Eric Testori, an individual and on behalf of all others similarly situated v. Nestlé Health Science US Holdings, Inc., a Delaware Corporation; and DOES 1 through 100, inclusive

• Court: District Court, E.D. California
• Decided: May 11, 2026
• Docket: 1:25-cv-01318
• Status: Unknown

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 ERIC TESTORI, an individual and on Case No. 1:25-cv-01318-JLT-CDB behalf of all others similarly situated, 10 ORDER GRANTING DEFENDANT’S Plaintiff, MOTION TO DISMISS THE FIRST 11 v. AMENDED COMPLAINT 12 NESTLÉ HEALTH SCIENCE US (Doc. 14.) HOLDINGS, INC., a Delaware 13 Corporation; and DOES 1 through 100, inclusive, 14 Defendants. 15 16 Testori filed the instant putative class action against Nestle Health Science. (Docs. 1, 14.) 17 Plaintiff claims that Defendant engaged in misleading or deceptive advertisements in connection 18 with the labeling and sale of the Carnation Breakfast Essentials Nutritional Drink, in violation of 19 various California state law. (See generally Doc. 14.) For the reasons set forth below, the Court 20 GRANTS Defendant’s motions to dismiss. 21 I. INTRODUCTION 22 A. Factual Background 23 Eric Testori is a resident of Bakersfield, California, and Nestle Health Science is a 24 Delaware Corporation. (Doc. 14 at ¶¶ 12–13.) Defendant manufactures, distributes, markets, 25 advertises, and sells the Product at issue in this case—the Carnation Breakfast Essentials 26 Nutritional Drink Classic French Vanilla (“Product”). (Id. at ¶¶ 1, 17.) Plaintiff brings this 27 putative class action against Defendant, alleging that the latter engaged in “unlawful and 28 deceptive practices” by labeling the Product “as a ‘nutritional drink’ and highlight[ing] its 10g of 1 | protein per serving,” while “fail[ing] to disclose with equal prominence that the Product’s first 2 | two ingredients are water and ... 11 grams of sugar per serving.” (/d. at §§ 1, 18.) A picture of 3 | the front label of the Product, which contains the allegedly misleading/deceptive statements, is 4 | included below. 5 i = “ P a : wl hi <3 a 4.) 6 ¢ La) re a | Ges 4» Raa

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20 | (Doc. 18-3 at 2.) According to Plaintiff, “Defendant’s failure to disclose the predominance of 21 || sugar, coupled with its prominent protein and ‘nutritional’ claims, deceived and misled 22 || reasonable consumers into believing that the Product is a balanced, healthful source of breakfast 23 | nutrition; when in fact it is a sweetened beverage primarily made of water and sugar. Reasonable 24 | consumers would not expect a product marketed as ‘Breakfast Essentials’ to contain more sugar 25 | than protein and thus Defendant’s omissions and misrepresentations allowed it to charge a price 26 | premium.” (Doc. 14 at § 22.) 27 B. Procedural History 28 Plaintiff filed the instant action on October 6, 2025, and then filed the First Amended

1 Complaint (“FAC”) on December 8, 2025. (Docs. 1, 14.) Plaintiff’s FAC raises the following four 2 causes of action: (1) California Consumer Legal Remedies Act (“CLRA”), (Doc. 14 at ¶¶ 76–83); 3 (2) California false advertising law (“FAL”), (id. at ¶¶ 84–94); (3) common law fraud, deceit, or 4 misrepresentation, (id. at ¶¶ 95–103); (4) California unfair competition law (“UCL”), (id. at 5 ¶¶ 104–17); and (5) unjust enrichment, (id. at ¶¶ 118–22). 6 On December 19, 2025, Defendant filed a motion to dismiss the FAC for failure to state a 7 claim upon which relief can be granted. (Doc. 18.) The matter is fully briefed and ripe for review. 8 (Pl.’s Opp’n, Doc. 21; Def.’s Reply, Doc. 22.) As indicated, (Doc. 23), the Court took the matter 9 under submission without oral argument. 10 II. PRELIMINARY MATTERS 11 A. Judicial Notice 12 The Court may consider a document if “the plaintiff refers extensively to the document or 13 the document forms the basis of the plaintiff's claim.” United States v. Ritchie, 342 F.3d 903, 908 14 (9th Cir. 2003); see also Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005). In addition, the 15 Court may take judicial notice of facts “not subject to reasonable dispute . . . [that] can be 16 accurately and readily determined from sources whose accuracy cannot reasonably be 17 questioned.” Fed. R. Evid. 201(b). “In the context of a motion to dismiss claims based upon 18 allegedly misleading product labels, the Court may take judicial notice of the images depicting 19 the product labels at issue, without having to convert the motion to dismiss into a motion for 20 summary judgment.” Garza v. Spectrum Brands Pet LLC, 760 F. Supp. 3d 1039, 1046 (E.D. Cal. 21 2024). Here, Plaintiff extensively discussed the front label throughout the FAC. (See generally 22 Doc. 14.) The Court therefore takes judicial notice of pictures of the Product’s packaging. 23 B. Legal Standard 24 Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a defendant may move 25 to dismiss a claim for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 26 12(b)(6). To survive a motion to dismiss, the complaint “must contain sufficient factual matter, 27 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 28 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This 1 plausibility inquiry is a “context-specific task that requires [this Court] to draw on its judicial 2 experience and common sense,” id. at 679, and “‘draw all reasonable inferences in favor of the 3 nonmoving party[,]’” Boquist v. Courtney, 32 F.4th 764, 773 (9th Cir. 2022) (quoting Retail 4 Prop. Tr. v. United Bhd. of Carpenters & Joiners of Am., 768 F.3d 938, 945 (9th Cir. 2014)). 5 “Conclusory allegations and unreasonable inferences,” however, “do not provide [] a basis” for 6 determining whether a plaintiff has plausibly stated a claim for relief. Coronavirus Reporter v. 7 Apple, Inc., 85 F.4th 948, 954 (9th Cir. 2023) (citation omitted). 8 III. ANALYSIS 9 A. Preemption 10 Before turning to the details of instant action, the Court finds it helpful to provide a 11 summary of the federal regulatory framework: 12 The FDA regulates three types of claims relevant in this case: express nutrient content claims, implied nutrient content claims, and health 13 claims. See Chacanaca v. Quaker Oats, Co., 752 F. Supp. 2d 1111, 1117 (N.D. Cal. 2010) (citing 21 U.S.C. § 343(q), (r) and 21 C.F.R. 14 §§ 101.13, 101.14). 15 An express nutrient claim is a statement about the level or range of the nutrient in the food product, like “low sodium” or “contains 100 16 calories.” See 21 C.F.R. § 101.13(b)(1). Food product labels may include an express nutrient claim provided that it “does not in any 17 way implicitly characterize the level of the nutrient in the food and it is not false or misleading in any respect (e.g., ‘100 calories’ or ‘5 18 grams of fat’), in which case no disclaimer is required.” 21 C.F.R. § 101.13(i)(3). 19 An implied nutrient content claim “describes the food or an 20 ingredient therein in a manner that suggests that a nutrient is absent or present in a certain amount (e.g., ‘high in oat bran’).” 21 C.F.R. 21 § 101.13(b)(2)(i)-(ii); Ackerman, 2010 WL 2925955, at *3 (providing the example “as much fiber as an apple”). An implied 22 nutrient content claim might also make “a ‘general nutritional claim,’ (a subcategory of an implied nutrient claim) consisting of an express 23 or implied claim that the nutrient content of a food may help consumers maintain healthy dietary practices.” Ackerman, 2010 WL 24 2925955, at *3 (emphasis added). 25 . . . 26 A health claim is “any claim that expressly or by implication characterizes the relationship of any substance to a disease or health- 27 related condition.” 21 C.F.R. § 101.14(a)(1). An express health claim are those “references, written statements (e.g., a brand name 28 including a term such as ‘heart’), symbols (e.g., a heart symbol), or 1 vignettes” that expressly characterize the relationship. Id. An implied health claim are “those statements, symbols, vignettes, or other forms 2 of communication that suggest, within the context in which they are presented, that a relationship exists between the presence or level of 3 a substance in the food and a disease or health-related condition.” Id. 4 Statements that do not involve the above health or nutrient content claims (or nutritional labeling information under section 343(q)) are 5 not preempted by the FDA. See id. at 1118 (discussing 21 U.S.C. § 343(q) and (r)); see also 21 C.F.R. § 101.65 (“Certain label 6 statements about the nature of a product are not nutrient content claims unless such statements are made in a context that would make 7 them an implied nutrient content claim under § 101.13(b)(2).”). As the FDA explained: 8 When a term such as “Wholesome” or 9 “Nutritious” is used in a context that does not render it an implied claim 10 (e.g., “Nutritious foods, prepared fresh daily” or “Made with wholesome 11 ingredients”), it is not subject to the claims requirements. On the other 12 hand, FDA may consider the term to be used in a nutritional context if it 13 appears in association with an explicit or implicit claim or statement about a 14 nutrient. In statements such as “Nutritious, contains 3 grams of 15 fiber,” “Best choice, contains 200 mg sodium,” or “Good for you, contains 5 16 grams of fat,” the terms are implied nutrient content claims and the foods 17 bearing the claims must meet the requirements for a claim defined by 18 FDA for the nutrient that is the subject of the claim. 19 . . . 20 Based on the FDA’s express decision to not recognize sugar as a 21 disqualifying nutrient, various district courts have now adopted the finding that “any claim under state law solely premised on the notion 22 that [a product’s] high sugar content made its health or implied nutrient content claims misleading is preempted.” Ackerman, 2010 23 WL 2925955, at *8; Krommenhock, 255 F. Supp. 3d at 956; see Hadley v. Kellogg Sales Co., 273 F. Supp. 3d 1052, 1077–78 (N.D. 24 Cal. 2017) (rejecting “Plaintiff’s theory that health claims or implied nutrient content claims are misleading because of a certain amount 25 of added sugar in a product” because to hold otherwise “would essentially ‘ascribe disqualifying status’ to added sugar”). This Court 26 agrees, and likewise adopts this finding. 27 McMorrow v. Mondelez Int’l, Inc., No. 17-CV-02327-BAS-JLB, 2018 WL 3956022, at *5–7 28 (S.D. Cal. Aug. 17, 2018) (alterations adopted). 1 Here, the “nutritional drink” statement is right above four additional statements stating: 2 “10g protein,” “21 vitamins + minerals,” “3x vitamin vs. milk,” and “2x calcium vs. Greek 3 Yogurt.” (Doc. 18-3 at 2.) This is like the product in Krommenhock v. Post Foods, LLC, where 4 the word “healthy” was “‘followed immediately’ by a specific listing of nutrients present in the 5 product.” 255 F. Supp. 3d 938, 956–57 (N.D. Cal. 2017). Like Bates, the context of the packaging 6 “implies that the reason that the drink is a nutrition drink is that it contains the nutrients . . . listed 7 directly below that phrase on the bottle.” Bates v. Abbott Lab’ys, 727 F. Supp. 3d 194, 220 8 (N.D.N.Y. 2024), aff’d, No. 24-919-CV, 2025 WL 65668 (2d Cir. Jan. 10, 2025). 9 Crucially, the Ninth Circuit has already addressed a very similar situation. In Clark v. 10 Perfect Bar, LLC, the district court dismissed a case where the plaintiffs argued that the 11 packaging on some protein bars “led them to believe that the bars would be ‘healthy’ when, in 12 supposed point of fact, the added sugar rendered them unhealthy or, in the alternative, less 13 healthy from what they otherwise had believed.” No. C 18-06006 WHA, 2018 WL 7048788, at 14 *1 (N.D. Cal. Dec. 21, 2018), aff’d, 816 F. App’x 141 (9th Cir. 2020). Judge Alsup of the 15 Northern District of California found the plaintiffs’ claim to be “untenable” and explained: 16 The actual ingredients were fully disclosed. Reasonable purchasers could decide for themselves how healthy or not the sugar content 17 would be. No consumer, on notice of the actual ingredients described on the packing including honey and sugar, could reasonably 18 overestimate the health benefits of the bar merely because the packaging elsewhere refers to it as a health bar and describes its 19 recipe as having been handed down from a health-nut parent. The honey/sugar content was properly disclosed — that is the end of it — 20 period. 21 Id. On appeal, the Ninth Circuit issued a terse memorandum opinion on an alternative ground— 22 dismissing the plaintiffs’ state law claims, including the UCL, FAL, and CLRA claims, as 23 preempted by federal law. Clark v. Perfect Bar, LLC, 816 F. App’x 141, 143 (9th Cir. 2020) 24 (Mem.). The Ninth Circuit explained in no ambiguous terms: “Allowing a claim of misbranding 25 under California law based on misleading sugar level content would ‘indirectly establish’ a sugar 26 labeling requirement ‘that is not identical to the federal requirements,’ a result foreclosed by our 27 precedent.” Id. (citing Hawkins v. Kroger Co., 906 F.3d 763, 770 (9th Cir. 2018)) (footnote 28 omitted); see also id. (“To the extent Appellants’ claims advance the notion that Perfect Bar made 1 an improper health claim due to added sugar levels in the bar, those claims are not viable.” 2 (citation omitted)). 3 Clark is almost on all fours here. Notably, Plaintiff expressly states that the essence of his 4 “claim is that Defendant’s use of that statement – when combined with other front-label 5 representations such as ‘Breakfast Essentials’ and ‘Nutritional Drink’ – creates a misleading net 6 impression that the Product is nutritionally balanced and suitable for breakfast consumption, 7 notwithstanding its high added sugar content.” (Doc. 21 at 9.) Indeed, the FAC and Plaintiff’s 8 brief in opposition are filled with contentions related to “health” and “nutrition.” (See, e.g., Doc. 9 21 at 5 (“A manufacturer that chooses to emphasize healthful qualities assumes a duty not to omit 10 facts that would render those representations misleading.” (citations omitted) (emphasis added)), 11 13 (allegedly “misleading nutritional message” because of “11 grams of added sugar”); Doc. 14 at 12 ¶¶ 28 (“A product marketed as ‘Breakfast Essentials’ but delivering nearly one-quarter of a 13 consumer’s daily sugar limit in a single serving is not a nutritional breakfast substitute.”), 54 14 (“[P]resenting the Product as a healthy, protein-based breakfast option when, in truth, it is 15 dominated by sugar.” (emphasis added)), 60 (“Plaintiff was misled into believing the Product was 16 a healthful breakfast alternative.” (emphasis added)).) Because Plaintiff’s entire case turns on 17 allegedly misleading “health” and “nutritional” messages conveyed by the Product, the Court 18 finds all state law claims preempted by federal laws and regulations. 19 B. Misrepresentation 20 Even setting aside the issue of preemption, Plaintiff nonetheless fails to plausibly state a 21 claim upon which relief can be granted. Plaintiff alleges that the Product’s packaging is 22 misleading or deceptive because the “front label markets the Product as a ‘Breakfast Essential,’ a 23 ‘Nutritional Drink,’ and a meaningful source of protein, while omitting facts that materially 24 undermine that message — namely, that the Product delivers 11 grams of added sugar per 25 serving, or 22% of the daily recommended value.” (See Doc. 21 at 11; see also id. at 13 26 (“[Plaintiff] alleges that Defendant’s prominent emphasis on protein, combined with breakfast- 27 orientated messaging, conveys a misleading nutritional impression given the Product’s high 28 added sugar content.”).) Defendant, on the other hand, argues that a “reasonable consumer” 1 would not have been deceived. (See generally Doc. 18-1 at 14–20.) 2 For claims arising under California’s CLRA, UCL, and FAL, the plaintiff must show that 3 reasonable consumers are likely to be deceived by the label. Williams v. Gerber Prods. Co., 552 4 F.3d 934, 938 (9th Cir. 2008). The reasonable consumer test requires the plaintiff to “show that 5 members of the public are likely to be deceived.” Ebner v. Fresh, Inc., 838 F.3d 958, 965 (9th 6 Cir. 2016) (quotations omitted). This standard also applies to common law fraud, intentional 7 misrepresentation, and negligent misrepresentation claims. See Freeman v. Time, Inc., 68 F.3d 8 285, 289 (9th Cir. 1995) (explaining that common law fraud requires showing that the label 9 would mislead a reasonable person); Girard v. Toyota Motor Sales, U.S.A., Inc., 316 Fed. App’x. 10 561, 562 (9th Cir. 2008) (holding that the “justifiable reliance” element of negligent 11 misrepresentation equates to the “reasonable consumer” standard). 12 “Whether a reasonable consumer would be deceived by a product label is generally a 13 question of fact not amenable to determination on a motion to dismiss.” Girard, 316 Fed. App’x 14 at 562. However, the court may determine, as a matter of law, that the alleged violations of the 15 CLRA, UCL, and FAL are simply not plausible. See, e.g., Chong v. Nestle Water N. Am., Inc., 16 No. 20-56373, 2021 WL 4938128, at *1 (9th Cir. Oct. 22, 2021) (“[T]his Court may conclude on 17 the pleadings that no reasonable consumer would be misled by any of the product labels at issue 18 in this suit.”); Werbel ex rel. v. Pepsico, Inc., No. 09-cv-04456-SBA, 2010 WL 2673860, at *3 19 (N.D. Cal. July 2, 2010) (holding that a reasonable consumer would not be deceived into 20 believing that “Crunch Berries” cereal derived significant nutritional value from fruit). “Dismissal 21 is appropriate when ‘the advertisement itself [makes] it impossible for the plaintiff to prove that a 22 reasonable consumer [is] likely to be deceived.’” Whiteside v. Kimberly Clark Corp., 108 F.4th 23 771, 778 (9th Cir. 2024) (quoting Williams, 552 F.3d at 938–39.) The reasonable consumer test 24 therefore “requires more than a mere possibility that [the defendant’s] label ‘might conceivably 25 be misunderstood by some few consumers viewing it in an unreasonable manner.’” Ebner, 838 26 F.3d at 965 (quoting Lavie v. Proctor & Gamble Co.¸105 Cal. App. 4th 496, 508 (Cal. Ct. App. 27 2003)). Rather, the reasonable consumer standard requires a probability that a significant portion 28 of the general consuming public or of targeted consumers, acting reasonably in the circumstances, 1 could be misled.” Id. 2 The Ninth Circuit has articulated a specific approach for evaluating packaging for 3 consumer deception claims at the pleadings stage. See Whiteside, 108 F.4th at 778–82. That is, “a 4 plaintiff must plausibly allege that the front label would be unambiguously deceptive to an 5 ordinary consumer, such that the consumer would feel no need to look at the back label” before 6 reasonably concluding that the front label is making a particular representation. Id. at 780 7 (emphases added). “[T]he front label must be unambiguously deceptive for a defendant to be 8 precluded from insisting that the back label be considered with the front label” at the pleading 9 stage. McGinity v. Proctor & Gamble Co., 69 F.4th 1093, 1098 (9th Cir. 2023) (emphasis added). 10 In Williams, the Ninth Circuit addressed a product which contained a statement stating 11 that it “was made with ‘fruit juice and other all natural ingredients.’” 552 F.3d at 939. It is a 12 statement that “could easily be interpreted by consumers as a claim that all the ingredients in the 13 product were natural, which appear[ed] to be false.” Id. The Ninth Circuit explained that a 14 manufacturer cannot “mislead consumers” on the front label “and then rely on the ingredient list 15 to correct those misinterpretations and provide a shield for liability for the deception. Instead, 16 reasonable consumers expect that the ingredient list contains more detailed information about the 17 product that confirms other representations on the packaging.” Id. (emphases added). The Second 18 Circuit then quoted that part of the opinion verbatim and made it a part of that circuit’s 19 jurisprudence. Mantikas v. Kellogg Co., 910 F.3d 633, 637 (2d Cir. 2018). 20 The Second Circuit’s decision in Bates is particularly helpful towards the resolution of the 21 instant case. Bates v. Abbott Lab’ys, No. 24-919-CV, 2025 WL 65668 (2d Cir. Jan. 10, 2025). 22 There, a consumer alleges that the “health and wellness statements on the labels affixed to … 23 nutrition shakes and drinks” advertising the drinks as “healthy and nutritious” “are false and 24 misleading because the high amount of added sugar in the products is harmful to an individual’s 25 health.” Id. at *1–2 (cleaned up). The district court dismissed the state law claims at the motion- 26 to-dismiss stage, holding, inter alia, that the plaintiff failed to state a plausible claim that the 27 labels on the products were false or misleading. Id. at *1. The Second Circuit affirmed the district 28 court’s judgment. 1 The Second Circuit reasoned that there is no allegedly deceptive advertising under New 2 York state law1 when “the amount of sugar was disclosed on the federally-mandated Nutrition 3 Facts Panel.” Id. The court acknowledged that consumers should not be expected to ignore the 4 misleading representation on the front label and discover the truth on the back label. Id. (citing 5 and quoting Mantikas, 910 F.3d at 637). However, “the challenged labeling statements at issue … 6 [were not] affirmatively inaccurate, or contradictory to the Nutrition Facts Panel, because none of 7 the challenged statements reference the sugar content of the product[] … [or] even mention[] 8 sugar.” Id. (citations omitted). The court further explained that even if “the general statements 9 about health and nutrition on the labeling . . . implicitly create[d] some ambiguity about the sugar 10 content of those products, any such ambiguity is cured by the accurate reporting of the sugar 11 content on the Nutrition Facts Panel.” Id. at *3. 12 Similarly, the Product at issue here is a “nutritional drink” which contains many 13 “breakfast essential[]” nutrients. (Doc. 18-3 at 2.) Specifically, the front label states that it 14 contains “10g protein,” “21 vitamins + minerals,” “3x vitamin vs. milk,” and “2x calcium vs. 15 Greek Yogurt.” (Id.) In addition to the Second Circuit’s persuasive analysis in Bates, the Court 16 finds that it is not precluded from considering the back label—which explicitly discloses the 17 amount of added sugar—for two extra reasons. 18 First, the Product here does not make any assertion about overall “health” or 19 “balanced/healthy diet.” (See generally Doc. 18-3.)2 Though added sugar may turn an otherwise 20 1 The Court finds no material distinction between the New York standard and the California 21 standard for purposes of this motion. Compare Freeman v. Time, Inc., 68 F.3d 285, 289 (9th Cir. 1995) (“In view of the allegations here, the false or misleading advertising and unfair business practices claim 22 must be evaluated from the vantage of a reasonable consumer.” (cleaned up)), with Stutman v. Chem. Bank, 95 N.Y.2d 24, 29 (N.Y. 2000) (“Whether a representation or an omission, the deceptive practice 23 must be ‘likely to mislead a reasonable consumer acting reasonably under the circumstances.’” (citation omitted)). The Ninth Circuit appears to imply as such. See Clark, 816 F. App’x at 143 n.1 (9th Cir. 2020). 24 2 The Court finds several district court opinions to be distinguishable on this basis. See, e.g., 25 McMorrow, 2018 WL 3956022, at *1 (“We worked closely with nutritionists to design belVita Breakfast Biscuits, wholesome grains, and part of a balanced breakfast.” (citation and quotation marks omitted)); 26 Hadley v. Kellogg Sales Co., 273 F. Supp. 3d 1052, 1060 (N.D. Cal. 2017) (statements affirmatively claiming that the products promote “healthy” body and lifestyle, as well as “overall well-being”); 27 Krommenhock, 255 F. Supp. 3d at 946–47 (involving statements of “healthy” cereal and affirmatively 28 downplaying the products’ sugar content). In any event, those cases predate the Ninth Circuit’s most 1 healthy product into an unhealthy one, the Product at issue here does not become less—or cease 2 to be—“nutritional” due to the added sugar. As such, Plaintiff has failed to “plausibly allege that 3 the front label is literally false . . ..” Robles v. GOJO Indus., Inc., No. 22-55627, 2023 WL 4 4946601, at *1 (9th Cir. Aug. 3, 2023) (citations omitted). Moreover, the front label suggests that 5 the Product is “breakfast essential” because it contains “10g protein,” “21 vitamins + minerals,” 6 “3x vitamin vs. milk,” and “2x calcium vs. Greek Yogurt.” Contrary to Plaintiff’s arguments, the 7 Court finds no plausible indication that Defendant is “unambiguously” representing that the 8 Product is “nutritionally balanced” on the front label. (See Doc. 21 at 9.) Plaintiff has not 9 plausibly alleged that an ordinary consumer “would feel no need to look at the back label” before 10 jumping to the conclusion, see Whiteside, 108 F.4th at 780 (emphasis added), that “breakfast 11 essential” means a nutritionally “balanced” drink which does not have 11 grams of added sugar, 12 (see Doc. 21 at 7).3 13 Second, and relatedly, the front label does not mention or suggest anything about the 14 amount of added sugar. The Court is not precluded from considering the back label where, as 15 here, the back “label does not contradict other representations or inferences” on the front label. 16 See Ebner v. Fresh, Inc., 838 F.3d 958, 966 (9th Cir. 2016). And, when considering the front 17 label and the back label together, a reasonable consumer would not have been misled into 18 believing that the Product has low amounts of added sugar.4 19 Finally, “when ‘ambiguity’ on the front of a label ‘can be resolved by reference to the 20 back label,’ a reasonable consumer would not be deceived.” Kim v. Bluetriton Brands, Inc., No. 21

22 district court to consider the content on the back label.

23 3 Modern advertisements frequently use phrases like, “You need this,” “You have to use this,” or “This is essential for your health.” A reasonable consumer would understand the need to view such 24 statements with a grain of salt, and not take an expansive, strenuous, and atextual interpretation of them, as Plaintiff seems to urge. 25 4 The FAC seems to suggest that because “the Product is dominated by water and sugar,” it does 26 not provide the nutritional benefits implied by the front-label ‘10 grams of protein’ claim.” (Doc. 14 at ¶ 96.) The Court “does not understand the logic of this contention—Plaintiff has not offered any plausible 27 explanation as to how the benefits associated with 10g of protein may change based on what else may be 28 present in the drink. Stated differently, Plaintiff does not plausibly explain how “the amount of usable 1 22-56063, 2024 WL 243343, at *1 (9th Cir. Jan. 23, 2024) (quoting McGinity, 69 F.4th at 1098– 2 99). And because the Court has concluded above that the back label should be considered, which 3 discloses the amount of added sugar in the Product, Plaintiff’s the deception-by-omission theory 4 of liability necessarily fails. (See Doc. 18-1 at 23.) 5 For all these reasons, the Court GRANTS Defendant’s motion and DISMISSES the first 6 through fourth causes of action. 7 C. Unjust Enrichment 8 Under the fifth cause of action, Plaintiff alleges that “Defendant has been unjustly 9 enriched in retaining the revenues from Plaintiff and Class members’ purchases of the Product, 10 which retention is unjust and inequitable, because Defendant falsely represented that the Product 11 contained meaningful amounts of protein per serving, while concealing that the Product is 12 dominated by water and sugar, and that the nutritional value of the protein provided is limited 13 relative to the high sugar content.” (Doc. 14 at ¶ 120.) Plaintiff therefore contends that Defendant 14 should be required to pay restitution to Plaintiff and the Class members for its unjust enrichment. 15 (Id. at ¶ 121.) 16 However, as Defendant points out, Plaintiff has explicitly conceded that unjust enrichment 17 is not a standalone cause of action in the state of California. (Doc. 22 at 14; see also Doc. 21 at 18 18.) And “a restitution claim based on fraud or consumer protection claims must nonetheless be 19 dismissed if the plaintiff fails to sufficiently plead an actionable misrepresentation or omission.” 20 In re Apple Processor Litig., No. 18-CV-00147-EJD, 2022 WL 2064975, at *12 (N.D. Cal. June 21 8, 2022) (citing Rojas-Lozano v. Google, Inc., 159 F. Supp. 3d 1101, 1120 (N.D. Cal. 2016)), 22 aff’d, No. 22-16164, 2023 WL 5950622 (9th Cir. Sept. 13, 2023). The Court therefore 23 DISMISSES Plaintiff’s unjust enrichment claim for failure to plausibly raise a claim of 24 misrepresentation. 25 IV. LEAVE TO AMEND 26 “The [C]ourt considers five factors in assessing the propriety of leave to amend—bad 27 faith, undue delay, prejudice to the opposing party, futility of amendment, and whether the 28 plaintiff has previously amended the complaint.” United States v. Corinthian Colleges, 655 F.3d 1 | 984, 995 (9th Cir. 2011) (citing Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004)). “Based 2 | on the undisputed nature of the packaging, it appears that amendment could not remedy the 3 | absence of a consumer deception claim. Thus, the motion is granted with prejudice and without 4 | leave to amend.” Garza, 760 F. Supp. 3d at 1051. 5 Vv. CONCLUSION 6 Based upon the foregoing, the Court ORDERS: 7 (1) The First Amended Complaint is DISMISSED WITH PREJUDICE. 8 (2) The Clerk of Court is directed to close this case. 9 10 IT IS SO ORDERED. iL | Dated: _ May 11, 2026 Cerin | Tower TED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13