Steinberg v. Icelandic Provisions, Inc.

• Court: District Court, N.D. California
• Decided: January 25, 2022
• Docket: 3:21-cv-05568
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 RIVKA STEINBERG, Case No. 21-cv-05568-EMC

8 Plaintiff, ORDER GRANTING DEFENDANT’S 9 v. MOTION TO DISMISS

10 ICELANDIC PROVISIONS, INC., Docket No. 21 11 Defendant.

12 13 14 Plaintiff Rivka Steinberg (“Steinberg”) filed this action against Defendant Icelandic 15 Provisions, Inc. (“Icelandic Provisions”) individually and on behalf of all others similarly situated. 16 See Docket No. 1 (“Complaint or Compl.”). Steinberg alleges that Icelandic Provisions’s label on 17 its Skyr product, a traditional Icelandic cultured dairy product (“Product”) misrepresents that the 18 Product is made in Iceland and therefore violates California’s consumer protection statutes. Id. 19 Pending before the Court is Icelandic Provisions’s motion to dismiss Steinberg’s Complaint. See 20 Docket No. 21 (“Mot.”). For the following reasons, the Court GRANTS Icelandic Provisions’s 21 motion to dismiss with prejudice. 22 I. BACKGROUND 23 A. Factual History 24 Icelandic Provisions manufactures and distributes Skyr (the “Product”) in the United 25 States. The Product is an “Icelandic cultured dairy product” with “the consistency of Greek 26 yogurt, but a milder flavor.” Compl. ¶¶ 1, 2, 49; Mot. at 2. The packaging on the front of the 27 Product states, “Traditional Icelandic Skyr” and “Icelandic Provisions” and has an image of a 1 Product is below: 2 3 _oowions! Teelangy, 4 Z Skyr ICELANDIC 6 te «39 PROVISIONS" \ 7 Ae Plain 8 BO 17g | 5g | 15% PROTEIN | SUGAR | MILK FAT 9 NET OL (150 6)

11 Id. Steinberg points out that over a dozen other competing Icelandic skyr products accurately 12 |) label their products as “Icelandic style,” unlike the Product here. Id. | 13, 20-24.

On the back of the Product, in the same-size font, the packaging states, “Distributed by

14 Icelandic Provisions, New York, NY,” “Developed in partnership with MS Iceland Dairies, || Reykjavik, ISL,” and “Proudly made in Batavia, NY with domestic and imported ingredients.” Id. A 16 || 9437, 49. An image of the back panel of the Product is below:

17 = ; a □□

— — = Z 18 = Sir ued Low Fet tk UTRITION FACTS Live and Active Cuttures), Strawberries, Cane □□ 19 Serving Size | Container (150g) Sugar, ingonberries, Pectin, Natural Flavors, DN. i lanwaae sean nit and Vegetable Juice 5, 20 SY calories 80 Galovestromfat PY orcrmpurepay | Yeh i 8 % Daily Va f Icelandic Provisions, New Vork, NY 21 | \ TotalFat I IMA Oevonedinoastneship wh 0 gq 0) Succ i 8 JransFatg | IVE AND ACTIVE CULTURES: Heitloom 73 Wy Cholesteral 20mz 3% | Skyr Cultures (Streptococcus Thermophilus I Sodium Gmg_=SSSCSC eae mer ee h = ENUM, 24 LQ) @ (inelcinsate — | cocina i 4 e Dietary Fiber Og 0% | heliofai pla Dis ouny Ij0N5.£0 25 5"? Total Sugars Tig eee 08 Sk Pet el oe red 26 Vitamin A 0% Marin C4 | Wp eet © @ calcium 14% fron 0 | that agiee tonot use GH.” 27 A © | -Peent ay Vales (00) ae based ona | fcteenioaticanneth on Gh reed \ caloeie diet. andnor-B5H treated rows. @p

1 Id. 4 49. The side panel of the Product states that it is “made with original Skyr cultures,” “was 2 || developed with Iceland’s oldest farmer-owned dairy,” and “is the only Skyr available in the US 3 || that contains Icelandic Heirloom Skyr Cultures that Icelanders have been enjoying for centuries.” 4 || Id. 439. An image of the side panel is below: 5 6 . = la \\ 7 A \\

8 Skyr 9 * Protein packed Skyr (“skeer”) has been G 10 a provision of Icelanders for nearly 1,000 1 years. Our Skyr was developed with Iceland's oldest farmer-owned dairy. 12 it is the only Skyr available in the US that 2B Contains Icelandic Heirloom Skyr Cultures that Icelanders have been enjoying for 14 centuries, Our heirloom cultures help make 45 our Skyr thick, creamy and delicious. &

A 16 | id. 4/39. Steinberg does not dispute that the Product is “made with original Skyr cultures” or that

17 || the Product “was developed with Iceland’s oldest farmer-owned dairy.” See id. 49-50. And

4 18 || there is no dispute that the Product is not made in Iceland but in Batavia, New York. Id. 4 49. 19 She alleges, however, that California consumers “expect[] that the Product is made with 20 || ingredients from Iceland, beyond just the starter cultures identified on the label.” Jd. 65. For 21 example, according to Steinberg, consumers “expect Defendant’s Icelandic skyr Product to be 22 || made in Iceland and contain the unique characteristics of skyr made there.” Id. 429. She 23 contends, “Authentic skyr contains unique probiotics, a result of the hardy Icelandic dairy cows 24 || that produce the milk used as the raw material,” which has “less lactose (sugar),” “a hallmark of 25 authentic Icelandic skyr.” Id. J] 30, 33. Moreover, “[t]raditional skyr production involves a dairy 26 |) centrifuge,” which differs from “Defendant’s alternative method of skyr production” that “relies 27 on ultrafiltration of milk, which concentrates the whey proteins while thickening the skyr.” Jd. 28 || 9934-35.

1 At the time of the Complaint, the homepage of Icelandic Provisions’s website stated 2 “Halló [Hello] From Iceland” over an arctic tundra backdrop of Iceland. Id. ¶ 45. But the top of 3 the website also stated that “Icelandic Provisions is the only Skyr made in the US that uses an 4 original Icelandic recipe and heirloom Icelandic Skyr cultures.” See Icelandic Provisions (July 21, 5 2021), https://web.archive.org/web/20210721033833/https://www.icelandicprovisions.com/ 6 (homepage as it existed on July 21, 2021, preserved by Internet Archive WayBack Machine) 7 (emphasis added).1 Icelandic Provisions also allegedly released a national advertising campaign 8 filmed “on location in the coastal village of Vík,” with Icelandic actors explaining skyr to 9 American consumers. Id. ¶ 46. 10 Steinberg alleges that she understood the representations on the front of the label, the 11 website, and other marketing representations to indicate that the Product is made in Iceland. Id. 12 ¶¶ 70–73. She pleads that “[a]s a result of the false and misleading labeling, the Product is sold at 13 a premium price, approximately no less than $2.79 for a 5.3 oz cup, excluding tax, compared to 14 other similar and allegedly non-misleading products that are sold at a lesser price, an average price 15 of no more than $2.19 for a 5.3 oz cup.” Id. ¶¶ 77–78. 16 Between August and October 2020, Steinberg purchased the Product for personal or 17 household consumption and use. Id. ¶¶ 80–81. She purchased the Product over competing 18 Icelandic skyr products because she believed the Product was made in Iceland, unlike its 19 competitors. Id. ¶¶ 69, 82. Had she known the truth, she allegedly would not have bought the 20 Product, would have paid less for it, or would have purchased one of the numerous, less costly 21

22 1 Icelandic Provisions requests that the Court judicially notice its website, which Steinberg discusses explicitly in her Complaint. Mot. at 10 n.6. Under Federal Rule of Evidence 201, a 23 court “may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and readily 24 determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). Steinberg contends that the content of the website is a disputed fact because the homepage that 25 Icelandic Provisions cites is from October 25, 2021, which does not appear the same way as it did around the time of the Complaint. Opp. at 10 n.5. But the homepage that Steinberg cites, from 26 the time of the Complaint, also states that the Product is “made in the US[.]” See Icelandic 27 Provisions, WWW.ICELANDICPROVISIONS.COM (July 21, 2021), https://web.archive.org/web/20210721033833/https://www.icelandicprovisions.com/ (homepage as it 1 competitors. Id. ¶¶ 74–78. 2 B. Procedural History 3 On July 20, 2021, Steinberg filed the Complaint against Icelandic Provisions, alleging 4 violations of (1) the “Unlawful Conduct Prong” of California’s Unfair Competition Law (“UCL”), 5 Cal. Bus. & Prof. Code § 17200, et seq.; (2) the “Unfair and Fraudulent Conduct Prongs” of the 6 UCL; (3) California’s False Advertising Law (“FAL”), Cal. Bus. & Prof Code § 17500, et seq.; (4) 7 California’s Consumer Legal Remedies Act (“CLRA”), Cal. Civ. Code § 1750, et seq.; and (5) a 8 claim for unjust enrichment. Docket No. 1. She filed the Complaint on behalf of a proposed class 9 of all persons residing in California who purchased the Product for personal or household 10 consumption and use since July 20, 2015. Id. ¶ 102. She seeks monetary and injunctive relief. Id. 11 at 24. On October 25, 2021, Icelandic Provisions filed the present motion to dismiss the 12 Complaint. Docket No. 21 (“Mot.”). 13 II. LEGAL STANDARD 14 Federal Rule of Civil Procedure 8(a)(2) requires a complaint to include “a short and plain 15 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A 16 complaint that fails to meet this standard may be dismissed pursuant to Rule 12(b)(6). See Fed. R. 17 Civ. P. 12(b)(6). To overcome a Rule 12(b)(6) motion to dismiss after the Supreme Court’s 18 decisions in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 19 544 (2007), a plaintiff’s “factual allegations [in the complaint] must . . . suggest that the claim has 20 at least a plausible chance of success.” Levitt v. Yelp! Inc., 765 F.3d 1123, 1135 (9th Cir. 2014) 21 (internal quotation marks omitted). The court “accept[s] factual allegations in the complaint as 22 true and construe[s] the pleadings in the light most favorable to the nonmoving party.” Manzarek 23 v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). 24 But “allegations in a complaint . . . may not simply recite the elements of a cause of action 25 [and] must contain sufficient allegations of underlying facts to give fair notice and to enable the 26 opposing party to defend itself effectively.” Levitt, 765 F.3d at 1135 (quoting Starr v. Baca, 652 27 F.3d 1202, 1216 (9th Cir. 2011)). “A claim has facial plausibility when the plaintiff pleads factual 1 misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a 2 ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted 3 unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). If the court dismisses pleadings, it “should 4 grant leave to amend even if no request to amend the pleading was made, unless it determines that 5 the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 6 F.3d 1122, 1127 (9th Cir. 2000). 7 III. DISCUSSION 8 Icelandic Provisions asserts that Steinberg fails to plausibly allege any violation of the 9 UCL, CLRA, and FAL because she fails to sufficiently plead that its conduct “is ‘likely to 10 deceive’ a ‘reasonable consumer,’” which is required under all three statutes. Mot. at 5 (citing 11 Williams v. Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir. 2008)). It argues that Steinberg lacks 12 a viable theory of misrepresentation because “a reasonable consumer would not be misled by the 13 Product’s label” and “[a]ny confusion resulting from the Product’s label would be dispelled by the 14 explicit identification of the location where the product is made.” Mot. at 6–12.

15 A. Reasonable Consumer Test 16 “The UCL, CLRA, and FAL, under which Plaintiff’s deceptive labeling claims are 17 brought, all prohibit unlawful, unfair, or fraudulent business practices.” Ebner v. Fresh, Inc., 838 18 F.3d 958, 963 (9th Cir. 2016). The UCL prohibits “any unlawful, unfair, or fraudulent business 19 act or practice.” Cal. Bus. & Prof. Code § 17200. The CLRA prohibits specific “unfair methods 20 of competition and unfair or deceptive acts . . . intended to result or that results in the sale or lease 21 of goods or services to any customer.” Cal. Civ. Code § 1770(a). And the FAL prohibits false or 22 misleading advertising, which “is untrue or misleading, and which is known, or . . . should be 23 known, to be untrue or misleading.” Cal. Bus. & Prof. Code § 17500. The California Supreme 24 Court has recognized “that these laws prohibit ‘not only advertising which is false, but also 25 advertising which[,] although true, is either actually misleading or which has a capacity, likelihood 26 or tendency to deceive or confuse the public.’” Williams, 552 F.3d at 938. Because all three 27 statutes require a showing that the challenged conduct “is ‘likely to deceive’ a ‘reasonable 1 Supp. 3d 634, 643 (N.D. Cal. 2021). 2 The reasonable consumer standard requires that “members of the public are likely to be 3 deceived” by the pertinent advertising. See Ebner, 838 F.3d at 965. This standard in turn 4 “requires more than a mere possibility” that the statement at issue “might conceivably be 5 misunderstood by some few consumers viewing it in an unreasonable manner.” Id. (internal 6 quotation marks omitted). “Rather, the reasonable consumer standard requires a probability ‘that a 7 significant portion of the general consuming public or of targeted consumers, acting reasonably in 8 the circumstances, could be misled.’” Id. (quoting Lavie v. Procter & Gamble Co., 165 Cal. App. 9 4th 496, 508 (2003)). California state and federal courts have recognized that whether a 10 reasonable consumer would be misled is generally a question of fact not amenable to 11 determination on a motion to dismiss; however, there are “rare situation[s]” where factual 12 allegations may fail as a matter of law. See Williams, 552 F.3d at 938–39; Robie v. Trader Joe’s 13 Co., No. 20-CV-07355-JSW, 2021 WL 2548960, at *5 (N.D. Cal. June 14, 2021) (“courts have 14 granted motions to dismiss under the UCL and similar statutes on the basis that the alleged 15 misrepresentations were not false, misleading, or deceptive as a matter of law”). As the California 16 Court of Appeal explained, “Although ‘whether consumers are likely to be deceived is’ typically 17 ‘a question of fact,’ that issue may be resolved on demurrer if ‘the facts alleged fail as a matter of 18 law to show’ that a ‘reasonable consumer would be misled.’” Shaeffer v. Califia Farms, LLC, 44 19 Cal. App. 5th 1125, 1140 (2020) (internal citations omitted). 20 B. The Product’s Front Label Would Not Mislead a Reasonable Consumer to Believe that the 21 Product is Made in Iceland 22 Steinberg contends that Icelandic Provisions deceptively marketed the Product to target 23 consumers who are interested in purchasing a Product that is authentically made in Iceland, 24 through the use of the front-label representations such as “Icelandic Provisions” and “Traditional 25 Icelandic Skyr” as well as the image of a countryside with a snow-covered backdrop. Docket No. 26 30 (“Opp.”) at 7. For the reasons explained below, these words and imagery do not represent that 27 the Product is made in Iceland. 1 trade name “Icelandic Provisions” on the Product’s front label does not represent that the Product 2 is made in Iceland. In Moore v. Mars Petcare US, Inc., the Ninth Circuit held that “brand names 3 by themselves can be misleading in the context of the product being marketed.” Moore, 966 F.3d 4 at 1018 (emphasis in original). “Descriptive brand names require of the consumer ‘little thought,’ 5 which can make consumers susceptible to purchasing because ‘they won’t have the time or interest 6 to read about [the product] on [the] website or the back of the box.’” Id. For example, “a product 7 called ‘One a Day’ gummy vitamins, which required two gummies a day for a full dosage, is 8 explicitly misleading.” Id. (citing Brady v. Bayer Corp., 26 Cal. App. 5th 1156, 1172 (2018)). 9 Likewise, the labeling of “prescription pet food” can be misleading because a “reasonable 10 consumer being told about ‘prescription pet food’ may be surprised to learn that there are no drugs 11 or controlled ingredient in the pet food by nature of brand names like ‘Prescription Diet’ or an 12 ‘Rx’ symbol on the food packaging.” Id. But “if common sense would not lead anyone to be 13 misled, then the claim may be disposed of at a motion to dismiss stage.” Id. 14 Here, the alleged deception is not as explicit as the two examples above. The brand name 15 “Icelandic Provisions” is not specific as to the place of production. Cases where courts examined 16 the label as a whole to determine whether a reasonable consumer would be deceived are more apt. 17 In Gudgel v. Clorox Co., 514 F. Supp. 3d 1177 (N.D. Cal. 2021), the district court held that the 18 use of the “Clorox” brand name does not “automatically imply that the product must contain 19 sanitizing or disinfecting capabilities” for the product at issue, bleach. Clorox, 514 F. Supp. at 20 1187. It held that there was no basis for misrepresentation because the “label made no statement 21 or suggestion that the product at issue is suitable for sanitization or disinfection” and “the back 22 label specifically states: ‘Not for sanitization or disinfection.’” Id. at 1185, 1187. Similarly, in 23 Rooney v. Cumberland Packing Corp., 2012 WL 1512106 (S.D. Cal. Apr. 16, 2012), the court 24 held a reasonable consumer could not be led to believe that the product at issue contains raw sugar 25 because the word “raw” does not appear on the packaging except for the brand name “Raw2f.” 26 Rooney, 2012 WL 1512106, at *4. Moreover, the product was repeatedly labeled as turbinado 27 sugar which is widely known as raw sugar and therefore the consumer was not deceived. Id. The 1 Icelandic Skyr” and the image of a snowy countryside could mislead reasonable consumers into 2 believing that the Product is made in Iceland. 3 Icelandic Provisions asserts that a reasonable consumer would not be misled by the phrase 4 “Traditional Icelandic Skyr” because a reasonable consumer would understand it to refer to a type 5 of cultured dairy product, which is an accurate representation, and not the location where it was 6 manufactured. Mot. at 7. Steinberg responds that “there is nothing that prevents the statements at 7 issue from being both statements indicating the Products have the characteristics of Icelandic Skyr 8 and statements that the Products are made in Iceland.” Opp. at 7–8 (emphasis in original). The 9 Ninth Circuit has held, “If there are two alternative explanations, one advanced by defendant and 10 the other advanced by plaintiff, both of which are plausible, plaintiff’s complaint survives a 11 motion to dismiss under Rule 12(b)(6).” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). 12 For example, in de Dios Rodriguez, the district court held that the products at issue, 13 tortillas, were “misleading by causing a reasonable consumer to believe that the [p]roducts are 14 made in Mexico” due to phrases on the front label such as “‘A Taste of Mexico,’ a Mexican flag 15 front and center, the brand name ‘La Banderita,’ a Mexican flag with the word ‘Authentic,’ and 16 other Spanish words and phrases, such as ‘Sabrosísimas’ or ‘Tortillas de Maiz.’” de Dios 17 Rodriguez v. Ole Mexican Foods Inc., 2021 WL 1731604, at *4 (C.D. Cal. Apr. 22, 2021). In 18 reaching its conclusion, the de Dios Rodriguez court distinguished Dumas v. Diageo PLC, 2016 19 WL 1367511 (S.D. Cal. Apr. 6, 2016). Id. 20 In Dumas, the district court held that a reasonable consumer would not believe that the 21 product at issue, beer, was made in Jamaica because of phrases like “Jamaican Style Lager” and 22 “The Taste of Jamaica” on the packaging. Dumas, 2016 WL 1367511 at *4. Plaintiffs alleged 23 that the phrase “The Taste of Jamaica” was deceptive because the ingredients do not come from 24 Jamaica but from the United States. Id. The court disagreed and held that “The Taste of Jamaica” 25 is a vague and meaningless phrase and that the use of the word “style” in “Jamaican Style Lager” 26 indicates “that the product is not from Jamaica.” Id. It concluded that when the phrases were 27 “viewed together” a reasonable interpretation is not that the beer is made in Jamaica, but that “the 1 recipe) and evokes the spirit or feeling of Jamaica.” Id. The de Dios Rodriguez court held that 2 unlike in Dumas, there was no use of “style” on the tortilla labels that would suggest that the 3 tortillas were not from Mexico. de Dios Rodriguez, 2021 WL 1731604, at *4. It concluded that 4 “even if the representations at issue do in fact serve to evoke[ ] the spirit or feeling of [Mexico], 5 . . . they may also mislead a reasonable consumer” and therefore denied the motion to dismiss. Id. 6 (emphasis in original) (internal quotation marks omitted). 7 In Govea v. Gruma Corp., 2021 WL 4518457 (C.D. Cal. Aug. 18, 2021) (“Govea II”), the 8 court held that although the packaging of the tortilla products at issue “evokes the spirit of 9 Mexico” it “may also mislead a reasonable consumer about the Tortillas’ geographic origin (a 10 conclusion bolstered by the Survey results).” Govea II, at *2 (alterations omitted). In an earlier 11 motion to dismiss, Govea v. Gruma Corp., 2021 WL 1557748 (C.D. Cal. Mar. 1, 2021) 12 (“Govea I”), the district court had dismissed the CLRA, FAL, and UCL claims involving tortillas 13 whose packaging included the phrase “a piece of Mexico” in Spanish because the packaging 14 “makes no claim that the Tortillas are ‘born in’ or ‘originated in’ Mexico.” Mot. at 6. But in 15 Govea II, the plaintiffs alleged two new facts: (1) that “[u]n pedacito de México” translates to “a 16 piece from Mexico,” in addition to “a piece of Mexico”; and (2) the results of a third-party online 17 survey where 70.1% out of 401 participants believed that the product at issue was made in Mexico 18 after reviewing the front and back labels. Govea II, at *1 (emphasis in original). As a result, the 19 court denied the motion to dismiss the amended complaint. Govea II, at *2. See also Hesse v. 20 Godiva Chocolatier, Inc., 463 F. Supp. 3d 453, 467 (S.D.N.Y. 2020) (denying a motion to dismiss 21 because it was plausible that the phrase “Belgium 1926” on the front of Godiva Chocolates 22 represented both the factually accurate “provenance of the company—Belgium, in 1926—and a 23 [false] representation that its chocolates continue to be manufactured there”). 24 In this case, however, the words and imagery on the Product’s front label are 25 distinguishable from the labels in the cases above. The Product’s front label does not have 26 Icelandic words, the Icelandic flag, or the word “authentic” like the label in de dios Rodriguez. It 27 does not use the word phrase “Iceland” and the date of founding like in Hesse. And the Product 1 about the perception of the Product’s label as in Govea II. Reply at 5–6. Instead, the Product 2 label only contains the brand name, a nonspecific painted image (which is not specific to Iceland), 3 and the word “traditional Icelandic” on the package,2 a term akin in function to “Jamaican style” 4 in Dumas. 5 This case is therefore more like Maeda v. Kennedy Endeavors, Inc., 407 F. Supp. 3d 953 6 (D. Haw. 2019). In Maeda, the central issue was whether the defendant “markets and packages 7 the Hawaiian Snacks in such a manner to suggest that they are made in Hawai‘i when they in fact 8 originate from Washington.” Maeda, 407 F. Supp. at 970. The packaging for the products at 9 issue, potato chips and onion rings, all included the word “Hawaiian” at the top and included “a 10 variety of imagery associated with Hawai‘i, such as hula dancers, canoes, beaches, palm trees, and 11 volcanoes.” Id. Similar to the case here, the label in Maeda did not contain the textual qualifiers 12 found in Dumas, e.g., “style” but the Maeda court held that “the word ‘Hawaiian,’ even when 13 accompanied by the subject images, does not represent that the Hawaiian Snacks are from 14 Hawai‘i.” Id. at 973. 15 The court held that the label was not misleading because it does not have “specific 16 geographic indicia related to Hawaii—such as a map, invitation to visit Defendant on the island, or 17 Hawaiian address or geographic emblem—that indicate a ‘specific place that the Product is 18 produced and that the consumer can visit.’” Id. at 972 (discussing Broomfield v. Craft Brew All., 19 Inc., No. 17-CV-01027-BLF, 2017 WL 3838453, at *1–2, *7 (N.D. Cal. Sept. 1, 2017), on 20 reconsideration in part, 2017 WL 5665654 (N.D. Cal. Nov. 27, 2017) (finding “the map of 21 Hawaii identifying Kona’s brewery on the Big Island, and the statement ‘visit our brewery and 22 pubs whenever you are in Hawaii,’” are “specific and measurable representations that could 23 deceive consumers into believing that they were purchasing beer made in Kona, Hawaii at the 24 specific brewery location listed and depicted on the package”); Reed v. Gen. Mills, Inc., 2019 WL 25 2475706, at *4–5 (W.D. Wash. June 13, 2019) (denying motion to dismiss claims alleging 26 misrepresentation as to origin of products because statements such as “VISIT OUR HOME 27 1 FARM,” “SKAGIT VALLEY, WA,” and “SINCE 1972” “indicate a specific place that the 2 Product is produced and that the consumer can visit . . . not [merely] a feeling that the Product is 3 ‘similar to’ or ‘evokes the spirit of’ Washington”); Peacock v. 21st Amendment Brewery Cafe, 4 LLC, 2018 WL 452153, at *5 (N.D. Cal. Jan. 17, 2018) (“Peacock plausibly alleges that the Bay 5 Area map with an ‘x’ marking ‘The Brewery’ is likely to deceive a reasonable consumer . . . it 6 would be reasonable for a consumer looking at [defendant]’s carton map to believe that its beer 7 was brewed in California.”)). As in Maeda, there are no images, maps, or invitation to visit a 8 particular place in Iceland on the Product’s label that would mislead a reasonable consumer to 9 believe that the Product is made in Iceland. 10 Furthermore, Steinberg’s claim of deception is weakened by the undisputed fact that the 11 Product’s Icelandic heirloom skyr cultures—which help make the yogurt thick and creamy—are 12 in fact from Iceland. Id.; Compl. ¶¶ 49–50. Steinberg does not dispute that the Product contains 13 cultures originally sourced from Iceland or that the Product is developed in partnership with 14 Iceland’s oldest farmer-owned dairy. Compl. ¶¶ 49–50. She also does not dispute that the Product 15 tastes like authentic Skyr or has the consistency of Skyr. See id. ¶¶ 2–4. Hence, what Steinberg 16 claims is misleading is the fact that the other ingredients of Skyr are from other countries and that 17 the product is manufactured in Iceland. Id. ¶¶ 65, 138. Since the core element of the Skyr is from 18 Iceland, Steinberg’s claim is more specific and nuanced than those in the cases she relies upon. 19 For instance, the narrow claim of deception here differs from the wholesale 20 misrepresentation in Williams, 552 F.3d at 938, where the Ninth Circuit concluded that the 21 packaging on the product could likely deceive a reasonable consumer because the product was 22 “called ‘fruit juice snacks’ and the packaging picture[d] a number of different fruits, potentially 23 suggesting (falsely) that those fruits or their juices are contained in the product” even though the 24 product only contained white grape juice from concentrate. Williams, 552 F.3d at 936, 939. 25 C. The Disclosure on the Back Label May Serve to Cure the Alleged Misrepresentation on the 26 Front Label 27 Furthermore, because there are no misrepresentations on the Product’s front label, the 1 to any alleged label misrepresentation regarding the place of origin. Mot. at 10. The Ninth Circuit 2 has held that where “there is no deceptive act to be dispelled,” e.g., where the correcting statement 3 on the label “does not contradict other representations or inferences on the packaging” and where 4 “there are no other words, pictures, or diagrams adorning the packaging, as there were in Williams, 5 from which any inference could be drawn or on which any reasonable belief could be based,” a 6 reasonable consumer can be expected to look at other parts of the label. Ebner, 838 F.3d at 966 7 (emphases in original). 8 In Williams, the Ninth Circuit held that because there were “a number of features of the 9 packaging Gerber used for its Fruit Juice Snacks product which could likely deceive a reasonable 10 consumer” reasonable consumers should not “be expected to look beyond misleading 11 representations on the front of the box to discover the truth from the ingredient list in small print 12 on the side of the box.” Williams, 552 F.3d at 939. In a subsequent case, the Ninth Circuit 13 clarified that “Williams stands for the proposition that if the defendant commits an act of 14 deception, the presence of fine print revealing the truth is insufficient to dispel that deception.” 15 Ebner, 838 F.3d at 966 (emphasis in original). In Ebner, the plaintiff alleged that the defendant 16 deceived consumers about the quantity of “lip balm in its Sugar Lip Treatment” product line 17 because “[a]lthough [the lip balm’s] label accurately indicates the net weight of included lip 18 product, the tube design uses a screw mechanism that allows only 75% of the product to advance 19 up the tube.” Id. at 961. The Ninth Circuit held that because the label depicts the actual weight, 20 the plaintiff “has not alleged, and cannot allege, facts to state a plausible claim that the [lip balm] 21 label is false, deceptive, or misleading.” Id. at 966. 22 As in Ebner, there are no words or pictures on the Product’s front label on which a 23 reasonable belief could be based that the Product is made entirely in Iceland. Ebner, 838 F.3d at 24 966; see supra Part III.B. Because Icelandic Provisions has not committed an act of deception, 25 “the presence of fine print revealing the truth”—that the Product is manufactured in Batavia, 26 NY—refutes an inference that the Product’s label is false, deceptive, or misleading. Ebner, 838 27 1 F.3d at 966.3 2 The Court GRANTS the motion to dismiss Steinberg’s California consumer protection 3 statute claims under 12(b)(6). The Court need not reach the additional issues raised in Icelandic 4 Provision’s motion regarding particularity in pleading, statutory standing, Article III standing for 5 injunctive relief, adequacy of CLRA notice, and the adequacy of available legal remedies with 6 respect to these claims. Because the Court concludes that further amendment would be futile, 7 given the implausibility of her deceptive labeling claims, Steinberg is not given leave to amend. 8 IV. CONCLUSION 9 For the reasons explained above, the Court GRANTS Icelandic Provisions’s motion to 10 dismiss Steinberg’s Complaint in its entirety with prejudice. 11 This order disposes of Docket No. 21. The Clerk of Court is instructed to enter Judgment 12 and close the case. 13 IT IS SO ORDERED. 14 Dated: January 25, 2022 15 ______________________________________ EDWARD M. CHEN 16 United States District Judge 17

18 3 Steinberg also points to Mantikas v. Kellogg Co., 910 F.3d 633, 637 (2d Cir. 2018) in support of her argument that a reasonable consumer should not be expected to look at the Product’s back 19 label. But Mantikas and its line of cases supports the Court’s conclusion here. In Mantikas, the Second Circuit adopted the reasoning of the Ninth Circuit in Williams when considering a box of 20 Cheez-Its that were labeled as “whole grain.” Mantikas, 910 F.3d at 637. It held that it “cannot conclude that [] disclosures on the side of the box render Plaintiffs’ allegations of deception 21 implausible” and instead it concluded that “a reasonable consumer should not be expected to consult the Nutrition Facts panel on the side of the box to correct misleading information set forth 22 in large bold type on the front of the box.” Id. (citing Williams, 552 F. 3d at 939–40).

23 Notably, courts in the Second Circuit have declined to extend Mantikas’s holding to situations where the front label “makes no explicit statements” or where the front label makes “ambiguous” 24 statements. See, e.g., Wynn v. Topco Assocs., LLC, 2021 WL 168541 (S.D.N.Y. Jan. 19, 2021) (distinguishing the label in Mantikas because the label at issue made “no explicit claims about the 25 ingredients constituting the flavor,” the basis of the alleged misrepresentation); Engram v. GSK Consumer Healthcare Holdings (US) Inc., 2021 WL 4502439, at *4 (E.D.N.Y. Sept. 30, 2021) 26 (concluding that the label created “a potential ambiguity” but “the case law permits the Court to resolve ambiguity – as opposed to misleading statements – by reference to the more specific 27 statements on the back of the package,” which “put any ambiguity to rest”). In this case, there are