Webb v. Trader Joe's Company

• Court: District Court, S.D. California
• Decided: October 29, 2019
• Docket: 3:19-cv-01587
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 CHRISTINA WEBB, on behalf of herself, Case No.: 19-CV-1587-CAB-WVG all others similarly situated, and the 13 general public, ORDER GRANTING DEFENDANT’S 14 MOTION FOR JUDGMENT ON THE Plaintiff, PLEADINGS 15 v. 16 TRADER JOE’S COMPANY, [Doc. No. 9] 17 Defendant. 18 19 This matter comes before the Court on Defendant’s motion for judgment on the 20 pleadings. [Doc. No. 9.] The motion has been fully briefed and the Court finds it suitable 21 for determination on the papers submitted and without oral argument. See S.D. Cal. CivLR 22 7.1(d)(1). For the reasons set forth below, Defendant’s motion is granted. 23 I. BACKGROUND1 24 Plaintiff Christina Webb filed this putative consumer class action complaint against 25 Defendant Trader Joe’s in the Superior Court of California, County of San Diego, on July 26

27 1 The Court is not making any findings of fact, but rather summarizing the relevant allegations of 28 1 10, 2019 [Doc. No. 1-2], and Defendant removed the action to this Court on August 23, 2 2019. [Doc. No. 1.] The complaint asserts claims for violation of California’s Consumer 3 Legal Remedies Act (“CLRA”), California Civil Code § 1750 et seq.; violation of 4 California’s Unfair Competition Law (the “UCL”), California Business & Professions 5 Code § 17200 et seq.; violation of California’s False Advertising Law (the “FAL”), 6 California Business & Professions Code § 17500 et seq.; Breach of Express and Implied 7 Warranties; Theft by False Pretenses; and Unjust Enrichment/Money Had and Received. 8 [Doc. No. 1-2 at ¶¶ 120–251.2] 9 Defendant markets, sells, and distributes a variety of Trader Joe’s branded raw 10 poultry products, including the “All Natural Boneless Chicken Breasts,” “All Natural 11 Chicken Thighs,” and “All Natural Chicken Wings” (the “Products.”). [Id. at ¶ 6.] 12 According to the complaint, the Products are false and misleading because the Products 13 claim to contain up to 5% retained water when they actually contain far greater amounts of 14 retained water (as much as 16%) for which California consumers are unlawfully charged. 15 [Id. at ¶ 7.] Plaintiff alleges she purchased the Products from several Trader Joe’s locations 16 in San Diego County, California, which contained excess retained water above the amount 17 the Products declared and therefore Plaintiff paid more for the products than they were 18 worth. [Id. at ¶ 12.] After sampling and analyzing Products offered for sale at 19 supermarkets in Northern California, Plaintiff found that the Products were routinely 20 economically adulterated with excess retained water far greater than that declared on the 21 Product labels. [Id. at ¶ 13.] 22 Plaintiff seeks to represent a Nationwide class and California sub-class of consumers 23 who purchased the Products during the class period. [Id. at ¶¶ 118, 119.] The complaint’s 24 prayer for relief requests, among other things, an order enjoining Defendant to cease 25 packaging, advertising, and selling the Products; re-label or recall all existing Products; 26 27 28 1 conduct a corrective advertising campaign; and an award of restitution and damages for 2 Plaintiff and the class. [Id. at ¶ 15.] 3 II. LEGAL STANDARD 4 A. Motion for Judgment on the Pleadings 5 Under Federal Rule of Civil Procedure 12(c), any party may move for judgment on 6 the pleadings at any time after the pleadings are closed but within such time as not to delay 7 the trial. FED. R. CIV. P. 12(c). A motion for judgment on the pleadings must be evaluated 8 under the same standard applicable to motions to dismiss brought under Rule 12(b)(6). See 9 Enron Oil Trading & Trans. Co. v. Walbrook Ins. Co., Ltd., 132 F.3d 526, 529 (9th Cir. 10 1997). Thus, the standard articulated in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell 11 Atl. Corp. v. Twombly, 550 U.S. 544 (2007) applies to a motion for judgment on the 12 pleadings. Lowden v. T–Mobile USA, Inc., 378 Fed. Appx. 693, 694 (9th Cir. 2010) (“To 13 survive a Federal Rule of Civil Procedure 12(c) motion, a plaintiff must allege ‘enough 14 facts to state a claim to relief that is plausible on its face’” (quoting Twombly, 550 U.S. at 15 544)). When deciding a motion for judgment on the pleadings, the Court assumes the 16 allegations in the complaint are true and construes them in the light most favorable to the 17 plaintiff. Pillsbury, Madison & Sutro v. Lerner, 31 F.3d 924, 928 (9th Cir. 1994). A 18 judgment on the pleadings is appropriate when, even if all the allegations in the complaint 19 are true, the moving party is entitled to judgment as a matter of law. Milne ex rel. Coyne 20 v. Stephen Slesinger, Inc., 430 F.3d 1036, 1042 (9th Cir. 2005). 21 B. Preemption 22 The Supremacy Clause of the Constitution empowers Congress to make federal laws 23 that preempt state law. Von Saher v. Norton Simon Museum of Art in Pasadena, 592 F.3d 24 954, 960 (9th Cir. 2010). “Federal preemption occurs when: (1) Congress enacts a statute 25 that explicitly preempts state law; (2) state law actually conflicts with federal law; or (3) 26 federal law occupies a legislative field to such an extent that it is reasonable to conclude 27 that Congress left no room for state regulation in that field.” Chae v. SLM Corp., 593 F.3d 28 936, 941 (9th Cir. 2010) (quoting Tocher v. City of Santa Ana, 219 F.3d 1040, 1045 (9th 1 Cir. 2000), abrogated on other grounds)). Federal preemption can be either express or 2 implied. See Fid. Fed. Sav. & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 152–53 (1982). 3 Express preemption exists when a statute explicitly addresses preemption. See Chicanos 4 Por La Causa, Inc. v. Napolitano, 558 F.3d 856, 863 (9th Cir. 2009). 5 A court’s preemption analysis is guided by two principles. “First, there is a 6 presumption against supplanting ‘the historic police powers of the States’ by federal 7 legislation ‘unless that [is] the clear and manifest purpose of Congress.’” Gordon v. 8 Virtumundo, Inc., 575 F.3d 1040, 1060 (9th Cir. 2009) (quoting Medtronic v. Lohr, 518 9 U.S. 470, 485 (1996)). As a result, express preemption clauses should be narrowly 10 construed. Gordon, 575 F.3d at 1060. Second, Congress’s purpose “‘is the ultimate 11 touchstone in every preemption case.’” Gordon, 575 F.3d at 1060 (quoting Medtronic, 518 12 U.S. at 485). Thus, courts must analyze the language of the statute and the overall statutory 13 scheme. Gordon, 575 F.3d at 1060. 14 III. REQUEST FOR JUDICIAL NOTICE 15 At the motion to dismiss stage a court may consider materials incorporated into the 16 complaint or matters of public record, without converting the motion to dismiss into a 17 motion for summary judgment. Coto Settlement v. Eisenberg., 593 F.3d 1031, 1038 (9th 18 Cir. 2010) (citation omitted); see also Federal Rules of Evidence 201(b): “The court may 19 judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally 20 known within the trial court’s territorial jurisdiction; or (2) can be accurately and readily 21 determined from sources whose accuracy cannot reasonably be questioned.” 22 Defendant requests the Court take judicial notice of a copy of the label of 23 Defendant’s “All Natural Chicken” Product. [Doc. No. 10.] Plaintiff requests the Court 24 take judicial notice of a public document from the United States Department of Agriculture 25 Food Safety and Inspection Service titled “Chicken from Farm to Table” available online, 26 an Order Sustaining Demurrer entered on January 29, 2018, and an Order after hearing on 27 Defendant’s Demurrer entered on October 9, 2018, in Wong v. Vons, et. al., Case No. 28 RG17865531 (Superior Court of California, County of Alameda). [Doc. Nos. 12-1, 13.] 1 Neither party has opposed the others’ requests or challenged the documents’ authenticity. 2 FRE 201(b)(2). Accordingly, the Court takes judicial notice of both Plaintiff’s and 3 Defendant’s exhibits. 4 IV. DISCUSSION 5 Defendant contends that all of Plaintiff’s claims are expressly preempted under the 6 Poultry Products Inspection Act (“PPIA”), 21 U.S.C. §§ 451 et seq., because Defendant 7 has complied with federal requirements and the Products’ label has been pre-approved by 8 the U.S. Department of Agriculture (“USDA.”). 9 Congress enacted the PPIA to prevent the interstate distribution of adulterated and 10 misbranded poultry. 21 U.S.C. § 452. The PPIA prohibits the sale of products with false 11 or misleading labeling or marking. 21 U.S.C. §§ 457(c); see also Del Real, LLC v. Harris, 12 636 Fed.Appx. 956, 957 (9th Cir. 2016) (“[W]e have previously interpreted the legislative 13 history of the . . . PPIA as clearly show[ing] the intent of Congress to create a uniform 14 national labeling standard.”). Pursuant to the PPIA, the USDA’s Food Safety and 15 Inspection Service (“FSIS”) inspects and approves product labels. 9 C.F.R. § 412.1(a). A 16 label must be approved before products bearing that label are sold in interstate commerce. 17 Id. 18 The PPIA contains an express preemption provision that preempts state law if (1) 19 the state law imposes marking, labeling, packaging, or ingredient requirements; and (2) 20 these requirements are “in addition to, or different than” the requirements imposed under 21 federal law. See 21 U.S.C. § 467e (PPIA); see also Barnes v. Campbell Soup Co., No. C 22 12-05185 JSW, 2013 WL 5530017, *5 (N.D. Cal. July 25, 2013) (dismissing UCL, FAL, 23 and CLRA claims against Campbell Soup’s Natural Chicken Tortilla soup as preempted 24 under the PPIA and FMIA). State statutory and common law can impose requirements that 25 satisfy the first prong. See Riegel v. Medtronic, Inc., 552 U.S. 312, 324 (2008). With 26 respect to the second condition, a state requirement is additional or different than federal 27 requirements if it is not “equivalent” or “parallel.” Riegel, 552 U.S. at 330; Bates v. Dow 28 Agrosciences LLC, 544 U.S. 431, 447 (2005). “In conducting a preemption analysis, a 1 court must consider the theory of each claim and determine whether the legal duty that is 2 the predicate of that claim is inconsistent with federal law.” Metrophones Telecomm’ns, 3 Inc. v. Global Crossing Telecomm’ns. Inc., 423 F.3d 1056, 1075 (9th Cir. 2005) (internal 4 citations omitted). The question then is whether the state law requirements are additional 5 to or different than the federal requirements. 6 Water retained in raw poultry as an unavoidable consequence of processing 7 associated with food safety requirements is referred to as “retained water.” 9 C.F.R. § 8 441.10(a). Under the federal regulations, raw poultry is not permitted to retain water unless 9 the establishment preparing the raw poultry demonstrates to FSIS, with data collected in 10 accordance with a written protocol, that any water retained is an unavoidable consequence. 11 See id. Raw poultry that retains water must bear a statement on the label stating the 12 maximum percentage of water that may be retained (e.g., “up to X% retained water”). See 13 9 C.F.R. § 441.10(b). The establishment must maintain on file and available to FSIS its 14 written data-collection protocol which must explain how data will be collected and used to 15 demonstrate the amount of retained water in the product. See 9 C.F.R. § 441.10(c)(1). The 16 establishment must notify FSIS as soon as it has a new or revised protocol available for 17 review and within 30 days FSIS may object to or require the establishment to make changes 18 in the protocol. See 9 C.F.R. § 441.10(c)(2). 19 The regulations also provide for expected elements of a protocol for gathering water 20 retention data which includes: a purpose statement, type of washing and chilling system 21 used by the establishment, configuration and any modifications of the chiller system 22 components, special features in the chilling process, description of variable factors in the 23 chilling system, standards to be met by the chilling system, testing methods to be employed, 24 reporting of data and evaluation of results, and conclusions. See 9 C.F.R. § 441.10(d). 25 Each of these expected elements are explained in further detail within the statute. Id. The 26 federal regulations impose no further requirements and do not set a specific limit on the 27 28 1 amount of retained water that is allowed. 2 Plaintiff contends her claims are not preempted because the PPIA contains an 3 express savings clause providing for concurrent federal-state enforcement and because the 4 requirements her state law claims seek to enforce are equivalent to the federal 5 requirements. The Court disagrees. 6 As applied here, the PPIA’s preemption provision preempts Plaintiff’s state law 7 claims. Plaintiff’s claims are all centered around the theory that Defendant’s Products are 8 misleading and mislabeled due to the Products containing retained water greater than that 9 which is claimed on the Products’ labels according to Plaintiff’s own testing of the 10 Products. Defendant has fully complied with the federal requirements to make the “Up to 11 5% Retained Water” claim on its labels by demonstrating to the FSIS with data collected 12 in accordance with the above-mentioned protocol, that the Products contain up to 5% of 13 retained water as an unavoidable consequence. Defendant must have included, among 14 several other requirements, a report of such data and an evaluation of its results. In turn, 15 the FSIS must have reviewed this data and approved the Products’ label in order to permit 16 Defendant to place its retained water claim upon its Products for sale in interstate 17 commerce. After review, the FSIS could have objected to Defendant’s protocol, or 18 required Defendant to make changes, but the fact that the Products are placed for sale lends 19 to the conclusion that no such objection or request was made. 20 Plaintiff’s state law claims would necessarily require additional requirements that 21 are not equivalent to the PPIA. As Defendant has fully complied with the federal 22 requirements under the PPIA and the FSIS has approved the Products’ label, the label 23 claims cannot be construed, as a matter of law, as false or misleading. See Barnes, 2013 24 WL 5530017 at *5 (N.D. Cal. July 25, 2013). Receiving pre-approval of labels must be 25 26 27 3 The federal regulations previously set a specific limit on the amount of retained water that is allowed, but this requirement was removed after the holding in Kenney v. Glickman, 96 F.3d 1118 (8th Cir. 1996), 28 1 given preemptive effect. See Reigal v. Medtronic, Inc., 552 U.S. 312, 321 (2008) (holding 2 that federal law preempted plaintiff’s state claims because the FDA provided pre-approval 3 of the pharmaceutical label in dispute); see also Meaunrit v. ConAgra Foods Inc., No. C 4 09–02220 CRB, 2010 WL 2867393, at *7 (N.D. Cal. July 20, 2010) (holding that defendant 5 did not use false and misleading labels because defendant’s chicken pot pies received pre- 6 approval by the USDA and FSIS). Furthermore, the FSIS states it reviews labels for 7 approval in their entirety4 and does not pre-approve the data provided by establishments or 8 the water-retention limits the provided data purport to justify because to do so would 9 “contradict its regulatory policy which is opposed to command-and-control regulation.” 10 See 66 FR 1750-01 at 1755. 11 Permitting Plaintiff to assert her state law claims would effectively impose a labeling 12 requirement–and undermine federal agency authority–because Defendant would have to 13 satisfy additional requirements under state law after already having fully complied with 14 applicable federal law. Any liability Plaintiff seeks to attach based on her state law claims 15 would unavoidably impose marking, labeling, or packaging requirements upon Defendant 16 in addition to, or different than the federal regulations that Defendant has already followed 17 under the PPIA. Defendant would be required to either provide additional corroborated 18 data to the FSIS, complete further testing on its Products, or satisfy some other requirement 19 that is not mandated under the PPIA because Plaintiff conducted her own testing of the 20 Products in which she found that the retained water was greater than what the Products 21 claim. Plaintiff’s own testing, if anything, could indicate that the FSIS may not have 22 properly substantiated Defendant’s data-collection protocol or that the data-collection 23 protocol Defendant provided to the FSIS was somehow faulty. Plaintiff’s state law claims 24 are not predicated on such grounds. Furthermore, even if Plaintiff’s own testing is accurate, 25 26 27 4 USDA Questions and Answers, Question 15, available at https://www.fsis.usda.gov/wps/portal/fsis/topics/regulatory-compliance/labeling/labeling-policies/faq- 28 1 || only the federal government is vested with the authority to enforce the PPIA. See 21 U.S.C. 2 ||$ 467c (“All proceedings for the enforcement or to restrain violations of this chapter shall 3 || be by and in the name of the United States.”). Accordingly, Plaintiff’s state law claims are 4 ||expressly preempted under the PPIA. 5 Vv. CONCLUSION 6 For the reasons set forth above, Defendant’s motion for judgment on the pleadings 7 GRANTED and Plaintiffs complaint is DISMISSED with prejudice.” 8 It is SO ORDERED. 9 Dated: October 29, 2019 € Z 10 Hon. Cathy Ann Bencivengo United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 jj 25 > The Court does not find that any amendment to this claim could possibly cure the deficiency as □□□□□□□□□□□ 26 claims are expressly preempted. As a general rule, a court freely grants leave to amend a complaint which has been dismissed. Fed.R.Civ.P. 15(a). However, leave to amend may be denied when “the court 27 || determines that the allegation of other facts consistent with the challenged pleading could not possibly 28 cure the deficiency.” Schreiber Distrib. Co. v. ServWell Furniture Co., Inc., 806 F.2d 1393, 1401 (9th Cir. 1986) (citing Bonanno v. Thomas, 309 F.2d 320, 322 (9th Cir. 1962)). oO