A recent case in the Northern District of California against Gerber over alleged misbranding of its “stages” baby food products demonstrates the difficulty companies face in knocking out food misbranding cases at the motion to dismiss phase. Bruton v. Gerber Prods. Co., et al., 12-CV-02412-LHK. The lawsuit focuses on Gerber’s product labels, which include phrases such as “Excellent Source,” “Good Source,” “As Healthy As Fresh,” “No Added Sugar” and “100% Natural Fruit,” contending that Gerber is making nutrient and sugar content claims that are prohibited by FDA regulations. 

The complaint asserts the same garden-variety claims that we typically see in these cases—claims under California’s unfair competition, false advertising and warranty laws as well as the federal Magnuson-Moss Warranty Act.

In ruling on Gerber’s motion to dismiss, U.S. District Judge Lucy Koh rejected Gerber’s argument that Plaintiff’s claims are preempted by FDA labeling regulations. In particular, the court declined to extend the Ninth Circuit’s preemption decision in Pom [see our prior discussion here.] to state law claims, finding that:

''“[I]n Pom, the Ninth Circuit limited its ruling to the federal Lanham Act and explicitly declined to address whether plaintiff’s state-law claims were also preempted.”

As we’ve discussed previously, not all courts have limited Pom to the Lanham Act and have found state law claims to be preempted where those claims impose obligations in addition to those set forth in FDA regulations. [See our discussion here.]

Gerber also urged the court to invoke the primary jurisdiction doctrine, arguing that the FDA has primary jurisdiction to undertake enforcement actions and to work directly with food manufacturers to resolve labeling issues. While that argument has had some traction recently with other courts [see our prior posts here and here and here], Judge Koh was “not persuaded”:

“[Plaintiff’s] claims do not appear to raise highly technical issues within the FDA’s expertise. As with so many of the other food misbranding cases filed recently within this district, [Plaintiff’s] case is ‘far less about science than it is about whether a label is misleading. . . . ‘[E]very day courts decide whether conduct is misleading,’ and the ‘reasonable-consumer determination and other issues involved in Plaintiff’s lawsuit are within the expertise of the courts to resolve.’”

Gerber did have success in paring down the lawsuit. Judge Koh threw out the warranty claims, finding that product labels like those at issue in the complaint are not warranties against a product defect. The court also dismissed Plaintiff’s claims that are based on products that she did not purchase because the complaint failed to show that the labels on all of the products in the complaint are “substantially similar” to the products she did purchase. 

Gerber also succeeded in getting claims based on the “all natural” labeling dismissed. Gerber’s labels state that the products are “Made with 100% Natural Fruit.” Plaintiff claims the label is deceptive because the two products Plaintiff purchased with that label contain either citric acid or ascorbic acid (vitamin C) as an ingredient, neither of which, according to Plaintiff, is natural. The court found that argument implausible:

“If Defendants’ labels claimed that the products were ‘100% natural,’ [Plaintiff’s] allegations might be sufficient. However, [Plaintiff] fails to explain why a label claiming that a product is ‘Made with 100% Natural Fruit’ plausibly implies that the entire product—which contains ingredients other than fruit—is free of synthetic ingredients or ingredients not normally expected to be in food. Thus, [Plaintiff] fails to set forth why a reasonable consumer would find Defendants’ labels to be false and misleading.”

Plaintiff has 30 days to file an amended complaint.