient . . . or the food contains no such ingredient, the name ofthe characterizing flavor may be immediately preceded by the word
6 “natural” and shall be immediately followed by the word “flavored”in letters not less than one-half the height of the letters in the name
7 of the characterizing flavor, e.g., “natural strawberry flavoredshortcake,” or “strawberry flavored shortcake”.
8Id. (emphasis added). [n other words, food may be labeled “fruit flavored” when some flavor is
9“derived from” the fruit identified as the characterizing flavor even though “the food contains no
10such ingredient,” i.e., contains no strawberries or other actual fruit. Id. See vIcKinniss, 2007 WL
114762172. at *3 (in challenge to “Berry Berry Kix” cereal, noting that FDA regulations “permit[]
12illustrations of fruit on product labels to indicate the product’s ‘characterizing flavor’ even where
13the product contains no ingredients derived from the depicted fruit”).
14As this regulation makes clear, Plaintiff seeks to forbid General Mills from labeling Fruit
15Flavored Snacks in a manner expressly permitted by federal law. Unsurprisingly, courts have
16rej ecteci on preemption grounds claims like Plaintiffs that seek to impose additional requirements
17related to fruit flavoring that are not required by the federal scheme. See Dvora v. Gen. Mills,
18Inc., No. CV-1.i-1074-GW( LAx), 2011 WL 1897349, at ‘4(C.D. Cal. May 16, 2011)
19(“Defendant persuasively argues that Plaintiffs lawsuit seeks to impose requirements that are
20‘not identical’ to this regulatory scheme [concerning fruit flavoring].”). Like the challenge to
21“Total Blueberry Pomegranate” rejected in Dro;a, Plaintiffs clairn.s regarding “Fruit Snacks” are
77
preempted by the NLEA.23
The same FDA regulation that allows the “Fruit Flavored” claim on the Fruit Flavored24
Snacks products also pernits the “Naturally Flavored” statement to which Plaintiff objects. See25
21 C.F.R. § 10l.22( )( ); FAC 1 17. The relevant regulation permits a food to be labeled26
“naturally flavored” even where the product does not contain any fruit at all. See 21 C.F.R.27
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§ l0l.22(i)(1)(i) (the food may be labeled “natural flavored” when some flavor is “derived from”
2the fruit identified as the characterizing flavor, even though the “food contains no such
3ingredient,” i.e., contains .no actual fruit); Dvora, 2011 WL 1897349, at *5 n. I (“Under
4 [ 101.22(i)(1)], a food may be labeled as naturally flavored even if it does not contain the actual
fruit identified as the characterizing flavor.”): 21 C.F.R. § 101 .22(a)(3) (defining “natural
6flavor”); cf Videtto v. Kellogg USA, No. 2:08-cv-01324-MCE, 2009 WL 1439086, at *1 (ED.
Cal. May 21, 2009) (dismissing plaintiffs claim that the use of “natural fruit flavors” to describc
8a product “Froot Loops” that contained no actual fruit was false and deceptive and reasoning that
although the “product contains no actual fruit of any kind,” that the “fruit-like flavor
10[nonetheless] derive[d] from ‘natural flavors”); McKinniss ij’. Kellogg, No. CV 07-261 1 ABC,
2007 WL 4766060, at *4 (C,D, Cal. Sept. 19, 2007) (recognizing that the cereal Froot Loops
“contain[ed] the ‘NATURAL FRUIT FLAVORS’ of lime, orange, lemon, cherry, raspberry. and
blueberry, as disclosed in the ingredients panel” but did not actually contain any fruit and noting
4compliance with FDA regulations).
Plaintiff does not allege that General Mills has failed to comply with FDA’s regulations
1 6permitting it to state that Fruit Flavored Snacks are “Naturally Flavored.” Instead, Plaintiff
1 7contends that “Naturally Flavored” is deceptive because the products contain “artificial colors as
1 8well as other substances that are non-natural including maltodextrin and corn syrup.” FAC 1 8.
19Nothing in the regulations imposes any such requirement. Plaintiff’s attempt to prohibit the use of
“Naturally Flavored” on the product labels thus “seek[s] to enjoin exactly what federal law
21expressly permits.” Reclv. The Kioger Co., No. l0-cv-01025, 2010 W.L 4262037, at *6 (C.D. Cal.
, Sept. 2, 201.0). Accordingly, this claim is preempted.
2. The NLEA Expressly Preempts Plaintiff’s Claims Regarding the Terms “Low23 Fat,” “[Number ofi Calories” and “Good Source of Vitamin C.”
24 Plaintiff next alleges that label claims that Fruit Flavored Snacks are “Low Fat,” are “A
25 Good Source of Vitamin C,” and have “[Number of] Calories” are misleading. Plaintiff insists
26 General Mills cannot make these statements because Fruit Flavored Snacks also contain fat,
27 sugars, artificial colors, and no dietary fiber. FAC ¶I 13, 17. The statements Plaintiff challenges
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are “nutrient content” claims governed by 21 U.S.C. § 343(r) and related regulations—which are
2claims that characterize the level of a particular nutrient contained in the food—and they comply
fully with the FDCA. Plaintiff’s request for additional requirements not imposed by federal law is
preempted. See 21 US.C. § 3431(5).6
5 a. “[Number ofi Calories” and “Low Fat”
6Plaintiff’s claims related to the “[Number of] Calories” and “Low Fat” statements made
on the labeling for Fruit Flavored Snacks are the subject of detailed regulation under the FDCA.
821 C.F.R. § 101 .60(b)(2). Federal regulations permit ai express nutrient content claim stating the
number of calories in the product. 21 C.F.R., § 101.13( )W. in fact, the federal regulations cite to
0a statement identi’ing the number of calories as an example of a permitted nutrient content
claim. Id. (“e.g. . . . contains 100 calories”). Similarly, a product may be labeled low fat” if
I“the food has a reference amount customarily consumed greater than 30 grams or greater than 2
13tablespoons and contains 3 grams or less of fat per reference amount customarily consumed.” 21
14C.F.R, § l01.62(b)(2).
Plaintiff does not allege that Fruit Flavored Snacks fail to comply with these requirements.
1 6Instead. Plaintiff seeks to impose a new requirement for the use of “[number of] caiories’ and
“low fat” claims. Plaintiff urges that before a food producer can truthfully identii foods as “low
1 8fat” and disclose the “[number of] calories,” this Court should impose, in addition to existing
19FDA requirements, the additional requirements that a product must also contain no trans fat, be
low in sugar, have no artificial color, and be high in dietary fiber. FAC 13. Plaintiffs attempt to
rewrite into state law requirements not imposed by the federal regulations are preempted. in cc
Pepsico, 588 F. Supp. 2d at 53 8-39 (attempts to impose requirements “that go beyond federal
23law” are preempted): Kroger Co., 2010 WL 4262037, at *7 (“Plaintiffs challenge the use of terms
246 “An express nutrient content claim .is any direct statement about the level (or range) of a nutrient
25 in the food, e.g., ‘low sodium’ or ‘contains 100 calories.” 21 C.F.R. § lOl.13( )(l). “An implied nutrientcontent claini on the other hand. “is any claim that (i) describes the food or an ingredient therein in a
26 manner that suggests that a nutrient is absent or present in a certain amount (e.g., high in oat bran’); or (ii)suggests that the food, because of its nutrient content. may be useful in maintaining, healthy dietary
27 practices and is made in association with an explicit claim or statement about a nutrient (e.g.. ‘healthy,contains 3 grams (g) offat’).” 21 C.F.P. I0l.l3(b)(2).
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1that the FDA, through its regulations, has defined and permitted, Plaintiffs’ claims fall within the
2scope of the FDAs preemption clause.”).
3Federal regulations expressly reject the contention that Fruit Flavored Snacks must have
these other characteristics before General Mills may truthfully state that the products are “low
fat” and identify the number of calories:’ Nutrient content claims that are true may be prohibited
6only if another “disqualifying” nutrient exceeds an amount established by regulation. See 21
C.F.R. § I 01.13(h). The FDA imposes “disqualifying” levels for only four nutrients: total fat,
8saturated fat, cholesterol, and sodium. id. But the FDA has not issued similar disqualifying levels
for trans fats, sugars, artificial dyes, or a lack of dietary fiber.
10 (1) Trans Fat
1The FDA has concluded that the amounts of trans fat allegedly present in Fruit Flavored
12Snacks—less than 0.5 gram per serving—are nutritionally insignificant, and mandates that such
amounts be reported as zero:ii
14 A statement of the number of grams oftrans fat in a serving ... isnot required for products that contain less than .5 gram of total fat
15 in a serving if no claims are made about fat, fatty acid or cholesterolcontent. . . . Trans fat content shall be indented and expressed as
1 6 grams per servin.g to the nearest .5 (1/2)-gram increment below 5
1 7grams and to the nearest gram increment above 5 grams. I/theserving contains less than 0.5 gram, the content, u ‘hen declared,
1 8 shall he expressed as zero.
19 2.1 C.F.R. § 101 .9(c)(2)(ii) (emphasis added). Thus, if a product contains less than 0.5 grains of
20 trans fat per serving, the manufacturer must declare that the product contains zero grams of trans
21 fat. Plaintiff does not allege that the Fruit Flavored Snacks labels disclosing 0 grams of trans fat
22 per serving violate FDA regulations. nor does she claim that General Mills fails to comply with
23 the federal requirement that mandates rounding down to zero where the serving contains less than
24 0.5 gram of trans fat. instead, Plaintiff suggests that Fruit Flavored Snacks labels are misleading
25 because these products contain small amounts of trans fat. FAC ¶ 20-21.
26
27 While Plaintiff repeats the phrase “low in calories,” the Complaint confirms that the statement onthe package regarding calories simply identifies the number of calories per roll, See FAC ¶ 17.
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Case law squarely rejects this contention. Numerous courts have held that the NLEA
2preempts state law claims based on a failure to disclose the presence of trans fats. including courts
within this district. Chacanaca, 752 F. Supp. 2d at 1119-21 (consumers’ state law claims against
a manufacturer of granola bars seeking to prohibit use of the allegedly misleading statement “0
grams trans fat” were preempted because they sought to impose requirements not identical to
6those imposed by the FDCA and the NLEA); see also Peviani v. Hostess Brands, Inc., 750 F.
Supp. 2d ill 1, 1119-20 (C.D. Cal. 201 0) (holding that NLEA preempts claims alleging that a
8representation on a 100-calorie dessert pack that it contained “0 Grams of Trans Fat” was
deceptive and misleading because the claims sought to impose a state law requirement regarding
10trans fats not required by federal law).
I I (ii) Added Sugar
The FDA determined that it “would not be appropriate to limit health claims on foods on
13the basis of added sugars.” 58 Fed.Reg. 2478, 2491 (Jan. 6, 1993). Courts have therefore held that
1 4“[ajs a matter of federal law, [] the presence of sugar is not a disqualifying nutrient which would
ç prohibit the defendants from touting the purported benefits’ of the other ingredients in their
1 6beverage, whether through health claims or express or implied claims of nutrient content”
17Ackerman i’. Coca Cola C’o.. No. CV-09-0395 (JG), 2010 WL 2925955, at *$ (E.D.N.Y. July 21,
182010), Therefore, “any claim under state law solely premised on the notion that [a product’s] high
19sugar content made its health or implied nutrient content claims misleading is preempted by the
20FDA’s express decision to not recognize sugar as a disqualiiiing nutrient.” Id. This reasoning
- 1applies directly to Plaintiffs claim that added sugar in Fruit Flavored Snacks precludes truthfully
.,
identifying the products as low fat and stating their caloric content.
23 (iii) Artificial Colors
The FDCA requires manufacturers to disclose use of artificial flavoring or artificial
2coloring, requiring that if the product “bears or contains any artificial flavoring, artificial
6coloring, or chemical preservative,” it must “bear[J labeling stating that fact.” 21 U.S.C. § 343(k).
27Plaintiff does not allege that General Mills has failed to comply with these labeling regulations.
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Instead, Plaintiff attempts to make artificial colors a disqualifying nutrient that would prohibit
2otherwise valid nutrient content claims. 1-lowever, as described above, artificial colors are not one
of the four disqualifying nutrients that would prevent General Mills from making truthful nutrient
content claims. This claim is therefore preempted.
5 (iv) Lack of Dietary Fiber
6The FDCA requires that food labeling disclose dietary fiber content. 21 U.S.C.
7 § 343(q)(1)(D). Applicable regulations further specify how dietary fiber must be disclosed and
8distinguish between soluble and insoluble fiber. 21 C.F.R. § 101 .9(c)(6)(i). The FDA’s
regulations do not state that fiber levels impact other nutrient content claims, in short, dietary
1 0fiber is not a disqualifying nutrient that prevents General Mills from identifying other nutrient
content of Fruit Flavored Snacks.
b. “Good Source of Vitamin C”12
FDA regulations likewise preempt Plaintiffs claim objecting to the statement that Fruit13
Flavored Snacks are a “Good Source of Vitamin C.” Under FDA regulations, the term “good14
source” can be used on a label “provided that the food contains 10 to 1 9 percent of the [Reference15
Daily Intake] or the [Daily Reference Value] per reference amount customarily consumed.” 2116
C.F.R. § 101 .54(c)( 1). Plaintiff does not allege that Fruit Flavored Snacks fail to meet this17
requirement. Plaintiff alleges instead that this statement is misleading because Fruit Flavored18
Snacks “fail to properly disclose that they contain a highly unheaithful, non-nutritious additive19
known as partially hydrogenated oil.” FAC I 7.20
A requirement that manufacturers cannot make “good source” claims if the product21
contains any amount of trans fat is not “identical to” what is required by 21 C. F.R.22
§ 101 9.c)(2)(u) and § 101 54(c)( I) Accordmgly an indistinguishable claim iegaidmg the use of23
a “good source” claim has been considered and rejected on preemption grounds by a court within24
this district. See Chacanaca, 752 F. Supp. 2d at 1122-23 (“Plaintiffs argue that, even if it is true25
that Chewy Bars qualify as a ‘good source’ of these [] nutrients, inclusion of the claims ‘falsely’26
implies that the product is healthy. As explained above, the FDA has at least so far declined to27
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include trans fat as a disqualifying ingredient and food purveyors need not disclose trans fat levels
whenever they tout the existence of other nutrients.”).
C. Plaintiff Fails to State a Claim for Relief Under the UCL, CLRA and FAL Becausethe Statements Are Not Likely to Deceive a Reasonable Consumer.
Plaintiff contends that the statements “Made With Real Fruit” and “Gluten Free” are also
misleading. These statements are not actionable, however, because they are not likely to deceive a
6 reasonable consumer.
California’s UCL and CL.RA apply in two circumstances. First, they apply where there
8 has been an affirmative misrepresentationthat is, a false statement. Prata v. Superior Court, 91
Cal. App. 4th 1128, 1137 (2001). Second, a tnie statement may be actionable if “other relevant
1 0 information” has been omitted such that the true statement is “likely to mislead or deceive the
11 consumer.” Aron v. U-Thai Co. of ai., 143 Cal. App. 4th 796, 807 (2006). The omission must
12 either be “contrary to a representation actually made by the deindant” or “an omission of fact the
13 defendant was obligated to disclose.” Daugherty v. Am. Honda Motor Co., 144 Cal. App. 4th 824,
14 835 (2006). The “likely to mislead” prong requires the plaintiff to “allege that statements ... are
likely to deceive a reasonable consumer.” McKmmss v. Sunni’ Delight Beverages Co., No. CV-
16 07-02034-RGK, 2007 WL 4766525. at *3 (C.D. Cal. Sept. 4. 2007) (emphasis added).9 The same
17 is tnie with respect to the FAL, which requires the Coui to evaluate the statements at issue based
1 8 on whether they would deceive a reasonable consumer. MeKinniss, 2007 WL 4762172 at *5
19 (whether statements are “likely to deceive a reasonable consumer [] is a threshold requirement for
20 claiming liability under the UCL, FAL, or CLRA”); Freeman v. Time, Inc.. 68 F.3d 285, 289 (9th
21 Cir. 1995) (holding that more stringent reasonable consumer” standard, as opposed to more
22 relaxed “unwary consumer” standard, applies to FAL claims) (affirming motion to dismiss).
23 “Likely to deceive’ implies more than a mere possibility that the advertisement might
24 conceivably be misunderstood by some few consumers viewing it in an unreasonable manner.”
25Plaintiff is not alleging, nor could she, an “aftrmative misrepresentation,” because the
26 statements “Made With Real Fruit” and “Gluten Free” are true and the Complaint contains no allegation tothe contrary. .Pruta, 91 Cal. App. 4th at 1137.
27 California courts define the “reasonable consumer” as an ordinary member of the consumingpublic who acts reasonably under all the circumstances. See Lai’ie, 105 Cal. App. 4th at 510.
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1Lavie v. Proctor & Gamble Co., 105 Cal.. App. 4th 496, 508 (2003). Rather, the advertisement
2must be “such that it is probable that a significant portion of the general consuming public or of
targeted consumers, acting reasonable in the circumstances, could be misled,” Id. (emphasis
added). To do so, a plaintiff must either allege an “active misrepresentation” or an “active
concealment” of a fact that is “contrary to what has been represented about the” products.
6Morgan v. Harinonix Music Systems Inc., No. C08-521 1 BZ, 2009 WL 2031765, at *3 (N.D. Cal.
July 30, 2009).
8Whether the alleged misrepresentation does or does not make it probable that a reasonable
consumer will be misled may be decided under Rule 12. Haskell u. Time, Inc.. 857 F. Supp.
io 1392, 1399 (E.D. Cal. 1994) (whether statements are misleading “may be determined on a motion
to dismiss”). Thus, cases within this district have dismissed on the pleadings consumer class
12actions premised on allegedly false and misleading claims on a product’s packaging, where a
review of the packaging by the court confirmed the packaging was not likely to deceive a
14reasonable consumer. See Carrea v. Dreyer’s Grand ice cream, No. I0-cv-01044-JSW, 2011
15W.L 159380, at **56 (N.D. Cal. Jan. 10, 2011); Werbeiv. Pepsico, inc., No. 09-cv-04456-SBA,
162010 WL 2673860, at **45 (N.D. Cal., Jul. 2,2010).
17 1. “Made With Real Fruit”
18Plaintiff cannot dispute that the statement “Made With Real Fruit” is objectively true, and
19she fails to allege with particularity any affirmative misrepresentation or omission of material fact
20that makes this statement false or misleading. Rather, Plaintiff alleges that the label statement
21“Made With Real Fruit” is false and misleading because Fruit Flavored Snacks “lack significant
amounts of real, natural fruit” and because the statement “incorrectly describes the ingredients
23which include partially hydrogenated oil, sugars in quantities amounting to approximately half of
24each serving, and ‘pears from concentrate’ rather than the fruit indicated by the name of the
25Product.” FAC ¶ 13. 22.
A reasonable consumer would not, however, interpret the statement “Made With Real
Fruit” to mean that certain fruits were present in a particular quantity or that a specific fruit was
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present in the product. Numerous Rule 12 cases have rejected similar arguments suggesting that
2reference to fruit on the label would mislead a reasonable consumer about the product’s actual
3ingredients. See, e.g.. Sunny Delight, 2007 WL 4766525, at *3.4 (rejecting claim that “various
fruit names” misleadingly implied a high fruit content where the fruits constituted “characterizing
flavors” and the labels disclosed that water and high fructose corn syrup were the most
6predominant ingredients); McKinniss. 2007 WL 4762172, at *4 (holding that the phrase flavored
with real friar juice was a truthful statement where the product did in fact contain “orange juice
8concentrate, the product’s sixth listed ingredient”) (emphasis added); see also Paduano v. Am.
Honda Motor Co., 169 Cal. App. 4th 1453, 1470 (2009) (statements on front cover of brochure
1 0not false or misleading as a matter of law based on qualifying language elsewhere in the
1brochure).
The Central District of California’s decision in McKimiiss v. General Mills, dismissing a
similar complaint on Rule 12 grounds, is instructive. See 2007 WL 47621 72, at *4 In McKinniss,
1 4the plaintiff alleged that the product “Fruity Cheerios” was labeled in a manner that misled
consumers about the presence of fruit in the product. Id. The alleged misrepresentations included
1 6a statement on the label that the product was “Flavored with Real Fruit Juice” and an image that
1 7“could be construed as a purple fruit.” Id. The court determined that a reasonable consumer
8would not interpret this as “an affirmation that the product contains any fruit.” Id. The court
went on to conclude that the reference to “Real Fruit Juice” was a “truthful disclosure H that
Fruity Cheerios is flavored with orange juice concentrate, the product’s sixth listed ingredient.”
Iin. Accordingly, the court held that “Plaintiffs cannot allege Defendant made any representations
,,regarding the presence of fruit in the five above-named products that were likely to deceive a
23reasonable consumer, which is a threshold requirement for claiming liability under the UCL,
24FAL, or CLRA.” Id. at ‘p5.
The same conclusion is warranted here. As in IVicKinniss, the “Made With Real Fruit”
26reference is a “truthful disclosure.” Id. at *4• Indeed. Plaintiff alleges that the “Made With Real
27Fruit” statement is located adjacent to the “nutrition panel,” FAC 22, which is the portion of the
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label that lists the product’s ingredients. See Request for Judicial Notice, Ex. A-B. Moreover, in
the case of Fruit Flavored Snacks, as Plamtiff again concedes, real fruit is the priman’ ingredient
in the product. FAC ¶ 23 (identifying “Pears from Concentrate” as first listed ingredient). A
reasonable consumer who makes even a cursory review of the product labels at issue here would
find not only the precise fruit content of Fruit Flavored Snacks, but also the additional ingredients
6and the fact that Fruit Flavored Snacks contain pears and no other fruits on the ingredient list.
7McKinniss, 2007 WL 4762172, at *4 (product label contains the information plaintiff claims is
8misleadingly omitted).
9Plaintiffs Complaint attempts to avoid this result with the outlandish claim th.at “Made
1 0With Real Fruit” is misleading because “it is hard” for a consumer to understand that a product
does not contain strawberries even upon reading the list of ingredients, which does not include the
19word “strawberries.” FAC ¶ 23. The Court need not, and should not, credit such unreasonable
inferences of fact. Sprewel/ i;. Golden State Warriors, 266 F.3d 979. 988 (9th Cir. 2001) (court1.)
14need not accept as true unreasonable inferences, unwarranted deductions of fact, or legal
conclusions simply because they are made as factual allegations).
16General Mills expects that Plaintiff will attempt to avoid dismissal by reliance on the
17Ninth Circuit’s decision in Williams v. Gerber Prods. Co., 552 F.3d 934 (9th Cir. 2008). Williams
18is distinguishable. in Williams, the Ninth Circuit reversed the Rule 12 dismissal of a complaint
19regarding “Fruit Juice” for toddlers. Id. at 936. The court focused on a particular combination of
20facts that prevented the court from dismissing on the pleadings, inckiding the statement that the
product was made with “fruit juice and other all natural ingredients,” when the two primary
,, ingredients in the products were corn syrup and sugar, and an affirmative representation that the
23product was “nutritious.” Id. Here, by contrast, the Complaint does not allege that General Mills
24has made affirmative representations that the product is “nutritious.” Moreover, the Complaint
25alleges that the statement ‘Made With Real Fruit” appears on the side panel of the product
26directly adjacent to its “nutrition panel,” the portion of the product label that discloses the
27ingredients. FAC ¶ 22; Request for Judicial Notice, Exs. A-B. Moreover, fruit is the primary
28DEFENDANT GENERAL MILLS’ NOTICE
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listed ingredient on the nutrition panel. Compare FAC ¶ 23 (identifying “pears from concentrate”
as primary ingredient) with Williams, 552 F.3d at 936 (“the two most prominent ingredients were
corn syrup and sugar”). Williams does not control here.
4Indeed, since Williams was decided numerous district courts have dismissed on the
pleadings complaints related to food labeling by properly limiting that case to its particular
6combination of facts. See Videtto, 2009 WL 1439086, at *3: IVerberl, 2010 WL 2673860, at *5;
C’arrea, 2011 WL 159380, at *6. Dvora, 20] 1 WL 1897349, at *7 (all cases granting motions to
dismiss arid distinguishing Williams). The same result is required here.
2. “GLuten Free”
10Plaintiffs allegation regarding the statement “Gluten Free” on Fruit Flavored Snacks
1labels is likewise insufficient to give rise to a probability that a reasonable consumer would be
misled into believing the product does not contain sugars or trans fats. FAC 3, 17. The
13presence or absence of gluten, a type of protein found in wheat and other grains, signifies whether
14the product is suitable for consumption by individuals with celiac disease, as gluten causes
Iadverse health effects in such individuals. See 76 Fed, Reg. 4667 1-01. 46675 (Aug. 3,2011)
16(“Food Labeling; Gluten-Free Labeling of Foods; Reopening of the Comment Period”) (“To the
Iextent it is possible to do so and protect public health, we believe that we should set a gluten
1 8threshold level for gluten free’ labeling that best assists most individuals with celiac disease in
19adhering life-long to a ‘gluten free’ diet without causing adverse health consequences.”)
(emphasis added); cf. In re McDonald’s French Fries Litig., 257 F.R.D. 669, 671 çN.D. Ill. 2009)
(summarizing factual allegations in putative class action related to “gluten-free” french fries)
2’) (class certification denied). The FDA’s pending rulemaking concerning labeling for gluten is
‘)3 premised on the FDA’s review of scientific “assessment for gluten exposure in individuals with
24celiac disease” and seeks to implement a final rule defining “gluten free” that uses “reliable
‘)5 analytical methods and also considers other practical factors related to the needs of individuals
26with celiac disease and their food consumption.” 76 Fed. Reg. 4667 1-72.
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There is no allegation in the Complaint to justify an inference that ‘Gluten Free”
communicates to consumers anything other than the absence of gluten—a message used to
convey the suitability of the product for consumers with celiac disease. The Court is not obligated
to accept Plaintiff’s strained and counterfactual allegation regarding the implications of the term
“Gluten Free” and how a reasonable consumer would interpret that message. See, e.g., Carrea.
62011 WL 159380, at *5 (concluding a reasonable consumer would not interpret the terms
“Original” and “Classic” to “refer to a particular formula or recipe so as to suggest that the
8product is made with natural or wholesome ingredients”). Plaintiffs California consumer
protection claims based on “Gluten Free” should be dismissed.’°
10 .D. Plaintiff Is a California Purchaser Who Cannot State A Claim for Violation of theMinnesota IJDTPA.
I 1 The Ninth Circuit recently held that in a putative nationwide consumer class action,
12 California choice of law principles dictate that “each class member’s consumer protection claim
1.3 should be governed by the consumer protection laws of the jurisdiction in which the transaction
14 took place.” Mazza i’. Am. Honda Motor Co., Inc.. 666 F.3d 581., No. 09-55376, 2012 WL 89176,
ID at *10 (9th Cu. Jan. 12, 2012). A similar view is shared by other federal courts of appeal, which
16 have held that in consumer class actions it is the law of the purchaser’s home state and place of
17 purchase that applies, not the law of a foreign jurisdiction. See Pilgrim v. (]nirersal Health Card,
18 LLC, 660 F.3d 943, 946 (6th Cir. 2011) (“[Tjhe State with the strongest interest in regulating such
19 conduct is the State where the consumers—the residents protected by its consumer-protection
20 laws—are harmed by it.”) (affirming district court ruling striking class allegations in putative
21 nationwide consumer class action because each plaintiffs claims would have to be analyzed
Plaintiff’s claim regarding the term “Gluten Free” fails because it would not mislead a23 reasonable consumer as to the product being “nutritious.” Even if the “Gluten Free” claim were
cognizable, however, the Court should decline to adjudicate it because it falls within the FDA’s primary24 jurisdiction. See United States v. General Dynamics corp., 828 F.2d 1356, .1363 (9th Cir. 1987)
(explaining that deferral to an agency is appropriate where it has been “vested with the authority or activity
25 such that it would be inconsistent with the statutory scheme to deny the agency’s power to resolve theissues in question”). A notice and public comment period is pending for a proposed rule dealing with the
26 term ‘gluten free” on food labels. 76 Fed. Reg. 4667 1-01. Because the FDA is in the process of issuinglabeling standards regarding use of the statement “gluten free,” under the doctrine of primary jurisdiction
27 the Court should stay a decision on this claim if it does not dismiss it outright. Clark v. Time Warner(Jab/c, 523 F.3d 1110, 1114-15(9th Cir. 2008).
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1under the laws of her home state); accord cooper v. Sainsung Elecs. Am., Inc.. No. 08-4736, 2010
WL 1220946, at*4 (3d Cir. Mar. 30, 2010) (“[Plaintiff], who purchased the television in his home
state of Arizona, is not entitled to sue under the New Jersey consumer fraud statute. The
transaction in question bears no relationship to New Jersey other than the location of
[defendant’s] headquarters.”).
6Federal courts sitting in diversity apply the choice of law principles of the forum state—
here, California. Zinser v. Acci/Ix Research Inst., Inc., 253 F.3d 1180, Ii 87 (9th Cir. 2001).
8California applies a “government interest” test that: (1) looks to whether there is a conflict in the
relevant law of the affected jurisdictions; (2) if so, determines each jurisdiction’s interest in the
10application of its law under the circumstances, and (3) then weighs each state’s respective interest
1and applies the law of the state whose interests would be more impaired if its law were not
applied. See McCann v. Foster Whee!erLLC, 48 Cal. 4th 68, 8 1-82 (2010).
13Here, the first step is satisfied as there is a conflict between the consumer protection laws
of California, which do not require scienter, and the consumer protection law of Minnesota,
which does. See Thompson v. Am. Tobacco Co., 189 F.R.D. 544, 553 (D. M.inn. 1999) (requiring
16intent to induce reliance); Mazza, 2012 WL 89176, at *8 (noting that differing scienter standards
17are material for choice of law analysis). Next, under basic principles of federalism, “Each of our
18states has an interest in balancing the range of products and prices offered to consumers with the
19legal protections afforded to them.” Mazza, 201.2 WL 89176, at *8. Finally, California has a
20“predominant” interest in applying its own law to conduct that occurs to consumers within its
2borders, but only an “attenuated” interest in applying the law of foreign states to that conduct. Id.
22at*9I0.
23These principles, coupled with bare adm issions in the Complaint regarding where the
alleged harm occurred, preclude application of Minnesota law to Plaintiff The Complaint
confirms that Plaintiff only has relevant connections to California, which is “the jurisdiction in
which the transaction took place.” Id.. at ‘10. According to the Complaint, Lam: “[1] is domiciled
27in Daly City, California. . . [2] has no intention of changing her domicile ... [and] [3] purchased
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1Defendant’s products for herself and her children. . . from various grocery and retail stores near
2her neighborhood located in California.” Accordingly, California law applies to her claims, and
Lam may not rely on Minnesota law to address an alleged harm that occulTed entirely in
California. Ic!., at *9 (holding that foreign states’ laws intended to protect the consumers from
those states). Her claim for violation of Minnesota IJDTPA § 325D.43 should therefore be
6dismissed.
E. Plaintiff Fails to State a Claim for Breach of Warranty.
8Without setting forth any representation that might serve as the basis for an express
warranty, Plaintiff alleges that General Mills provided “warranties that its Fruit Snacks were
healthful and had particular healthful characteristics as set forth above.” See FAC ¶ 74. This
claim is not supported by the facts alleged or by the law of express warranty.
Under California law, “[ajny affirmation of fact or promise made by the seller to the buyer
which relates to the goods and becomes part of the basis of the bargain creates an express
14warranty that the goods shall conform to the affirmation or promise.” Cal. Corn. Code
1 5 § 23 13(i)(a). Without Such an affirmation or promise by the defendant, a plaintiff cani.ot recover
16for breach of warranty. See Pisano v. Am. Leasing, 146 Cal. App. 3d 194, 197-98 (1983); Dvora,
172011 WL 1897349, at *9 (“To plead an action for breach of express warranty under California
18law, a plaintiff must allege: (1) the exact terms of the warranty; (2) reasonable reliance thereon;
19and (3) a breach of warranty which proximately caused plaintiffs injury,”) (citation omitted).
20Genera.l Mills’ Fruit Flavored Snacks do not make any affirmative representation that the
21products are “healthful,” and the Complaint fails to identify any such representation. As explained
22above, Fruit Flavored Snacks labels are fully compliant with controlling federal labeling
23requirements, truthfully list the products’ ingredients, and otherwise accurately describe the
24product that consumers receive. Plaintiff has therefore failed to plead facts sufficient to support
the existence of an alleged warranty; district courts routinely dismiss warranty claims in food
‘6labeling cases for this defect. See, e.g. McKinniss, 2007 WL 4762172, at *5 (dismissing breach of
27warranty claim because defendant “truthfully disclosed the ingredients” in its product and did not
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1make any affirmative representations to form the basis of a warranty); Kellogg, 2007 WL
24766060, at *5 (dismissing breach of warranty claim where defendant accurately represented that
the cereal contained “natural fruit flavors”); Dvora, 2011 WL 1897349, at *9 (“Plaintiff has not
set forth any representations that might serve as the basis for an express warranty.”))’
F. Plaintiffs Complaint Fails to Meet the Pleading Requirements of the Federal Rules.
6Because Plaintiffs claims are preempted and without merit on their face, the Court need
not address the Complaint’s pleading deficiencies. Nonetheless, the Complaint fails for the
8additional reason that it does not meet the pleading requirements of Rules 8 and 9(b). Under Rule
8, a complaint must allege “enough facts to state a claim to relief that is plausible on its face.”
Twonth!’, 544 U.S. at 570: see also Fed. R. Civ. P. 8(a)(2). The plaintiffs “[fjactual allegations
11must he enough to raise a right to relief above the speculative level” and must aver more than
12“labels and conclusions” or “formulaic recitations of the elements of a cause of action.” Twombly,
13544 U.S. at 555; accrdJqhal, .129 S. Ct. at 1949.
14The pleading standard is even more demanding in this case because Plaintiffs CLR.A,
UCL, FAL, and warranty claims sound in fraud and must therefore meet the more exacting
1 6requirements of Rule 9(b). These claims “sound in fraud” because they are expressly premised on
17General Mills’ purported false representations. See Vess v. Ciha-Giegr Coip., 317 F.3d 1097.
181103 (9th Cir. 2003) (“Rule 9(b) applies to ‘averments of fraud”); Kearns v. Ford Motor Co.,
567 F.3d 1. 120, 1125 (9th Cir. 2009) (applying Rule 9(b) to UCL and CLRA claims where
plaintiff alleged that the defendant engaged in a fraudulent course of conduct). Plaintiffs
21 . .
Plaintiffs claim for implied warranty of merchantability is subject to dismissal on the samerounds. An implied warranty of merchantability attaches to goods that “(I) Pass without objection intrade under the contract description. (2) Are fit for the ordinary purposes for which such goods are used.(3) Are adequately contained, packaged, and labeled. (4) Conform to the promises or affirmations of factmade on the container or label.” Cal, Civ. Code § 1791.l( )..He.re, the goods sold are food and there is no
24 allegation that Fruit Flavored Snacks were inedible or otherwise not fit for the ordinary purpose of food—consumption. Similarly, the Complaint fails to identify any “affirmation of fact” on the Fruit Flavored
2 Snacks’ label that is untrue.Plaintiffs fly; remaining cause of action is for unjust enrichment. Unjust enrichment cannot
26 proceed as an independent cause of action under California law where there is otherwise no viable claimfor relief, as is the case here. See McBi’ide v. Boughion. .123 Cal. App. 4th 379, 387 (2004) (unjust
27 enrichment is “not a cause of action ... or even a remedy. but rather a general principle, underlyingvarious legal doctrines and remedies”).
28DEFENDANT GENERAL MILLS’ NOTICE
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Complaint sounds in fraud, as it refers repeatedly to allegedly “misleading,” “false,” and
2“deceptive” statements and practices by General Mills. See FAQ ¶ 2, 7, 10, 17, 21.
3Rule 9(b) requires that, “[un alleging fraud or mistake, a party must state with
4particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). “Mere
conclusory allegations of fraud are insufficient.” Blv-Magee v. Cali/brnia, 236 F.3d 1014, 1019
6(9th Cir. 2001); see also Vess, 3 17 F.3d at 1106 (“The plaintiff must set forth what is false or
misleading about a statement, and why it is false.”). To meet this standard, a complaint must
8provide the time, place and content of the alleged fraudulent representation or omission—the
“who, what, when, where, and how”—as well as the circumstances demonstrating reliance on the
alleged fraudulent conduct. See Kearns, 567 F.3d at 1124.
11Plaintiffs Complaint falls short of these standards. Although the Complaint avers that
12“Plaintiff viewed the misleading and deceptive statements contained on the packaging of the
1 3Products—i.e., fruit flavored, naturally flavored, good source of Vitamin C, low in calories, low
fat, and gluten free,” FAQ 1 13, and refers without specificity to “marketing” and “advertising.” it
15does not allege which, if any, of these statements Lam herself saw or relied on. The Complaint
1 6does not even allege the specific Fruit Flavored Snacks product Lam claims she purchased.
17instead merely alleging purchase of “Defendant’s Prodticts” at unknown times and places. FAC
1 8 ¶ 13. Plaintiff thus fails to identify the specific statements she read or how those statements
19induced her to purchase the product. See Kearns, 567 F.3d at 1126 (Rule 9(b) not satisfied where
20plaintiff failed to specify what the advertisements specifically stated or what specific sales
materials he relied upon).
As to the “Made With Real Fruit” statement referred to in the Complaint, the allegations
23are even more deficient. The Complaint does not allege that Lam saw or relied on this statement
24at all. Compare FAC ¶ 13 (identiliing general packaging statements Lam was purportedly
exposed to and not mentioning “Made With Real Fruit” claim) with FAQ ¶Mi 22-23 (noting
26presence of “Made With Real Fruit” claim on label but failing to allege that Lam saw or relied on
27this statement). Similar defects plague the Complaint’s references to “advertising,” insofar as
28DEFENDANT GENERAL MILLS’ NOTICE
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there are no allegations identifying what advertisements herself Plaintiff allegedly saw, nor any
2allegation as how o.r why it is misleading. See FAC J 19, 24.
3The Complaint’s fraud allegations thus lack both the factual context and the particulars
necessary, including the what, when, where, and how, to sufficiently identify the content of
Plaintiffs fraud claim for this Court or General Mills. See Vess, 317 F.3d at 1107 (Plaintiffs
allegations “do [] not identify any specific misrepresentations or specify when and where they
occurred. These allegations arc not particular enough to satisfy Rule 9(h).”); Yumul v. Smart
8Balance, inc., 733 F. Supp. 2d 1117, 1124 (C,D. Cal. 2010) (dismissing on Rule 9(b) grounds
complaint alleging misleading claims on packaging of and advertising for margarine) (“[T]he
0complaint does not adequately identify the packaging that [plaintiff] saw and on which she relied.
Applying the standard set forth in Kearns, therefore, the court concludes that [plaintiff] has not
alleged with particularity when, where, and how the alleged imsrepresentations were
13communicated.”) .Lam’s Complaint therefore must be dismissed for failure to plead essential
14facts with the particularity required by Rule 9(b).
IV. CONCLUSION
1 6For the foregoing reasons, General Mills requests that the Court grant its motion to
1 7dismiss pursuant to Rule I 2(b)(6). and dismiss Plaintiffs claims against General Mills with
1 8prejudice. in the alternative, Plaintiffs Complaint should be dismissed under Rule 9(b) for failing
19to allege facts with sufficient particularity to meet the Rule’s pleading requirements.
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1 DATED: February 17, 2012 PERKINS COlE LLP
3.By:/s/ Charles C. Sipos
Charles C. Sipos, Pro hac vice
4 [email protected] I. Bidennan, (Bar No. 101577)
5 DBiderrnan’perkinscoie .comJoren Bass (Bar No. 208143)[email protected] M. O’Sullivan, Pro hac vice
7 IKOSulivan’aperkinscoie.corn
8 CARLTON FIELDSChris S. Coutrolis (Pro hac vice pending)
9 ccoutrou1is@carltonfi elds.cornRobert L. Ciotti (Pro hac vice pending)
1 o [email protected]. Derek Harris (Pro hac vice pending)
12 Attorneys for DefendantGeneral Mills, Inc.
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CERTIFICATE OF SERVICE
2 1 hereby certify that on February 17, 2012, I electronically filed the foregoing with theClerk of the Court using the CM/ECF system which sent notification of such filing to the
3 following:
4 Kim E. Richman Iiic’’serichmanomMichael Robert Reese michacl(threesericbman.eom
5 Seema Rattan srattanjreorgStephen Henry Gardner stevewnejjelercom
6And I hereby do certify that I have mailed by United States Postal Service the document to the
7 following non CM/ECF participants:
8 Belinda WilliamsReese Richman L.LP
9 875 Avenue of the Americas, 18th FloorNew York, NY 10001
10
11DATED: February 17, 2012 PERKINS COlE LLP
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13 By: /s/ Charles C. SiposCHARLES C. SIPOS, Pro hac i’ice
14Attorneys for Defendant
15 GENERAL MILLS. INC.
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28DIIENDAN1 (Jf\ERAL MILLS NORE
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