Clark v. Nordic Naturals, Inc.

• Court: District Court, N.D. California
• Decided: June 5, 2025
• Docket: 5:24-cv-04058
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 8 DAYNA CLARK, Case No. 24-cv-04058-EKL

9 Plaintiff, ORDER GRANTING IN PART AND 10 v. DENYING IN PART DEFENDANT’S MOTION TO DISMISS 11 NORDIC NATURALS, INC., Re: Dkt. No. 27 Defendant. 12

13 14 This false advertising action arises out of Plaintiff’s purchase of Defendant’s omega-3 fish 15 oil supplements and her allegations that the product labels are false and misleading. Before the 16 Court is Defendant’s motion to dismiss. Mot. to Dismiss, ECF No. 27 (“Mot.”). The Court 17 carefully reviewed the parties’ briefs and heard argument on February 5, 2025. For the following 18 reasons, Defendant’s motion to dismiss is GRANTED as to Count 1 (various state consumer 19 protection acts) and Count 3 (California Consumer Legal Remedies Act). Defendant’s motion to 20 dismiss is DENIED as to Count 2 (California False Advertising Law), Count 4 (California Unfair 21 Competition Law), Count 5 (express warranty), Count 6 (quasi-contract), Count 7 (negligent 22 misrepresentation), and Count 8 (intentional misrepresentation and omission).1 23 I. LEGAL STANDARDS 24 Under Federal Rule of Civil Procedure 12(b)(6), a court must dismiss a complaint if it fails 25 to state a claim upon which relief can be granted. To avoid dismissal, the plaintiff must allege 26 “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 27 1 550 U.S. 544, 570 (2007). A claim is facially plausible when the pleaded facts allow the court “to 2 draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. 3 Iqbal, 556 U.S. 662, 678 (2009). For purposes of a Rule 12(b)(6) motion, the court generally 4 “accept[s] factual allegations in the complaint as true and construe[s] the pleadings in the light 5 most favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 6 1025, 1031 (9th Cir. 2008). However, the court need not “assume the truth of legal conclusions 7 merely because they are cast in the form of factual allegations.” Fayer v. Vaughn, 649 F.3d 1061, 8 1064 (9th Cir. 2011) (per curiam) (quoting W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 9 1981)). If the court finds that dismissal pursuant to Rule 12(b)(6) is warranted, the “court should 10 grant leave to amend even if no request to amend the pleading was made, unless it determines that 11 the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 12 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (quoting Doe v. United States, 58 F.3d 494, 497 (9th 13 Cir. 1995)). 14 Under Federal Rule of Civil Procedure 12(b)(1), a court must dismiss a complaint if the 15 court lacks subject matter jurisdiction. Plaintiff must demonstrate Article III standing for each 16 claim and for each form of relief sought. TransUnion LLC v. Ramirez, 594 U.S. 413, 430-31 17 (2021). This requirement applies “regardless of whether the plaintiff sues individually or as a 18 class representative.” See B.K. ex rel. Tinsley v. Snyder, 922 F.3d 957, 967 (9th Cir. 2019). 19 Additionally, where the plaintiff seeks injunctive relief, she must demonstrate that she faces “a 20 substantial risk of future injury.” Murthy v. Missouri, 603 U.S. 43, 68 (2024). 21 II. REQUEST FOR JUDICIAL NOTICE AND INCORPORATION BY REFERENCE 22 Both parties ask the Court to consider extrinsic documents in ruling on Defendant’s motion 23 to dismiss. See Def.’s Req. for Judicial Notice, ECF No. 29 (“Def.’s RJN”); McDonald Decl. 24 (attaching exhibits referenced in Def.’s RJN), ECF No. 28; Donnelly Decl., ECF No. 34-1. Both 25 Defendant’s and Plaintiff’s requests are GRANTED in part and DENIED in part as follows. 26 The Court will consider Defendant’s Exhibits 1 through 7 because they are incorporated by 27 reference in the complaint. McDonald Decl. Exs. 1-7. Plaintiff “refers extensively to the[se] 1 Therapeutics, Inc., 899 F.3d 988, 1002 (9th Cir. 2018). Plaintiff does not oppose the request. 2 With respect to Defendant’s Exhibits 8, 9, 11, 12, and 13, these documents are subject to 3 judicial notice because they are matters of public record made available on government websites. 4 See Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001); Hadley v. Kellogg Sales Co., 5 243 F. Supp. 3d 1074, 1088 (N.D. Cal. 2017) (“Hadley I”). However, the Court will not take 6 judicial notice of facts within these documents that are subject to reasonable dispute. See Lee, 250 7 F.3d at 689 (“A court may take judicial notice of matters of public record. . . . But a court may not 8 take judicial notice of a fact that is subject to reasonable dispute.”). Here, Defendant cites these 9 exhibits for the truth of the facts therein to dispute the sufficiency of Plaintiff’s factual allegations. 10 Judicial notice for this purpose is improper at the pleading stage. Khoja, 899 F.3d at 998-99 11 (“[U]se of extrinsic documents to resolve competing theories against the complaint risks 12 premature dismissals of plausible claims that may turn out to be valid after discovery.”). 13 The Court will not consider Defendant’s Exhibit 10 because it is an unsigned, undated 14 copy of a letter sent to an organization that is not party to this case. McDonald Decl. Ex. 10. This 15 document does not satisfy the requirements for judicial notice. See Fed. R. Evid. 201(b)(2) 16 (limiting judicial notice to facts that “can be accurately and readily determined from sources 17 whose accuracy cannot be reasonably be questioned”). 18 Turning to Plaintiff’s exhibits, the Court will consider Plaintiff’s Exhibits 2, 4, 5, and 6. 19 These exhibits are incorporated by reference because they are identical copies of Defendant’s 20 Exhibits 4, 5, 6, and 7, discussed above. See Donnelly Decl. Exs. 2, 4-6. Plaintiff’s Exhibits 1 21 and 7 are likewise incorporated by reference into the complaint. Id. Exs. 1, 7. However, the Court 22 will not consider Plaintiff’s Exhibits 3, 8, and 9. See Donnelly Decl. Exs. 3, 8-9. Plaintiff did not 23 provide any basis for taking judicial notice of these exhibits, and they are not incorporated by 24 reference. 25 III. DISCUSSION 26 Defendant Nordic Naturals, Inc. (“Defendant”) makes, markets, and sells omega-3 fish oil 27 supplements (the “Products”) in the United States. Compl. ¶ 21, ECF No. 1. Plaintiff alleges that 1 as “for heart, brain, and immune health,” “for cognition, heart health, and immune support,” or 2 other similar phrases. Id. ¶¶ 23-24. 3 At issue in the instant case are the “heart health” claims on Defendant’s Products. Plaintiff 4 alleges that the “heart health” claims are false and misleading because omega-3 fish oil 5 supplements, including Defendant’s Products, are actually harmful to heart health.2 Compl. ¶¶ 16- 6 19; see also McDonald Decl. Exs. 4-7. In support of this theory, Plaintiff specifically alleges that 7 omega-3 supplements have been linked to an increased risk of cardiovascular incident of atrial 8 fibrillation among the general population. Compl. ¶ 19. 9 The Court first addresses whether Plaintiff’s claims are preempted by the Food, Drug, and 10 Cosmetic Act (“FDCA”). Finding that Plaintiff’s claims are not preempted, the Court then 11 considers whether Plaintiff has plausibly stated a claim as to each count of the complaint. 12 A. FDCA Preemption 13 Defendant contends that all of Plaintiff’s claims are preempted by the FDCA because 14 Plaintiff seeks to impose liability on Defendant for making so-called “structure or function” claims 15 that are permitted by the FDCA. Mot. at 1, 5-14. In general terms, a “structure or function” claim 16 “describes the role of a nutrient or dietary ingredient intended to affect” the normal structure or 17 function of the human body or “characterizes the documented mechanism by which a nutrient or 18 dietary ingredient acts to maintain such structure or function.” 21 U.S.C. § 343(r)(6). The parties 19 agree that the “heart health” label claims on Defendant’s Products are “structure or function” 20 claims. Mot. at 5; Opp. at 3, ECF No. 34. 21 The FDCA provides that “structure or function” claims can be made for a dietary 22 supplement “if the manufacturer of the dietary supplement has substantiation that such statement 23 is truthful and not misleading.” 21 U.S.C. § 343(r)(6). The FDCA expressly “preempts state-law 24 requirements for claims about dietary supplements that differ from the FDCA’s requirements.” 25 2 Plaintiff also alleges that omega-3 fish oil supplements have “no effect on heart health” and 26 therefore they “do[] not support a healthy heart,” directly contradicting the representations on Defendant’s Products. Compl. ¶ 26; see also id. ¶¶ 1, 3, 6. For the reasons discussed below, the 27 Court finds that Plaintiff adequately alleges her “harmful to heart health” theory. Accordingly, the 1 Kroessler v. CVS Health Corp., 977 F.3d 803, 808 (9th Cir. 2020) (quoting Dachauer v. NBTY, 2 Inc., 913 F.3d 844, 848 (9th Cir. 2019)). However, the FDCA does not preempt plaintiffs from 3 challenging structure or function claims where plaintiffs plausibly allege that the claim is false or 4 misleading. Kroessler, 977 F.3d at 814. 5 To avoid FDCA preemption, Plaintiff must “match” her evidence of falsity to the at-issue 6 structure or function claims. Kroessler, 977 F.3d at 814. The purpose of this requirement is to 7 avoid imposing obligations on manufacturers that are inconsistent with the FDCA’s substantiation 8 requirements for structure or function claims. For example, when a manufacturer claims only that 9 a supplement promotes heart health, a plaintiff may not dispute that claim “by citing studies 10 showing that the supplement [does] not prevent heart disease.” Id. at 812. If that claim were 11 allowed to proceed, it would force the manufacturer “to substantiate that the supplement also 12 prevented heart disease” – even though the manufacturer did not make that claim – which exceeds 13 the burden of proof imposed by the FDCA for structure or function claims. Id. Thus, plaintiffs 14 may not challenge a structure or function claim based on evidence that the product does not treat, 15 prevent, or reduce incident of disease. See Dachauer, 913 F.3d at 848,849. Likewise, plaintiffs 16 may not challenge structure or function claims on the basis that the product is neutral or useless at 17 reducing disease.3 Id. (dismissing claim at summary judgment because “the record lack[ed] 18 evidence that vitamin E supplements are actually harmful, as opposed to simply useless at 19 reducing all-cause mortality (which they do not claim to reduce)”). 20 However, plaintiffs are not categorically barred from relying on “disease studies” or 21 “incident of disease” to challenge structure or function claims. Plaintiffs may rely on incident of 22 disease or mortality to challenge a structure or function claim where they affirmatively cite to 23

24 3 Alternatively, plaintiffs may “match” their evidence by pointing to studies that support the conclusion that the nutrient or dietary ingredient at-issue has “no effect” on the relevant structure 25 or function in humans. For example, in Kroessler, the plaintiff “matched” his evidence that glucosamine did not “maintain or support joint health” by alleging that “the contents of the studies 26 [relied on in the complaint] support the conclusion that glucosamine is ‘ineffective’ at ‘supporting, maintaining, or benefitting the health of human joints.’” Kroessler, 977 F.3d at 813 (denying 27 motion to dismiss on preemption grounds). Here, the Court need not address Plaintiff’s 1 evidence that the product is harmful or increases risk of disease or medical incident. Dachauer, 2 913 F.3d at 849 (“Conceivably, evidence that a supplement endangered users by increasing their 3 risk of death could prove that a structure/function claim that omitted the risk was misleading.”); 4 Kroessler, 977 F.3d at 810 (reaffirming that FDCA does not preempt an allegation that a 5 supplement increased risk of all-cause mortality). Challenging a structure or function claim on the 6 basis that a supplement is harmful or increases the risk of disease is consistent with the FDCA’s 7 requirement that manufacturers substantiate that their structure or function claims are truthful and 8 not misleading. See id. at 811-12. Such a claim is not preempted because a manufacturer’s 9 “fail[ure] to disclose the harmful aspects of the nutrient’s structure/function” is misleading. See 10 Dachauer, 913 F.3d at 848. 11 Two leading Ninth Circuit cases illustrate these principles. In Dachauer, the plaintiff 12 alleged that vitamin E supplement labels claiming to “support cardiovascular health” and 13 “promote[] immune function” were false or misleading because (1) the supplements do not 14 prevent cardiovascular disease, and (2) the supplements might increase risk of all-cause mortality. 15 913 F.3d at 844, 846. The Ninth Circuit held that the FDCA preempted plaintiff’s claims “to the 16 extent that [plaintiff] argues that Defendants’ structure/function claims are false or misleading 17 because their supplements do not prevent cardiovascular disease.” Id. at 848. The Ninth Circuit 18 explained that “[t]he FDA allows manufacturers of supplements to make general claims – such as 19 ‘promotes heart health’ – and to substantiate them with evidence that a supplement has some 20 structural or functional effect on a given part of the human body,” but manufacturers “need not 21 also have evidence that those structural or functional effects reduce the risk of developing a certain 22 disease.” Id. By contrast, and relevant to the allegations here, the Ninth Circuit held that the 23 FDCA did not preempt the plaintiff’s claim to the extent that he alleged that the supplements 24 “increase the risk of all-cause mortality.” Id. But, in Dachauer, that claim failed for lack of proof 25 at the summary judgment stage. Id. at 850. 26 In Kroessler, the Ninth Circuit reaffirmed its holding in Dachauer that “plaintiffs can 27 challenge defendants’ substantiation by pointing to ‘matching evidence’ contradicting those 1 evidence because “the plaintiff attempted to dispute the defendant’s substantiation that the 2 supplement promoted heart health by citing studies showing that the supplement did not prevent 3 heart disease.” Id. The Court also noted that “[t]he quality of the evidence in the record . . . was 4 crucial to [its] holding in Dachauer” because Dachauer “was an appeal from a grant of summary 5 judgment.” Id. at 813. The Court explained, “[t]his court in Dachauer, and many other courts, 6 have permitted state-law claims for false advertising to proceed well past the pleading stage. . . . 7 [E]videntiary analysis is not appropriate at the early procedural stage presented in this case.” Id. at 8 813-14. Thus, considering Dachauer and Kroessler together, the crux of the Court’s analysis 9 turns on whether Plaintiff has plead sufficient facts to support her allegation that omega-3 fish oil 10 supplements are harmful to heart health under Rule 12(b)(6) and the Twombly/Iqbal pleading 11 standard. 12 Applying these principles here, Plaintiff plausibly alleges that a “reasonable consumer 13 would not expect to suffer an increased risk of [cardiovascular incident]” from taking a product 14 that claims to be for “heart health.” Dachauer, 913 F.3d at 849. Here, Plaintiff specifically 15 alleges that omega-3 supplements have been linked to an increased risk of cardiovascular incident 16 of atrial fibrillation among the general population. Compl. ¶ 19. This allegation is supported by a 17 peer-reviewed study (the “Chen study”), which included over 400,000 participants. See 18 McDonald Decl. Ex. 7. 19 As to the relevance of the Chen study, Defendant asks the Court to follow Magpayo v. 20 Walmart, Case No. 24-cv-01350-WHO, 2024 WL 4529343 (N.D. Cal. Oct. 18, 2024). In 21 Magpayo, the court granted defendant’s motion to dismiss explaining that the studies relied on by 22 Plaintiff were insufficient to support Plaintiff’s allegation that the “heart health” structure/function 23 claims were false because Plaintiff relied on studies involving “unspecified or expressly identified 24 ‘high doses’” of omega-3 fatty acids. Magpayo, 2025 WL 754065, at *4. Specifically, the court 25 ruled that Plaintiff “failed to allege and cite evidence in support that taking omega-3 fish oil 26 supplements at the level the Products recommend increases the risk of atrial fibrillation.” Id. 27 (concluding that the Chen study at issue in the instant case was insufficient to support plaintiff’s 1 consistent with the general principle that allegations of an increased risk of atrial fibrillation are 2 not preempted by the FDCA if accompanied by sufficient support. 3 This Court, however, concludes that Plaintiff’s reliance on the Chen study, which involved 4 over 400,000 participants with follow-up spanning up to fifteen years in some cases, is sufficient 5 at the motion to dismiss stage. See McDonald Decl. Ex. 7. Although the study did not track the 6 dosage of participants, it cannot be said at this early stage that the study’s conclusion that 7 “[r]egular use of fish oil supplements might be a risk factor for atrial fibrillation and stroke among 8 the general population” has no bearing on Plaintiff’s allegations. Indeed, it very well may be the 9 case that the majority of participants took a standard dose of omega-3 fish oil. The Defendant can 10 attack the sufficiency of Plaintiff’s evidence at summary judgment or trial, and may very well 11 succeed, but that is for another day. The Court finds that Plaintiff has satisfied the pleading 12 standard articulated in Dachauer and Kroessler. She has alleged and cited scientific research that 13 Defendant’s product may be harmful to the general public such that the product’s “heart health” 14 claim is plausibly false or misleading. To conclude that the Chen study is not relevant for 15 purposes of a motion to dismiss would “impose[] a more demanding pleading standard than is 16 warranted under Rule 12(b)(6).” Hamzeh v. Pharmavite, Case No. 24-cv-00472-HSG, 2025 WL 17 621891 (N.D. Cal. Feb. 26, 2025); Gallagher v. Bayer AG, No. 14-CV-04601-WHO, 2015 WL 18 4932292, at *6 (N.D. Cal. Aug. 18, 2015). 19 B. Multi-State Consumer Protection Claims (Count 1) 20 The Court GRANTS the motion to dismiss with leave to amend as to the multi-state 21 consumer protection acts outside of California (Count 1). Plaintiff is a California resident. 22 Compl. ¶ 6. The complaint does not allege that Plaintiff purchased Defendant’s Products or was 23 otherwise harmed by Defendant in any other state. See id. ¶¶ 32-36. Moreover, there are no class 24 representatives from any of the other states identified in Count 1. Accordingly, Plaintiff does not 25 have standing to bring claims under Connecticut, Illinois, Maryland, Missouri, and New York 26 consumer protection acts. See Jones v. Micron Tech., Inc., 400 F. Supp. 3d 897, 909-11 (N.D. 27 Cal. 2019) (“Plaintiffs must show they have standing for each claim they raise, and Plaintiffs do 1 residence, or other pertinent connection.”) (collecting cases); see also Snyder, 922 F.3d at 967. 2 Plaintiff informed the Court at the motion hearing that it is “not going to restate the multistate 3 consumer subclass under the statutory protection issues in any amended complaint.” 4/23/25 Hr’g 4 Tr. 26:6-9, ECF No. 55. The Court grants leave to amend for Plaintiff to allege additional facts or 5 to name additional plaintiffs who may have standing to bring these claims. 6 C. California Causes of Action 1. False Advertising Law (Count 2), Unfair Competition Law (Count 4), 7 and Breach of Express Warranty (Count 5) 8 The Court DENIES the motion to dismiss the False Advertising Law (“FAL”) (Count 2), 9 Unfair Competition Law (“UCL”) (Count 4), and breach of express warranty (Count 5) claims. 10 Because Plaintiff plausibly alleges that the Product labels are false and misleading, Plaintiff also 11 states a claim under the UCL and FAL. Williams v. Gerber Prods. Co., 552 F.3d 934, 938 (9th 12 Cir. 2008). Likewise, courts in this district regularly hold that stating a claim under the California 13 consumer protection statutes is sufficient to state a claim for breach of express warranty. Hadley 14 v. Kellogg Sales Co., 273 F. Supp. 3d 1052, 1095 (N.D. Cal. 2017) (“Hadley II”) (collecting cases 15 and declining to dismiss breach of express warranty claims where plaintiff plausibly alleged 16 “healthy heart” label is false or misleading). 17 2. California Consumer Legal Remedies Act (Count 3) 18 The Court GRANTS the motion to dismiss with leave to amend as to violation of the 19 California Consumer Legal Remedies Act (“CLRA”) (Count 3) because Plaintiff has not plausibly 20 alleged standing for any form of relief available under the CLRA.4 21 First, Plaintiff has not plausibly alleged Article III standing to seek injunctive relief. 22 Plaintiff must demonstrate Article III standing for each claim and for each form of relief sought. 23 TransUnion, 594 U.S. at 430-31. To have standing for injunctive relief, Plaintiff must 24 demonstrate “a substantial risk of future injury.” Murthy, 603 U.S. at 68. Plaintiff has not alleged 25 a sufficient likelihood of future injury because she alleges that the product is harmful to human 26 4 Because Plaintiff plausibly alleges that the Products labels are false and misleading, Plaintiff has 27 also stated a claim under the CLRA. Williams, 552 F.3d at 938 (explaining that false or 1 health, and thus she is not likely to purchase the product in the future. Compl. ¶ 31. 2 Second, Plaintiff has not sought monetary damages under the CLRA. Plaintiff alleges that 3 she sent a “CLRA demand letter” on June 12, 2024, and that Plaintiff would seek monetary 4 damages under the CLRA if Defendant failed to “correct the unlawful, unfair, false and/or 5 deceptive practices alleged.” Compl. ¶ 82. Plaintiff did not amend her complaint following the 6 thirty-day waiting period. Cal. Civ. Code § 1782; Vizcarra v. Michaels Stores, Inc., 710 F. Supp. 7 3d 718, 730 (N.D. Cal. 2024) (“The CLRA provides that a plaintiff may file an action for 8 injunctive relief and, at least 30 days after filing that action and notifying the defendant of the 9 alleged violation, amend their complaint to include a request for damages.”). Accordingly, as 10 pled, Plaintiff has not brought a cause of action for monetary damages. 11 3. Quasi-Contract (Count 6) 12 The Court DENIES the motion to dismiss the quasi-contract claim (Count 6).5 At the 13 pleading stage, Plaintiff may alternatively allege both a breach of express warranty claim and a 14 quasi-contract claim. Fed. R. Civ. P. 8(d)(2) (“A party may set out 2 or more statements of a 15 claim or defense alternatively or hypothetically, either in a single count or defense or in separate 16 ones.”); see also Astiana v. Hain Celestial Grp., Inc., 783 F.3d 753, 762-63 (9th Cir. 2015) (“To 17 the extent the district court concluded that the [quasi-contract] cause of action was nonsensical 18 because it was duplicative of . . . other claims, this is not grounds for dismissal.”). To state a 19 quasi-contract claim, plaintiff must allege “that a defendant has been unjustly conferred a benefit 20 through mistake, fraud, coercion, or request.” Liou v. Organifi, LLC, 491 F. Supp. 3d 740, 752 21 (S.D. Cal. 2020) (citing Astiana, 783 F.3d at 762). Here, Plaintiff alleges that “Defendant’s false 22 and misleading representations caused Plaintiff and the class to purchase wholly worthless 23 Products” and thus “Defendant received a direct and unjust benefit, at Plaintiff’s expense.” 24 Compl. ¶¶ 107-08. This is sufficient at the pleading stage. 25 26 5 At the April 23, 2025, case management conference, the Court announced that the motion to 27 dismiss the quasi-contract claim would be granted with leave to amend. Upon further 1 4. Negligent Misrepresentation (Count 7) and Intentional Misrepresentation and Omission (Count 8) 2 3 The Court DENIES the motion to dismiss Plaintiff’s negligent misrepresentation (Count 7) 4 and intentional misrepresentation (Count 8) claims. The elements of negligent misrepresentation 5 under California law are: “(1) the misrepresentation of a past or existing material fact, (2) without 6 reasonable ground for believing it to be true, (3) with intent to induce another’s reliance on the fact 7 misrepresented, (4) justifiable reliance on the misrepresentation, and (5) resulting damage.’” Levit 8 v. Nature’s Bakery, LLC, No. 24-CV-02987-JST, 2025 WL 579192, at *8 (N.D. Cal. Feb. 21, 9 2025). Intentional misrepresentation imposes the additional requirement of actual knowledge. Id. 10 Federal Rule of Civil Procedure 9(b) imposes a heightened pleading standard where plaintiff 11 alleges fraud or mistake. 12 Defendant argues that Plaintiff’s negligent misrepresentation claim must be dismissed 13 because Plaintiff fails to plausibly allege falsity and because Plaintiff cannot base her negligent 14 misrepresentation claim on an omission. Although it is true that omissions “cannot give rise to 15 liability for negligent misrepresentation,” Plaintiff’s allegation that the “heart health” label claim 16 is false is sufficient for purposes of alleging negligent misrepresentation. Mitsui O.S.K. Lines, Ltd. 17 v. SeaMaster Logistics, Inc., 913 F. Supp. 2d 780, 789 (N.D. Cal. 2012), aff’d in part, rev’d in 18 part, 618 F. App’x 304 (9th Cir. 2015). 19 Defendant also argues that Plaintiff’s intentional misrepresentation claim must be 20 dismissed because Plaintiff did not plausibly allege actual knowledge. This argument is 21 unavailing. Fed. R. Civ. P. 9(b) (“Malice, intent, knowledge, and other conditions of a person’s 22 mind may be alleged generally.”). Thus, Plaintiff has alleged all of the required elements for both 23 negligent and intentional misrepresentation. Compl. ¶¶ 110-129. 24 IV. CONCLUSION 25 For the foregoing reasons, the Court ORDERS as follows: 26 1. Defendant’s motion to dismiss is GRANTED as to Count 1 (various state consumer 27 protection acts) and Count 3 (CLRA). 1 Count 5 (breach of express warranty), Count 6 (quasi-contract), Count 7 (negligent 2 misrepresentation), and Count 8 (intentional misrepresentation). 3 Plaintiff may file an amended complaint within 14 days of the date of this Order. 4 IT IS SO ORDERED. 5 Dated: June 5, 2025 6 7 umi K. Lee 8 United States District Judge 9 10 11 12

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