A recent, comprehensive decision from the Central District of California lends valuable support to defendants’ ability to pursue pleading challenges and defenses in the context of food labeling class actions. In Fisher v. Monster Beverage Corp., et al., No. EDCV 12-02188-VAP (OPX), Docket Entry 72 (C.D. Cal. Nov. 12, 2013), plaintiffs Alec Fisher, Matthew Townsend, and Ted Cross challenged representations and omissions regarding the amount and health effects of caffeine in Monster-branded energy drinks. Defendant Monster (represented by MoFo litigators Dan Marmalefsky, David McDowell, and Purvi Patel) persuaded the Court that, among other things, plaintiffs’ claims were predicated on non-actionable puffery, were preempted by the Food, Drug, and Cosmetic Act (FDCA) and the Nutrition Labeling and Education Act (NLEA), and were subject to the primary jurisdiction of the Food and Drug Administration (FDA). The Court dismissed plaintiffs’ Second Amended Complaint and terminated the case.
Plaintiffs premised their case on so-called “on-label” and “off-label” claims. They alleged that Monster’s “on-label” representations regarding the energy drinks’ ability to “hydrate like a sports drink,” to “re-hydrate,” and to provide the “ideal combo” of ingredients to deliver a “big bad buzz” were misleading because Monster drinks contain elevated levels of caffeine, which plaintiffs claimed can cause dehydration and other adverse health effects. They also claimed that Monster pursues an “off-label” advertising strategy that targets children and adolescents, and fails to warn those consumers of the increased and allegedly harmful caffeine levels in its energy drinks. Plaintiffs asserted six causes of action, including unfair competition, false advertising, and warranty-based claims.
The Court first considered, and then agreed with, Monster’s argument that the “on-label” statements were not factual representations capable of supporting unfair competition and false advertising claims. The Court reasoned that these statements were “non-actionable puffery” because the concept of hydration “is difficult to measure concretely, and has no discernible meaning in the context of energy drinks or beverages.” The Court’s analysis serves as a valuable reminder that district courts have the ability to decide, at the pleading stage, whether food labels, packaging, and advertisements contain specific representations capable of inducing consumer reliance.
The Court next considered whether the FDCA and the NLEA preempted plaintiffs’ “on-label” claims. Plaintiffs argued against preemption on the grounds they were merely enforcing California state labeling requirements that were identical to federal counterparts. The Court disagreed, concluding that consumer protection claims involving caffeine content and safety were expressly preempted because they sought to impose requirements “not identical” to the FDCA or those required by the FDA. The Court’s holding affirms the viability of express preemption arguments where plaintiffs assert a “state law claim [that] requires a party to go beyond the FDA [labeling] regulations.”
Relatedly, the Court acknowledged the FDA’s jurisdiction over caffeine safety issues and was persuaded that the FDA had primary jurisdiction over all claims related to Monster’s alleged failure to warn or adequately label its energy drinks in relation to caffeine content. The Court held that the primary jurisdiction doctrine controlled because: (i) Congress had vested the FDA with jurisdiction over food labeling and enforcement, issues that “require the FDA’s expertise and uniformity in administration”; (ii) plaintiffs’ claims raised “technical and policy” questions about the quantities and effects of caffeine, an issue which broadly applied not only to Monster, but to the entire energy drink industry; and (iii) the FDA had exhibited a clear “interest in investigating and resolving whether energy drinks, including Monster, contain unsafe levels of caffeine.” At the same time, the Court cautioned that Plaintiffs’ claims might be revived if, in the future, the “FDA cease[d] their investigation and pending regulation of the safety of caffeine in food products and energy drinks.”