Since honoring the Ninth Circuit’s determination in Nexus Pharms., Inc. v. Cent. Admixture Pharm. Servs., Inc., 48 F.4th 1040 (ninth Cir. 2022), as being our third finest determination of 2022, we’ve got been ready for (and anticipating) a courtroom to use it to a meals labeling case. And now one has – Collyer v. Catalina Snacks Inc., 2024 U.S. Dist. LEXIS 9637 (N.D. Cal. Jan. 18, 2024).
Plaintiff’s fraud claims in Collyer allege that the packaging of 4 keto-friendly cereals was deceptive as a result of the cereals don’t comprise an ingredient pictured on the bundle. For instance, the bundle for the Banana Chocolate cereal has actual bananas pictured, however the banana style comes from “pure flavors.” Equally, whereas the Apple Cider Donut cereal depicts each an apple and a donut, the product itself incorporates neither apple or cider with the “style” once more coming from pure flavors. Id. at *2-3.
Earlier than we get to the appliance of Nexus, the dialogue of Collyer could be incomplete with out acknowledging that these claims additionally failed the “affordable client” commonplace beneath California’s Unfair Competitors Legislation (UCL), False Promoting Legislation (FAL), and the Client Authorized Cures Act (CLRA). The usual is whether or not a “affordable client” could be misled by the product’s representations. Whereas that is usually a query of reality, in “uncommon conditions” a courtroom can decide that the alleged violations of UCL, FAL, and CLRA “are merely not believable.” Id. at *9. That is such a scenario. First, plaintiff admitted that she didn’t consider the cereals contained entire bananas or apples. Second, subsequent to the photographs of apples, bananas, and donuts had been the phrases “serving suggestion.” Cheap customers perceive that they aren’t getting entire recent fruit of their field of cereal. Third, no the place on the packaging is there any misrepresentation of the components or any assertion that the merchandise are “made with” the “characterizing flavors.” Lastly, the courtroom couldn’t overlook that the cereals are described as “keto-friendly” and comprise “0g sugar.” An affordable client, particularly one searching for a specialty product, would perceive that the cereals don’t comprise apples, bananas or cider – all of which comprise sugar. Id. at *10-13. Plaintiff is getting an opportunity to replead these claims to see if she will fulfill her pleading obligations, however given the heightened pleading commonplace for fraud claims, we’re doubtful.
That brings us to Nexus and preemption. Plaintiff introduced her UCL declare beneath all three of its prongs – that the labeling was unfair, fraudulent, and illegal. The illegal declare relies on alleged violations of the Meals, Drug, and Beauty Act (FDCA) as included in California’s Sherman Legislation. Id. at *14. However claims based mostly on violations of the FDCA are preempted by Buckman Co. v. Plaintiffs’ Authorized Comm, 531 U.S. 341 (2001). So, historically plaintiffs attempt to flip the equation. They allege that their claims are for violations of the Sherman Legislation which includes the FDCA and due to this fact, they’re bringing parallel state legislation claims. That’s the place Nexus is available in. The Ninth Circuit held that false promoting claims that “would require litigation of the alleged underlying FDCA violation in a circumstance the place the FDA had not itself concluded there was a violation” are preempted. Id. at *16 (citing Nexus, 48 F.4th at 1048). Collyer additionally throws in somewhat language from Stengel v. Medtronic, Inc., 704 F.3d 1224, 1228, 1235 (9th Cir. 2013) (state legislation claims preempted the place they’re depending on a violation of federal legislation). Due to this fact, plaintiff’s claims based mostly on the illegal prong of the UCL are dismissed with prejudice.
We’ve been anticipating this growth into food-related litigation since Nexus was determined. California is a hotbed of food-related litigation thanks in most half to the Farm Contemporary Salmon determination by the California Supreme Court docket which is actually the antithesis of Nexus. Nexus shouldn’t be controlling in state courtroom, however we’re hopeful it may be used to chop again on the plethora of bogus meals class actions in California federal courtroom. Collyer often is the first, however we doubt it is going to be the final.
