Alana Gutierrez v. Kendal Nutricare USA LLC

• Court: District Court, E.D. California
• Decided: September 22, 2025
• Docket: 2:24-cv-02434
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ALANA GUTIERREZ, Case No. 2:24-cv-02434-DC-CSK 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS GRANTING IN 14 KENDAL NUTRICARE USA LLC, PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS 15 Defendant. (ECF No. 15) 16

17 18 Pending before the Court is Defendant Kendal Nutricare USA LLC’s motion to 19 dismiss Plaintiff Alana Gutierrez’s Complaint.1 (ECF No. 15.) Plaintiff brings her claims 20 individually and on behalf of all persons similarly situated. (ECF No. 1.) Pursuant to 21 Local Rule 230(g), the District Judge submitted the motion upon the record and briefs on 22 file. (See ECF Nos. 15, 20, 27, 30.) Also pending before the Court are Defendant’s 23 requests for judicial notice. (See ECF Nos. 16, 17, 21, 22, 29, 28, 31, 32.) 24 For the reasons that follow, the Court RECOMMENDS that the motion to dismiss 25 be GRANTED IN PART and DENIED IN PART. The Court ORDERS that the requests 26

27 1 This matter was referred to the undersigned by the District Judge (ECF No. 38) and proceeds before the undersigned pursuant to 28 U.S.C. § 636, Fed. R. Civ. P. 72, and 28 Local Rule 302(c). 1 | for judicial notice be GRANTED IN PART and DENIED IN PART. 2] i. BACKGROUND 3 A. Factual Background? 4 Plaintiff brings this putative class action individually and on behalf of all persons 5 | similarly situated against Defendant. Compl. 1 (ECF No. 1). Plaintiff is a California 6 || citizen, and Defendant is a limited liability company organized under the laws of the 7 || State of Delaware and headquartered in Boulder, Colorado. /d. 5-6. Plaintiff alleges 8 || Defendant used deceptive and unlawful practices in labeling and marketing their 9 | Kendamil Toddler Drink (“the Product”). /d. 10 The Product is labeled with the intended age for use of the Product, which is 12- 11 | 36 months. /d. J 14. The Product is sold in the baby food aisle in grocery stores, 12 || alongside infant formulas. /d. J 36. Exhibit 2 to Plaintiffs Complaint contains pictures of 13 | the labels for the Product: 14 —

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26 | ° Thesenee Dey rorenins 8 comple a are corsa in the light most favorable to Plaintiff as the non-moving party. Faulkner v. ADT Sec. 27 | Servs., 706 F.3d 1017, 1019 (9th Cir. 2013). However, the Court does not assume the truth of any conclusory factual allegations or legal conclusions. Paulsen v. CNF Inc., 559 28 | F.3d 1061, 1071 (9th Cir. 2009).

1 2 Compl., Exh. 2 at 3-4 (ECF No. 1-2). On the front label, the Product contains the 3 following statements (“Product Statements”): “milk-based powder with iron,” “DHA + 4 ARA,” “WITH HMOs,” and “WITH MFGM.” Id. ¶ 17. The back label of the Product 5 includes the following statements: “MFGM Naturally present in our whole milk,” “HMOs 6 Our unique HMO blend,” “PREBIOTIC With dual GOS + FOS prebiotics,” “IMMUNE 7 SUPPORT Vitamin C,” “BRAIN HEALTH DHA, Iron, Iodine,” and “GROWTH Calcium, 8 Vitamins D + E.” Id. ¶ 18 (emphasis in original). 9 Plaintiff alleges these statements are nutrient content claims, which are unlawful 10 because the Product is intended for children under two years of age. Id. ¶ 34; see id. 11 ¶¶ 38-39. Plaintiff alleges that Defendant misbranded the Product by making nutrient 12 content claims that are “strictly prohibited” by the Food and Drug Administration (“FDA”), 13 and by misleading purchasers into believing that its Product provides physical health 14 benefits in order to induce parents into purchasing the Product. Id. ¶ 37. Plaintiff also 15 alleges the claims on the label mislead reasonable consumers into believing the Product 16 will provide physical health benefits for their children, but the Product is nutritionally and 17 developmentally harmful for children under two years old. Id. ¶¶ 42-43, 58. 18 Plaintiff regularly shops at stores and online retailers where the Product and other 19 baby food products are sold. Id. ¶ 72. Plaintiff purchased the Product from Target 20 locations for her one-year-old child for about three months beginning in February 2024, 21 totaling about two to four cans. Id. ¶¶ 5, 65, 66. Plaintiff viewed the Product’s packaging 22 and advertising prior to first purchasing the Product, and relied on the representations on 23 the packaging that the Product provides physical health benefits for children under two 24 years of age. Id. ¶ 68. Plaintiff states she purchased the product because of the label’s 25 alleged “nutrient content claims,” and paid more money for the Product than she would 26 have paid if the Product did not include these claims. Id. ¶ 70. 27 Plaintiff brings this action as a putative class action on behalf of the following 28 Class: “All persons in the State of California who purchased the Product between 2021 1 and the present”; and the California Consumer Legal Remedies Act (“CLRA”) Sub-Class: 2 “All members of the Class who are ‘consumers’ within the meaning of California Civil 3 Code § 1761(d).” Id. ¶ 74. 4 Plaintiff brings the following claims: (1) violation of the CLRA, Cal. Civ. Code 5 § 1750, et seq., individually and on behalf of the CLRA sub-class; (2) violation of 6 California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code § 17200, et seq., 7 individually and on behalf of the Class; (3) violation of California’s False Advertising Law, 8 Cal. Bus. & Prof. Code § 17500, et seq., individually and on behalf of the Class; 9 (4) common law fraud, deceit, and/or misrepresentation, individually and on behalf of the 10 Class; (5) unjust enrichment, individually and on behalf of the Class; and (6) violation of 11 California’s False Advertising Law, Cal. Bus. & Prof. Code § 17501, individually and on 12 behalf of the Class. 13 B. Procedural Background 14 Plaintiff initiated this action on September 6, 2024 by filing a Complaint. (ECF No. 15 1.) On October 21, 2024, the Court granted the parties’ stipulation for an extension of 16 time for Defendant to respond to the Complaint and proposed briefing schedule for an 17 anticipated motion to dismiss. (ECF Nos. 8, 9.) On December 10, 2024, Defendant filed 18 a motion to dismiss. (See ECF Nos. 15, 20, 27.) Plaintiff filed an opposition on January 19 10, 2025 (ECF No. 20) and Defendant filed a reply on January 31, 2025 (ECF No. 27). 20 On the same day, Defendant filed a request for judicial notice in support of its motion to 21 dismiss. (ECF No. 16.) On December 30, 2024 and January 13, 2025, Defendant filed 22 corrected exhibits included in the request for judicial notice. (ECF Nos. 17, 22.) Plaintiff 23 partially opposed the request for judicial notice, and Defendant filed a reply. (ECF Nos. 24 21, 29.) On January 31, 2025, Defendant filed a supplemental request for judicial notice 25 in support of its reply to the motion to dismiss. (ECF No. 28.) Plaintiff opposed the 26 supplemental request for judicial notice. (ECF No. 31.) 27 On February 7, 2025, the District Judge vacated the pending hearing pursuant to 28 Local Rule 230(g). (ECF No. 30.) On August 1, 2025, the District Judge referred this 1 motion to the undersigned for issuance of findings and recommendations. (ECF No. 38.) 2 II. LEGAL STANDARDS 3 A. Failure to State a Claim under Rule 12(b)(6) 4 A claim may be dismissed because of the plaintiff’s “failure to state a claim upon 5 which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A complaint fails to state a claim if 6 it either lacks a cognizable legal theory or sufficient facts to support a cognizable legal 7 theory. Mollett v. Netflix, Inc., 795 F.3d 1062, 1065 (9th Cir. 2015). When considering 8 whether a claim has been stated, the court must accept the well-pleaded factual 9 allegations as true and construe the complaint in the light most favorable to the non- 10 moving party. Id. However, the court is not required to accept as true conclusory factual 11 allegations contradicted by documents referenced in the complaint, or legal conclusions 12 merely because they are cast in the form of factual allegations. Paulsen, 559 F.3d at 13 1071. 14 If the court finds that a complaint should be dismissed for failure to state a claim, it 15 has discretion to dismiss with or without leave to amend. Lopez v. Smith, 203 F.3d 1122, 16 1126-30 (9th Cir. 2000). Leave to amend should be granted if it appears possible that 17 the defects in the complaint could be corrected. Id. at 1130-31; see also Cato v. United 18 States, 70 F.3d 1103, 1106 (9th Cir. 1995). 19 B. Judicial Notice 20 When reviewing a motion to dismiss, courts may consider undisputed facts 21 contained in judicially noticeable documents under Federal Rule of Evidence 201 without 22 converting the motion to one for summary judgment. United States v. Ritchie, 342 F.3d 23 903, 908 (9th Cir. 2003). This includes undisputed facts from documents attached to the 24 complaint or those on which the complaint “necessarily relies.” Marder v. Lopez, 450 25 F.3d 445, 448 (9th Cir. 2006); see Harris v. Cnty. of Orange, 682 F.3d 1126, 1132 (9th 26 Cir. 2012) (approving judicial notice of documents from judicial proceedings). 27 III. DISCUSSION 28 Plaintiff brings the following claims: (1) violation of the CLRA, individually and on 1 behalf of the CLRA sub-class; (2) violation of the UCL, individually and on behalf of the 2 Class; (3) violation of California’s False Advertising Law, Cal. Bus. & Prof. Code 3 § 17500, et seq., individually and on behalf of the Class; (4) common law fraud, deceit, 4 and/or misrepresentation, individually and on behalf of the Class; (5) unjust enrichment, 5 individually and on behalf of the Class; and (6) violation of California’s False Advertising 6 Law, Bus. & Prof. Code § 17501, individually and on behalf of the Class. Defendant 7 moves to dismiss the Complaint for failure to state a claim. 8 A. Requests for Judicial Notice 9 Defendant has filed two requests for judicial notice. The first is in support of the 10 motion to dismiss (ECF Nos. 16, 17, 22) and the second is in support of Defendant’s 11 Reply (ECF No. 28). In the first request, Defendant seeks judicial notice of the complete 12 product label for Kendamil Toddler Drink (Exhibit A), the pre-litigation Consumer Legal 13 Remedies Act letter dated July 3, 2024 from Plaintiff’s attorney to Defendant (Exhibit B), 14 and a letter dated August 5, 2024 from an attorney for Defendant to Plaintiff’s attorney, 15 responding to the pre-litigation letter (Exhibit C).3 (ECF Nos. 16, 17, 22.) Defendant 16 seeks judicial notice of the product label and letters because they argue they are not 17 subject to reasonable dispute. Def. First RJN at 1 (ECF No. 16). Defendant also seeks to 18 incorporate each document by reference. Id. Plaintiff opposed Defendant’s request 19 regarding the pre-litigation letter and response, but did not oppose the complete product 20 label. (ECF No. 21.) 21 In the second request, Defendant seeks judicial notice of the complaint filed in 22 Guiterrez v. Abbot Labs., No. 2:24-cv-02427-TLN-SCR (E.D. Cal.) (Exhibit 1); the 23 complaint filed in Garland v. Mead Johnson & Co., 2:24-cv-01168-L-SBC (S.D. Cal.) 24 (Exhibit 2); and the nutrition facts panel and ingredients list from the product label for 25 Kendamil Toddler Drink (Exhibit 3). Def. Second RJN (ECF No. 28). Plaintiff opposed 26 judicial notice of the two complaints, but not of the product label. (ECF No. 31.) 27 3 After filing the first request for judicial notice (ECF No. 16), Defendant filed a corrected 28 Exhibit A (ECF No. 17) and a corrected Exhibit B (ECF No. 22). 1 The Court declines to take judicial notice of the two pre-litigation letters (Exhibits 2 B and C). These letters and their contents are not matters of public records, or facts that 3 are not subject to reasonable dispute. See Fed. R. Evid. 201(b). 4 The Court will take judicial notice of the two complaints (Exhibits 1 and 2) filed in 5 federal court. See Harris, 682 F.3d at 1132 (the court may take judicial notice of 6 documents on file in federal or state courts). Taking judicial notice of these documents 7 does not mean accepting the allegations or facts contained as true. See Khoja v. 8 Orexigen Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018) (“Just because the 9 document itself is susceptible to judicial notice does not mean that every assertion of fact 10 within that document is judicially noticeable for its truth.”). 11 Alternatively, Defendant argues that the Product label and Nutrition Facts panel 12 and ingredients list from the Product label (First RJN Exhibit A and Second RJN Exhibit 13 3) are incorporated into the Complaint by reference where the Complaint relies 14 extensively on the Product label and attaches a portion of the label, but not all of the 15 label attached is visible. Def. First RJN at 2. The Court agrees with Defendant. 16 Incorporation-by-reference is a judicially created doctrine that treats certain documents 17 as though they are part of the complaint itself. Khoja, 899 F.3d at 1002. The doctrine 18 prevents plaintiffs from selecting only portions of documents that support their claims, 19 while omitting portions that may weaken their claims. Id. This doctrine permits a court, 20 when considering a Rule 12(b)(6) motion, to take into account documents “whose 21 contents are alleged in a complaint and whose authenticity no party questions[.]” Knievel 22 v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005) (citation omitted). 23 Here, Plaintiff does not oppose Defendant’s request to incorporate the Product 24 label and Nutrition Facts panel and ingredients list from the Product label (First RJN 25 Corrected Exhibit A and Second RJN Exhibit 3) by reference. (See ECF Nos. 21, 31.) 26 / / / 27 / / / 28 / / / Oe mI EI EES OE REE NE EE ODS Oe

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Def. First RUN, Corrected Exh. A. wae Nutrition Facts About 29 servings per container, 0.72 az 1 5 dry mix [20.3g) makes 5 fl oz as prepared

Amount per serving Calories 100 % Daily Value* 1 6 Total Fat 4g 10% Saturated Fat 2g 20% Trans Polyunsaturated Fat 0.59 1 7 Monounsaturated Fat Cholesterol Smg 2% Sodium 35mg 2% Total Carbohydrate 119 7% Dietary Fiber_Less Than 1g 2% 1 8 Total Sugars 119 Protein 24 15% WiarinD 13ngp be Cac 18g 20 fon img Rotsesum 11Bmg 4% 1 9 Vierin A feirreg RAE 28h Vitamin G Jérg_ 120% Varin 1.39 Thiamin O.img 20% Foofasin Gang (40% @ Nigon Img NE 15% VierinBG O.0img Foul Zamey DFE 15% 20 Vierrin A? 0. tena OK Foie Ad □□□ Fartothenc □□□ Bing J8he □□□ dincg □□□ Precious Sng 20h Varin K 15% ne 07g □□□ amg 12% lode {imog tte Copoe Ctmg 15% Chords 65g Fhe Geerum Song 15% NMengarest’ “The 9 Daly Value tals you hew much a Auenent In @ senting of food contributes ta 22 Getiueknsas Cages teres the aby vtiue ol thes eulnent "Pron nclese

ingredients 2 4 WHOLE MILK®, LACTOSE, S4MMED MILK POWDER. VEGETABLE OILS SUNFLOWER OIL COCONUT OL RAPESEED OID, □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ LESS THAN 2% OF CALCIUM LACTATE, TRI CALCIUM PHOSPHATE. CALCIUM PHOSPHATE, FRUCTD-OLIGOSACCHARIDES. IFOS?, SCHIZOCHYTRIUM SP*. OL, MORTIERELLA ALPINA OlL®. SODIUM ASCORBATE, CALCIUM, CITRATE, IRON PYROPHOSPHATE, POTASSIUM HYDROXIDE NUCLEOTIDES ICYTIDINE- 2 5 5-MONOPHOSPHATE, DISODIUM URIDINE-5'-MONOSHOSPHATE, ADENOSINE-5-MONG- PHOSPHATE, DISODIUM INOSINE-5- MONOPHOSPHATE. DSODIUM GUANOSINE-5-MONC- PHOSPHATE), DL ALPHA TOCOPHERYL ACETATE, NICOTINAMIDE, ZINC SULFATE, CALCIUM PANTOTHENATE, VIAMIN A ACETATE. THIAMINE HYDROCHLORIDE, PYRIDOXINE HYDRO- CHLORIDE, COPPER SULFATE, MANGANESE SULFATE, FOUC ACID’, POTASSIUM IODIDE, RIBOFLAVIN, SODIUM SELENITE, PHYTOMENADIONE, D-BIOTIN, CHOLECALCIFERGL, 26 CYANOCOSALAMIN. CONTAINS MILK. A TYPE OF PREBICTIC AND SOURCE OF HMOS TYPE CF PREBIOTIC 9A PLANT-BASED SOURCE OF ARACHIDONIC ACID (ARA) "A PLANT-BASED SOURCE OF DOCOSAHEMAENOIC ACID IDHA)"A NATURAL SOURCE OF MFGM 94 SOURCE OF FOLATE Def. Second RJN, Exh. 3.

1 Further, Plaintiff discusses the Product label at length in the Complaint and 2 attaches portions of the label to the Complaint. See generally Compl. & Exh. 2. 3 Accordingly, the Court will consider Defendant’s Corrected Exhibit A and Exhibit 34 4 under the doctrine of incorporation-by-reference. See Khoja, 899 F.3d at 1002; Knievel, 5 393 F.3d at 1076. Defendant’s request for judicial notice as to the product label is denied 6 as moot. 7 B. Legal and Regulatory Framework 8 The Federal Food, Drug, and Cosmetic Act (“FDCA”) was enacted in 1983 and 9 prohibits the misbranding of food. See 21 U.S.C. §§ 301, et seq.; McMorrow v. Mondelez 10 Int’l, Inc., 2018 WL 3956022, at *4 (S.D. Cal. Aug. 17, 2018). The FDA enforces the 11 FDCA and develops regulations governing the labeling of food products. Id. Relevant to 12 this case is the regulatory scheme relating to food branding and labeling. The Nutritional 13 Labeling and Education Act (“NLEA”) amended the FDCA to “establish[] uniform food 14 labeling requirements, including the familiar and ubiquitous Nutrition Facts Panel found 15 on most food packages.” Lilly v. ConAgra Foods, Inc., 743 F.3d 662, 664 (9th Cir. 2014). 16 The “NLEA also provides that no state may ‘directly or indirectly establish any 17 requirement for the labeling of food that is not identical’ to the federal requirements.” Id. 18 at 664-65 (quoting 21 U.S.C. § 343-1(a)(5)). 19 The purpose of the NLEA was to “clarify and to strengthen [FDA's] authority to 20 require nutrition labeling on foods, and to establish the circumstances under which 21 claims may be made about the nutrients in foods.” McMorrow, 2018 WL 3956022, at *4 22 (quoting Nat’l Council for Improved Health v. Shalala, 122 F.3d 878, 880 (10th Cir. 23 1997)). The NLEA made several changes to the FDCA. Id. It expanded the coverage of 24 nutrition labeling requirements, changed the form and substance of ingredient labeling 25 on packages, imposed limitations on health claims, and standardized the definitions of

26 4 It appears that the version of RJN Exhibit 3 filed included some highlighting within the 27 PDF file. See Def. Second RJN, Exh. 3. As there is no indication in the RJN that the highlighting is part of the original Nutrition Facts panel and ingredients list portion of the 28 Product label, the Court does not consider the highlighting. 1 all nutrient content claims. Id.; see Lilly, 743 F.3d at 664. 2 Generally, a “nutrient content claim” is a statement that characterizes the level of 3 a nutrient in a food. Howard v. Hain Celestial Grp., Inc., 655 F. Supp. 3d 941, 943 (N.D. 4 Cal. 2023) (citing 21 C.F.R. § 101.13(b)). A nutrient content claim can either be an 5 express or implied claim. An express nutrient content claim is “any direct statement 6 about the level (or range) of a nutrient in the food, e.g., ‘low sodium’ or ‘contains 100 7 calories.’” 21 C.F.R. § 101.13(b)(1). An implied nutrient content claim is any claim that 8 (i) “[d]escribes the food or an ingredient therein in a manner that suggests that a nutrient 9 is absent or present in a certain amount (e.g., ‘high in oat bran’)”; or (ii) “[s]uggests that a 10 food, because of its nutrient content, may be useful in maintaining healthy dietary 11 practices, where there is also implied or explicit information about the nutrition content of 12 the food (e.g., ‘healthy’).” 21 C.F.R. § 101.13(b)(2). 13 The general rule is that nutrient content claims are prohibited on food labels, 14 unless they are authorized by FDA regulations. See Reid v. Johnson & Johnson, 780 15 F.3d 952, 959 (9th Cir. 2015). Authorized nutrient content claims include statements 16 about the amount or percentage of a nutrient that are consistent with the labeling 17 regulations, similar statements that include a disclaimer, or statements that do not 18 characterize the level of a nutrient and are not false or misleading. Id. at 959-60 (citing 19 21 C.F.R. § 101.13(i)). Further, FDA regulations require inclusion of a “nutrition label.” Id. 20 The relevant federal regulation at issue in this case prohibits “nutrient content 21 claims . . . on food intended for use by infants and children less than 2 years of age 22 unless the claim is specifically provided for in parts 101, 105, or 107 of this chapter.” 23 21 C.F.R. § 101.13(b)(3); see Howard, 655 F. Supp. 3d 943 (citing 21 C.F.R. 24 § 101.13(b)(3)). In setting out its reason for the prohibition of nutrient content claims on 25 food intended for use by infants and children less than 2 years of age, the FDA 26 explained that what is good for adults may not be so good for babies. See Food 27 Labeling: Nutrient Content Claims, General Principles, Petitions, Definition of Terms, 28 56 Fed. Reg. 60421, 60424 (Nov. 27, 1991). The FDA pointed to a general agreement 1 among associations of health professionals that fat and cholesterol should not be 2 restricted in the diets of infants. Id. The FDA also said that it lacked evidence that 3 restricting nutrients like sodium or increasing intake of nutrients such as fiber would be 4 beneficial for infants and toddlers. Id. It therefore concluded that until it had such 5 evidence, it was prohibiting nutrient content claims on food products intended for babies 6 under two years old. Id. 7 The Sherman Law, California Health & Safety Code §§ 109875 et seq., explicitly 8 adopts all federal food and nutrition labeling requirements as its own: “All food labeling 9 regulations and any amendments to those regulations adopted pursuant to the federal 10 act, in effect on January 1, 1993, or adopted on or after that date shall be the food 11 labeling regulations of this state.” Cal. Health & Saf. Code § 110100; see Davidson v. 12 Sprouts Foods, Inc., 106 F.4th 842, 846 (9th Cir. 2024) (“Davidson”). Therefore, the 13 federal regulations governing nutrient content claims articulated in 21 C.F.R. § 101.13 14 are the regulations governing nutrient content claims in California. The FDCA does not 15 preempt claims under the Sherman Law because California’s requirements are identical 16 to their federal counterparts. Id. at 850. 17 C. Unfair Competition Law “Unlawful” Claim (Claim 2) 18 Plaintiff alleges Defendant engaged, and continues to engage, in unlawful 19 practices. Compl. ¶ 100. The UCL prohibits “any unlawful, unfair[,] or fraudulent business 20 act or practice.” Cal. Bus. & Prof. Code § 17200. The statute is “violated where a 21 defendant’s act or practice violates any of the [UCL’s] prongs.” Davis v. HSBC Bank 22 Nevada, N.A., 691 F.3d 1152, 1168 (9th Cir. 2012). A plaintiff may pursue a claim under 23 California’s UCL via any or all of three prongs: the “unlawful” prong, which bars 24 practices that are forbidden by any other law; the “unfair” prong, which bars unfair 25 conduct; and the “fraudulent” prong, which bars practices that are likely to deceive the 26 public. In re Toyota RAV4 Hybrid Fuel Tank Litig., 534 F. Supp. 3d 1067, 1100 (N.D. Cal. 27 2021). 28 The unlawful prong of the UCL “‘borrows” violations of other laws and treats them 1 as unlawful practices that are independently actionable. Martinez v. Welk Grp., Inc., 907 2 F. Supp. 2d 1123, 1139 (S.D. Cal. 2012). The unlawful prong includes business 3 practices “forbidden by law, be it civil or criminal, federal, state, or municipal, statutory, 4 regulatory, or court-made.” Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 5 1035, 1043-44 (9th Cir. 2010) (citation omitted). Where a plaintiff cannot state a claim 6 under a “borrowed” law, he or she cannot state a claim under the UCL’s unlawful prong 7 either. See Pellerin v. Honeywell Int’l, Inc., 877 F. Supp. 2d 983, 992 (S.D. Cal. 2012) (“A 8 UCL claim must be dismissed if the plaintiff has not stated a claim for the predicate acts 9 upon which [s]he bases the claim.”). 10 1. Nutrient Content Claims 11 Defendant moves to dismiss on the grounds that the Product Statements are not 12 unlawful “nutrient content claims.” Def. Mot. at 8 (ECF No. 15). 13 There are ten Product Statements that Plaintiff alleges are nutrient content claims: 14 1. “milk-based powder with iron” 15 2. “DHA + ARA” 16 3. “WITH HMOs” 17 4. “WITH MFGM” 18 5. “MFGM Naturally present in our whole milk” 19 6. “HMOs Our unique HMO blend” 20 7. “PREBIOTIC With dual GOS + FOS prebiotics” 21 8. “IMMUNE SUPPORT Vitamin C” 22 9. “BRAIN HEALTH DHA, Iron, Iodine” 23 10. “GROWTH Calcium, Vitamins D + E” 24 See Compl. ¶¶ 38-39 (emphasis in original). 25 First, Defendant contends, and Plaintiff does not appear to dispute, that none of 26 the Product Statements are express nutrient content claims. See Def. Mot. at 10; Pl. 27 Opp’n at 4-5 (ECF No. 20). The Court agrees. None of the Product Statements are 28 express nutrient content claims because they do not provide a “direct statement about 1 the level (or range) of a nutrient in the food.” 21 C.F.R. § 101.13(b)(1). 2 The Court therefore considers whether each of the statements are implied nutrient 3 content claims. Statements that a product contains certain nutrients, without 4 characterizing the amount of nutrients or suggesting that a food has health benefits 5 because of the nutrients are not nutrient content claims. See, e.g., Sanchez v. Nurture, 6 Inc., 626 F. Supp. 3d 1107, 1118 (N.D. Cal. 2022) (“Sanchez I”) (finding on a motion to 7 dismiss that statements that “Omega-3s (ALA) from Chia seeds to help your toddler get 8 the most out of every bite. Here's to a happy & healthy start!” and “Beta-Glucan helps 9 support your tot's immune system. Prebiotic Fiber helps support digestive health. Here’s 10 to a happy & healthy start!” are not nutrient content claims because they describe the 11 function of the nutrient, not the product itself); Krommenhock v. Post Foods, LLC, 2018 12 WL 1335867, at *9 (N.D. Cal. Mar. 18, 2018) (“Krommenhock I”) (finding on motion to 13 dismiss “Digestive Health” not to be an implied nutrient content claim because it does not 14 indicate a specific level of fiber); Ryan v. Good Fat Co. Ltd., 2023 WL 2714933, at *1 15 (N.D. Cal. Mar. 30, 2023) (finding on motion to dismiss that the statement “Love Good 16 Fats” is not a nutrient content claim because it suggests something about the quality of 17 fat, but not the level of fat); Effinger v. Ancient Organics LLC, 657 F. Supp. 3d 1290, 18 1298-99 (N.D. Cal. 2023) (finding on motion to dismiss that the statement “Eat Good Fat” 19 does not suggest the product is “low” in fat, but that the Product has “good” fat, and 20 “regulations apply only to statements about the amount of fat in a product—not the fat’s 21 quality or value”). 22 However, statements that suggest a nutrient is absent, a nutrient is present in a 23 certain amount, or suggest the food may be useful in maintaining healthy dietary 24 practices, are implied nutrient content claims. See, e.g., Garland v. Mead Johnson & 25 Co., 2025 WL 1908401, at *4-5 (S.D. Cal. July 10, 2025) (finding on motion to dismiss 26 that phrases “IMMUNE HEALTH dual prebiotics & Vitamins,” “Supports BRAIN 27 DEVELOPMENT Omega-3 DHA & Iron,” and “22 NUTRIENTS to help support growth” 28 were implied nutrient content claims that “couple the existence of nutrients with some 1 claim that the listed nutrients are helpful for health”); Burton v. Gerber Products Co., 2 2014 WL 172111, at *12 n.7 (N.D. Cal. Jan. 15, 2014) (finding on motion to dismiss that 3 logo, by highlighting certain nutrients, “plausibly intends to convey that those nutrients 4 are present in the product in large enough amounts to merit a mention on the front of the 5 package”); Howard v. Gerber Prods. Co., 2023 WL 2716583, at *1-2 (N.D. Cal. Mar. 29, 6 2023) (“Gerber I”) (finding on motion to dismiss that phrases “Grow Strong,” 7 “Wonderfoods awaken toddler’s love for nutritious foods,” and “Gerber Natural for 8 Toddlers brings the goodness of naturally nutritious fruits selected and made with strict 9 quality standards just for toddlers” were implied nutrient content claims because “Grow 10 Strong” was alongside “2 grams of Protein” and because the statements suggest 11 Gerber’s products are useful in maintaining healthy dietary practices); LeGrand v. Abbott 12 Labs., 655 F. Supp. 3d 871, 888-89 (N.D. Cal. 2023) (finding on motion to dismiss that 13 statements “Immune . . . Muscle . . . Heart . . . Digestion . . . Bone” on the back of 14 packaging were implied nutrient content claims because they were followed by nutrient 15 content, such as “Excellent Source of Zinc, Vitamin A . . .”). 16 Courts also consider the context and proximity of claims in relation to other 17 statements when determining whether a statement is an implied nutrient content claim. 18 See LeGrand, 655 F. Supp. 3d at 888 (“[W]hile the ‘magic words’ that create an implied 19 nutrient claim do not need to be directly adjacent to the discussion of a nutrient to create 20 an implied nutrient content claim, there must be connection given the words, their 21 placement, and their context.”); id. (finding on motion to dismiss that “advanced nutrition 22 shake,” “therapeutic nutrition shake,” “nutrition drink,” and “nutrition powder” on the 23 labels for Ensure products are not nutrient content claims because they are not placed in 24 close enough proximity to the underlying nutrient claims to be considered nutrient 25 content); Broussard v. Dole Packaged Foods, LLC, 2024 WL 1540221, at *8 (N.D. Cal. 26 Apr. 8, 2024); see also Gutierrez v. Abbott Labs., 2025 WL 2307847, at *4 (E.D. Cal. 27 Aug. 11, 2025) (finding on motion to dismiss that phrases “ IMMUNE SUPPORT,” ✓ 28 “ BRAIN DEVELOPMENT,” and “ DIGESTIVE HEALTH,” “DHA, LUTEIN, VITAMIN 1 E,” and “2 servings have: 28 Important Nutrients for Growth and Development” were 2 implied nutrient content claims because they were “close enough in proximity” when 3 “read in connection” to at statement identifying a percentage daily value of certain 4 vitamins). 5 The Court next addresses each Product Statement at issue. 6 a. Product Statement 1: Not Nutrient Content Claim 7 Product Statement 1 is “milk-based powder with iron.” Compl., Exh. 2; Def. First 8 RJN, Corrected Exh. A. The Court finds Statement 1 is not an implied nutrient content 9 claim. This statement merely states that there is iron included in the Product, but does 10 not indicate how much or suggest health benefits because of the nutrients. See 11 Krommenhock I, 2018 WL 1335867, at *9; Effinger, 657 F. Supp. 3d at 1298-99. Further, 12 it is not connected to the back panel and is not used in context with any other 13 Statements. See LeGrand, 655 F. Supp. 3d at 888; Broussard, 2024 WL 1540221, at *8. 14 b. Product Statements 2-4: Not Nutrient Content Claims 15 Product Statements 2-4 are (2) “DHA + ARA”; (3) “WITH HMOs”; and (4) “WITH 16 MFGM.” Compl., Exh. 2; Def. First RJN, Corrected Exh. A. The Court finds these 17 Statements are not implied nutrient content claims because they merely list the nutrient 18 included in the product, and do not include a specific amount of the nutrient or suggest 19 health benefits because of the nutrients. See Krommenhock I, 2018 WL 1335867, at *9; 20 Effinger, 657 F. Supp. 3d at 1298-99. Further, these Statements are on the front label 21 and do not appear connected or intended to be considered in the same context as 22 Statements 8-10 on the back label. See LeGrand, 655 F. Supp. 3d at 888; Broussard, 23 2024 WL 1540221, at *8. 24 c. Product Statements 5-7: Not Nutrient Content Claims 25 Product Statements 5-7 are (5) “MFGM Naturally present in our whole milk”; 26 (6) “HMOs Our unique HMO blend”; and (7) “PREBIOTIC With dual GOS + FOS 27 prebiotics.” Compl., Exh. 2; Def. First RJN, Corrected Exh. A (emphasis in original). The 28 Court finds these Statements are not implied nutrient content claims. These claims do 1 not describe an amount of a nutrient or imply healthy dietary practices. Rather, “MFGM 2 Naturally present in our whole milk,” “HMOs Our unique HMO blend,” and “PREBIOTIC 3 With dual GOS + FOS prebiotics” describe that a nutrient is present in the Product, but 4 do not describe any nutrient quantity or suggest health benefits because of the nutrients. 5 See Krommenhock I, 2018 WL 1335867, at *9; Effinger, 657 F. Supp. 3d at 1298-99. 6 Further, these Statements are included in a separate graphic and do not appear 7 intended to be considered in the same context as statements 8-10. See LeGrand, 655 F. 8 Supp. 3d at 888; Broussard, 2024 WL 1540221, at *8. 9 d. Product Statements 8-10: Implied Nutrient Content Claims 10 Product Statements 8-10 are (8) “IMMUNE SUPPORT Vitamin C”; (9) “BRAIN 11 HEALTH DHA, Iron, Iodine”; and (10) “GROWTH Calcium, Vitamins D + E.” Compl., 12 Exh. 2; Def. First RJN, Corrected Exh. A (emphasis in original). The Court finds these 13 Statements are implied nutrient content claims. Each Statement suggests the product is 14 useful in maintaining healthy dietary practices, and are connected to a nutrient. See 15 Garland, 2025 WL 1908401, at *4-5; Burton, 2014 WL 172111, at *12 n.7; Gerber I, 16 2023 WL 2716583, at *1-2; LeGrand, 655 F. Supp. 3d at 888-89. “Immune Support” is 17 right above “Vitamin C,” “Brain Health” is right above “DHA, Iron, and Iodine,” and 18 “Growth” is right above “Calcium, Vitamins D + E.” All three phrases are included in the 19 same graphic on the Product. All three phrases also include a plus sign connected to the 20 phrase “Supports normal immune function, cognitive function and physical growth,” 21 which is right next to the graphic. These phrases are placed close enough in proximity 22 on the Product that they are read together. See LeGrand, 655 F. Supp. 3d at 888-89. 23 Further, the phrases “immune support,” “brain health,” and “growth” are all terms that 24 suggest healthy dietary practices.5 Therefore, Product Statements 8-10 are implied

25 5 Plaintiff also argues that to the extent these Product Statements are ambiguous, they 26 should be considered with the ingredient list and back label. Pl. Opp’n at 5. Because the Court finds these Statements are implied nutrient content claims, the Court declines to 27 address this argument. The Court notes, however, that it does not appear the cases Plaintiff cited support this argument as neither discuss nutrient content claims. See id. 28 (citing Zimmerman v. L’Oreal USA, Inc., 2023 WL 4564552 (N.D. Cal. July 17, 2023) and 1 nutrient content claims. 2 e. Structure/Function Argument 3 Defendant also argues the statements at issue are not nutrient content claims but 4 are “structure or function claims” that describe the function of the nutrients, and are 5 permitted. Def. Mot. at 12 (citing cases referencing 21 C.F.R. § 101.93). A structure and 6 function claim is permitted on dietary supplement labels, and includes “statements that 7 describe the role of a nutrient or dietary ingredient intended to affect the structure or 8 function in humans or that characterize the documented mechanism by which a nutrient 9 or dietary ingredient acts to maintain such structure or function, provided that such 10 statements are not disease claims[.]” 21 C.F.R. § 101.93(f). In order to make a 11 structure/function claim on a product, a manufacturer must establish three factors: 12 (1) “have substantiation that the statement is truthful and not misleading,” (2) “[t]he 13 statement must contain a prominent disclaimer that the FDA has not evaluated the 14 statement and the product” is not intended to “diagnose, treat, cure, or prevent any 15 disease,” and (3) “[t]he statement itself may not ‘claim to diagnose, mitigate, treat, cure, 16 or prevent” disease.” Greenberg v. Target Corp., 985 F.3d 650, 654 (9th Cir. 2021) 17 (quoting 21 U.S.C. § 343(r)(6)(B)-(C)). 18 Here, Defendant’s structure and function claim fails because it has not argued the 19 Product is a dietary supplement. See Gerber I, 2023 WL 2716583, at *2 n.2 (noting that 20 21 C.F.R. § 101.93(f) applies only to dietary supplements); see also Krommenhock v. 21 Post Foods, LLC, 334 F.R.D. 552, 571 n.14 (N.D. Cal. 2020) (“Krommenhock II”) (noting 22 a structure/function claim is “differently regulated” than an implied nutrient claim); but see 23 Andrade-Heymsfield v. Danone US, Inc., 2019 WL 3817948, at *7 (S.D. Cal. Aug. 14, 24 2019) (finding on motion to dismiss that “nutrients that help maintain healthy bones” is a 25 permissible structure/function claim that describes the role of the nutrient or 26 characterizes the means by which a nutrient acts to maintain such structure or function 27

28 McGinity v. Procter & Gambel Co., 69 F.4th 1093, 1097-99 (9th Cir. 2023)). 1 and noting the FDA interprets structure/function claims consistently across supplements 2 and conventional foods). Even if a structure and function claim were permitted for the 3 Product, Defendant has not attempted to demonstrate that its Product meets the three 4 factors outlined in Greenberg. Accordingly, the Court finds Defendant has not 5 demonstrated that the Product Statements are permissible structure/function claims. 6 f. Conclusion 7 In sum, the Court finds Statements 1-7 are not nutrient content claims and Plaintiff 8 therefore fails to state a UCL unlawful claim as to Statements 1-7. The Court further 9 finds that Plaintiff has sufficiently pled that Statements 8-10 are implied nutrient content 10 claims. Because nutrient content claims are not permitted on food intended for use by 11 infants and children less than 2 years of age, the Product is intended for use for infants 12 and children 12-36 months old, and Plaintiff has sufficiently pled that Statements 8-10 13 are implied nutrient content claims, Defendant’s motion to dismiss should be denied on 14 Plaintiff’s UCL unlawful claim as to Statements 8-10. 15 2. Special Dietary Use 16 21 C.F.R. § 101.13(b)(3) states that with some exceptions, “no nutrient content 17 claims may be made on food intended specifically for use by infants and children less 18 than 2 years of age unless the claim is specifically provided for in parts 101, 105, or 19 107[.]” Defendant argues that if the Product Statements are nutrient content claims, they 20 are not prohibited by 21 C.F.R. § 101.13(b)(3) because they are claims included in part 21 105, which is an exception. Def. Mot. at 13. Section 101.13(b)(3) also excludes claims 22 provided for in parts 101 and 107, but Defendant does not make any argument relating 23 to these parts. See Def. Mot. Plaintiff argues that the Product is not exempt, and this 24 argument is for the trier of fact. Pl. Opp’n at 7-8. Plaintiff states Defendant did not identify 25 any dietary need in its motion. Plaintiff also argues that Defendant’s Product targets 26 babies, toddlers, and infants aged 12-36 months, which creates an ambiguity as to 27 which age group it is targeting and whether a dietary need actually exists. Id. 28 Part 105 includes 21 C.F.R. § 105.3, which is a definition section. Section 1 105.3(a)(1) defines “special dietary uses” as particular uses of foods, including “[u]ses 2 for supplying particular dietary needs which exist by reason of age, including but not 3 limited to the ages of infancy and childhood”; and “[u]ses for supplementing or fortifying 4 the ordinary or usual diet with any vitamin, mineral, or other dietary property. Any such 5 particular use of a food is a special dietary use, regardless of whether such food also 6 purports to be or is represented for general use.” 21 C.F.R. § 105.3(a)(1)(ii), (iii). But 7 section 105.3(a)(1) does not discuss a specific claim, rather it defines the term “special 8 dietary uses.” Neither party cites any case law supporting their respective arguments. 9 See Def. Mot. at 13-14; Pl. Opp’n at 7-8. Accordingly, the Court finds Defendant’s 10 argument fails on this ground. 11 3. First Amendment Argument 12 Defendant argues if the FDA regulations were interpreted to prohibit Defendant 13 from identifying nutrients present in the Product, such an interpretation would violate the 14 First Amendment. Def. Mot. at 14-15. Plaintiff argues in opposition that the Product 15 Statements concern unlawful activity and are misleading. Pl. Opp’n at 8-9. Further, 16 Plaintiff argues that determining whether the Product Statements are misleading is a 17 factual dispute not to be resolved through a motion to dismiss. Id. at 9. 18 The premise for Defendant’s First Amendment argument is not present because 19 the Court has not interpreted FDA regulations to prohibit Defendant from identifying 20 nutrients present in the Product. See Def. Mot. at 14-15. The Court therefore does not 21 further examine this argument. The Court also notes that it found Statements 1-7 22 described that certain nutrients were present in the Product and were not implied nutrient 23 content claims. 24 4. Fortification Policy 25 The Complaint states that the FDA explicitly regulates certain nutrient content 26 claims, such as “more” claims, and where a claim is based on a nutrient that has been 27 added to a food, the food must comply with the FDA’s Fortification Policy. Compl. ¶¶ 24- 28 25. “A relative claim using the terms ‘more,’ ‘fortified,’ ‘enriched,’ ‘added,’ ‘extra,’ and 1 ‘plus’” may be used only if it is in keeping with the FDA fortification policy. 21 C.F.R. 2 § 101.54(e)(1). 3 Defendant argues in a footnote that Plaintiff does not allege any of the Product 4 Statements are unlawful “more” claims. Def. Mot. at 13 n.3. Defendant argues that the 5 Product Statements cannot be “more” claims because they do not use any of the 6 specified terms. Id. Plaintiff argues in opposition that the terms “our” and “unique” are 7 unlawful “more” claims. Pl. Opp’n at 6. Plaintiff further argues that the Product’s label 8 clearly says “enriched” above the “our” and “unique” blends to show that the contents 9 have been enriched. Id. 10 The Court agrees with Defendant. Despite Plaintiff’s arguments to the contrary, 11 the Complaint does not allege that the Product Statements are unlawful “more” claims. 12 Including a description of unlawful “more” claim in the background section of the 13 Complaint describing regulations is not sufficient to allege an unlawful “more” claim. See 14 Compl. 15 D. Unfair Competition Law “Unfair” Claim (Claim 2) 16 The Complaint alleges Defendants engaged in unfair practices by “including 17 unlawful nutrient content claims on the Product’s labels and thereby selling Products that 18 were not capable of being sold or held legally and which were legally worthless.” Compl. 19 ¶ 99. A business practice may be “unfair” even if not specifically proscribed by another 20 law. Epic Games, Inc. v. Apple, Inc., 67 F.4th 946, 1000 (9th Cir. 2023). To support a 21 finding of unfairness to consumers, the court uses a balancing test, which “weigh[s] the 22 utility of the defendant’s conduct against the gravity of the harm to the alleged victim.” Id. 23 (citing Progressive W. Ins. Co. v. Super. Ct., 135 Cal. App. 4th 263, 285 (2005)). There 24 is also a “tethering test,” which is applied in competitor cases and therefore, not 25 applicable here. See id. 26 Defendant argues that the unfair claim is duplicative of the unlawful claim. Def. 27 Mot. at 15-16 (citing In re Intel Corp. CPU Marketing, Sales Practices & Prods. Liability 28 Litig., 2023 WL 7211394 (9th Cir. Nov. 2, 2023) (district court properly dismissed unfair 1 claim where allegations were “coextensive” with previously dismissed fraudulent claim)). 2 Defendant also argues that the unfair claim fails under the balancing test because 3 Defendant’s conduct in informing consumers of the nutrients in the Product has utility, 4 and Plaintiff has not alleged any grave harm suffered. Id. at 16. Defendant argues 5 Plaintiff alleged she paid for two to four cans of toddler formula, but has not alleged her 6 child suffered any physical harm. Id. 7 Plaintiff contends in opposition that the Complaint sufficiently pleads that the 8 Product advertises nutrient content claims unlawfully targeting children under two, which 9 violated various laws. Pl. Opp’n at 10-11. Plaintiff argues the injury is “substantial” to all 10 consumers and not outweighed by any benefit. Id. at 11. 11 Here, as set forth above, the Court finds Plaintiff adequately pleads a claim under 12 the “unlawful” prong of the UCL for Statements 8-10. The Court therefore similarly finds 13 Plaintiff adequately establishes a claim under the unfair prong. Accordingly, Defendant’s 14 motion to dismiss Plaintiff’s unfair UCL claim should be denied. 15 E. Fraud-Based Claims (Claims 1, 2, 3, 4) 16 Plaintiff alleges several claims grounded in fraud, including the CLRA (claim 1), 17 False Advertising Law (claim 3), the “fraudulent” prong of the UCL (claim 2), and 18 common law fraud claims (claim 4). Compl. ¶¶ 81-95, 101, 112-32. Defendant moves to 19 dismiss these claims, arguing Plaintiff fails to plead her claims with particularity as 20 required by Federal Rule of Civil Procedure 9(b) and that reasonable consumers are not 21 misled by the Product Statements. Def. Mot. at 17-21. 22 1. Legal Standards 23 A claim of fraud “must state with particularity the circumstances constituting 24 fraud.” Fed. R. Civ. P. 9(b). To plead fraud with the particularity required by Rule 9(b), a 25 complaint “must identify the who, what, when, where, and how of the misconduct 26 charged, as well as what is false or misleading about the purportedly fraudulent 27 statement, and why it is false.” Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 964 (9th 28 Cir. 2018) (“Kimberly-Clark Corp.”) (citation omitted); see Haley v. Macy’s, Inc., 263 F. 1 Supp. 3d 819, 824 (N.D. Cal. 2017) (stating a plaintiff must “allege with specificity what 2 products they purchased, on what statements they relied in making those purchases, 3 and why those statements were false or misleading.”). Rule 9(b)’s heightened pleading 4 standard applies to UCL, False Advertising Law, and CLRA causes of action that are 5 grounded in fraud. LeGrand, 655 F. Supp. 3d at 895. Because the same standard for 6 fraudulent activity governs the three statutes, courts often analyze the three statutes 7 together. See Hadley v. Kellogg Sales Co., 243 F. Supp. 3d 1074, 1089 (N.D. Cal. 8 2017). 9 California’s False Advertising Law and the CLRA prohibit false or misleading 10 advertising. Specifically, the False Advertising Law prohibits the dissemination of any 11 statement concerning property or services “which is untrue or misleading, and which is 12 known, or which by the exercise of reasonable care should be known, to be untrue or 13 misleading.” Cal. Bus. & Prof. Code § 17500. 14 The CLRA prohibits certain “unfair methods of competition and unfair or deceptive 15 acts or practices undertaken by any person in a transaction intended to result or which 16 results in the sale or lease of goods or services to any consumer[.]” Cal. Civ. Code 17 § 1770(a). One practice proscribed by the CLRA is “[r]epresenting that goods or services 18 are of a particular standard, quality, or grade . . . if they are of another.” Id. § 1770(a)(7). 19 The elements for a general fraud cause of action under California law are: 20 “(a) misrepresentation (false representation, concealment, or nondisclosure); 21 (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; 22 (d) justifiable reliance; and (e) resulting damage.” Kearns v. Ford Motor Co., 567 F.3d 23 1120, 1126 (9th Cir. 2009) (citing Engalla v. Permanente Med. Group, Inc., 15 Cal.4th 24 951, 974 (1997)). 25 The standard for claims under the UCL, False Advertising Law, and CLRA is the 26 “reasonable consumer” test, which requires a plaintiff to show that members of the public 27 are likely to be deceived by the business practice or advertising at issue, or that “the 28 product labeling and ads promoting the products have a meaningful capacity to deceive 1 consumers.” See McGinity, 69 F.4th at 1097; Williams v. Gerber Prod. Co., 552 F.3d 2 934, 938 (9th Cir. 2008). The California Supreme Court has recognized that the UCL, 3 False Advertising Law, and CLRA prohibit explicitly false advertising and advertising that 4 is “either actually misleading[,] or which has the capacity, likelihood[,] or tendency to 5 deceive or confuse the public.” McGinity, 69 F.4th at 1097 (citing Kasky v. Nike, Inc., 27 6 Cal. 4th 939, 951 (2002)). This “reasonable consumer” test “requires more than a mere 7 possibility that the label might conceivably be misunderstood by some few consumers 8 viewing it in an unreasonable manner.” Id. (internal quotation marks and citations 9 omitted). Rather, it “requires a probability that a significant portion of the general 10 consuming public or of targeted consumers, acting reasonably under the circumstances, 11 could be misled.” Id. (internal quotation marks and citations omitted). 12 The Ninth Circuit has also noted that whether a practice is deceptive “is an issue 13 of fact not generally appropriate for decision on a motion to dismiss” and that it is a “rare 14 situation in which granting a motion to dismiss is appropriate[.]” LeGrand, 655 F. Supp. 15 3d at 890 (citing Williams, 552 F.3d at 938-39). 16 2. Analysis 17 Plaintiff appears to put forth two theories of fraud in the Complaint. The first theory 18 is that the Product Statements are alleged nutrient content claims that mislead 19 consumers into believing the Product provides physical health benefits for children under 20 two years of age, when the Product is actually harmful both nutritionally and 21 developmentally. See Compl. ¶¶ 2, 19, 37, 41, 42, 43, 51, 52, 54, 58, 89, 101, 103, 115, 22 116; see also Pl. Opp’n at 17. The second theory is that the Product confuses 23 consumers as to the intended age group. See Compl. ¶¶ 14, 35, 36, 42, 44; see also Pl. 24 Opp’n at 17. 25 Defendant argues that Plaintiff’s fraud-based claims are insufficient because they 26 were not pled with particularity and that reasonable consumers would not be misled by 27 the Product. Def. Mot. at 18-21. The Court finds Plaintiff has adequately pled the who 28 (Defendant), when (3 months beginning in February 2024), and where (at Target) of the 1 misconduct charged. See Kimberly-Clark, Corp., 889 F.3d at 964. However, Plaintiff has 2 not sufficiently pled the “how” or “what is false or misleading about the purportedly 3 fraudulent statement, and why it is false.” Id. 4 a. Product Statements Are Not Misleading 5 Defendant first argues that Plaintiff’s allegations of fraud are similar to claims 6 rejected by the Ninth Circuit in Davidson. Def. Mot. at 18 (citing Davidson, 106 F.4th 7 842). Plaintiff argues that Davidson does not apply. Pl. Opp’n at 13-14. 8 In Davidson, “the essence of plaintiffs’ fraud-based claims is that Sprout’s labels 9 misled consumers into believing the products provided health benefits to children under 10 two when the products were in fact nutritionally and developmentally harmful.” Davidson, 11 106 F.4th at 852. The Ninth Circuit explained that the district court found plaintiffs had 12 sufficiently alleged the misstatement—“that the nutrient content claims imply that the 13 products provide health benefits for babies”—but plaintiffs failed to sufficiently alleged 14 why this implied message was false, “i.e., that the products were in fact harmful.” Id. at 15 853. 16 Like Davidson, Plaintiff alleges the statements are misleading because they claim 17 to provide health benefits, when in fact they are harmful. See Compl. ¶¶ 2, 19, 37, 41, 18 42, 43, 51, 52, 54, 58, 89, 101, 103, 115, 116; Davidson, 106 F.4th at 853. Other courts 19 in the Ninth Circuit have also recently applied Davidson to find that similar allegations 20 failed to state a fraud claim. See, e.g., Garland, 2025 WL 1908401, at *3; Sanchez I, 626 21 F. Supp. 3d at 1119; Howard v. Gerber Prods. Co., 2024 WL 5264036, at *1 (N.D. Cal. 22 Dec. 31, 2024) (“Gerber II”). 23 Though Plaintiff alleges that the Product is harmful to children, she does not 24 sufficiently allege what that harm is. For example, the Complaint alleges that the FDA 25 Guidelines recommend that children younger than age two completely avoid foods and 26 beverages with added sugars, and Defendant’s Product has eight grams of added sugar. 27 Compl. ¶ 53. The Ninth Circuit in Davidson and other courts have rejected a similar 28 argument where the plaintiffs did not explain at what level sugars become harmful or 1 why levels of sugar in these products could cause harm. See Davidson, 106 F.4th at 2 853; see also Garland, 2025 WL 1908401, at *3; Sanchez v. Nurture, Inc., 2023 WL 3 6391487, at *7 (N.D. Cal. Sept. 29, 2023) (“Sanchez II”) (“[M]any courts in this district 4 have rejected theories of fraud where Plaintiffs alleged the presence of added sugars 5 rendered a general health-related claim fraudulent.”) (citing cases); Gerber II, 2024 WL 6 5264036, at *1. Here, Plaintiff has not alleged at what level added sugar becomes 7 harmful or why levels of sugar in the Product could cause harm. See Compl. 8 The Complaint also cites to many federal regulations to support allegations of 9 harm. See Compl. ¶¶ 44-63. Courts in the Ninth Circuit have found that relying on FDA 10 regulations alone is insufficient to meet the Rule 9(b) pleading standard. See Garland, 11 2025 WL 2025 WL 1908401, at *3; Trazo v. Nestlé USA, Inc., 2013 WL 4083218, at *10 12 (N.D. Cal. Aug. 9, 2013); Gerber II, 2024 WL 5264036, at *3. Plaintiff must allege how 13 the statements would be false or misleading to a reasonable consumer, which she has 14 failed to do. See Davidson, 106 F.4th at 853; Garland, 2025 WL 1908401, at *3; see also 15 Sanchez II, 2023 WL 6391487, at *5. 16 b. Product Is Not Confusing About The Intended Age 17 As to Plaintiff’s second theory of harm that it is unclear who the intended age 18 group for the Product is, Plaintiff has similarly failed to sufficiently allege how the 19 statements are misleading or harmful to a reasonable consumer. In the Complaint, 20 Plaintiff alleges that the Product is intended for ages 12-36 months and is located in the 21 baby food aisle alongside infant formulas. Compl. ¶¶ 14, 35, 36, 42, 44. Plaintiff alleges 22 the FDA has warned that nutrient content claims could be misleading, especially in the 23 context of children under two because there are different recommended daily nutrient 24 intakes for children 0-12 months, 1-3 years, and 4 years and above. Id. ¶ 44. Plaintiff 25 also argues the label is misleading because it states the Product is a “toddler drink” in 26 one part, for infants aged “12-36 months”, and provides instructions for “babies.” Pl. 27 Opp’n at 14. Plaintiff also argues that the “Product cannot assert it is supported by 28 evidence of health benefits for one age group, toddlers, when it also targets babies, a 1 different age group.” Id. at 14-15. Plaintiff further states that the label is inherently 2 misleading because it targets babies and infants under two, but is labeled for up to 36 3 months. Id. at 15. Defendant argues in Reply that this is a new theory of 4 misrepresentation not pled in the Complaint. Def. Reply at 12. 5 Plaintiff has not sufficiently alleged with particularity how the statements on the 6 label or location of the Product in the baby food aisle are misleading about the intended 7 age of the Product or harmful to a reasonable consumer. Merriam-Webster Dictionary 8 defines “toddler” as “a young child usually between one and three years old.” Merriam- 9 Webster, https://www.merriam-webster.com/dictionary/toddler (last visited Sept. 15, 10 2025). The Product itself clearly lists the intended age as 12-36 months, which is the 11 definition of toddler. Synonyms of toddler include “baby.” Merriam-Webster, 12 https://www.merriam-webster.com/thesaurus/toddler (last visited Sept. 15, 2025). “Baby” 13 is defined as “an extremely young child.” Merriam-Webster, https://www.merriam- 14 webster.com/dictionary/baby (last visited Sept. 15, 2025). It is unclear how a reasonable 15 consumer would be confused about the intended age of the Product when the Product 16 clearly states the age is 12-36 months. Further, Plaintiff alleges that the Product is sold 17 in the baby food aisle, but has not alleged that Defendant had any control over the 18 Product placement in a retail store or why this placement would be misleading. Plaintiff 19 has failed to sufficiently allege how the Product is misleading to a reasonable consumer 20 about the intended age. 21 Accordingly, Plaintiff has failed to plead her fraud-based claims with particularity, 22 and her claims should be dismissed with leave to amend to the extent Plaintiff can allege 23 additional facts to support her fraud claims. See Lopez, 203 F.3d at 1126-30. 24 F. Unjust Enrichment (Claim 5) 25 Defendant moves to dismiss the unjust enrichment claim because it is generally 26 not recognized as a standalone cause of action under California law. Def. Mot. at 16-17. 27 Plaintiff argues that unjust enrichment is not duplicative and is permitted by law. Pl. 28 Opp’n at 11. 1 The Ninth Circuit and the California Supreme Court have construed California law 2 to permit a cause of action for unjust enrichment through quasi-contract. See Russell v. 3 Walmart, Inc., 680 F. Supp. 3d 1130, 1132-33 (N.D. Cal. 2023) (citing ESG Cap. 4 Partners, LP v. Stratos, 828 F.3d 1023 (9th Cir. 2016) and Hartford Casualty Ins. Co. v. 5 J.R. Marketing, L.L.C., 61 Cal.4th 988 (2015)); Astiana v. Hain Celestial Grp., Inc., 783 6 F.3d 753, 762 (9th Cir. 2015) (quoting Rutherford Holdings, LLC v. Plaza Del Rey, 223 7 Cal. App. 4th 221, 231 (2014)); see Burton v. Gerber Prods. Co., 703 F. App’x 468, 470 8 (9th Cir. 2017) (holding the district court erred when it dismissed plaintiff’s unjust 9 enrichment claim, and acknowledging California law allowed an independent claim for 10 unjust enrichment to proceed). To allege unjust enrichment as an independent cause of 11 action, “a plaintiff must show that a defendant received and unjustly retained a benefit at 12 the plaintiff's expense.” Russell, 680 F. Supp. 3d at 1133. 13 Here, Defendant does not otherwise address Plaintiff’s unjust enrichment claim 14 besides arguing that it is not a standalone cause of action. Because the Court finds 15 Plaintiff can bring an unjust enrichment claim as discussed above, Defendant’s motion to 16 dismiss should be denied on this ground. 17 G. Former Price Advertising Claim (Claim 6) 18 In her sixth cause of action, Plaintiff brings a claim under California’s False 19 Advertising Law, California Business and Professions Code § 17501, which prohibits a 20 business from advertising the price of a product as its former price unless certain 21 conditions are met. See Compl. ¶¶ 139-147. Defendant contends the Complaint fails to 22 plead any allegations regarding the former price of the Product. Def. Mot. at 21-22. 23 Plaintiff concedes there is a “scrivener’s error” in the Complaint and that she “should 24 have listed the code section as Bus. & Prof. Code § 17500, not § 17501. Pl. Opp’n at 23- 25 24. In its reply, Defendant argues that Plaintiff already alleges a § 17500 claim in her 26 third cause of action. Def. Reply at 14 (citing Compl. ¶¶ 112-23). Defendant is correct. 27 The Court finds that even if Plaintiff did not make an error and brought a claim under 28 § 17500, this claim would be redundant of the third claim under § 17500. Therefore, the 1 motion to dismiss Plaintiff’s sixth claim under § 17501 should be granted without leave to 2 amend. 3 H. Injunctive Relief 4 Defendant argues Plaintiff does not have standing to seek injunctive relief 5 because she has not made plausible allegations that she will purchase the Product 6 again. See Def. Mot. at 22-23. In opposition, Plaintiff argues this question should be 7 resolved with Plaintiff’s anticipated motion for class certification. Pl. Opp’n at 24. 8 A plaintiff must have standing to seek injunctive relief. See Kimberly-Clark Corp., 9 889 F.3d at 967. A previously deceived consumer may have standing to seek an 10 injunction against false advertising or labeling, even though the consumer now knows or 11 suspects that the advertising was false at the time of the original purchase, because the 12 consumer may suffer an “actual and imminent, not conjectural or hypothetical threat of 13 harm.” Id. at 969. Examples of a threat of further harm may be “the consumer’s plausible 14 allegations that she will be unable to rely on the product’s advertising or labeling in the 15 future, and so will not purchase the product although she would like to” or “the 16 consumer’s plausible allegations that she might purchase the product in the future, 17 despite the fact it was once marred by false advertising or labeling, as she may 18 reasonably, but incorrectly, assume the product was improved.” Id. at 969-70. 19 Here, Plaintiff alleges that she purchased the Product for her child when he was 20 one year old, and bought approximately two to four cans of the Product in total beginning 21 in February 2024 for about three months. Compl. ¶¶ 65-66. Plaintiff alleges if Defendant 22 had not “unlawfully and misleadingly labeled the Product, Plaintiff would not have 23 purchased it or, at minimum, would have paid less for the Product.” Id. ¶ 71. However, 24 Plaintiff does not allege that she purchased the product after the three month period. 25 See Compl. She also does not plausibly allege or argue that she would like to purchase 26 the Product again in the future but was unable to rely on the Product’s advertising of 27 labeling and so will not purchase the Product. See Kimberly-Clark Corp., 889 F.3d at 28 969-70. Further, Plaintiff has not plausibly alleged or argued that she might purchase the 1 Product in the future, as she may reasonably assume the Product was improved. See id. 2 Accordingly, the Court finds Plaintiff fails to allege any actual or imminent future harm, 3 and Plaintiff’s claim for injunctive relief should be dismissed with leave to amend. See 4 Gutierrez, 2025 WL 2307847, at *13. 5 IV. CONCLUSION 6 In conclusion, IT IS HEREBY ORDERED that: 7 1. Defendant’s first request for judicial notice (ECF No. 16) is DENIED, and 8 Corrected Exhibit A (ECF No. 17) is incorporated by reference; and 9 2. Defendant’s second request for judicial notice (ECF No. 28) is GRANTED 10 in part as to Exhibits 1 and 2, and DENIED as to Exhibit 3. Exhibit 3 is 11 incorporated by reference. 12 Further, based upon the findings above, it is RECOMMENDED: 13 1. Defendant’s motion to dismiss (ECF No. 15) be GRANTED in part and 14 DENIED in part as follows: 15 a. Defendant’s motion to dismiss Plaintiff’s California Unfair 16 Competition Law (“UCL”) unlawful claim (Claim 2) is GRANTED as 17 to Statements 1-7 and DENIED as to Statements 8-10; 18 b. Defendant’s motion to dismiss Plaintiff’s UCL unfair claim (Claim 2) 19 is DENIED; 20 c. Defendant’s motion to dismiss Plaintiff’s fraud-based claims (UCL 21 fraudulent prong, California Legal Remedies Act claim, California’s 22 False Advertising Law claim, Cal. Bus. & Prof. Code § 17500 et 23 seq., and common law fraud) (Claims 1-4) is GRANTED with leave 24 to amend; 25 d. Defendant’s motion to dismiss Plaintiff’s unjust enrichment claim 26 (Claim 5) is DENIED; 27 e. Defendant’s motion to dismiss Plaintiff’s California False Advertising 28 Law claim, Cal. Bus. & Prof. Code § 17501, (Claim 6) is GRANTED 1 without leave to amend; 2 f. Defendant's motion to dismiss Plaintiff's request for injunctive relief 3 is GRANTED with leave to amend; 4 2. If Plaintiff chooses to amend her Complaint, she shall have 30 days from 5 the adoption of these findings and recommendations to file an amended 6 Complaint as provided in these findings and recommendations; and 7 3. lf Plaintiff elects to file an amended complaint, it should be titled “First 8 Amended Complaint” with reference to the appropriate case number. An 9 amended complaint must be complete in itself without reference to any 10 prior pleading. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967); E.D. Cal. 11 Local Rule 220. If Plaintiff elects not to file an amended complaint, her 12 current Complaint will proceed on the following claims: violation of the 13 UCL’s unlawful prong and unfair prong as to Product Statements 8-10 14 (Claim 2); and unjust enrichment (Claim 5). 15 These findings and recommendations are submitted to the United States District 16 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 17 | 14 days after being served with these findings and recommendations, any party may file 18 | written objections with the Court and serve a copy on all parties. This document should 19 | be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any 20 | reply to the objections shall be served on all parties and filed with the Court within 14 21 | days after service of the objections. Failure to file objections within the specified time 22 | may waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 23 | 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 24 25 || Dated: September 22, 2025 C iy S \U 26 CHI SOO KIM 7 UNITED STATES MAGISTRATE JUDGE 28 5, guti.2434.24 30