8 UNITED STATES DISTRICT COURT
9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11
12 BRIANNA TABLER, Case No. 19-CV-01646-LHK
13 Plaintiff, ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND 14 v. Re: Dkt. No. 44 15 PANERA LLC, 16 Defendant. 17 18 Before the Court is Defendant Panera LLC’s motion to dismiss. ECF No. 44. Having 19 considered the submissions of the parties, the relevant law, and the record in this case, the Court 20 GRANTS Defendant’s motion to dismiss with leave to amend. 21 I. BACKGROUND 22 A. Factual Background 23 Plaintiff Brianna Tabler is a citizen of Santa Clara County, California. ECF No. 41 ¶ 65 24 (“FAC” or “First Amended Complaint”). Defendant Panera LLC is a limited liability company 25 that was formed under the laws of New York and maintains headquarters in New York City. Id. 26 ¶ 72. Defendant manufactures, markets, and distributes sandwiches, baked goods, and other 27 prepared foods, including the “Whole Grain Bagel” and “Whole Grain Bread” (the “Products”), in 1 retail outlets in California. Id. J 4, 5. 2 Plaintiff alleges that Defendant falsely and deceptively labels and markets the Products as 3 “100% clean.” Jd. 44, 10. According to Plaintiff, on January 13, 2017, Defendant “declared that 4 || the entire ‘Panera Bread Menu is Now 100% Clean’” and “promoted the claim that ‘100% of our 5 food is 100% clean’ through its marketing, including a television commercial, billboards, and T- 6 || shirts worn by staff at its roughly 2,000 outlets.” Jd. 414. Defendant “has since continued to 7 || represent that all of the food it sells in its retail outlets, including the Products, are ‘100% □□□□□□□ 8 || and that such representations “are ubiquitous at the point of sale of the Products—on bags, signs, 9 || and labels throughout Panera’s physical locations.” Jd. {| 15-16. For example, Plaintiff indicates 10 || that “signs and placards” at Defendant’s retail outlets display statements such as “100% of our 11 food is 100% clean” and “All 100% clean.” Jd. 417. Other advertisements simply state that all 12 || food sold is “100% clean.” Jd. 18. Plaintiff provides several images of representative 13 advertisements: ou | □
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v 14 || Id. Additionally, Plaintiffs do not explain whether there are other “100% clean” advertisements O 15 that differ from the proffered representative samples, and if so, how any those advertisements 16 || differ.
2 17 Nonetheless, according to Plaintiff, Defendant’s differing “representations are intended to,
3 18 and do, portray to consumers that, at the very least, the ingredients in the Products do not contain 19 || residue of non-food items such as synthetic chemicals used during the ingredients’ growing, 20 || harvest, or processing.” Id. 4 19. 21 Notwithstanding these statements, Plaintiff alleges that the Products contain the residue of 22 || glyphosate, a synthetic chemical. Jd. {| 21, 25. Glyphosate is an artificial chemical derived from 23 the amino acid glycine. Id. 23, 25. Glyphosate was invented by the agrochemical and 24 agricultural biotechnology corporation Monsanto, which marketed the biocide under the trade 25 || name “Roundup.” Jd. ¥ 22. 26 According to Plaintiff, the fact that the Products contain glyphosate residue renders 27 || Defendant’s statements that the Products are “100% clean” misrepresentations. Id. | 30. Indeed, 28 Case No. 19-CV-01646-LHK
1 Plaintiff asserts that Defendant’s statements indicate to reasonable consumers that the Products 2 “do not contain residue of non-food items such as synthetic chemicals used during the ingredients’ 3 growing, harvest, or processing.” Id. ¶ 19. Plaintiff claims that Defendant does not disclose that 4 glyphosate residue is present in the Products on Defendant’s website, packaging, signage, or in a 5 biannual “Responsibility Report” that Defendant disseminates to provide information about the 6 Products. Id. ¶¶ 31–38, 51. 7 Plaintiff alleges that Defendant is aware that the Products contain glyphosate residue and 8 that Defendant is also aware of the source of the glyphosate residue in the production process. Id. 9 ¶¶ 40, 41. Plaintiff asserts that Defendant purposefully fails to disclose this information in order 10 to charge a premium from consumers, and in order to ensure that consumers do not cease 11 purchasing the Products and switch to one of Defendant’s competitors. Id. ¶¶ 46–48. 12 As previously alleged in Plaintiff’s initial complaint, Plaintiff purchased Defendant’s 13 Whole Grain Bagel, as well as other unspecified Products, at unspecified times during the class 14 period from three different retail outlets located in California. Id. ¶ 66. Plaintiff alleges that in 15 deciding to make these purchases, Plaintiff “saw and believed in-store signage representing that all 16 of the foods sold there were ‘100% clean.’” Id. ¶ 67. 17 B. Procedural History 18 On March 29, 2019, Plaintiff filed the instant putative class action complaint against 19 Defendant and two related entities. Id. ¶ 1. The complaint alleges causes of action under: 20 (1) California’s Consumers Legal Remedies Act (“CLRA”), Cal. Civ. Code §§ 1750–1785; (2) 21 California’s False Advertisement Law (“FAL”), Cal. Bus. & Prof. Code § 17500 et seq.; and (3) 22 California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code §§ 17200–17210. Id. 23 ¶¶ 82–112. On May 15, 2019, Plaintiff filed a notice of voluntary dismissal of the two related 24 entities. ECF No. 5. Thus, Defendant is the only remaining defendant in the instant case. Id. 25 On July 10, 2019, Defendant filed a motion to dismiss, or in the alternative, to stay the 26 instant case or strike portions of Plaintiff’s complaint. ECF No. 21. On October 19, 2019, the 27 Court granted Defendant’s motion to dismiss with leave to amend and denied Defendant’s request 1 to stay and request to strike. ECF No. 35. First, the Court held that Plaintiff’s claims were not 2 expressly preempted by the Federal Food, Drug, and Cosmetic Act (“FDCA”) as amended by the 3 Nutrition Labeling and Education Act (“NLEA”). Id. at 8–11. Second, the Court determined that 4 the application of the primary jurisdiction doctrine was in appropriate and therefore refused to 5 dismiss or stay the case on this basis. Id. at 11–14. 6 The Court then proceeded to the merits of Plaintiff’s claims. The Court concluded that 7 Plaintiff lacked Article III standing to pursue injunctive relief because as alleged in the initial 8 complaint, Plaintiff only sought to “change . . . the current Products’ representations, packaging, 9 labels and marketing, or a reformulation of the Products so that the Products no longer contain 10 glyphosate residue.” Id. at 15 (quoting Compl. ¶ 60). However, even if some relief were granted 11 and only the representations, packaging, labels, and marketing were changed, Plaintiff would still 12 refuse to purchase the Products. Id. at 15–16. Additionally, Plaintiffs “allege[d] only the 13 possibility of future injury arising from the fact that Plaintiff may purchase the Products in the 14 future.” Id. at 16 (quotation marks omitted). 15 Furthermore, because the initial complaint sought to bring claims based on other, 16 unspecified “bread products” that Plaintiff did not purchase and were not “substantially similar” to 17 the purchased products, the Court held that Plaintiff lacked standing to bring these claims. Id. at 18 16–19; see id. at 18 (“When a complaint fails to adequately allege how products a plaintiff 19 purchased are in fact substantially similar to products that the plaintiff challenges, the Court must 20 dismiss the complaint to the extent it seeks to bring claims on the basis of unpurchased 21 products.”). 22 Finally, the Court held that Plaintiff failed to state a CLRA, FAL, or UCL claim for 23 purchased products because Plaintiff failed to satisfy Federal Rule of Civil Procedure 9(b)’s 24 heightened pleading standard. Id. at 19–25. Plaintiff failed to specify “which, if any, of the 25 ‘representative’ advertisements described in the complaint Plaintiff actually relied upon before” 26 purchasing any products. Id. at 21. “Nor d[id] Plaintiff provide any information about when 27 Plaintiff allegedly viewed Defendant’s advertisements, or which ones Plaintiff found to be 1 material in making her purchases.” Id. As a result, the complaint “fail[ed] to give [Defendant] the 2 opportunity to respond to the alleged misconduct.” Id. (quotation marks omitted). 3 Indeed, Plaintiff “d[id] not dispute that the complaint fail[ed] to sufficiently plead reliance 4 on specific misstatements to satisfy the requirements of Rule 9(b).” Id. at 22. Rather, Plaintiff 5 argued that she did not need to allege reliance on a specific advertisement pursuant to In re 6 Tobacco II, 46 Cal. 4th 298 (2009). Id. The Court rejected Plaintiff’s argument because 7 numerous courts, including this court, construed the In re Tobacco II exception narrowly. Id. at 8 23. 9 As the Court explained, “In re Tobacco II does not stand for the proposition that a 10 consumer who was never exposed to an alleged false or misleading advertising or promotional 11 campaign may bring a claim for relief.” Id. (quotation marks omitted). “Rather, In re Tobacco II 12 stands for the narrower, and more straightforward proposition that, where a plaintiff has been 13 exposed to numerous advertisements over a period of decades, the plaintiff is not required to plead 14 with an unrealistic degree of specificity the particular advertisements and statements that she 15 relied upon.” Id. (quotation marks and internal alterations omitted). Plaintiff “ma[de] no 16 allegation whatsoever concerning the duration or pervasiveness of Defendant’s alleged advertising 17 campaign, which render[ed] In re Tobacco II wholly inapplicable.” Id.; see also id. at 23 (“The 18 unadorned assertion that allegedly fraudulent representations are ‘ubiquitous at the point of sale’ is 19 insufficient to plead an advertising campaign of the necessary ‘longevity and pervasiveness’ 20 required to invoke In re Tobacco II.”). 21 As a result, the Court granted Defendant’s motion to dismiss but permitted Plaintiff leave 22 to amend. Id. at 24. The Court instructed Plaintiff that “to the extent that Plaintiff does not plead 23 the existence of an advertising campaign of the necessary ‘extent and pervasiveness’ to satisfy the 24 In re Tobacco II exception,” Plaintiff must “set forth in chart form the misstatements that Plaintiff 25 challenges on a numbered, statement-by-statement basis: (1) the challenged statement, (2) the 26 location and timing of the statement; (3) the Product(s) covered by the statement; (4) the date on 27 which Plaintiff witnessed the statement; and (5) the Product(s) Plaintiff purchased on the basis of 1 the statement.” Id. at 25. Moreover, the Court notified that any “failure to cure deficiencies 2 identified herein or in Defendant’s motion to dismiss will result in dismissal of the deficient 3 claims with prejudice.” Id. 4 On November 27, 2019, Plaintiff filed the First Amended Complaint. ECF No.41 5 (“FAC”). The FAC alleges the same three causes of action under the CLRA, FAL, and UCL. Id. 6 ¶¶ 87–117. As before, the FAC includes a number of representative advertisements but never 7 specifies which particular advertisements Plaintiff saw and relied upon “in-store” when purchasing 8 Panera products. FAC ¶ 67. Indeed, the FAC fails to comply with the Court’s instruction 9 requiring “Plaintiff to set forth in chart form the misstatements that Plaintiff challenges.” ECF No. 10 35 at 25. Furthermore, the FAC also fails to explain when Plaintiff viewed any advertisements 11 and instead only mentions that Plaintiff viewed some advertisements at unspecified times 12 “[d]uring the class period” when purchasing Panera products at three different retail outlets 13 located in California. FAC ¶¶ 66, 67. 14 On December 11, 2019, Defendant filed a motion to dismiss Plaintiff’s FAC. ECF No. 44 15 (“Mot.”). On December 26, 2019, Plaintiff filed an opposition to Defendant’s motion to dismiss. 16 ECF No. 45 (“Opp.”). On January 2, 2019, Defendant filed a reply. ECF No. 46 (“Reply”). 17 II. LEGAL STANDARD 18 A. Motion to Dismiss Under Federal Rule of Civil Procedure 12(b)(6) 19 Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a complaint to include “a 20 short and plain statement of the claim showing that the pleader is entitled to relief.” A complaint 21 that fails to meet this standard may be dismissed pursuant to Federal Rule of Civil Procedure 22 12(b)(6). The United States Supreme Court has held that Rule 8(a) requires a plaintiff to plead 23 “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. 24 Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads 25 factual content that allows the court to draw the reasonable inference that the defendant is liable 26 for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility 27 standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a 1 defendant has acted unlawfully.” Id. (internal quotation marks omitted). For purposes of ruling 2 on a Rule 12(b)(6) motion, the Court “accept[s] factual allegations in the complaint as true and 3 construe[s] the pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. 4 Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). 5 The Court, however, need not “assume the truth of legal conclusions merely because they 6 are cast in the form of factual allegations.” Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) 7 (per curiam) (internal quotation marks omitted). Mere “conclusory allegations of law and 8 unwarranted inferences are insufficient to defeat a motion to dismiss.” Adams v. Johnson, 355 9 F.3d 1179, 1183 (9th Cir. 2004). 10 B. Motion to Dismiss Under Federal Rule of Civil Procedure 9(b) 11 Claims sounding in fraud are subject to the heightened pleading requirements of Federal 12 Rule of Civil Procedure 9(b). Bly-Magee v. California, 236 F.3d 1014, 1018 (9th Cir. 2001). 13 Under the federal rules, a plaintiff alleging fraud “must state with particularity the circumstances 14 constituting fraud.” Fed. R. Civ. P. 9(b). To satisfy this standard, the allegations must be 15 “specific enough to give defendants notice of the particular misconduct which is alleged to 16 constitute the fraud charged so that they can defend against the charge and not just deny that they 17 have done anything wrong.” Semegen v. Weidner, 780 F.2d 727, 731 (9th Cir. 1985). Thus, 18 claims sounding in fraud must allege “an account of the time, place, and specific content of the 19 false representations as well as the identities of the parties to the misrepresentations.” Swartz v. 20 KPMG LLP, 476 F.3d 756, 764 (9th Cir. 2007). In other words, “[a]verments of fraud must be 21 accompanied by ‘the who, what, when, where, and how’ of the misconduct charged.” Vess v. 22 Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) (citation omitted). The plaintiff must 23 also plead facts explaining why the statement was false when it was made. See In re GlenFed, 24 Inc. Sec. Litig., 42 F.3d 1541, 1549 (9th Cir. 1994) (en banc), superseded by statute on other 25 grounds as stated in Marksman Partners, L.P. v. Chantal Pharm. Corp., 927 F. Supp. 1297 (C.D. 26 Cal. 1996). 27 “When an entire complaint . . . is grounded in fraud and its allegations fail to satisfy the 1 heightened pleading requirements of Rule 9(b), a district court may dismiss the complaint . . . .” 2 Vess, 317 F.3d at 1107. A motion to dismiss a complaint “under Rule 9(b) for failure to plead 3 with particularity is the functional equivalent of a motion to dismiss under Rule 12(b)(6) for 4 failure to state a claim.” Id. 5 C. Leave to Amend 6 If the Court determines that a complaint should be dismissed, the Court must then decide 7 whether to grant leave to amend. Under Rule 15(a) of the Federal Rules of Civil Procedure, leave 8 to amend “shall be freely given when justice so requires,” bearing in mind “the underlying purpose 9 of Rule 15 to facilitate decisions on the merits, rather than on the pleadings or technicalities.” 10 Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (alterations and internal quotation 11 marks omitted). When dismissing a complaint for failure to state a claim, “a district court should 12 grant leave to amend even if no request to amend the pleading was made, unless it determines that 13 the pleading could not possibly be cured by the allegation of other facts.” Id. at 1130 (internal 14 quotation marks omitted). Accordingly, leave to amend generally shall be denied only if allowing 15 amendment would unduly prejudice the opposing party, cause undue delay, or be futile, or if the 16 moving party has acted in bad faith. Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 532 17 (9th Cir. 2008). At the same time, a court is justified in denying leave to amend when a plaintiff 18 “repeated[ly] fail[s] to cure deficiencies by amendments previously allowed.” See Carvalho v. 19 Equifax Info. Servs., LLC, 629 F.3d 876, 892 (9th Cir. 2010). Indeed, a “district court’s discretion 20 to deny leave to amend is particularly broad where plaintiff has previously amended the 21 complaint.” Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir. 22 2011) (quotation marks omitted). 23 III. DISCUSSION 24 In the motion to dismiss, Defendant contends that dismissal of Plaintiff’s FAC is again 25 warranted because (1) the complaint does not adequately plead reliance with sufficient specificity 26 to meet the heightened pleading standard of Federal Rule of Civil Procedure 9(b); and (2) no 27 reasonable consumer would understand Defendant’s alleged statements to mean that the Products 1 are free of glyphosate residue. Mot. at 7–18. Additionally, Defendant asserts that Plaintiff is not 2 entitled to injunctive relief because she fails to allege future harm and that any claims predicated 3 on products that Plaintiff did not purchase should be dismissed because Plaintiff fails to allege 4 substantial similarity between the products. Mot. at 18-21. 5 The Court concludes that the FAC again fails to adequately plead reliance on specific 6 misstatements and that the FAC does not sufficiently plead that the In re Tobacco II exception 7 applies. Accordingly, the Court need not reach Defendant’s other arguments and dismisses 8 Plaintiff’s FAC, but with leave to amend. 9 A. Plaintiff does not adequately allege reliance on specific statements. 10 As before, Defendant argues that Plaintiff “still does not plead which, if any, of the 11 advertisements Plaintiff actually saw or relied upon in deciding to purchase the [Whole Grain] 12 Bagel.” Mot. at 8. As a result, Defendant claims that Plaintiff has not met Federal Rule of Civil 13 Procedure 9(b)’s pleading standard. Id. Plaintiff contends that it has met Rule 9(b)’s heightened 14 pleading standard. In the alternative, Plaintiff argues if the FAC has not adequately pleaded 15 reliance on a specific misrepresentation, the FAC has nonetheless satisfied an exception under 16 California law established by In re Tobacco II Cases, 46 Cal. 4th 298 (2009), which permits 17 Plaintiff to plead her claims without alleging reliance on any specific representations. Opp. at 3– 18 11. 19 As the Court previously concluded, Plaintiff fails to allege reliance on Defendant’s 20 representations with the specificity required by Federal Rule of Civil Procedure 9(b). Further, as 21 before, the In re Tobacco II exception that Plaintiff invokes is narrow and unavailable under the 22 facts alleged. The Court first addresses Plaintiff’s failure to plead reliance with sufficient 23 specificity to satisfy the standard set by Rule 9(b) before turning to the unavailability of the In re 24 Tobacco II exception to this standard. 25 1. Plaintiff fails to meet the heightened pleading standard of Federal Rules of Civil Procedure 9(b). 26 Federal Rule of Civil Procedure 9(b)’s heightened pleading requirement applies to 27 1 Plaintiff’s CLRA, FAL, and UCL claims because all three of these claims are based on 2 Defendant’s allegedly fraudulent course of conduct: Defendant’s alleged misrepresentations that 3 the Products are “100% clean.” See Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir. 4 2009) (“[W]e have specifically ruled that Rule 9(b)’s heightened pleading standards apply to 5 claims for violations of the CLRA and UCL.”); Brazil v. Dole Food Co., Inc., 935 F. Supp. 2d 6 947, 963 (N.D. Cal. 2013) (applying Rule 9(b)’s heightened pleading standard to FAL claims for 7 misleading, deceptive, and untrue advertising); see also Vess v. Ciba-Geigy Corp. USA, 317 F.3d 8 1097, 1106 (9th Cir. 2003) (stating that when a plaintiff “allege[s] a unified course of fraudulent 9 conduct and rel[ies] entirely on that course of conduct as the basis of a claim . . . the claim is said 10 to be ‘grounded in fraud’ . . . and the pleading of that claim as a whole must satisfy the 11 particularity requirement of Rule 9(b)”). 12 When CLRA, FAL, and UCL claims are premised on misleading advertising or labeling, 13 Rule 9(b) requires the plaintiff to allege “the particular circumstances surrounding [the] 14 representations” at issue. Kearns, 567 F.3d at 1126. This rule applies regardless of whether the 15 statements at issue are misleading because they are affirmative misrepresentations or because they 16 contain material omissions. See, e.g., Williamson v. Reinalt-Thomas Corp., 2012 WL 1438812, at 17 *13 (N.D. Cal. Apr. 25, 2012) (citing Kearns, 567 F.3d at 1127, for the proposition that “a claim 18 based on a nondisclosure or omission is a claim for misrepresentation in a cause of action for 19 fraud, and it must be pleaded with particularity under Rule 9(b)”). 20 Plaintiff’s initial complaint, like the FAC, gave a number of representative advertisements. 21 Nonetheless, in its previous order granting Defendant’s motion to dismiss with leave to amend, the 22 Court dismissed Plaintiff’s CLRA, FAL, and UCL claims because Plaintiff failed to specify 23 “which, if any, of the ‘representative’ advertisements described in the complaint Plaintiff actually 24 relied upon before” purchasing any products. ECF No. 35 at 21. “Nor d[id] Plaintiff provide any 25 information about when Plaintiff allegedly viewed Defendant’s advertisements, or which ones 26 Plaintiff found to be material in making her purchases.” Id. As a result, the complaint “fail[ed] to 27 give [Defendant] the opportunity to respond to the alleged misconduct.” Id. (quotation marks 1 omitted). 2 The same is true of the FAC. The FAC alleges that at unspecified times during the class 3 period starting in 2015, Plaintiff “purchased Panera products, including Whole Grain Bagels,” 4 multiple times from three of Defendant’s retail outlets. FAC ¶ 66. Plaintiff also makes the rote 5 allegation that in deciding to make these purchases, Plaintiff “saw and believed the in-store 6 signage representing that all of the foods sold there were ‘100% clean.’” Id. 7 This is not enough to satisfy Rule 9(b). First, as before, the FAC is still unclear as to 8 which specific advertisements Plaintiff actually saw and relied upon in deciding to purchase the 9 Whole Grain Bagel. The Court specifically granted Plaintiff leave to amend to more specifically 10 allege which particular statement she saw, believed, and relied upon in making her purchasing 11 decision. Id. at 25. The Court, however, cautioned Plaintiff that “failure to cure” the complaint’s 12 pleading deficiencies “will result in dismissal of the deficient claims with prejudice.” Id. at 26. 13 With this additional opportunity, Plaintiff merely alleges that she saw one of Defendant’s 14 “100% clean” advertisements. Id. This is problematic because the FAC includes a number of 15 representative “100% clean” advertisements with materially different language. One of those 16 advertisements simply states “All 100% Clean.” Id. ¶ 17. Another states “100% of our food is 17 100% clean.” Id. To be sure, these statements appear substantially similar. Nonetheless, 18 Plaintiff’s two other representative samples contain materially different language. Those two 19 advertisements, which account for half of Plaintiff’s representative samples, appear to state that 20 Defendants’ products are “100% Clean Food: No artificial flavors, sweeteners, preservatives / No 21 colors from artificial sources.” Id. ¶¶ 17–18. Moreover, Plaintiff never alleges whether there are 22 other “100% clean” advertisements that Plaintiff may have seen, believed, and relied upon, and if 23 so, whether those advertisements materially differ from the other ones alleged in the FAC. 24 To understand why Plaintiff must plead which specific advertisement she saw, believed, 25 and alleged relied upon, the Court assesses how a “reasonable consumer” would view the different 26 advertisements. 27 “Under the reasonable consumer standard, [a plaintiff] must show that members of the 1 public are likely to be deceived.” Williams v. Gerber Prod. Co., 552 F.3d 934, 938 (9th Cir. 2008) 2 (quotation marks omitted). “‘Likely to deceive’ implies more than a mere possibility that the 3 advertisement might conceivably be misunderstood by some few consumers viewing it in an 4 unreasonable manner. Rather, the phrase indicates that the ad is such that it is probable that a 5 significant portion of the general consuming public or of target consumers, acting reasonably in 6 the circumstances, could be misled.” Lavie v. Procter & Gamble Co., 105 Cal.App.4th 496, 508, 7 (2003). “Generally the question whether a business practice is deceptive is an issue of fact not 8 appropriate for decision on a motion dismiss. Nonetheless, dismissal is appropriate if a plaintiff 9 fails to show the likelihood that a reasonable consumer would be deceived.” Arora v. GNC 10 Holdings, Inc., 2019 WL 6050750, at *10 (N.D. Cal. Nov. 15, 2019). 11 Indeed, “[u]nder Ninth Circuit precedent,” district courts may dismiss UCL, FAL, and 12 CLRA claims “‘where the alleged statements, in context, are not misleading,’ or where ‘any 13 ambiguity that Plaintiffs would read into any particular statement is dispelled by the promotion as 14 a whole.’” Friends of the Earth v. Sanderson Farms, Inc., 2018 WL 10613016, at *4 (N.D. Cal. 15 Sept. 11, 2018) (citation and internal alterations omitted). Put differently, “[t]ime and again, the 16 Ninth Circuit and district courts therein have held that allegations do not satisfy the reasonable 17 consumer test where the packaging containing the alleged misrepresentation includes disclosures 18 that makes the meaning of the representation clear.” Dinan v. Sandisk LLC, 2019 WL 2327923, at 19 *4 (N.D. Cal. May 31, 2019). 20 Here, if Plaintiff viewed advertisements that stated “100% clean food,” encircled by the 21 statement, “No artificial flavors, sweeteners, preservatives / No colors from artificial sources,” 22 FAC ¶ 18, Plaintiff’s claims would fail. As Defendants point out, glyphosate is not an artificial 23 flavor, sweetener, preservative, or coloring. Mot. at 13. Indeed, the FAC merely alleges that 24 glyphosate is a synthetical chemical, not that it is an artificial flavor, sweetener, preservative, or 25 coloring. FAC ¶¶ 5, 6, 11, 25. Additionally, Plaintiff does not respond to Defendant’s argument 26 that glyphosate is not an artificial flavor, sweetener, preservative, or coloring or otherwise argue 27 how this specific advertisement is misleading. 1 Accordingly, if Plaintiff had pleaded that she relied on these specific advertisements, her 2 reliance would be unreasonable as a matter of law. See, e.g., Carrea v. Dreyer’s Grand Ice 3 Cream, Inc., 475 Fed. App’x 113, 115 (9th Cir. 2012) (affirming the dismissal of UCL and FAL 4 claims where “no reasonable consumer is likely to think that ‘Original Vanilla’ refers to a natural 5 ingredient when that term is adjacent to the phrase ‘Artificially Flavored’”); Gallagher v. Chipotle 6 Mexican Grill, Inc., 2016 WL 454083, at *4 (N.D. Cal. Feb. 5, 2016) (“[B]ecause Defendant 7 actively defines what its use of GMO means, . . . no reasonable consumer could be deceived.” 8 (quotation marks and internal alterations omitted)); Bobo v. Optimum Nutrition, Inc., 2015 WL 9 13102417, at *5 (S.D. Cal. Sept. 11, 2015) (dismissing claims when language elsewhere on 10 packaging clarified that “100% WHEY” did not mean “100% protein,” as “a reasonable consumer 11 . . . cannot look at only one statement to the exclusion of everything else and claim he has been 12 misled”); Rooney v. Cumberland Packing Corp., 2012 WL 1512106, at *4 (S.D. Cal. Apr. 16, 13 2012) (dismissing plaintiff’s claims that a sugar product was misleadingly advertised as “raw” 14 because the product packaging defined “raw” to include the sugar product). 15 On the other hand, if Plaintiff saw and relied only upon “100% clean” advertisements that 16 lacked the no artificial flavors, sweeteners, preservatives, or colorings language, then a reasonable 17 consumer could interpret “100% clean” to mean no glyphosate, which is a synthetic biocide. As 18 Plaintiff points out, a dictionary definition of “clean” includes “free from dirt or pollution,” “free 19 from contamination or disease,” and “unadulterated, pure.” Opp. at 16. These are common-sense 20 interpretations of the word “clean” and under this interpretation, a product with glyphosate could 21 very well fall outside the definition of “clean.” As such, whether a reasonable consumer would 22 construe “clean” in such a way is a factual issue that cannot be resolved on a motion to dismiss. 23 See Tran v. Sioux Honey Ass’n, Coop., 2018 WL 10612686, at *5 (C.D. Cal. Aug. 20, 2018) 24 (denying a motion to dismiss because a reasonable consumer could have interpreted defendant’s 25 advertising to mean that no pesticides were present in the product). 26 Therefore, depending on which advertisement Plaintiff saw and relied upon, the Court 27 would arrive at plainly different outcomes. It is thus of fundamental importance for Plaintiff to 1 specifically allege which particular advertisements she saw and relied upon. Swartz, 476 F.3d at 2 764 (Claims sounding in fraud must allege “an account of the time, place, and specific content of 3 the false representations as well as the identities of the parties to the misrepresentations.”). 4 Additionally, Plaintiff’s failure to specify when she viewed Defendant’s advertisements 5 compounds the uncertainty. As was the case in the initial complaint, the FAC simply alleges that 6 “[d]uring the class period”—that is, beginning as far back as 2015—Plaintiff “saw and believed 7 the in-store signage representing that all of the foods sold there were ‘100% clean.’” FAC ¶¶ 66, 8 67. This is problematic because as the FAC itself alleges, Defendant’s “100% clean” advertising 9 campaign only began on January 13, 2017. Id. ¶¶ 14, 17. Thus, Plaintiff could not have relied on 10 any of Defendant’s “100% clean” advertisements in 2015 or 2016 before Defendant began its 11 “100% clean” advertising campaign on January 13, 2017. Therefore, because Plaintiff does not 12 explain which precise statement she relied upon in making her purchasing decisions or when 13 Plaintiff allegedly saw the relevant advertisements, Plaintiff has not given Defendant sufficient 14 notice to enable Defendant to mount a defense. Thus, the FAC “fails to give [Defendant] the 15 opportunity to respond to the alleged misconduct.” Kearns, 567 F.3d at 1126; see also Janney v. 16 Mills, 944 F. Supp. 2d 806, 818 (N.D. Cal. 2013) (“Rule 9(b) requires that the plaintiff(s) identify 17 specific advertisements and promotional materials” and “allege when the plaintiff(s) were exposed 18 to the materials . . . .”). 19 In summary, Plaintiff’s pleading raises the same deficiencies that the Court previously 20 identified in its prior order. ECF No. 35 at 20–22. As explained above, Plaintiff again merely 21 identifies a range of representative advertisements that Plaintiff alleges to be misleading, but 22 Plaintiff provides no indication of which statements, if any, Plaintiff herself relied upon before 23 purchasing the unspecified Products. See In re Arris Cable Modem Consumer Litig., 2018 WL 24 288085, at *9 (N.D. Cal. Jan. 4, 2018) (dismissing complaint under Rule 9(b) because the 25 complaint identified “a range of statements” that were allegedly misleading, but plaintiffs did not 26 specify “which statements any of them saw or relied on in deciding to buy” products from the 27 defendant); Ahern v. Apple, 411 F. Supp. 3d 541, 564 (N.D. Cal. 2019) (dismissing fraudulent 1 concealment and UCL claim because “Plaintiffs have not specified which statements any of them 2 saw or relied on in deciding to buy the Apple computers” (quoting In re Arris, 2018 WL 288085, 3 at *9) (internal alterations omitted)). Additionally, Plaintiff also fails to specify when she viewed 4 and relied on the advertisements in making her purchasing decisions. See Pirozzi v. Apple Inc., 5 913 F. Supp. 2d 840, 850 (N.D. Cal. 2012) (dismissing complaint under Rule 9(b) because 6 “[n]owhere in the [complaint] does Plaintiff specify when she was exposed to the statements or 7 which ones she found material to her decisions to purchase an Apple Device or App.”). These 8 failures undermine Defendant’s ability to “defend against the charge.” Semegen v. Weidner, 780 9 F.2d 727, 731 (9th Cir. 1985). 10 As a result, as before, the Court concludes that Plaintiff fails to meet the heightened 11 pleading standard of Rule 9(b). The Court proceeds to consider whether the In re Tobacco II 12 exception nevertheless saves Plaintiff’s complaint from dismissal. 13 2. Plaintiff does not satisfy the In re Tobacco II exception. 14 In the alternative, Plaintiff contends that the FAC “make[s] . . . allegations as to invoke the 15 rule of In re Tobacco II.” Opp. at 7 (“In re Tobacco II is not necessary to the survival of the 16 [FAC] . . . . [but] [n]evertheless, the [FAC] does make such allegations as to invoke the Rule of In 17 re Tobacco II.”). The Court disagrees. In re Tobacco II does not apply to the instant case under 18 the facts alleged in the FAC. 19 In In re Tobacco II, the California Supreme Court held that in narrow circumstances, a 20 plaintiff may state a UCL claim for a fraudulent advertising campaign without alleging reliance on 21 any specific misrepresentations. 46 Cal. 4th at 327. In re Tobacco II concerned a putative class of 22 plaintiffs that brought a UCL claim against defendants for alleged misrepresentations concerning 23 the safety of cigarettes. Id. at 327–28. In evaluating this claim, the California Supreme Court 24 explained that when “a plaintiff alleges exposure to a long-term advertising campaign, the plaintiff 25 is not required to plead with an unrealistic degree of specificity that the plaintiff relied on 26 particular advertisements or statements.” Id. Accordingly, the California Supreme Court held that 27 a plaintiff may “plead and prove actual reliance” without pointing to “specific misrepresentations” 1 where the alleged misrepresentations “were part of an extensive and long-term advertising 2 campaign.” Id. at 328. 3 When In re Tobacco II applies, Rule 9(b) may not be read to require a plaintiff to plead 4 reliance on specific advertisements. Haskins v. Symantec Corp., 2013 WL 6234610, at *5 (N.D. 5 Cal. Dec. 2, 2013). However, the scope of In re Tobacco II is narrow. As explained by the 6 California Court of Appeal in Pfizer Inc. v. Superior Court, In re Tobacco II “does not stand for 7 the proposition that a consumer who was never exposed to an alleged false or misleading 8 advertising or promotional campaign” may bring a claim for relief. 182 Cal. App. 4th 622, 632 9 (2010). “Rather, In re Tobacco II stands for the narrower, and more straightforward proposition 10 that, where a plaintiff has been exposed to numerous advertisements over a period of decades, the 11 plaintiff is not required to ‘plead with an unrealistic degree of specificity [the] particular 12 advertisements and statements’ that she relied upon.” Kane v. Chobani, Inc., 2013 WL 5289253, 13 at *9 (N.D. Cal. Sept. 19, 2013) (quoting In re Tobacco II, 46 Cal. 4th at 328) (emphasis added); 14 see also In re Arris, 2018 WL 288085, at *9 (noting that “the Tobacco II exception [is] narrow 15 and applie[s] [to] long-term advertising campaigns”). 16 As a threshold matter, the In re Tobacco II exception applies to fraudulent advertising 17 campaigns. 46 Cal. 4th at 327. As stated above, Defendant’s advertisements that state “100% 18 clean food,” encircled by the statement, “No artificial flavors, sweeteners, preservatives / No 19 colors from artificial sources,” are not fraudulent because Plaintiff does not allege that glyphosate 20 is an artificial flavor, sweetener, preservative, or coloring. Thus, the In re Tobacco II exception 21 would apply, if at all, only to Defendant’s “All 100% Clean” and “100% of our food is 100% 22 clean” advertisements. Unfortunately, the FAC does not distinguish between the two sets of 23 advertisements. As a result, the Court cannot conduct a full In re Tobacco II exception analysis. 24 For example, Plaintiff alleges that Defendant’s advertising campaign began on January 13, 25 2017, and that Plaintiff made purchases “[d]uring the class period,” which began in 2015. FAC 26 ¶¶ 14, 66–67. However, Plaintiff does not specify which set of advertisements began on January 27 13, 2017. Moreover, even if the “All 100% Clean” and “100% of our food is 100% clean” 1 advertisements began on January 13, 2017, the In re Tobacco II exception cannot apply to 2 Plaintiff’s 2015 or 2016 purchases that predate the advertising campaign. At most, the duration of 3 the advertising campaign was approximately two years—from January 13, 2017 to March 29, 4 2019, when Plaintiff filed the instant suit. Advertising campaigns of this duration are typically, 5 though not always, insufficient to invoke the In re Tobacco II exception. See, e.g., Azimpour v. 6 Sears, Roebuck& Co., 2017 WL 1496255, at *4 (S.D. Cal. Apr. 26, 2017) (holding In re Tobacco 7 II exception did not apply to a two-year advertising campaign); Bronson v. Johnson & Johnson, 8 Inc., 2013 WL 1629191, at *3 (N.D. Cal. Apr. 16, 2013) (“At best, Defendants’ marketing 9 campaign began in 2012, which is substantially less than the ‘long-term’ campaign at issue in 10 Tobacco II that lasted at least seven years.”); PETA v. Whole Foods Mkt. Cal., 2016 WL 362229 11 (N.D. Cal. Jan. 29, 2016) (concluding that an advertising campaign with “signs, placards, and 12 napkins over a four year period” did not satisfy In re Tobacco II). 13 Equally important is the pervasiveness and extent of any advertising campaign. Again, 14 because Plaintiff provides no information about the pervasiveness or extent of Defendant’s “All 15 100% Clean” and “100% of our food is 100% clean” advertising campaign, the Court cannot find 16 that the In re Tobacco II exception applies. As with the original complaint, the FAC merely 17 alleges that Defendant’s “representations are ubiquitous at the point of sale of the Products—on 18 bags, signs, and labels throughout [Defendant’s] physical locations.” FAC ¶¶ 15, 16; Opp. at 9. 19 This is insufficient. See, e.g., Delacruz v. Cytosport, Inc., 2012 WL 1215243, at *8 (N.D. Cal. 20 Apr. 11, 2012) (dismissing complaint for failure to sufficiently plead reliance when plaintiff failed 21 to allege the existence of “advertising campaign [that] approached the longevity and pervasiveness 22 of the marketing at issue in Tobacco II”). 23 Indeed, Plaintiff’s allegations closely resemble the ones at issue in PETA v. Whole Foods 24 Mkt. Cal., 2016 WL 362229 (N.D. Cal. Jan. 29, 2016). In PETA, as in the instant case, the 25 plaintiffs alleged that defendant’s “in-store advertisements on placards, signs, and napkins” “over 26 a four year period” “inundated” the plaintiffs when they entered defendant’s stores. Id. at *1, 5. 27 However, the PETA court held that in order to benefit from the In re Tobacco II exception, 1 plaintiffs were required to plead additional facts—including “which signs and placards were 2 deceptive advertising” and “over what time period they were placed in the store”—in order for the 3 court to assess the pervasiveness of the defendant’s alleged marketing campaign Id. 4 PETA’s reasoning applies here with even more force because the in-store advertisements 5 containing the no artificial flavors, sweeteners, preservatives, or colorings language are not 6 misleading and thus are not relevant. Rather, Plaintiff must allege additional information 7 regarding “which signs and placards were deceptive advertising.” Id. Additionally, Plaintiff does 8 not allege “over what time period” any advertisements “were placed in the store.” Id. Without 9 this information, the Court simply cannot assess the extent or pervasiveness of any alleged 10 advertising campaign. Id.; see also Anderson v. SeaWorld Parks and Entm’t, Inc., 2016 WL 11 8929295, at *8 (N.D. Cal. Nov. 7, 2016) (rejecting applicability of In re Tobacco II because 12 plaintiff failed to “include particular details about the extent and pervasiveness of the 13 [defendant’s] advertising campaign”). Therefore, Plaintiff has failed to allege sufficient facts to 14 demonstrate that she qualifies for the In re Tobacco II exception. 15 Plaintiff’s only response to this conclusion is to ask the Court to adopt United States 16 District Judge Jon S. Tigar’s In re Tobacco II standard in Opperman v. Path, Inc., 84 F. Supp. 3d 17 962 (N.D. Cal. 2015), which Plaintiff argues is a more permissive standard. Opp. at 8–9. In 18 Opperman, Judge Tigar identified six factors relevant to the In re Tobacco II inquiry:
19 First, a plaintiff must allege that she actually saw or heard the defendant's advertising campaign. Second, the advertising campaign must be sufficiently lengthy in 20 duration, and widespread in dissemination, that it would be unrealistic to require the plaintiff to plead each misrepresentation she saw and relied upon. Third, the plaintiff 21 must describe in the complaint, and preferably attach to it, a representative sample of the advertisements at issue so as to adequately notify the defendant of the precise 22 nature of the misrepresentation claim—what, in particular, defendant is alleged to have said, and how it was misleading. Fourth, the plaintiff must allege, and the court 23 must evaluate, the degree to which the alleged misrepresentations contained within the advertising campaign are similar to each other. Fifth, each plaintiff must plead 24 with particularity, and separately, when and how they were exposed to the advertising campaign, so as to ensure the advertisements were representations 25 consumers were likely to have viewed, rather than representations that were isolated or more narrowly disseminated. And finally, sixth, the court must be able to 26 determine when a plaintiff made his or her purchase or otherwise relied on defendant's advertising campaign, so as to determine which portion of that campaign 27 is relevant. 1 Id. at 976–77. 2 However, even under this six-factor standard, Plaintiffs cannot invoke the In re Tobacco II 3 exception. First, Opperman is distinguishable from the instant case. In Opperman, Judge Tigar 4 found that Plaintiffs had adequately pleaded that In re Tobacco II’s exception applied because 5 almost all of the six factors weighed in the plaintiff’s favor. 84 F. Supp. 3d at 983. Notably, the 6 court concluded that the second factor—the advertising campaign’s duration and pervasiveness— 7 weighed in favor of invoking the In re Tobacco II exception because it was five-years long and 8 very extensive. Specifically, “Plaintiffs identif[ed] dozens of specific examples of what they 9 believe[d] represent[ed] the advertising campaign, and those examples span[ned] eighteen pages 10 of the [complaint] (not including the numerous examples attached to the complaint . . . .).” Id. at 11 979. 12 As explained above, Plaintiff has not alleged anything as extensive or pervasive as the 13 advertising campaign in Opperman, and the length of Defendant’s alleged advertising campaign 14 was, at best, less than half of the five-year campaign in Opperman. Furthermore, unlike in 15 Opperman, the balancing of the six factors does not weigh in favor of Plaintiff. In the instant case, 16 the fourth factor (the similarity of alleged misrepresentations) and the fifth factor (when plaintiff 17 was exposed to the advertising campaign) also weigh against invoking the In re Tobacco II 18 exception. As explained above, with respect to the fourth factor, even the small sample of 19 representative advertisements alleged in the FAC contain materially different language. FAC 20 ¶¶ 17–18. Regarding the fifth factor, Plaintiff does not allege specific dates or even possible 21 timeframes for when she viewed any advertisements. Rather, the FAC only alleges that Plaintiff 22 was exposed to the advertising campaign at some point “[d]uring the class period,” which began in 23 2015—two years before the advertising campaign. FAC ¶¶ 66–67. As a result, this case is clearly 24 distinguishable from Opperman. 25 Indeed, this case is more analogous to Haskins v. Symantec Corporation, 2014 WL 26 2450996 (N.D. Cal. June 2, 2014), another case where Judge Tigar applied the same six-factor 27 standard as in Opperman. Specifically, in Haskins, the court concluded that even though “some of 1 the most basic factors, such as the first and the third, weigh in Plaintiff’s favor[,] . . . . the other 2 factors weigh strongly against applying the [In re] Tobacco II exception.” Id. Specifically, the 3 Haskins court emphasized the importance of the second factor—the duration and pervasiveness of 4 the advertising campaign—and concluded that plaintiff’s two-year advertising campaign “[fell] 5 well short of the ‘decades-long’ campaign in [In re] Tobacco II, which made it ‘unreasonable’ to 6 demand that the plaintiff identify a specific representation she actually viewed.” Id. As a result, 7 the Haskins court found that “the scope of the advertising campaign at issue in this case. . . . does 8 not fall within the ambit of the [In re] Tobacco II exception.” Id. 9 The same is true in the instant case. Like in Haskins, Plaintiff alleges she saw some 10 unspecified advertisement and described a representative sample of possible advertisements. 11 However, also as in Haskins, Plaintiff’s two-year advertising campaign “falls well short of the 12 ‘decades-long’ campaign in [In re] Tobacco II, which made it ‘unreasonable’ to demand that the 13 plaintiff identify a specific representation she actually viewed.” Id. Additionally, and just as 14 importantly, Plaintiff failed to allege facts that would permit the Court to accurately assess the 15 extent and pervasiveness of any alleged advertising campaign. Moreover, as explained above, the 16 fourth and fifth factors also weigh against invoking the In re Tobacco II exception here because 17 even the small sample of representative advertisements alleged in the FAC contain materially 18 different language and Plaintiff does not allege specific dates or even possible timeframes for 19 when she viewed any advertisements. 20 Accordingly, the instant case is more analogous to Haskins than to Opperman such that 21 even under Plaintiff’s preferred standard, the In re Tobacco II exception does not apply. 22 Therefore, because the Court concludes that Plaintiff has failed to satisfy the heightened pleading 23 standard of Rule 9(b) and does not qualify for the exception contemplated by In re Tobacco II, the 24 Court GRANTS Defendant’s motion to dismiss the FAC in its entirety. 25 In its prior order, the Court explained that “failure to cure deficiencies identified herein or 26 in Defendant’s motion to dismiss will result in dismissal of the deficient claims with prejudice.” 27 ECF No. 35 at 25. Typically, when a plaintiff already had an opportunity to amend the complaint 1 but failed to address the issues that the Court previously identified in granting a motion to dismiss, 2 dismissal with prejudice is warranted and appropriate. 3 However, the instant case is a unique one. The Court grants Plaintiff leave to amend one 4 final time because, as explained previously, Plaintiff’s claims may be able to proceed depending 5 on which specific advertisements she allegedly saw, believed, and relied upon.1 As a result, 6 amendment would not necessarily be futile. Therefore, the Court GRANTS Plaintiff leave to 7 amend one final time. 8 IV. CONCLUSION 9 For the foregoing reasons, the Court GRANTS Defendant’s motion to dismiss with leave 10 to amend. Plaintiff shall file any amended complaint within 30 days of this Order. In the amended 11 complaint, to the extent that Plaintiff does not plead the existence of an advertising campaign of the 12 necessary “extent and pervasiveness” to satisfy the In re Tobacco II exception, Plaintiff shall set forth 13 in chart form the misstatements that Plaintiff challenges on a numbered, statement-by-statement basis: 14 (1) the challenged statement; (2) the location and timing of the statement; (3) the Product(s) covered 15 by the statement; (4) the date on which Plaintiff witnessed the statement; and (5) the Product(s) 16 Plaintiff purchased on the basis of the statement. 17 Failure to file an amended complaint within 30 days of this Order or failure to cure 18 deficiencies identified herein or in Defendant’s motion to dismiss will result in dismissal of the 19 deficient claims with prejudice. As before, Plaintiff may not add new causes of action or new parties 20 without a stipulation or leave of the Court. 21 IT IS SO ORDERED. 22 23 24 25 1 Additionally, Plaintiff claims that she purchased products throughout the class period beginning 26 in 2015. FAC ¶¶ 66–67. However, Plaintiff also alleges that Defendants’ “100% clean” advertising campaign only began on January 13, 2017. Id. ¶¶ 14, 17. As such, Plaintiff must 27 amend the complaint to harmonize these allegations, as Plaintiff could not have relied on the advertisements before the start of the advertising campaign. 1 Dated: June 17, 2020 2 ______________________________________ LUCY H. KOH 3 United States District Judge 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27