A federal court in California has dismissed a number of claims with prejudice in the second amended complaint filed on behalf of a putative class alleging that the promotion of various snack products made by Procter & Gamble Co. and Kellogg Co. is false and misleading. Samet v. Procter & Gamble Co., No.12-1891 (U.S. Dist. Ct., N.D. Cal., San Jose Div., order entered December 10, 2013). The complaint challenges “0g Trans Fat,” “evaporated cane juice (ECJ),” “healthy and wholesome,” and “fortification” claims for snack chips, riblets and mixed berry snacks. The plaintiffs also bring slack-fill claims that survive.

The court will allow “0g Trans Fat” claims to proceed, finding the allegations sufficient, but dismissed them with prejudice as to Pringles chip products that are “reduced fat” or sold in 100-calorie packs, finding that they have “insufficient fat content to require the disclosure in question.” The court also dismissed with prejudice causes of action based on “healthy” and “wholesome” statements relating to Pringles for twice failing to meet “even the simplest 8(a) pleading standard.” The  plaintiffs apparently relied on Website statements but failed to provide screen shots or information about where on the Websites the statements are made. And the court dismissed with prejudice claims relating to the vitamin fortification of  Kellogg’s Fruity Snacks, finding that applicable federal regulations merely “urge” companies to follow certain guidelines and thus that more stringent state law requirements are preempted.
Still, the court will allow all remaining claims to proceed, disagreeing with the defendants that they were otherwise preempted and finding that certain matters, such as reasonable consumer reliance, were inappropriate for resolution on a motion to dismiss.