Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DIANA HAVER, on behalf of herself, all Case No.: 3:24-cv-01269-CAB-MMP others similarly situated, and the general 12 public, ORDER ON MOTION TO DISMISS Plaintiff, 13 FIRST AMENDED COMPLAINT v. 14 GENERAL MILLS, INC., [Doc. No. 23] 15 Defendant. 16 17 I. INTRODUCTION 18 Before the Court is a motion by Defendant General Mills, Inc. to dismiss Plaintiff 19 Diana Haver’s First Amended Complaint (“FAC”). [Doc. No. 23.] The FAC alleges that 20 fruit-flavored snacks sold by General Mills under the tradename Annie’s™ are 21 misleadingly labeled1 in violation of California consumer protection laws. Specifically, 22 Haver contends that the packaging’s front-label statement “Made with Real Fruit Juice*” 23 is deceptive as it falsely suggests to consumers that the fruit-flavored gummy snacks are 24 primarily sweetened with fruit juice. [Doc. No. 19; FAC at ¶18.] The product ingredient 25 26 27 1 General Mill’s request [Doc. No. 23-2] for the Court to take judicial notice of the packaging at issue is Granted. The same representation of the packaging is also included in the Plaintiff’s FAC. [Doc. No. 19 28 1 || list, however, identifies the first three ingredients in the gummy snacks as organic rice 2 syrup, organic cane sugar, and organic tapioca syrup solids. [/d., at J 15.] 3 General Mills contends that 1) the label is accurate because the product contains real 4 || fruit juice, and 2) Plaintiffs interpretation that the label statement “made with” implies that 5 ||the primary sweetener is fruit juice is not a reasonable consumer expectation. General 6 || Mills has moved for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6).

5 , x 2) r=) eer ‘is 0 Sete sais 0 SNOUT Oa sam os 1] “rate a 1 3 sit iy te pe arr FESS 5) a Saeee 15 =e | 6 17 UVVAT Mees we Nee 18 Ingredients: Organic Rice Syrup, 19 Organic Cane Sugar, Organic Tapioca Syrup Solids, Water, Organic Pear 20 Juice Concentrate, Pectin, Citric Acid, Sodium Citrate, Ascorbic Acid (vitamin 21 C), Organic Natural Flavor, Organic Sunflower Oil, Organic Color (organic 22 black carrot, organic black currant extracts), Organic Carnauba Wax. 23 24 Court finds the motion suitable for determination on the papers. Having considered 25 ||the submissions of counsel [Doc. Nos. 23, 24, and 25], and for the reasons stated below, 26 || the motion is GRANTED. 27 28 ny 1 II. LEGAL STANDARD 2 Defendant contends dismissal is proper under Rule 12(b)(6) because the FAC fails 3 to plead facts sufficient to state a claim to relief that is plausible on its face. Bell Atl. Corp. 4 v. Twombly, 550 U.S. 544, 570 (2007). Determining whether a complaint states a plausible 5 claim for relief is a “context-specific task that requires the reviewing court to draw on its 6 judicial experience and common sense.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 7 Plaintiff’s FAC asserts three causes of action: (1) Violation of the Unfair 8 Competition Law, Cal. Bus. & Prof. Code § 17200 et seq. (the “UCL”); (2) Violation of 9 the False Advertising Law, Cal. Bus. & Prof. Code § 17500 et seq. (the “FAL”); and (3) 10 Violation of the Consumers Legal Remedies Act, Cal. Civ. Code § 1750 et seq. (the 11 “CLRA”). [Doc. No. 19] These California consumer protection acts generally prohibit 12 unfair, deceptive, untrue or misleading advertising. The statutes are governed by the 13 reasonable consumer test, meaning that false or misleading advertising must be evaluated 14 from the vantage of a reasonable consumer. Williams v. Gerber Products Co., 552 F.3d 15 934, 938 (9th Cir. 2008). 16 This standard “requires more than a mere possibility that [defendant’s] label ‘might 17 conceivably be misunderstood by some few consumers viewing it in an unreasonable 18 manner.’” Ebner v. Fresh Inc., 838 F.3d 958, 965 (9th Cir. 2016) (quoting Lavie v. Procter 19 & Gamble Co., 129 Cal. Rptr. 2d 486, 495 (2003)). “Rather, the reasonable consumer 20 standard requires a probability ‘that a significant portion of the general consuming public 21 or of targeted consumers, acting reasonably in the circumstances, could be misled.’” Id., 22 (quoting Lavie, 129 Cal. Rptr. 2d at 495). 23 Whether a business practice is deceptive is usually a question of fact not appropriate 24 for decision at the pleading stage. Williams, 552 F.3d at 938-39. However, “if common 25 sense would not lead anyone to be misled, the claim may be disposed of at a motion to 26 dismiss stage.” Moore v. Mars Petcare US, Inc., 966 F.3d 1007, 1018 (9th Cir. 2020). 27 Allegations do not satisfy the reasonable consumer test where the packaging containing the 28 alleged misrepresentation includes disclosures that make the meaning of the alleged 1 misrepresentation clear. Dinan v. San Disk LLC, No. 18-cv-5420-BLF, 2020 WL 364277, 2 at *9 (N.D. Cal. Jan. 22, 2020). 3 III. DISCUSSION 4 Plaintiff does not allege that the front-label statement on the gummy snack package, 5 “Made with Real Fruit Juice*” is false. In her opposition, Plaintiff acknowledges that she 6 does not dispute that the gummy snacks contain pear juice concentrate derived from fruit 7 juice, nor does she contend that juice concentrate ceases to be fruit juice. [Doc. No. 24 at 8 14.] The product is made with pear juice concentrate and therefore does not display an 9 affirmative misrepresentation. 10 This distinguishes this case from Plaintiff’s leading case, Williams, in which the 11 front packaging for a product called “Fruit Juice Snacks” pictured various fruits, suggesting 12 to consumers that those fruits or their juices were contained in the product. In fact, none 13 of the pictured fruits were in the product. The court found reasonable consumers could be 14 deceived by this affirmative misrepresentation. Although the true components of the 15 snacks could have been ascertained by a review of the ingredient list, the court concluded 16 that in light of such deceptive packaging, a manufacturer could not rely on the ingredient 17 list as a “shield for liability for the deception” explaining that a reasonable consumer is not 18 “expected to look beyond misleading representations on the front of the box to discover 19 the truth from the ingredient list in small print on the side of the box.” Williams, 552 F.3d 20 at 939. The Ninth Circuit has subsequently confirmed that Williams stands for the 21 proposition that if the defendant commits an affirmative act of misrepresentation, the 22 presence of fine print revealing the truth is insufficient to dispel that misrepresentation. 23 Ebner, 838 F.3d at 966. 24 The product at issue in the instant case does not display an affirmative 25 misrepresentation. “Made with Real Fruit Juice*” is a factually true statement that plaintiff 26 does not contest. See Hadley v. Kellogg Sales Co., 243 F. Supp. 3d 1074, 1093 (N.D. Cal. 27 2017) (“It is not misleading for a product to state it is made with real fruit when that 28 | ||statement accurately represents that the product contains real fruit and does not 2 || misrepresent the type of fruit the product contains.”’) 3 California consumer protection law, however, prohibits not only advertising which 4 false but also advertising which although true is either actually misleading or which has 5 capacity, likelihood or tendency to deceive or confuse members of the public. Williams, 6 || 552 F.3d at 938. The Plaintiff contends that the statement, while true, implies to consumers 7 the gummy snacks are primarily sweetened with fruit juice, and that the statement is 8 || therefore deceptive. 9 Context, the nature of the product, is important in evaluating the plausibility of her 10 contention that the reasonable consumer would interpret the statement “made with” to 11 ||mean ‘primarily sweetened with.” See e.g., Red v. Kraft Foods, Inc., 2012 WL 5504011, 12 (C.D. Cal. Oct. 25, 2012) (“It strains credulity to imagine that a reasonable consumer 13 |} will be deceived into thinking a box of crackers is healthful or contains huge amounts of 14 || vegetables simply because . . . [the box has] the true phrase “Made with Real Vegetables.”’) 15 || The product at issue is not fruit juice or fruit jerky, products a consumer may reasonably 16 |}assume are primarily composed of fruit. Plaintiff acknowledges that these are “sweet, 17 || fruit-flavored snacks,” not composed primarily of fruit. [Doc. No. 24 at 10.] They are a 18 || processed gummy product, and she acknowledges consumers would expect them to contain 19 added sugars. [/d. at 11.] 20 The statement on the front of the packaging “Made with Real Fruit Juice*” makes 21 representation regarding the amount, predominance or sweetening function of fruit juice 22 the product. It does include a visible asterisk (*) indicating there is additional 23 information on the packaging regarding the fruit juice component. 24 25 26 27 28 1 Asterisks are common in both commerce and elsewhere to denote that the ‘reader’ should be aware that there is more than meets the eye. Because the asterisk calls the consumer’s attention to the fact that there is supplemental 3 information on the package that the consumer should read, it matters less that A the disclosure is allegedly not conspicuous on the package. Once the consumer is directed to look for the disclosure because of the asterisk, he 5 knows to look for it and can find it in the fine print. 6 Dinan, 2020 WL 364277, at *8 (internal cites omitted). Any assumption made by a consumer regarding the nature and function of the fruit 8 juice component of these gummy snacks 1s clarified in the additional nutrition information 9 disclosures on the side of the package. 10 Ingredients: Organic Rice Syrup, 11 Organic Cane Sugar, Organic Tapioca Syrup Solids, Water, Organic Pear 12 *These frut flavored snacks are made with organic hie cmos Pectin Citric Acid, 13 pear juice concentrate, See below for a complete Sodium Citrate, Ascorbic Acid (vitamin 14 list of ingredients, They are not intended to ee nce aa am ta tha di unflower Oil, Organic Color (organic replace fruit or vegetables in the diet, iisek cael ottenis lack caved extracts), Organic Carnauba Wax. Bo a Baa == a 16 Even considering the packaging “as a whole,” as Plaintiff argues the Court must, the 18 Court concludes that a reasonable consumer could not be misled regarding the presence of 19 the organic pear juice concentrate” and its relation to the product’s other sources of 20 sweetness. 21 As Defendant contends, this case is in line with Chuang v. Dr. Pepper Snapple 22 Group, Inc., No. CV17-1875-MWF, 2017 WL 4286577, at *5 (C.D. Cal. Sept. 20, 2017), 23 in which the court dismissed the Plaintiff's FAL, CLRA and UCL claims finding that a 24 25 26 ? Plaintiff has acknowledged that juice concentrate is a form of juice. [Doc. No. 24 at 14.] That juice 27 || concentrate is classified as an “added sugar” by the FDA, does not alter her admission that juice 8 concentrate is a component of the product and that the representation the product contains real fruit juice is true. fe 1 ||reasonable consumer could not be misled regarding the nutritional quality or quantities of 2 || fruit in Mott’s fruit snacks. There was no affirmative misrepresentation on the packaging. 3 || The fruit snacks contained the fruits depicted in the images on the box, and the ingredients 4 || list clearly demonstrated that the products contain more sugar than real fruit and vegetable 5 || juice. Chuang, 2017 WL 4286577, *6. See also Workman v. Plum Inc., 141 F. Supp. 3d 6 || 1032, 1035 (N.D. Cal. 2015) (“One can hardly walk down the aisles of a supermarket 7 without viewing large pictures depicting vegetable or fruit flavors, when the products 8 ||themselves are largely made up of a different base ingredient. Every reasonable shopper 9 || knows that the devil is in the details. Moreover, any potential ambiguity could be resolved 10 || by the back panel of the products, which listed all ingredients in order of predominance.”’). 11 Plaintiff's FAC alleging that the packaging of the Annie’s™ fruit flavored snacks is 12 || likely to mislead a significant portion of the general consuming public, acting reasonably 13 ||in the circumstances, to assume that fruit juice is the primary sweetener of the snack 14 || product does not plausibly state a claim for violation of the alleged California consumer 15 || protection laws. 16 IV. CONCLUSION 17 For the reasons stated above, Defendant General Mill’s motion to dismiss □□□□□□□□□□□ 18 || FAC is GRANTED. This is the Plaintiff's second attempt to state a viable claim that the 19 || Defendant’s packaging violates the California FAL, CLRA and UCL. The Court finds that 20 further attempt to restate the claim, considering the undisputed packaging disclosures, 21 || would be futile so the complaint is dismissed without leave to amend and the case will be 22 closed. 23 It is SO ORDERED. 24 25 || Dated: September 28, 2026 € B 26 Hon. Cathy Ann Bencivengo 27 United States District Judge 28