Elliott v. Conagra Brands, Inc.

• Court: District Court, E.D. California
• Decided: March 28, 2025
• Docket: 2:23-cv-01417
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LILLIAN ELLIOT, on behalf of herself No. 2:23-cv-01417-DJC-AC and others similarly situated, 12 Plaintiff, 13 ORDER v. 14 CONAGRA BRANDS, INC., 15 Defendants. 16

17 Plaintiff Lillian Elliot regularly used Defendant Conagra Brands, Inc.’s 18 (“Conagra”) butter substitute product sold under the brand name Smart Balance. 19 Plaintiff alleges that Defendant altered the ingredient ratios of its product — Smart 20 Balance Original spread — thereby reducing its quality, without adequately notifying 21 consumers. After Plaintiff’s original complaint was dismissed with leave to amend by 22 Judge Morrison C. England, she refiled a First Amended Complaint (ECF No. 41, 23 hereinafter “FAC”), advancing similar arguments. For the reasons discussed below, 24 the Court finds that Plaintiff has not adequately overcome the concerns originally 25 identified by Judge England, and that the newly raised allegations are unpersuasive 26 or Plaintiff lacks standing to bring them. The Court dismisses Plaintiff’s case with leave 27 to amend. 28 1 BACKGROUND 2 Defendant manufactures a line of butter-substitute, vegetable-oil-based 3 products, including “Smart Balance Original” spreads. (FAC ¶¶ 18, 21.) Historically, 4 Defendant has manufactured Smart Balance Original with a composition of 64% 5 vegetable oil and 32% water. (Id. ¶ 23.) But, during a two-month period in 2022, 6 Defendant altered the composition to be approximately 39% oil and 57% water. (See 7 id. ¶¶ 33, 35.) Plaintiff is a consumer who purchased Defendant’s Smart Balance 8 Original spread before and during the period where its composition changed to 9 include more water and less oil. (Id. ¶ 16.) Replacing oil with water leads to a lower- 10 quality product, and consumers reported that the composition with added water was 11 more difficult to spread on toast, could not be used effectively for frying or sautéing, 12 and ruined baked goods when used as a butter substitute. (Id. ¶¶ 97–109.) Despite 13 the change in ingredients, the new Smart Balance Original spread was still sold at the 14 same price as the original recipe. (Id. ¶ 84.) Although the packaging of the Smart 15 Balance Original spread was changed to identify the adjusted ratios of oil and water, 16 the text was small, difficult to read, and could be obstructed by stacking the spread 17 containers on top of each other. (Id. ¶¶ 41, 43–47, 88.) Plaintiff also alleges that the 18 Smart Balance Original spread, while marketed as containing 320 or 400 mg of 19 Omega 3 per serving, only provided 45 to 60 mg of Omega 3 that is physiologically 20 available for absorption into the body. (Id. ¶ 265.) This is because the type of Omega 21 3 used by Defendant — alpha linolenic acid — is less absorbable than other forms of 22 Omega 3. (Id. ¶ 260.) 23 Plaintiff contends that Defendant “initiated a campaign of consumer deception” 24 by selling the lesser-quality composition with increased water, while maintaining 25 nearly identical packaging. (Id. ¶ 25.) She filed a complaint against Defendant in 26 2023, which was dismissed in 2024 by Judge England with leave to amend. (ECF Nos. 27 1, 39.) In his order dismissing the original complaint, Judge England noted that “[t]he 28 crux of Plaintiff’s argument is essentially that she did not read the label.” (ECF No. 39 1 at 7.) Plaintiff brings substantially similar claims here, on behalf of herself and all 2 others similarly situated, specifically alleging the following causes of actions: 3 1. Violation of the Consumer Legal Remedies Act (Cal. Civ. Code §§ 17500, et 4 seq.), arguing that replacing the oil with water while failing to appropriately 5 update the labeling is an unfair, deceptive, unlawful, or unconscionable 6 commercial practice (FAC ¶¶ 308–19); 7 2. Violation of the Unfair Competition Law (Cal. Bus. & Prof. Code §§ 17200, et 8 seq.), arguing that replacing the oil with water while failing to appropriately 9 update the labeling is an unfair, deceptive, unlawful, or unconscionable 10 commercial practice (FAC ¶¶ 320–52); 11 3. Violation of the False Advertising Law (Cal. Bus. & Prof. Code §§ 17500, et 12 seq.), arguing that the difficult-to-read label did not adequately advise 13 consumers of the oil and water content, and that the label mislead 14 consumers into thinking the new composition could be used for cooking 15 purposes (FAC ¶¶ 353–64); 16 4. Breach of Express Warranties (Cal. Comm. Code § 2313 & common law), 17 arguing that the label did not adequately inform consumers that the oil and 18 water composition had changed, and that the new composition was not 19 proper for cooking or baking yet was advertised as being so (FAC ¶¶ 365– 20 78); 21 5. Breach of Implied Warranties (Cal. Comm. Code § 2314 & common law), 22 arguing that the label did not adequately inform consumers that the oil and 23 water composition had changed, and that the new composition was not 24 proper for cooking or baking yet was advertised as being so (FAC ¶¶ 379– 25 401); 26 6. Negligent Misrepresentation (Cal. Civ. Code §§ 1709–1710), arguing that 27 the new composition was not suitable for cooking or baking yet was 28 advertised as being so (FAC ¶¶ 402–25); 1 7. Breach of Contract, arguing that Defendant failed its contractual duties by 2 supplying an inferior product (FAC ¶¶ 426–41); 3 8. Breach of Duty of Good Faith and Fair Dealing, arguing that Defendant 4 failed its contractual duties by supplying an inferior product (FAC ¶¶ 442– 5 54); 6 9. Fraudulent Inducement, arguing that the label misrepresented the actual 7 levels of oil and water in the revised product (FAC ¶¶ 455–62); and 8 10. Negligence, arguing that Defendant knew or should have known that the 9 product was not usable for cooking or baking and that its use was 10 potentially dangerous (FAC ¶¶ 463–79). 11 Defendant moves to dismiss each of Plaintiff’s causes of action. (ECF No. 53, 12 hereinafter “Mot.”) 13 LEGAL STANDARD 14 A party may move to dismiss for “failure to state a claim upon which relief can 15 be granted.” Fed. R. Civ. P. 12(b)(6). The motion may be granted only if the complaint 16 lacks a “cognizable legal theory or sufficient facts to support a cognizable legal 17 theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). 18 While the Court assumes all factual allegations are true and construes “them in the 19 light most favorable to the nonmoving party,” Steinle v. City & Cnty. of S.F., 919 F.3d 20 1154, 1160 (9th Cir. 2019) (internal quotations omitted), if the complaint's allegations 21 do not “plausibly give rise to an entitlement to relief,” the motion must be granted, 22 Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). However, if the “plaintiffs . . . have not 23 nudged their claims across the line from conceivable to plausible, their complaint 24 must be dismissed.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). 25 A complaint need contain only a “short and plain statement of the claim 26 showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), not “detailed 27 factual allegations,” Twombly, 550 U.S. at 555. However, this rule demands more than 28 unadorned accusations; “sufficient factual matter” must make the claim at least 1 plausible. Iqbal, 556 U.S. at 678. In the same vein, conclusory or formulaic recitations 2 of elements do not alone suffice. Id. “A claim has facial plausibility when the plaintiff 3 pleads factual content that allows the court to draw the reasonable inference that the 4 defendant is liable for the misconduct alleged.” Id. This evaluation of plausibility is a 5 context-specific task drawing on “judicial experience and common sense.” Id. at 679. 6 DISCUSSION 7 Undergirding all of Plaintiff’s claims is whether her confusion about the Smart 8 Balance Original spread is aligned with that of a reasonable consumer. In assessing 9 this point, the Court must address: (1) whether the Smart Balance Original spread’s 10 packaging would have misled a reasonable consumer as to the amount of oil, water, 11 and Omega 3 in the product; (2) whether the Smart Balance Original spread’s 12 packaging would have mislead a reasonable consumer as to whether the product was 13 “great” for cooking or baking purposes; (3) whether Defendant’s alteration of the 14 product’s composition to use more water and less oil was economic adulteration; and 15 (4) whether the product’s classification as a “buttery spread” necessitated a front-label 16 advisement that the product contains artificial flavors. 17 A. A Reasonable Consumer Would Not Be Misled by the Product 18 Packaging Because That Packaging Explicitly Lists the Quantity of Oil, Water, 19 and Omega 3 in the Product 20 Plaintiff asserts that a reasonable consumer, after reading Smart Balance 21 Original spread’s label, would be misled as to its content of oil, water, and Omega 3, 22 in part because the change in the product’s ingredient ratios was not advertised. 23 (FAC ¶¶ 85–110.) Defendant counters that the label informs the consumer of the 24 exact quantities of the products ingredients. (Mot. at 7–10.) 25 California consumer protection claims are assessed under a reasonable 26 consumer standard. Williams v. Gerber Products Co., 552 F.3d 934, 938 (9th Cir. 27 2008); Lavie v. Proctor & Gamble Co., 105 Cal. App. 4th 496, 506–07 (2003). Under 28 the reasonable consumer standard, a plaintiff must show that members of the public 1 are likely to be deceived by Defendant’s actions. Freeman v. Time, Inc., 68 F.3d 285, 2 289 (9th Cir. 1995). The public can be deceived by advertising that is false or 3 misleading. Kasky v. Nike, Inc., 27 Cal. 4th 939, 951 (2002). 4 Here, as originally decided by Judge England, Plaintiff cannot show that she 5 was deceived by the Smart Balance Original spread’s labeling. That is because the 6 labeling was neither false in its description of the ingredients nor was it misleading: it 7 told the consumer exactly what the oil, water, and Omega 3 content in the product 8 was. Plaintiff seeks to get around this conclusion in three ways. 9 First, Plaintiff argues that the actual design of the container made it difficult to 10 see the text on the label that lists the ingredient percentages. (FAC ¶¶ 40–45.) While 11 Plaintiff’s observation may be true that the product, when stacked, made it difficult to 12 see the label’s text listing the percentages of oil and water in the product is, it is 13 ultimately unavailing. This is because the consumer can still pick up the product and 14 read the label, after which they would learn the accurate amount of water, oil, and 15 Omega 3 the product contains. Indeed, Judge England rejected Plaintiff’s exact 16 argument in his Order on the original Complaint. (ECF No. 39 at 6.) 17 Second, she argues that a reasonable consumer, even if they did see the label 18 that lists the ingredient percentages, would not be familiar with the original amount of 19 oil and water in the product and thus would not be able to identify that those 20 percentages had changed. (FAC ¶¶ 85–96.) But the test is not whether a consumer 21 will know the ingredients have changed, it is whether, after reading a product’s label, 22 a consumer will know the ingredients in that product. The straightforward application 23 of common sense makes it difficult to reach the conclusion that after reading the label, 24 which explicitly states the amount of oil, water, and Omega 3 in the product, a 25 consumer would not know that the product contained exactly those ingredients in 26 exactly those quantities. See Gitson v. Trader Joe's Co., No. 13-CV-01333-WHO, 2013 27 WL 5513711, *7 (N.D. Cal. Oct. 4, 2013) (“[D]ismissal is appropriate where ‘the 28 advertisement itself made it impossible for the plaintiff to prove that a reasonable 1 consumer was likely to be deceived.’”) (quoting Williams, 552 F.3d at 939).). Plaintiff 2 does not identify caselaw, nor is the Court aware of any, that requires a manufacturer 3 to proactively advise consumers via its label that the ingredients in the product have 4 changed. 5 The label in this case told the consumer in no uncertain terms exactly what was 6 in the product: 39% oil, 57% water, and either 320 or 400 mg of Omega 3. A 7 reasonable consumer cannot be misled by the label into thinking that there was more 8 oil or Omega 3 in the product because the label told the consumer the precise 9 measurement of oil and Omega 3 content. See Cheslow v. Ghirardelli Chocolate Co., 10 445 F. Supp. 3d 8, 20 (N.D. Cal. 2020) (“[W]here the actual ingredients are disclosed, a 11 plaintiff may not ignore the ingredient list.”). 12 Third, Plaintiff argues that the Omega 3 content descriptor on the label was 13 misleading to consumers because the actual amount of absorbable Omega 3 from the 14 product was less than the listed amount. (FAC ¶¶ 254–78.) Plaintiff does not contest 15 that the amount of Omega 3 advertised on the label was accurate. (See id. ¶¶ 265– 16 66.) Instead, her argument is that the type of Omega 3 used by Defendant is inferior 17 to other types that would provide increased amounts of Omega 3 fatty acids that can 18 be absorbed upon consumption. (Id.) But Defendant has not made any sort of claim 19 or statement about how much Omega 3 fatty acids a consumer would absorb from 20 eating the product. Just like the oil and water content, the label listed the exact 21 amount of Omega 3 in the product and would therefore not mislead a reasonable 22 consumer. See Gitson, 2013 WL 5513711, at *7. 23 Plaintiff relies on comments submitted by “[t]housands of reasonable ordinary 24 consumers reported in writing” to demonstrate consumer confusion and 25 dissatisfaction over Defendant’s implementation of the recipe with increased water 26 and reduced oil. (FAC ¶¶ 35, 55, 59, 80, 85, 105, 122.) While the magnitude of the 27 comments submitted is noteworthy, it cannot overcome the fact that the label of the 28 product, as noted above, explicitly informed those consumers of the oil, water, and 1 Omega 3 content of the product they were purchasing. 2 For these reasons, the Court again concludes that the product’s label could not 3 be misleading to a reasonable consumer. 4 B. Defendant’s Marketing of Smart Balance Original Spread as “Great” 5 For Cooking or Baking Was Nonactionable Puffery. 6 Plaintiff avers that Defendant’s labelling of the product as “great” for cooking or 7 baking amounts to more than nonactionable puffery because it rendered the product 8 unusable for its marketed purpose. (Id. ¶¶ 97–136.) In rebuttal, Defendant argues 9 that the label’s advertising amounts to puffery, meaning it would not be relied on by 10 the consumer. (Mot. at 11–13.) 11 “Generalized, vague, and unspecific assertions” upon which a reasonable 12 consumer could not rely are considered to be nonactionable “puffery.” Glen Holly 13 Ent. Inc. v. Tektronix Inc., 352 F.3d 367, 379 (9th Cir. 2003). “The common theme that 14 seems to run through cases considering puffery . . . is that consumer reliance will be 15 induced by specific rather than general assertions.” Cook, Perkiss and Liehe, Inc. v. N. 16 Cal. Collection Serv. Inc., 911 F.2d 242, 246 (9th Cir. 1990) (emphasis added). 17 “[A]dvertising which merely states in general terms that one product is superior is not 18 actionable.” Id., quoting Smith-Victor Corp. v. Sylvania Elec. Prod., Inc., 242 F. Supp. 19 302 (N.D. Ill. 1965). 20 This precise claim was previously rejected by Judge England. (ECF No. 39 at 9– 21 10.) Plaintiff alleges that the Smart Balance Original spread’s label that advertised the 22 product as “great” for cooking or baking was “false.” (See FAC ¶ 114–117.) But the 23 word “great” is subjective, not objective. And the label’s description was plausibly 24 general enough that it would not induce a consumer to use it for a specific purpose; 25 for example, it did not identify a specific result that will be achieved by using it. 26 In People for the Ethical Treatment of Animals v. Whole Foods Mkt. Cal. Inc., No. 27 15-CV-04301 NC, 2016 WL 1642577 (N.D. Cal. Apr. 26, 2016), the court dismissed a 28 false advertising claim against the language “Great-Tasting Meat From Healthy 1 Animals” as being nonactionable puffery. Id. at *3. The court reasoned that the 2 statement, and similar ones, are “unspecific and unmeasurable,” and therefore 3 constituted puffery. Id. at *4. Defendant’s advertising is no different. Whether a 4 product is “great” for cooking or baking is not something that can be measured, and 5 thus, similarly amounts to puffery. 6 Separately, Plaintiff identifies that a number of Smart Balance Original spreads 7 were reported as rancid by consumers, possibly due to the increased water content 8 and a substitution of flax oil in the product. (FAC ¶¶ 55, 138–51.) However, Plaintiff 9 points broadly to general consumers as having suffered this injury, rather than 10 pleading that she herself purchased a rancid spread. (See id. ¶¶ 139–51, 240–52 11 (using language such as “some consumers” and “numerous consumers”).) She does 12 not plead that she herself purchased a rancid spread until her filed Opposition (See 13 ECF No. 54 at 11–12.) Plaintiff lacks standing to bring this claim because, based on 14 the assertions in her Amended Complaint, she was not personally harmed by an 15 allegedly rancid spread. See E.&J. Gallo Winery v. Instituut Voor Landbouw-En 16 Visserijonderzoek, No. 1:17–CV–00808–DAD–EPG, 2018 WL 2463869, at *9 (E.D. Cal. 17 June 1, 2018) (a plaintiff must plausibly allege how they suffered damages). And 18 while Plaintiff does eventually claim that she herself purchased a rancid spread, it 19 comes in her Opposition, rather than in her Amended Complaint as required. See 20 Smith v. City of Vallejo, No. 2:07CV1707WBS KJN P, 2010 WL 2383606, at *5 (E.D. Cal. 21 June, 2010) (an Opposition is not the proper vehicle for raising new factual 22 allegations). Because the Court cannot consider new allegations raised in an 23 Opposition, Plaintiff lacks standing to raise this particular theory based on the 24 allegations in the operative complaint. 25 Accordingly, this claim is dismissed. However, the Court will grant leave to 26 amend as to this claim. 27 //// 28 //// 1 C. Defendant’s Use of Water in Lieu of Oil Did Not Constitute Economic 2 Adulteration. 3 Plaintiff argues that altering the Smart Balance Original spread’s formula to 4 contain more water and less oil amounted to economic adulteration of the product. 5 (FAC ¶ 31). This claim has already deemed nonviable by Judge England. (ECF No. 39 6 at 5, n.3.) 7 Under the federal Food Drug and Cosmetic Act (FDCA) regulations, a food 8 shall be deemed to be economically adulterated: (1) if any valuable constituent has 9 been in whole or in part omitted or abstracted therefrom; or (2) if any substance has 10 been substituted wholly or in part therefor; or (3) if damage or inferiority has been 11 concealed in any manner; or (4) if any substance has been added thereto or mixed or 12 packed therewith so as to increase its bulk or weight, or reduce its quality or strength, 13 or make it appear better or of greater value than it is. 21 U.S.C. § 342(b)(1); see Cal. 14 Health & Saf. Code § 110585 (incorporating a similar definition under state law). 15 Judge England dismissed this claim as improperly pled because Supreme 16 Court precedent precludes accurately labeled products from being considered 17 economically adulterated. (ECF. No. 39 at 5 n.3;) Fed. Sec. Adm’r v. Quaker Oats Co., 18 318 U.S. 218, 230 (1943) (it is not economic adulteration when the product a 19 consumer is marketed is the product the consumer receives). Plaintiff again brings 20 this claim, but because the product she received was correctly labeled, her claim 21 cannot be successful. As before, this argument is rejected. 22 D. Smart Balance Original’s Classification as a “Buttery Spread” Did Not 23 Indicate a Flavor and Thus Did Not Require a Front-Label Disclosure That the 24 Product Contains Artificial Flavors. 25 Products that contain artificial flavors must disclose that fact somewhere on the 26 packaging. 21 U.S.C. § 343(k); 21 C.F.R. 101.22(c). If the product’s characterizing 27 flavor is derived from artificial ingredients, then the use of those ingredients must be 28 disclosed on the product’s principal label, although a consumer may be expected to 1 also consult a product’s back label if the front label is not unambiguously deceptive. 2 21 C.F.R. 101.22(i)(2); McGinity v. Procter & Gamble Co., 69 F.4th 1093, 1098 (9th Cir. 3 2023) (“However, the front label must be unambiguously deceptive for a defendant to 4 be precluded from insisting that the back label be considered together with the front 5 label.”). 6 Plaintiff brings new allegations that the front label’s classification of the product 7 as a “buttery spread,” and the product’s use of artificial butter flavors, required that the 8 product label also include a front-label disclosure that it contained those artificial 9 flavors. (FAC ¶ 194.) Defendant argues that “buttery spread” is not an indication of 10 flavor, but instead a “statement of identity” that describes the function and texture of 11 the product. (Mot. at 17.) Additionally, Defendant points out that the product did 12 contain a back-label disclosure that it contains artificial flavors. (Id.) 13 Defendant is correct. Regulations promulgated under the FDCA require “a 14 statement of the identity of the commodity.” 21 C.F.R. § 101.3. That “statement of 15 identity” must be in terms of: (1) the name prescribed by federal law or regulation, “(2) 16 [t]he common or usual name of the food; or, in the absence thereof, (3) [a]n 17 appropriately descriptive term, or when the nature of the food is obvious, a fanciful 18 name commonly used by the public for such food.” 21. C.F.R. § 101.3(b); see Ang v. 19 Whitewave Foods Co., No. 13-CV-1953, 2013 WL 6492353, *3 (N.D. Cal. Dec. 10, 20 2013) (discussing statement of identity requirements). In alignment with those 21 regulations, the U.S. Food and Drug Administration (“FDA”) has deemed “buttery 22 spread” a statement of identity — rather than an indication of flavor — and that its 23 primary purpose is to describe the product’s characteristics. See U.S. Food & Drug 24 Admin., “Commercial Item Description Buttery Spreads” at 2 (Nov. 6, 2008) 25 (describing buttery spread as “[a] soft spread made from liquid vegetable oils with 5 26 percent or less butter or butter flavor (natural and/or artificial), containing up to 5 g or 27 less of saturated fat per tablespoon serving and no more than a trace amount of 28 1 cholesterol.”)1; (see also Mot. at 15–16). 2 Further, while there is a dearth of caselaw that would inform whether “buttery 3 spread” would be a flavor or a product description, common sense weighs in favor of 4 finding that the Smart Balance Original spread’s label was not unambiguously 5 deceptive. The thrust of the McGinity and related regulations is that labels should 6 avoid misleading a consumer that a product does not contain artificial flavorings when 7 it actually does. See 69 F.4th at 1098; see also 21 C.F.R. § 101.3. But here the front 8 label’s identification of the product as a “buttery spread” would not mislead 9 consumers into thinking that the product does not contain artificial flavors, which its 10 back label ingredient list clearly denotes. Instead, it more concretely described the 11 texture of the product—that it is a soft spread like butter. Accordingly, the Court finds 12 that the label is not in violation of statutory requirements that it disclose its artificial 13 ingredients on its front label. 14 E. Leave to Amend 15 A court granting a motion to dismiss a claim must decide whether to grant 16 leave to amend. Leave to amend should be “freely given” where there is no “undue 17 delay, bad faith or dilatory motive on the part of the movant, . . . undue prejudice to 18 the opposing party by virtue of allowance of the amendment, [or] futility of [the] 19 amendment . . . .” Foman v. Davis, 371 U.S. 178, 182 (1962); Eminence Cap., LLC v. 20 Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (listing the Foman factors as those to 21 be considered when deciding whether to grant leave to amend). But, dismissal 22 without leave to amend may be proper if it is clear that “the complaint could not be 23 saved by any amendment.” Intri-Plex Techs., Inc. v. Crest Group, Inc., 499 F.3d 1048, 24 1056 (9th Cir. 2007) (citing In re Daou Sys., Inc., 411 F.3d 1006, 1013 (9th Cir. 2005); 25 Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989) (“Leave need 26 not be granted where the amendment of the complaint . . . constitutes an exercise in 27 1 https://www.ams.usda.gov/sites/default/files/media/CID%20Buttery%20Spreads.pdf, last visited Mar. 28 27, 2025. While the document is from 2008, the FDA continues to list it as current on its website. 1 | futility... .”)). 2 Here, the Court finds that it is clear that the majority of the First Amended 3 | Complaint’s defects cannot be saved by additional amendment. Plaintiff has failed to 4 | successfully amend her arguments originally dismissed in Judge England's Order, and 5 | the Court does not find that giving her an additional opportunity would yield a 6 | different result. Her new claim — that “buttery spread” misleads a consumer as to the 7 | use of artificial flavoring in the product — cannot survive given the term’s technical use 8 | asa statement of identity under FDA guidelines. 9 However, the Court will grant leave to amend for Plaintiff's claim regarding the 10 | allegedly rancid nature of some of the purchased products. While Plaintiff does not 11 allege in her FAC that she herself would have standing to bring the claim, she does so 12 | inher Opposition. Because her FAC’s deficiency regarding standing to bring this 13 | claim can be remedied, this specific claim will be dismissed with leave to amend. 14 CONCLUSION 15 The majority of Plaintiff's claims were properly dismissed in the first instance by 16 | Judge England. She does not provide sufficient new information or adequately viable 17 | claims in her amended complaint that would enable her complaint to move forward. 18 | Defendant's Motion to Dismiss is granted, and Plaintiff may amend and refile her 19 | complaint within 21 days as it pertains to her rancid product claim. IT 1S SO 20 | ORDERED. 21 99 IT 1S SO ORDERED. 23 | Dated: _March 27, 2025 Donel J Cob tto— Hon. Daniel alabretta 24 UNITED STATES DISTRICT JUDGE 25 26 | DJC5 - elliot23cv01417.MTD 27 28 13