Drake v. Bayer Healthcare LLC

• Court: District Court, S.D. California
• Decided: January 5, 2024
• Docket: 3:22-cv-01085
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 EDISON CORPUZ, individually and on Case No. 22-cv-1085-MMA (JLB) behalf of all others similarly situated, 12 et al., ORDER DENYING DEFENDANT’S 13 MOTION TO DISMISS FIRST Plaintiffs, AMENDED COMPLAINT 14 v. 15 [Doc. No. 70] BAYER CORPORATION, 16 Defendant. 17 18 19 20 21 22 Pending before the Court is Defendant Bayer Corporation’s (“Defendant”) motion 23 to dismiss Plaintiffs Edison Corpuz, Deniece Drake, and Deborah Bowling’s 24 (“Plaintiffs”) First Amended Complaint. Doc. No. 70. Plaintiffs filed an opposition, 25 Doc. No. 74, and Defendant replied, Doc. No. 77. The Court found the matter suitable 26 for determination on the papers and without oral argument pursuant to Federal Rule of 27 Civil Procedure 78(b) and Civil Local Rule 7.1.d.1. See Doc. No. 78. For the reasons set 28 forth below, the Court DENIES Defendant’s motion to dismiss. 1 I. BACKGROUND 2 This putative class action involves Defendant’s popular “One A Day” (“OAD”) 3 line of multivitamins. Doc. No. 69 (First Amended Complaint, the “FAC”) ¶¶ 1, 12. 4 Specifically, Plaintiffs’ FAC concerns Defendant’s OAD Natural Fruit Bites 5 Multivitamin products (the “Products”), including the following “four varieties: Men’s, 6 Women’s, Men’s 50+, and Women’s 50+.” Id. ¶ 1 n.1. Plaintiffs allege Defendant’s 7 “advertising and marketing campaign is false, deceptive, and misleading” because it 8 holds its Products out as “natural” even though they “contain non-natural, synthetic 9 ingredients.” Id. ¶¶ 1–2. 10 Plaintiff Corpuz filed his initial complaint on July 25, 2022, alleging a violation of 11 California’s Consumers Legal Remedies Act (“CLRA”), Cal. Civ. Code § 1750 et seq., as 12 his sole cause of action. Doc. No. 1. On October 5, 2022, Defendant moved to dismiss 13 Corpuz’s complaint under Federal Rule of Civil Procedure 12(b)(6). Doc. No. 22. On 14 February 28, 2023, the Court denied Defendant’s motion to dismiss, finding that Corpuz 15 alleged with sufficient plausibility that a reasonable consumer would likely be deceived 16 by the term “natural” used on Defendant’s Products. Doc. No. 26. In response to this 17 Order, Defendant filed an answer to Corpuz’s complaint on March 27, 2023. Doc. No. 18 32. 19 On August 15, 2023, while discovery was well underway, Corpuz and Defendant 20 filed a joint motion for leave to file an amended complaint, which the Court granted. 21 Doc. Nos. 65; 66. The FAC, which Plaintiffs filed on August 24, 2023, added two new 22 individual Plaintiffs—Drake and Bowling2—as well as two new causes of action for false 23 advertising under New York General Business Law §§ 349 and 350. See generally FAC. 24 In addition, Plaintiffs reallege a violation of the CLRA and include largely the same 25

26 1 Reviewing Defendant’s motion to dismiss, the Court accepts as true all facts alleged in the FAC and 27 construes them in the light most favorable to Plaintiffs. See Snyder & Assocs. Acquisitions LLC v. United States, 859 F.3d 1152, 1157 (9th Cir. 2017). 28 1 factual allegations as in Corpuz’s original complaint, which the Court further detailed in 2 its February 28, 2023 Order denying Defendant’s motion to dismiss. See Corpuz v. 3 Bayer Corp., No. 22-CV-1085-MMA (JLB), 2023 WL 2292579, at *1–2 (S.D. Cal. Feb. 4 28, 2023). The Court incorporates that discussion by reference here. 5 In the instant motion, Defendant again moves to dismiss Plaintiffs’ FAC pursuant 6 to Federal Rule of Civil Procedure 12(b)(6). See Doc. No. 70. 7 II. LEGAL STANDARD 8 Under Rule 12(b)(6),3 a district court must dismiss if a claim fails to state a claim 9 upon which relief can be granted. To survive a Rule 12(b)(6) motion to dismiss, the 10 claimant must allege “enough facts to state a claim to relief that is plausible on its face.” 11 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when 12 the plaintiff pleads facts that “allow the court to draw the reasonable inference that the 13 defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 14 (2009) (citation omitted). There must be “more than a sheer possibility that a defendant 15 has acted unlawfully.” Id. While courts do not require “heightened fact pleading of 16 specifics,” a claim must be supported by facts sufficient to “raise a right to relief above 17 the speculative level.” Twombly, 550 U.S. at 555, 570. 18 III. REQUEST FOR JUDICIAL NOTICE 19 As an initial matter, Defendant asks the Court to take judicial notice of several 20 exhibits in support of its motion to dismiss. See Doc. No. 70-2. The Court finds that it 21 need not determine if judicial notice is appropriate in this case because Defendant’s 22 exhibits do not bear on the Court’s analysis below. As such, the Court DENIES 23 Defendant’s request for judicial notice. 24 /// 25 26 27 28 1 IV. DISCUSSION 2 “To prevail on their consumer fraud claims under New York and California 3 law, Plaintiffs must establish that [Defendant’s] allegedly deceptive advertisements were 4 likely to mislead a reasonable consumer acting reasonably under the circumstances.” 5 Fink v. Time Warner Cable, 714 F.3d 739, 741 (2d Cir. 2013) (per curiam) (citations 6 omitted). “This is not a negligible burden.” Moore v. Trader Joe’s Co., 4 F.4th 874, 7 882 (9th Cir. 2021). Plaintiffs must allege “more than a mere possibility” that the 8 “label might conceivably be misunderstood by some few customers viewing it in an 9 unreasonable manner.” Id. (quoting Ebner v. Fresh, Inc., 838 F.3d 958, 965 (9th Cir. 10 2016)). Instead, Plaintiffs must plausibly show that “a significant portion of the 11 general consuming public or of targeted consumers, acting reasonably in the 12 circumstances,” would share their expectations. Id. (quoting Ebner, 838 F.3d at 965). 13 In its previous Order, the Court denied Defendant’s Rule 12(b)(6) motion to 14 dismiss Plaintiff’s sole cause of action under the CLRA. See Doc. No. 26. Significantly, 15 the Court rejected Defendant’s argument that no reasonable consumer could be confused 16 by the inclusion of the word “natural” on its Products’ labels. Id. at 7–9. In addition, the 17 Court ruled that the Ninth Circuit’s general prohibition on using an ingredient list to 18 correct a misleading label applied because “Plaintiff sufficiently allege[d] that 19 [Defendant’s] Products’ labels are deceptive rather than ‘ambiguous.’” Id. at 9–10. In 20 the instant motion to dismiss, Defendant renews its arguments but now relies on the 21 Ninth Circuit’s recent decision in McGinity v. Procter & Gamble, 69 F.4th 1093 (9th Cir. 22 2023) for support. Specifically, Defendant argues that the facts of this case are “near- 23 identical” to McGinity and that McGinity now “makes clear that Plaintiffs’ alleged 24 interpretation [of the word natural on the Products’ labels] is unreasonable and 25 implausible.” Doc. No. 70-1 sat 11. The Court disagrees. 26 Defendant incorrectly argues that McGinity “drew a clear distinction between 27 products that use the terms ‘nature’ or ‘natural’ and products that claim to be ‘100% 28 natural’ or ‘all natural.’” Id. (citing McGinity, 69 F.4th at 1098). Instead, as Plaintiffs 1 highlight, this portion of McGinity “was limited to the phrase ‘Nature Fusion.’” Doc. No. 2 74 at 13. Indeed, the Ninth Circuit in McGinity did not espouse any new law and merely 3 reiterates its decision in Moore v. Trader Joe’s Co., 4 F.4th 874 (9th Cir. 2021), which 4 this Court distinguished in its previous Order.4 See Doc. No. 26 at 8. 5 In Moore, the Ninth Circuit held that the label “100% New Zealand Manuka 6 Honey” on Trader Joe’s Manuka honey was not likely to deceive a reasonable consumer 7 into believing that the product contained only honey derived from the Manuka flower. 8 Moore, 4 F.4th at 876–77. The Ninth Circuit reasoned that there was some ambiguity as 9 to what the phrase “100% New Zealand Manuka Honey” meant. Id. at 882. For 10 example, it could mean that the product was 100% Manuka Honey, that it was 100% 11 derived from the Manuka flower, or that 100% of the honey was from New Zealand. Id. 12 Given this ambiguity, the Ninth Circuit determined that a reasonable consumer would 13 require more information before he or she could conclude that the honey was derived 14 exclusively from the Manuka flower. Id. The Ninth Circuit then identified three other 15 contextual clues on the label that would dissuade a reasonable consumer from the false 16 misconception that the honey was derived exclusively from the Manuka flower: “(1) the 17 impossibility of making a honey that is 100% derived from one floral source, (2) the low 18 price of Trader Joe’s Manuka Honey, and (3) the presence of the ‘10+’ on the label, all of 19 which is readily available to anyone browsing the aisles of Trader Joe’s.” Id. at 883. The 20 Ninth Circuit also noted that the label fully complied with the Food and Drug 21 Administration’s “Honey Guidelines,” which permit honey to be labeled with the name 22 of its chief floral source. Id. at 881. 23

24 25 4 To the extent Defendant frames its instant motion as a motion for reconsideration, the Court finds that reconsideration of its previous Order is not warranted. Reconsideration is only appropriate under Rule 26 60(b)(6) in “extraordinary circumstances,” such as an intervening change in controlling law. Sch. Dist. No. 1J, Multnomah Cnty. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). As noted recently by 27 another Court in this District, McGinity is not an intervening change in controlling law. Anderberg v. Hain Celestial Grp., Inc., No. 21-CV-1794-RBM (SBC), 2023 WL 7311200, at *4 (S.D. Cal. Nov. 6, 28 1 Applying the above decision in Moore, the Ninth Circuit in McGinity decided that 2 the term “Nature Fusion” on the front label of Procter & Gamble’s shampoos and 3 conditioners was ambiguous and that the back label, including the ingredient list, could 4 be used to resolve this ambiguity. McGinity, 69 F.4th at 1097–99 (“[h]ere, like in 5 [Moore], there is some ambiguity as to what ‘Nature Fusion’ means. . . .”). And similar 6 to the various “clues” on the Manuka honey label in Moore, the Ninth Circuit found that 7 the back label of the “Nature Fusion” products included an ingredient list disclosing the 8 presence of both natural and synthetic ingredients. Id. at 1099. Likewise, the presence of 9 the phrases “Smoothness Inspired by Nature” and “Nature Fusion Smoothing System 10 with Avocado Oil” on the label also clarified that Procter & Gamble’s “Nature Fusion” 11 products contain both natural and synthetic ingredients. Id. Finally, the Ninth Circuit 12 noted that a consumer survey conducted by the plaintiff and referenced in the plaintiff’s 13 complaint demonstrated that the majority—69.2%—of consumers thought that the term 14 “Nature Fusion” meant that the product contained both natural and synthetic ingredients, 15 which is accurate. Id. at 1096. Thus, it was apparent on the face of the plaintiff’s 16 complaint that the term “Nature Fusion” was at worst ambiguous to the reasonable 17 consumer. Id. 18 Defendant appears to argue that its use of the term “natural” on the front label of 19 its Products is synonymous to Procter & Gamble’s use of the phrase “Nature Fusion” on 20 its shampoo products that were at issue in McGinity. However, Defendant fails to explain 21 how or why these two phrases are the same. Although the Court agrees with the Ninth 22 Circuit that the phrase “Nature Fusion” is ambiguous because it “could mean any of a 23 number of things: that the products are made with a mixture of natural and synthetic 24 ingredients,” McGinity, 69 F.4th at 1098, this is wholly different than Defendant’s use of 25 the singular word “natural” on its labels. As in its previous Order, the Court finds that 26 Plaintiffs sufficiently allege that the Products’ labels are deceptive rather than 27 “ambiguous” because there are no similar contextual clues—such as the word “fusion”— 28 on the front labels that would alert reasonable consumers to the possibility that the 1 || Products are not natural and may contain synthetic ingredients. See FAC 4] 20-40; Doc. 2 || No. 26 at 8, 10. 3 Accordingly, the Court again finds that Plaintiffs allege with sufficient plausibility 4 || that a reasonable consumer ts likely to be deceived by the term “natural” on Defendant’s 5 || front labels, and DENIES Defendant’s motion to dismiss the FAC on these grounds. 6 V. CONCLUSION 7 For the foregoing reasons, the Court DENIES Defendant’s motion to dismiss. 8 IT IS SO ORDERED. 9 Dated: January 5, 2024

11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28