Roffman v. REBBL, INC.

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA [6] 7 MEHVA ROFFMAN, Case No. 22-cv-05290-JSW 8 Plaintiff, ORDER GRANTING, IN PART, AND 9 v. DENYING, IN PART DEFENDANT'S MOTION TO DISMISS 10 REBBL, INC., Re: Dkt. No. 16 Defendant. [12] 13 Now before the Court for consideration is the motion to dismiss filed by Defendant Rebbl, 14 Inc. (“Rebbl”). The Court has considered the parties’ papers, relevant legal authority, and the 15 record in this case, and it finds the motion suitable for disposition without oral argument. See Fed. 16 R. Civ. P. 78(b); N.D. Civ. L.R. 7-1(b). The Court VACATES the hearing scheduled for February 17 3, 2023, and it HEREBY GRANTS, IN PART, AND DENIES, IN PART, Rebbl’s motion. 18 BACKGROUND1 19 Rebbl manufactures, advertises, distributes, and sells Plant Powered Elixir beverages. On 20 the front of the label, Rebbl states that the products contain a specified amount of protein. For 21 example, Roffman alleges that she purchased the Dark Chocolate, Vanilla, and Coffee flavors, 22 which included representations on the front label that they contained 16 grams of protein (the [24] 25 1 This case is one of a number of recent cases raising challenges to protein claims on food labels, including another case brought by Plaintiff Mehva Roffman (“Roffman”) and her counsel. 26 See, e.g., Roffman v. Perfect Bar, LLC, No. 22-cv-02479-JSC, 2022 WL 4021714 (N.D. Cal. Sept. 2, 2022) (“Perfect Bar”); Brown v. Van’s Int’l Foods, Inc., No. 22-cv-00001-WHO, -- F. Supp. 3d 27 --, 2022 WL 3590333 (N.D. Cal. Aug. 22, 2022) (“Van’s II”); Chong v. Kind, LLC, 585 F. Supp. 3d 1215 (N.D. Cal. 2022). 1 “Products”). (Compl. ¶ 2; see also Ex. B.)2 That representation is consistent with the amount of 2 protein listed in the Products’ nutrient facts panel (“NFP”). (Id. ¶ 20 (photo of front and NFP of 3 the Vanilla Product).) Roffman claims that representation is misleading and unlawful because the 4 primary source of protein used in the Products is pea protein, which is not fully digestible. As a 5 result, she claims the amount of protein that can be used is far less than 16 grams. (Id. ¶¶ 5-6, 236 33.) 7 Regulations promulgated by the Food and Drug Administration (“FDA”) require 8 manufacturers to include the quantity of grams of protein per serving in NFPs. See 21 C.F.R. § 9 101.9(c)(7); see also Swartz v. Dave’s Killer Bread, Inc., No. 21-CV-10053-YGR, 2022 WL 10 1766463, at *3-4 (N.D. Cal. May 20, 2022) (“Swartz I”) (discussing regulatory background); 11 Brown v. Van’s Int’l Foods, Inc., No. 22-00001-WHO, 2022 WL 1471454 , at *1-2 (N.D. Cal. May 12 10, 2022) (same) (“Van’s I”); Nacarino v. Kashi Co., 584 F. Supp. 3d 806 , 807-09 (N.D. Cal. 13 2022) (same) (“Kashi Co.”). In terms of quantity, FDA regulations permit a manufacturer to use 14 the “nitrogen method” to calculate the grams of protein per serving. Protein quality can be 15 measured by the “protein digestibility-corrected amino acid score” (“PDCAAS”). See Kashi Co., 16 584 F. Supp. 3d at 808. 17 A manufacturer may include information about protein content outside of the NFP, for 18 example on the front of the product (a “nutrient content claim”), but if it makes such a claim, the 19 NFP must include a “statement of the corrected amount of protein per serving, expressed as a 20 Percent of Daily Value [%DV],” which “takes the actual amount of protein from the nutrition label 21 and adjusts it for digestibility based on the” PDCAAS. Id. (quoting 21 C.F.R. §§ 22 101.9(c)(7)(i)(ii)). In 2022, the FDA issued guidance and explained “that use of total or corrected 23 protein, calculated using the nitrogen content method or PDCAAS respectively, are appropriate for 24 nutrient content claims.” Swartz I, 2022 WL 1766463 , at *4 (citing Industry Resources on the 25 Changes to the Nutrition Facts Label, U.S. Food & Drug Administration) (“2022 Nutrient Content 26 Claim Guidance”)).3 Federal regulations also provide that a product’s packaging may include a [27] 1 statement about the amount or percentage of a nutrient, like protein, as long as the statement “is 2 not false or misleading in any respect.” 21 C.F.R. § 101.13 (i)(3). 3 Roffman alleges that she read and relied on front label before she purchased the Products 4 and believed that the Products “would actually provide the specific amount of protein claimed on 5 the front labels in a form human bodies could utilize.” (Id. ¶ 63.) Roffman also alleges that she 6 regularly checks the NFP before purchasing any product for the first time. (Id. ¶ 64.) According 7 to Roffman, had she known the Products did not contain the amount of protein on the front of the 8 label or had Rebbl disclosed the corrected amount of protein as a %DV in the NFP, she would not 9 have purchased the Products or would have paid less for them. (Id. ¶¶ 63-64.) 10 However, “if the Products were reformulated to provide, in a usable form, the grams of 11 protein that are represented on the labels, or the labels were reformulated to provide non12 misleading information, [Roffman] would likely purchase them again in the future. [Roffman] 13 regularly visits stores where the Products and other protein products are sold.” (Id. ¶ 66.) 14 Roffman alleges that absent an injunction, she will be unable to rely on Rebbl’s labels when 15 shopping for Products in the future. (Id.) 16 Based on these and other facts that the Court will address as necessary, Roffman asserts 17 claims on behalf of herself and putative classes for alleged violations of California’s Consumer 18 Legal Remedies Act (“CLRA”), False Advertising Law (“FAL”), Unfair Competition 19 Law(“UCL”), as well as common law claims for fraud and unjust enrichment. 20 The Court will address additional facts as necessary in the analysis. 21 ANALYSIS 22 A. Applicable Legal Standards. 23 Rebbl moves to dismiss for lack of Article III standing and for failure to state a claim. A 24 lack of Article III standing requires dismissal for lack of subject matter jurisdiction under Federal 25 Rule of Civil Procedure 12(b)(1). “A Rule 12(b)(1) jurisdictional attack may be facial or factual.” 26 Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). A “facial” attack accepts the [27] 1 truth of the plaintiff’s allegations but asserts that they “are insufficient on their face to invoke 2 federal jurisdiction.” Id. The district court resolves a facial attack as it would a motion to dismiss 3 under Rule 12(b)(6). Pride v. Correa, 719 F.3d 1130, 1133 (9th Cir. 2013). 4 A court’s inquiry under Rule 12(b)(6) “is limited to the allegations in the complaint, which 5 are accepted as true and construed in the light most favorable to the plaintiff.” Lazy Y Ranch Ltd. 6 v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008). Even under the liberal pleading standard of Rule 7 8(a)(2), “a plaintiff’s obligation to provide ‘grounds’ of his ‘entitle[ment] to relief’ requires more 8 than labels and conclusions, and formulaic recitation of the elements of a cause of action will not 9 do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citing Papasan v. Allain, 478 U.S. 10 265, 286 (1986)). Pursuant to Twombly, a plaintiff cannot merely allege conduct that is 11 conceivable but must instead allege “enough facts to state a claim to relief that is plausible on its 12 face.” Id. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that 13 allows the court to draw the reasonable inference that the defendant is liable for the misconduct 14 alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556 ). 15 If the allegations are insufficient to state a claim, a court should grant leave to amend 16 unless amendment would be futile. See, e.g., Reddy v. Litton Indus. Inc., 912 F.3d 291, 296 (9th 17 Cir. 1990); Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv., Inc., 911 F.2d 242 , 246-47 (9th 18 Cir. 1990). 19 B. Rebbl’s Standing Arguments. 20 1. Standing to Seek Injunctive Relief. 21 In order to show she has standing to seek injunctive relief, Roffman must allege she “has 22 suffered or is threatened with a ‘concrete and particularized’ legal harm, coupled with a ‘sufficient 23 likelihood that [she] will again be wronged in a similar way.’” Bates v. United Parcel Serv., Inc., [24] 511 F.3d 974, 985 (9th Cir. 2007) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555 , 560 25 (1992) and City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983)). The latter inquiry turns on 26 Roffman alleges facts to show a “real and immediate threat of repeated injury.” Id. The threat of 27 future injury cannot be “conjectural or hypothetical” but must be “certainly impending” to 1 F.3d 956, 967 (9th Cir. 2018). 2 Rebbl argues Roffman is “now fully aware that REBBL’s front-of-pack protein claim is a 3 statement of the absolute quantity of protein that mirrors the [NFP], that plant based proteins are 4 not always fully digested by humans, and that REBBL uses plant-based proteins in” the Products. 5 (Mot. at 16:20-27.) It argues those facts demonstrate Roffman cannot plausibly allege a risk of 6 future harm because she has the information she needs to make informed purchasing decisions. 7 The Court is not persuaded. 8 Roffman alleges that she “does not know the formula for Defendant’s products, which can 9 change over time, and cannot test whether the Products provide the amount of digestible protein 10 that is represented on the label without first purchasing the Product.” (Compl. ¶ 66.) The Court 11 concludes Roffman sufficiently alleges facts to support her claims for injunctive relief. See, e.g., 12 Pino v. Birch Benders, LLC, No. 22-cv-01294-TSH, 2022 WL 4913320 , at *2 (N.D. Cal. Oct. 3, 13 2022); Vans I, 2022 WL 1471454 , at *11. 14 2. Standing Based on Products Roffman Did Not Purchase. 15 Rebbl also argues that Roffman does not have standing to pursue claims based on products 16 she did not purchase, including those listed in Exhibit B. “[T]here is no controlling authority [in 17 the Ninth Circuit] on whether Plaintiffs have standing for products they did not purchase.” Miller 18 v. Ghirardelli Chocolate Co., 912 F. Supp. 2d 861, 868 (N.D. Cal. 2012). Rebbl invites the Court 19 to reject the approach used by a majority of courts in this District, which have held “that a plaintiff 20 may have standing to assert claims for unnamed class members based on products he or she did 21 not purchase so long as the products and alleged misrepresentations are substantially similar.” Id. 22 at 869; see also Figy v. Frito-Lay N. Am., Inc., 67 F. Supp. 3d 1075, 1082-83 (N.D. Cal. 2014) 23 (“Courts in this district have adopted three diverging approaches for analyzing standing to pursue 24 claims for nonpurchased products.”). The Court has previously followed this approach and 25 declines Rebbl’s invitation. 26 “[C]ourts look to a series of factors including whether the challenged products are of the 27 same kind, comprised of largely the same ingredients, and whether each of the challenged 1 similar. Figy, 67 F. Supp. 3d at 1083 . Courts have found that diverse products bearing similar 2 labels are “substantially similar.” Maisel v. S.C. Johnson & Son, Inc., No. 21-CV-00413-TSH, [3] 2021 WL 1788397 , at *4 (N.D. Cal. May 5, 2021) (collecting cases). Once a court determines the 4 products are sufficiently similar, “any concerns regarding material differences in the products can 5 be addressed at the class certification stage.” Anderson v. Jamba Juice Co., 888 F. Supp. 2d 1000 , 6 1006 (N.D. Cal. 2012). 7 Although Roffman only includes an image of one of the Products at issue, she alleges that 8 the NFPs “on the back of the Products uniformly and consistently failed to provide any statement 9 of the corrected amount of protein per serving, expressed as a %DV, throughout the Class Period.” 10 (Compl. ¶ 20.) She also alleges that the image included in the Complaint is consistent with the 11 way in which the NFPs have appeared. (Id.) 12 The Court concludes the allegations are sufficient to plead the labels are substantially 13 similar and that Roffman has standing to pursue claims based on products she did not purchase. 14 C. Rebbl’s Preemption Arguments. 15 Roffman relies on three theories to allege that Rebbl’s protein claims give rise to liability 16 under state law. First, she alleges that Rebbl’s labels are unlawful because it made a nutrient 17 content claim on the front label and failed include the corrected amount of protein, based on the 18 PDCAAS and expressed as a %DV, in the NFP. (Compl. ¶¶ 6-7.) Second, she alleges that same 19 conduct renders the front label claim misleading. (Id. ¶ 8.) The Court refers to these two theories 20 as the “NFP Omission theories.” Finally, Roffman alleges that the nutrient content claim on the 21 front of the label is inherently misleading because it uses the nitrogen method and does not 22 account for the quality of the protein. (Id. ¶ 9.) The Court refers to this theory as the Front Label 23 Protein Claim. 24 1. Express Preemption. 25 Roffman concedes that the Front Label Protein Claim is preempted. Accordingly, the 26 Court dismisses claims based on that theory with prejudice.4 See, e.g., Pino, 2022 WL 4913320 , [27] 1 at *4; Perfect Bar, 2022 WL 4021714 , at *7-8; Swartz I, 2022 WL 1766463 , at *3-*5; Van’s I, [2] 2022 WL 1471454 , at *5-6. 3 Turning to the NFP Omission theories, the Court finds the reasoning in Perfect Bar 4 persuasive and concludes that Roffman’s claim that the NFP Omission renders the labels unlawful 5 is not preempted. Perfect Bar, 2022 WL 4041714 , at *4. 6 Roffman argues that the NFP Omission theory is her primary theory of fraud and 7 deception. (Opp. Br. at 10:10-12.) The Court finds this theory presents a closer question, and 8 courts in this District appear to be divided. For example, in Perfect Bar, the court followed 9 Nacarino and held the claim was expressly preempted. 2022 WL 4021714 , at *7. In contrast, in 10 Van’s I, the court concluded the claim appeared plausible. 2022 WL 1471454 , at *6. The Court 11 concludes this issue warrants further development, and it DENIES Rebbl’s motion to dismiss 12 claims based on this theory without prejudice. Rebbl may renew this argument by way of a 13 motion for summary judgment or a motion for judgment on the pleadings, and the parties shall be 14 prepared to address in more detail the impact of the 2022 Nutrient Claim Guidance on the FDA 15 regulations requiring manufacturers to include the %DV in the NFP when they make a nutrient 16 content claim outside the NFP. 17 2. Implied Preemption. 18 Roffman bases her UCL claim, in part, on alleged violations of California’s Sherman Law, 19 which has incorporated the federal Food, Drug, and Cosmetics Act (“FDCA”) and its 20 implementing regulations into state law. See, e.g., Cal. Health & Safety Code § 110100 (a). Rebbl 21 argues that despite her allegations to the contrary, Roffman is attempting to enforce the FDCA and 22 the claims are impliedly preempted pursuant to Buckman v. Plaintiffs’ Legal Committee, 531 U.S. 23 341 (2001). 24 The court in Chong concluded that claims based on the NFP Omission theory were 25 impliedly preempted. That court reasoned the plaintiffs did not rest their claims on pre-existing, 26 traditional tort claims. Instead, the claims were entirely dependent upon the FDCA. 585 F. Supp. 27 1 3d at 1219; see also Davidson v. Sprout Foods, Inc., No. 22-cv-01050-RS, 2022 WL 13801090 , at 2 *4 (N.D. Cal. Oct. 21, 2022) (following Chong). In contrast, the court in Van’s I concluded such 3 claims here were not impliedly preempted. It noted that the plaintiff expressly disclaimed any 4 reliance on the FDCA and concluded the Chong court’s reading of Buckman was too broad, 5 especially in light of “the strong presumption against federal preemption in the area of marketing 6 food.” 2022 WL 1471454 , at *7-8 (quoting Clancy v. The Bromley Tea Co., 308 F.R.D. 564 , 573 7 (N.D. Cal. 2013)). 8 “[C]ourts in this District … routinely reject the argument that the [Supreme] Court’s 9 reasoning in Buckman justifies preemption of food labeling claims under the Sherman Law.” 10 Vassigh v. Bai Brands LLC, No. 14-cv-05127-HSG, 2015 WL 4238886 , at *4 (N.D. Cal. July 13, 11 2015) (collecting cases); see also Van’s I, 2022 WL 1471454 , at *8 (citing cases). As in Van’s I 12 and Perfect Bar, Roffman expressly states she disclaims causes of action under the FDCA and 13 regulations promulgated by the FDA and relies on them “only to the extent such laws and 14 regulations have been separately enacted as state law or regulation or provide a predicate basis of 15 liability” for her enumerated claims for relief. (Compl. at 24:21-26.) In addition, as in those 16 cases, Roffman’s claim based on the omission of %DV in the NFP “parallels” the federal 17 requirements. 18 In light of the allegations here, the Court finds the reasoning in Van’s I, Perfect Bar, and 19 Pino more persuasive than Chong and concludes Roffman’s claims that the NFP Omission theory 20 based on unlawfulness is not impliedly preempted. (See also Dkt. No. 31, Plaintiffs’ Statement of 21 Recent Decision, Swartz v. Dave’s Killer Bread, No. 21-cv-10053-YGR, Dkt. No. 46, Order 22 Denying Motion to Dismiss at 4:11-5:6.) For the reasons set forth in the preceding section, the 23 Court DENIES Rebbl’s motion without prejudice to the extent Roffman relies on the NFP 24 Omission theory to show the labels are misleading. 25 D. Rebbl’s Additional Arguments. 26 1. Equitable Monetary Relief. 27 Rebbl argues Roffman fails to allege that her legal remedies are inadequate and, therefore, 1 the FAL and the UCL are limited to restitution and injunctive relief. See, e.g., Korea Supply Co. 2 v. Lockheed Martin, 29 Cal. 4th 1134, 1146-49 (2003). In contrast, the CLRA provides for 3 equitable relief and for damages. In Sonner v. Premier Nutrition, Inc., the Ninth Circuit held “that 4 the traditional principles governing equitable remedies in federal courts, including the requisite 5 inadequacy of legal remedies, apply when a party requests restitution under the UCL and CLRA in 6 a diversity action.” 971 F.3d 834, 843-44 (9th Cir. 2020). There, the plaintiff dropped her claims 7 for damages shortly before trial. Because the plaintiff failed to allege an adequate legal remedy in 8 her complaint and conceded her claim for restitution was the same amount of money she had been 9 seeking in damages, the court determined she failed to state a claim for relief. “Sonner fails to 10 explain how the same amount of money for the exact same harm is inadequate or incomplete[.]” [11] Id. at 844 . 12 Roffman argues that Sonner is distinguishable because of the procedural posture of that 13 case, but this Court does not find that argument persuasive. See, e.g., Gardiner v. WalMart, Inc., 14 No. 20-cv-4618-JSW, 2021 WL 4992539 , at *7 (N.D. Cal. July 28, 2021). Roffman does allege 15 that “if the Court requires [her and the putative class] to show classwide reliance and materiality 16 beyond the objective reasonable consumer standard” and that if she and the putative class are not 17 able to demonstrate the requisite mens rea, they may be unable to obtain damages. (Compl. ¶¶ 92, 18 114.) Roffman does not suggest that she seeks a different amount in damages than she does in 19 restitution. In addition, Roffman’s allegations about the inadequacy of legal remedies are 20 conditional. See, e.g., Johnson v. Trumpet Behavioral Health, LLC, No. 3:21-cv-03221-WHO, [21] 2022 WL 74163 , at *3 (N.D. Cal. Jan. 7, 2022) (concluding conditional allegations insufficient to 22 plead that plaintiffs actually lacked an adequate remedy of law). 23 The Court concludes the “allegations do not establish that the damages she seeks are 24 necessarily inadequate or incomplete. That is, [Roffman’s] ‘inability to obtain damages here 25 [would result] from her CLRA [and common law] claims’ failure on the merits” not that there 26 “there is an inherent limitation of the legal remedy that renders it inadequate.” Hanscom v. 27 Reynolds Consumer Prods., No. 21-cv-3434-JSW, 2022 WL 591466 , at *3 (N.D. Cal. Jan. 21, 1 (N.D. Cal. Aug. 9, 2021)). 2 Accordingly, the Court GRANTS Rebbl’s motion, in part, and will grant Roffman leave to 3 amend her allegations regarding the inadequacy of her legal remedies. 4 2. Unjust Enrichment. 5 Finally, Rebbl moves to dismiss Roffman’s unjust enrichment claim. Because the Court 6 || concludes Roffman fails to allege facts showing that her legal remedies are inadequate, the Court 7 GRANT Rebbl’s motion to dismiss this claim, with leave to amend. 8 CONCLUSION 9 For the foregoing reasons, the Court GRANTS, IN PART, AND DENIES, IN PART, 10 || Rebbl’s motion to dismiss. If Roffman chooses to amend, she shall file an amended complaint by 11 no later than February 22, 2023, and Rebbl shall answer or otherwise respond within the time 12 || permitted under the Federal Rules. E 13 Pending further Order of the Court, the initial case management calendar remains 14 || scheduled for February 24, 2023 at 11:00 a.m. The Court ORDERS the parties to file an updated 3 15 || joint case management conference statement by February 17, 2023. 16 IT ISSO ORDERED. _ 5 17 || Dated: January 31, 2023 fo | ( / fo nt Z 18 ? FREY 8. wage 19 /Onited ypees Dispfict Judge 20 /