Tabler v. Panera LLC

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8 UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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12 BRIANNA TABLER, Case No. 19-CV-01646-LHK

13 Plaintiff,

ORDER GRANTING MOTION TO

DISMISS WITH LEAVE TO AMEND,

14 v.

DENYING REQUEST TO STAY, AND

DENYING AS MOOT REQUEST TO

15 PANERA LLC, STRIKE

16 Defendant. Re: Dkt. Nos. 21, 22, 29

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18 Before the Court is Defendant Panera LLC’s motion to dismiss, or in the alternative, to

19 stay the instant case or strike portions of Plaintiff’s complaint. ECF No. 21. Having considered

20 the submissions of the parties, the relevant law, and the record in this case, the Court GRANTS

21 Defendant’s motion to dismiss with leave to amend, DENIES Defendant’s request to stay the

22 instant case, and DENIES as moot Defendant’s request to strike portions of Plaintiff’s complaint.

23 I. BACKGROUND

24 A. Factual Background

25 Plaintiff Brianna Tabler is a citizen of Santa Clara County, California. ECF No. 1

26 (“Compl.”) ¶ 64. Defendant Panera LLC is a limited liability company that was formed under the

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1 laws of England and that maintains a domestic headquarters in New York City. Id. §] 67.

2 Defendant manufactures, markets, and distributes “bread products,” such as Defendant’s Whole

3 Grain Bagel (the “Products”), in retail outlets in California. Id. 5, 67, 68.

4 Plaintiff alleges that Defendant falsely and deceptively labels and markets the Products as

5 “clean” or “100% clean.” Id. § 10. According to Plaintiff, the claim that the Products are “clean”

6 || features prominently in Defendant’s advertising and marketing materials. /d. 4] 15. Plaintiff

7 asserts that this claim is “ubiquitous at the point of sale of the Products—on bags, signs, and labels

8 || throughout Panera’s physical locations.” Jd. For example, Plaintiff indicates that signs and

9 || placards at Defendant’s retail outlets display statements such as, “Food should be clean. No

10 || artificial colors, preservatives, sweeteners, flavors, or anything else you wouldn’t want to serve

11 your family.” /d. 16. Plaintiff provides several images of advertisements that Plaintiff deems

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28 Case No. 19-CV-01646-LHK

ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND, DENYING REQUEST TO STAY,

1 || 7d.

2 Further, Plaintiff asserts that Defendant’s bags display statements such as, “100% clean

3 food,” encircled by the statement, “No artificial flavors, sweeteners, preservatives / No colors

4 || from artificial sources.” Id. 17. Once again, Plaintiff includes an image of an advertisement on

5 a bag that Plaintiff deems “representative”:

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19 According to Plaintiff, Defendant also “uses a number of other representations to portray

20 an image of ‘clean,’ chemical-free food, such as the earthy green and brown color schemes

21 throughout its stores, webpages, and on its logo.” Id. J 18.

22 Notwithstanding these statements, Plaintiff alleges that the Products contain the residue of

23 glyphosate, a synthetic biocide. Jd. ]21. Glyphosate is an artificial chemical derived from the

24 amino acid glycine. Id. {| 23, 25. Glyphosate was invented by the agrochemical and agricultural

25 biotechnology corporation Monsanto, which marketed the biocide under the trade name

26 || “Roundup.” Id. ¥ 22.

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28 Case No. 19-CV-01646-LHK

ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND, DENYING REQUEST TO STAY,

1 According to Plaintiff, the fact that the Products contain glyphosate residue renders

2 Defendant’s statements that the Products are “clean” or “100% clean” misrepresentations. Id. ¶

3 28. Indeed, Plaintiff asserts that Defendant’s statements indicate to reasonable consumers that the

4 Products “do not contain residue of non-food items such as synthetic chemicals used during the

5 ingredients’ growing, harvest, or processing.” Id. ¶ 19. Plaintiff claims that Defendant does not

6 disclose that glyphosate residue is present in the Products on Defendant’s website, packaging,

7 signage, or in a biannual “Responsibility Report” that Defendant disseminates to provide

8 information about the Products. Id. ¶¶ 29, 30–36, 50.

9 Plaintiff alleges that Defendant is aware that the Products contain glyphosate residue and

10 that Defendant is also aware of the source of the glyphosate residue in the production process. Id.

11 ¶¶ 39, 40. Plaintiff asserts that Defendant purposefully fails to disclose this information in order

12 to charge a premium from consumers, and in order to ensure that consumers do not cease

13 purchasing the Products and switch to one of Defendant’s competitors. Id. ¶¶ 46, 47.

14 Plaintiff purchased Defendant’s Whole Grain Bagel, as well as other unspecified Products,

15 at unspecified times from three different retail outlets located in California. Id. ¶ 65. Plaintiff

16 alleges that in deciding to make these purchases, Plaintiff “saw, relied upon, and reasonably

17 believed” Defendant’s “representations that the Products were ‘100% clean’ or ‘clean.’” Id. ¶ 66.

18 B. Procedural History

19 On March 29, 2019, Plaintiff filed the instant putative class action complaint against

20 Defendant and two related entities. Id. ¶ 1. The complaint alleges causes of action under: (1)

21 California’s Consumers Legal Remedies Act (“CLRA”), Cal. Civ. Code §§ 1750–1785; (2)

22 California’s False Advertisement Law (“FAL”), Cal. Bus. & Prof. Code § 17500 et seq.; and (3)

23 California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code §§ 17200–17210. Id. ¶¶

24 82–112. On May 15, 2019, Plaintiff filed a notice of voluntary dismissal of the two related

25 entities. ECF No. 5. Thus, Defendant is the only remaining defendant in the instant case. Id.

26 On July 10, 2019, Defendant filed the instant motion to dismiss, or in the alternative, to

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1 stay the instant case or strike portions of Plaintiff’s complaint. ECF No. 21 (“Mot.”). On August

2 12, 2019, Plaintiff filed an opposition, ECF No. 23 (“Opp.”), and on September 9, 2019,

3 Defendant filed a reply, ECF No. 28 (“Reply”).

4 On July 10, 2019, Defendant filed a request for judicial notice in support of Defendant’s

5 motion to dismiss, or in the alternative, to stay Plaintiff’s complaint or strike portions thereof.

6 ECF No. 22. On September 9, 2019, Defendant filed a second request for judicial notice in

7 support of Defendant’s reply. ECF No. 29. On September 17, 2019, Plaintiff opposed

8 Defendant’s two requests for judicial notice. ECF No. 30. Finally, on October 18, 2019, Plaintiff

9 filed a statement of recent decision. ECF No. 33.

10 II. LEGAL STANDARD

11 A. Motion to Dismiss Under Federal Rule of Civil Procedure 12(b)(6)

12 Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a complaint to include “a

13 short and plain statement of the claim showing that the pleader is entitled to relief.” A complaint

14 that fails to meet this standard may be dismissed pursuant to Federal Rule of Civil Procedure

15 12(b)(6). The U.S. Supreme Court has held that Rule 8(a) requires a plaintiff to plead “enough

16 facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550

17 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content

18 that allows the court to draw the reasonable inference that the defendant is liable for the

19 misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard is

20 not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant

21 has acted unlawfully.” Id. (internal quotation marks omitted). For purposes of ruling on a Rule

22 12(b)(6) motion, the Court “accept[s] factual allegations in the complaint as true and construe[s]

23 the pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire &

24 Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008).

25 The Court, however, need not “assume the truth of legal conclusions merely because they

26 are cast in the form of factual allegations.” Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011)

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1 (per curiam) (internal quotation marks omitted). Mere “conclusory allegations of law and

2 unwarranted inferences are insufficient to defeat a motion to dismiss.” Adams v. Johnson, 355

3 F.3d 1179, 1183 (9th Cir. 2004).

4 B. Motion to Dismiss Under Federal Rule of Civil Procedure 9(b)

5 Claims sounding in fraud are subject to the heightened pleading requirements of Federal

6 Rule of Civil Procedure 9(b). Bly-Magee v. California, 236 F.3d 1014, 1018 (9th Cir. 2001).

7 Under the federal rules, a plaintiff alleging fraud “must state with particularity the circumstances

8 constituting fraud.” Fed. R. Civ. P. 9(b). To satisfy this standard, the allegations must be

9 “specific enough to give defendants notice of the particular misconduct which is alleged to

10 constitute the fraud charged so that they can defend against the charge and not just deny that they

11 have done anything wrong.” Semegen v. Weidner, 780 F.2d 727, 731 (9th Cir. 1985). Thus,

12 claims sounding in fraud must allege “an account of the time, place, and specific content of the

13 false representations as well as the identities of the parties to the misrepresentations.” Swartz v.

14 KPMG LLP, 476 F.3d 756, 764 (9th Cir. 2007). In other words, “[a]verments of fraud must be

15 accompanied by ‘the who, what, when, where, and how’ of the misconduct charged.” Vess v.

16 Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) (citation omitted). The plaintiff must

17 also plead facts explaining why the statement was false when it was made. See In re GlenFed,

18 Inc. Sec. Litig., 42 F.3d 1541, 1549 (9th Cir. 1994) (en banc), superseded by statute on other

19 grounds as stated in Marksman Partners, L.P. v. Chantal Pharm. Corp., 927 F. Supp. 1297 (C.D.

20 Cal. 1996).

21 “When an entire complaint . . . is grounded in fraud and its allegations fail to satisfy the

22 heightened pleading requirements of Rule 9(b), a district court may dismiss the complaint . . . .”

23 Vess, 317 F.3d at 1107. A motion to dismiss a complaint “under Rule 9(b) for failure to plead

24 with particularity is the functional equivalent of a motion to dismiss under Rule 12(b)(6) for

25 failure to state a claim.” Id.

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C. Leave to Amend

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If the Court determines that a complaint should be dismissed, the Court must then decide

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whether to grant leave to amend. Under Rule 15(a) of the Federal Rules of Civil Procedure, leave

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to amend “shall be freely given when justice so requires,” bearing in mind “the underlying purpose

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of Rule 15 to facilitate decisions on the merits, rather than on the pleadings or technicalities.”

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Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (alterations and internal quotation

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marks omitted). When dismissing a complaint for failure to state a claim, “a district court should

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grant leave to amend even if no request to amend the pleading was made, unless it determines that

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the pleading could not possibly be cured by the allegation of other facts.” Id. at 1130 (internal

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quotation marks omitted). Accordingly, leave to amend generally shall be denied only if allowing

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amendment would unduly prejudice the opposing party, cause undue delay, or be futile, or if the

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moving party has acted in bad faith. Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 532

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(9th Cir. 2008).

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III. DISCUSSION

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In Defendant’s motion to dismiss, or in the alternative, to stay the instant case or strike

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portions of Plaintiff’s complaint, Defendant asserts that dismissal of Plaintiff’s complaint is

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appropriate for four independent reasons: (1) no reasonable consumer would understand

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Defendant’s alleged statements to mean that the Products are free of glyphosate residue; (2) the

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complaint does not plead reliance with sufficient specificity to meet the heightened pleading

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standard of Federal Rule of Civil Procedure 9(b); (3) Plaintiff’s claims are preempted by the

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Federal Food, Drug, and Cosmetic Act (“FDCA”) as amended by the Nutrition Labeling and

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Education Act (“NLEA”), 21 U.S.C. §§ 343-1(a)(2), (5); and (4) Plaintiff’s claims interfere with

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the primary jurisdiction of the Food and Drug Administration (“FDA”) and the Environmental

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Protection Agency (“EPA”), the two federal agencies tasked with determining the safety of

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glyphosate for human consumption. Mot. at 9–22.

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Defendant also argues that, under the doctrine of primary jurisdiction, the Court should

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stay the instant case pending an upcoming decision by the EPA concerning the safety of

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1 glyphosate for human consumption. Id. at 21. Finally, “in the alternative” to dismissal, Defendant

2 requests that the Court strike Plaintiff’s request for injunctive relief, Plaintiff’s individual and

3 class allegations to the extent the allegations concern Products that Plaintiff did not purchase, and

4 Plaintiff’s class allegations to the extent the allegations concern representations upon which

5 Plaintiff did not rely. Id. at 1, 22–25.

6 The Court concludes that Plaintiff’s claims are not preempted by the FDCA or the NLEA.

7 The Court further concludes that exercise of the primary jurisdiction doctrine to either dismiss or

8 stay the instant case is inappropriate. However, the Court concludes that dismissal of the

9 complaint is nevertheless warranted. The Court concludes that Plaintiff’s request for injunctive

10 relief should be dismissed for lack of Article III standing, while Plaintiff’s claims based on

11 unpurchased products should be dismissed for lack of standing. The Court further concludes that

12 the complaint as a whole fails to allege reliance with sufficient specificity to satisfy the heightened

13 pleading standard of Federal Rule of Civil Procedure 9(b).

14 Accordingly, the Court need not reach Defendant’s other arguments that no reasonable

15 consumer would understand Defendant’s statements to mean that the Products are free of

16 glyphosate residue or that Plaintiff is not an adequate class representative. Furthermore, because

17 the Court concludes that dismissal of the complaint is warranted, Defendant’s “alternative” request

18 for an order striking portions of the complaint is moot.

19 A. Plaintiff’s claims are not expressly preempted by the FDCA or NLEA.

20 Defendant argues that the complaint should be dismissed because Plaintiff’s claims are

21 expressly preempted by the FDCA and NLEA. Mot. at 17–20. Plaintiff responds that Plaintiff’s

22 claims are not preempted by the FDCA and NLEA because the claims outlined in the complaint

23 focus on Defendant’s statements that the Products are “clean” and “100% clean,” and not on the

24 permissible level of glyphosate that the Products may contain. Opp. at 5–9. The Court agrees

25 with Plaintiff. The FDCA does not preempt Plaintiff’s claims in the instant case.

26 There are “three different types of preemption—‘conflict,’ ‘express,’ and ‘field,’—but all

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1 of them work in the same way: Congress enacts a law that imposes restrictions or confers rights

2 on private actors; a state law confers rights or imposes restrictions that conflict with the federal

3 law; and therefore the federal law takes precedence and the state law is preempted.” Murphy v.

4 Nat’l Collegiate Athletic Ass’n, 138 S. Ct. 1461, 1480 (2018) (citation omitted). In the instant

5 case, Defendant argues only that the FDCA and NLEA expressly preempt Plaintiff’s claims.1

6 Mot. at 19. “Express preemption exists when a statute explicitly addresses preemption.” Reid v.

7 Johnson & Johnson, 780 F.3d 952, 958 (9th Cir. 2015).

8 The FDCA prohibits the misbranding of food and gives the FDA the authority to oversee

9 the safety and labeling of food. 21 U.S.C. § 331. Congress amended the FDCA by enacting the

10 NLEA, in order “to clarify and to strengthen the [FDA’s] legal authority to require nutrition

11 labeling on foods, and to establish the circumstances under which claims may be made about

12 nutrients in foods.” H.R. Rep. No. 101-538, at 7 (1990), as reprinted in 1990 U.S.C.C.A.N. 3336,

13 3337. The NLEA preempts state laws that impose labeling requirements that are “not identical” to

14 certain federal requirements. 21 U.S.C. §§ 343-1(a)(2), (5).

15 The FDCA does not require food manufacturers to disclose the presence of glyphosate on

16 food labels. The FDCA permits trace amounts of glyphosate to be present in foods in specified

17 amounts, known as a “tolerance,” without the food being deemed unsafe or adulterated. 21 U.S.C.

18 §§ 346a(a)(1)(A), 346a(a)(4). States are prohibited from imposing different tolerance levels than

19 the ones adopted by the FDA. 21 U.S.C. § 346a(n)(4). For grains such as the Products, the

20 allowed tolerance level for glyphosate is 30 parts per million. 40 C.F.R. § 180.364(a)(1); Mot. at

21 19. There is no allegation in the instant case that the glyphosate residue in the Products exceeds

22 the permissible level set by federal regulations. Id.

23 Defendant does not clearly indicate which provision of the FDCA or NLEA Defendant

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1 In Defendant’s reply brief, Defendant occasionally references field preemption. Reply at 11. To

26 the extent that Defendant seeks to raise an alternative field preemption argument, the Court “need

not consider arguments raised for the first time in a reply brief.” Zamani v. Carnes, 491 F.3d 990,

27 997 (9th Cir. 2007).

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1 believes expressly preempts Plaintiff’s claims. However, Defendant argues that Plaintiff’s claims

2 are preempted because under the FDCA, “trace amounts of glyphosate are expressly permitted.”

3 Id. Defendant misapprehends the nature of Plaintiff’s claims. Plaintiff does not allege that

4 Defendant cannot sell the Products because the Products contain trace amounts of glyphosate.

5 Instead, Plaintiff alleges that Defendant’s statements that the Products are “clean” or “100%

6 clean” are misleading because of the presence of glyphosate residue in the Products. Compl. ¶¶

7 82–112.

8 Under the FDCA, food is misbranded if “its labeling is false or misleading in any

9 particular.” 21 U.S.C. § 343(a)(1). The NLEA’s preemption provision does not apply to 21

10 U.S.C. § 343(a)(1). E.g., Manuel v. Pepsi-Cola Co., 2018 WL 2269247, at *4 (S.D.N.Y. May 17,

11 2018) (“Significant here, the NLEA’s preemption provision does not apply to § 343(a), the

12 FDCA’s prohibition on false or misleading labeling.”). Thus, “the FDCA does not preempt state

13 laws that allow consumers to sue . . . manufacturers that label or package their products in

14 violation of federal standards.” Astiana v. Hain Celestial Group, Inc., 783 F.3d 753, 757 (9th Cir.

15 2015).

16 In Astiana, the plaintiffs claimed that the plaintiffs were deceived when they purchased

17 cosmetics that were labeled “All Natural,” “Pure Natural,” or “Pure, Natural & Organic.” Id. at

18 756. The plaintiffs claimed they would not have purchased the cosmetics had they been aware of

19 the alleged fact that the cosmetics contained synthetic and artificial ingredients. Id. The Ninth

20 Circuit held that the plaintiffs’ state law claims were not expressly preempted by the FDCA. Id. at

21 758. The Ninth Circuit explained that “FDA regulations do not require [the defendant] to label its

22 products as ‘All Natural’ or ‘Pure Natural,’” and therefore that requiring removal of these

23 allegedly misleading statements from product labels “does not run afoul of the FDCA.” Id.

24 The same is true in the instant case. Defendant fails to identify any provision of the FDCA

25 or NLEA that requires Defendant to label the Products as “clean” or “100% clean.” Thus,

26 requiring Defendant to refrain from using the words “clean” or “100% clean” to describe the

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1 Products would not conflict with either statute. See Tran v. Sioux Honey Ass’n, Coop., 2018 U.S.

2 Dist. LEXIS 146380, at *7 (C.D. Cal. Aug. 20, 2018) (holding that FDCA and NLEA did not

3 expressly preempt claims based on allegedly misleading description of food product as “pure” and

4 “100% pure”); see also Lockwood v. Conagra Foods, Inc., 597 F. Supp. 2d 1028, 1031–32 (N.D.

5 Cal. 2009) (holding that claims based on allegedly misleading description of food product as “all

6 natural” were not expressly preempted by FDCA or NLEA).

7 Defendant’s authority to the contrary is unpersuasive. Defendant argues that Gibson v.

8 Quaker Oats Co., 2017 WL 3508724 (N.D. Ill. Aug. 14, 2017), supports Defendant’s argument

9 that Plaintiff’s claims are expressly preempted. Mot. at 18–19. However, Gibson is

10 distinguishable. First, unlike the instant case, the plaintiff in Gibson sought defendants’ express

11 disclosure of the presence of glyphosate in the challenged products. Gibson, 2017 WL 3508724,

12 at *3. Second, in arriving at its conclusion about preemption, the Gibson court misquoted 21

13 U.S.C. § 343-1. Id. For these reasons, subsequent courts have found Gibson to be

14 “distinguishable and unpersuasive.” Axon v. Citrus World, Inc., 354 F. Supp. 3d 170, 180

15 (E.D.N.Y. 2018); see also Parks v. Ainsworth Pet Nutrition, LLC, 377 F. Supp. 3d 241, 246

16 (S.D.N.Y. 2019) (declining to follow Gibson and concluding that plaintiff’s claims challenging

17 descriptions of products as “natural” were not expressly preempted by FDCA or NLEA).

18 Accordingly, the Court concludes that Plaintiff’s claims are not expressly preempted by the

19 FDCA or NLEA. The Court therefore DENIES Defendant’s motion to dismiss the complaint on

20 the basis of express preemption. The Court proceeds to consider whether the application of the

21 primary jurisdiction doctrine is appropriate in the instant case.

22 B. The application of the primary jurisdiction doctrine is inappropriate in the instant

case.

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Defendant asserts that the Court should employ the primary jurisdiction doctrine to either

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dismiss or stay the instant case pending the outcome of EPA agency review of the safety of

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1 glyphosate for human consumption.2 Mot. at 22. Defendant claims that the outcome of this

2 review is likely “to control any decision in this case.” Id. Plaintiff responds that the complaint

3 solely concerns whether Defendant’s “representations are deceptive to a reasonable consumer.”

4 Opp. at 10. Plaintiff therefore argues that “Plaintiff’s claims are unrelated to any findings

5 regarding the safety or proper residue levels of glyphosate.” Id. The Court agrees with Plaintiff.

6 The application of the primary jurisdiction doctrine is inappropriate in the instant case because

7 Plaintiff’s claims do not depend on the safety of glyphosate for human consumption.

8 “The primary jurisdiction doctrine allows courts to stay proceedings or to dismiss a

9 complaint without prejudice pending the resolution of an issue within the special competence of

10 an administrative agency.” Clark v. Time Warner Cable, 523 F.3d 1110, 1114 (9th Cir. 2008).

11 “Primary jurisdiction applies in a limited set of circumstances.” Id. Although “no fixed formula

12 exists for applying the doctrine of primary jurisdiction,” courts in the Ninth Circuit traditionally

13 exercise primary jurisdiction “where there is (1) the need to resolve an issue that (2) has been

14 placed by Congress within the jurisdiction of an administrative body having regulatory authority

15 (3) pursuant to a statute that subjects an industry or activity to a comprehensive regulatory scheme

16 that (4) requires expertise or uniformity in administration.” Davel Commc’ns, Inc. v. Qwest Corp.,

17 460 F.3d 1075, 1086–87 (9th Cir. 2006) (internal quotation marks and alteration omitted).

18 However, “the doctrine is not designed to secure expert advice from agencies every time a

19 court is presented with an issue conceivably within the agency’s ambit.” Clark, 523 F.3d at 1114

20 (internal quotation marks omitted). “Instead, it is to be used only if a claim requires resolution of

21 an issue of first impression, or of a particularly complicated issue that Congress has committed to

22 a regulatory agency and if protection of the integrity of a regulatory scheme dictates preliminary

23 resort to the agency which administers the scheme.” Id. (internal quotation marks and citation

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2 Defendant discusses agency action undertaken by the FDA in addition to the EPA, but Defendant

26 ultimately argues only that “this Court should dismiss (or alternatively stay) this case until the

EPA reaches its final determination on this issue.” Mot. at 22. Accordingly, the Court’s primary

27 jurisdiction analysis focuses on contemplated action by the EPA.

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1 omitted). Further, under Ninth Circuit precedent, “‘efficiency’ is the ‘deciding factor’ in whether

2 to invoke primary jurisdiction.” Astiana, 783 F.3d at 760 (citing Rhoades v. Avon Prods., Inc., 504

3 F.3d 1151, 1165 (9th Cir. 2007)).

4 Defendant does not argue that the primary jurisdiction doctrine should be deployed

5 because Plaintiff’s claims require “resolution of an issue of first impression.” Instead, Defendant

6 argues that Plaintiff’s complaint “is really about what constitutes a safe level of glyphosate,” and

7 that the complaint therefore requires the Court to “determine a particularly complicated issue that

8 Congress has committed” to the EPA. Mot. at 22; Clark, 523 F.3d at 1114. Defendant points to

9 ongoing periodic EPA review of the safety of glyphosate for human consumption, which

10 Defendant claims “could trigger a revision to existing tolerance levels for glyphosate.” Mot. at 21.

11 The Court disagrees that the instant case primarily concerns the safety of glyphosate.

12 Instead, the complaint focuses on transparency regarding the presence of synthetic chemicals in

13 the Products. The complaint alleges that “demand has increased for food products that provide

14 assurances about how they are produced and prepared—that is, products that are free from

15 unnatural ingredients, synthetic chemicals, or other remnants of artificial or extensive processing.”

16 Compl. ¶ 2. Plaintiff therefore alleges that Defendant’s representations mislead consumers to

17 believe “the Products are of a higher quality, free from synthetic chemicals, or free from chemical

18 residues from the production process when they are not.” Id. ¶ 6. The safety of glyphosate for

19 human consumption is not the subject of these allegations.

20 The question of whether Plaintiff’s statements about the Products are misleading thus does

21 not require the Court to determine “a particularly complicated issue that Congress has committed

22 to” the EPA. Clark, 523 F.3d at 1114. Indeed, Plaintiff’s complaint is “far less about science than

23 it is about whether a label is misleading.” Jones v. ConAgra Foods, Inc., 912 F. Supp. 2d 889, 898

24 (N.D. Cal. 2012). Furthermore, “‘every day courts decide whether conduct is misleading,’” and

25 the “‘reasonable-consumer determination and other issues involved in Plaintiff’s lawsuit are

26 within the expertise of the courts to resolve.’” Id. at 899 (quoting Lockwood, 597 F. Supp. 2d at

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1 1035, and Delacruz v. CytoSport, 2012 WL 2563857, at *10 (N.D. Cal. June 28, 2012)); see also

2 Chacanaca v. The Quaker Oats Co., 752 F. Supp. 2d 1111, 1124 (N.D. Cal. 2010) (stating that

3 plaintiffs advance a “relatively straightforward claim: they assert that defendant has violated FDA

4 regulations and marketed a product that could mislead a reasonable consumer. This is a question

5 courts are well-equipped to handle”).

6 Defendant’s authority to the contrary is not persuasive. First, Defendant cites Tran v.

7 Sioux Honey Ass’n, Coop., 2017 WL 5587276 (C.D. Cal. Oct. 11, 2017). However, in Tran,

8 unlike in the instant case, the plaintiff conceded that the plaintiff’s complaint did in fact depend

9 “on the harmful nature of glyphosate.”3 Id. at *2. Second, Defendant cites Scholder v. Riviana

10 Foods Inc., 2017 WL 2773586 (E.D.N.Y. June 23, 2017). In Scholder, however, the court stayed

11 the case pending ongoing rulemaking to set the regulatory meaning of the term “natural” in food

12 products. Id. at *2. This same term formed the basis of Scholder’s complaint. Id. at *1. In the

13 instant case, there is no indication whatsoever that the EPA will enact a rule concerning the use of

14 the terms “clean” or “100% clean” in food products. Opp. at 11. Instead, as described above, the

15 sole EPA agency action that Defendant discusses is the periodic EPA review of the safety of

16 glyphosate for human consumption. Mot. at 21.

17 Thus, because this case does not “require[] resolution of an issue of first impression, or of

18 a particularly complicated issue that Congress has committed to a regulatory agency,” the Court

19 DENIES Defendant’s motion to dismiss the complaint, or alternatively stay the instant case, on the

20 basis of primary jurisdiction. Clark, 523 F.3d at 1114 (internal quotation marks and citation

21 omitted). The Court next proceeds to consider whether Plaintiff possesses Article III standing to

22 pursue injunctive relief.

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25 3 The Court also notes that when the Tran court invoked the primary jurisdiction doctrine to stay

the case for six months in order to refer the relevant labeling question to the FDA, the FDA did

26 not act, and the Tran court ultimately opted to lift the stay. Tran v. Sioux Honey Ass’n, Coop.,

2018 U.S. Dist. LEXIS 146380, at *1 (C.D. Cal. Aug. 20, 2018) (explaining that “[t]he FDA

27 declined to weigh in on the issue” of the alleged misrepresentations related to glyphosate).

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C. Plaintiff lacks Article III standing to pursue injunctive relief.

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Defendant argues that “Plaintiff has not adequately alleged a threat of prospective harm

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and lacks standing to seek injunctive relief” under Article III. Mot. at 23. Plaintiff responds that a

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“reasonable inference” from the complaint is that Plaintiff seeks to purchase the Products in the

4

future and therefore Plaintiff does have standing to seek injunctive relief. The Court agrees with

5

Defendant. Plaintiff lacks standing to pursue injunctive relief on the facts alleged in the

6

complaint.

7

To establish Article III standing for prospective injunctive relief, a plaintiff must

8

demonstrate that “he has suffered or is threatened with a concrete and particularized legal harm,

9

coupled with a sufficient likelihood that he will again be wronged in a similar way.” Bates v.

10

United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007) (internal citation and quotation marks

11

omitted). A plaintiff must establish a “real and immediate threat of repeated injury.” Id.; see also

12

Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 946 (9th Cir. 2011) (en banc) (“[T]o

13

establish standing to pursue injunctive relief . . . [a plaintiff] must demonstrate a real and

14

immediate threat of repeated injury in the future.”).

15

Plaintiff alleges that Plaintiff seeks “change to the current Products’ representations,

16

packaging, labels and marketing, or a reformulation of the Products so that the Products no longer

17

contain glyphosate residue.” Compl. ¶ 60. According to Plaintiff, the “reasonable inference”

18

from the relief Plaintiff seeks is that “Plaintiff wishes to continue purchasing the Products if they

19

no longer contain glyphosate residue and/or may purchase the Products in the future and

20

incorrectly assume the Products were improved if the representations are not changed.” Opp. at 4.

21

However, the Ninth Circuit has held that “for injunctive relief, which is a prospective

22

remedy, the threat of injury must be actual and imminent, not conjectural or hypothetical.”

23

Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 967 (9th Cir. 2018) (internal quotation marks

24

omitted). “In other words, the threatened injury must be certainly impending to constitute injury

25

in fact and allegations of possible future injury are not sufficient.” Id. (internal quotation marks

26

omitted) (emphasis in original). Here, Plaintiff makes no allegation of future injury in the

27

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1 complaint whatsoever. Further, even if the Court makes the inference that Plaintiff requests the

2 Court make, Plaintiff still fails to allege any future injury that is “certainly impending.” Instead,

3 Plaintiff alleges only the possibility of future injury arising from the fact that Plaintiff “may

4 purchase the Products in the future.” Opp. at 4 (emphasis added).

5 Accordingly, the Court GRANTS Defendant’s motion to dismiss Plaintiff’s prayer for

6 injunctive relief.4 The Court finds that granting Plaintiff leave to amend the complaint would not

7 be futile, cause undue delay, or unduly prejudice Defendant, and that Plaintiff has not acted in bad

8 faith. Leadsinger, 512 F.3d at 532. The Court therefore GRANTS Plaintiff leave to amend.

9 The Court proceeds to consider Defendant’s argument that Plaintiff lacks standing to bring

10 claims on the basis of unpurchased Products.

11 D. Plaintiff lacks standing under the CLRA, FAL, and UCL to bring claims based on

substantially similar products.

12

Defendant argues that Plaintiff lacks standing under the CLRA, FAL, and UCL to bring

13

claims on the basis of Products that Plaintiff does not allege that she purchased. Mot. at 23–24. In

14

support of this argument, Defendant notes that the complaint only specifically identifies “the

15

Whole Grain Bagel” as a Product that Plaintiff purchased, alongside unspecified other “bread

16

products.” Compl. ¶ 65. In response, Plaintiff argues that Plaintiff has standing to bring claims

17

based on unpurchased Products because these Products are “substantially similar” to the Whole

18

Grain Bagel. Opp. at 4. The Court agrees with Defendant. Plaintiff has not sufficiently alleged

19

that the other Products that Plaintiff seeks to use as the basis of her claims are “substantially

20

similar” to the Whole Grain Bagel for the purposes of standing.

21

To establish standing under the CLRA, FAL, and UCL, a plaintiff must allege that the

22

plaintiff suffered an “injury in fact” and “has lost money or property” as a result of a defendant’s

23

24

4 Defendant frames the challenge to Plaintiff’s prayer for injunctive relief as a motion to strike, but

25 cites case law involving motions to dismiss. See Mot. at 23. Further, a motion to strike “is not the

appropriate procedural vehicle when challenging the legal availability of a particular remedy.”

26 Byrne v. Crown Asset Mgmt., LLC, 2018 WL 1609479, at *2 (N.D. Cal. Apr. 3, 2018).

Accordingly, the Court construes Defendant’s motion to strike for lack of Article III standing as a

27 motion to dismiss in part under Rule 12(b)(1).

16

1 alleged conduct. See Cal. Bus. & Prof. Code §§ 17204, 17535; Cal. Civ. Code § 1780(a); Carrea

2 v. Dreyer’s Grand Ice Cream, Inc., 2011 WL 159380, at *2 (N.D. Cal. Jan. 10, 2011), abrogated

3 on other grounds by Hawkins v. Kroger Co., 906 F.3d 763, 771 n.7 (9th Cir. 2018). Defendant

4 asserts that Plaintiff lacks standing to bring CLRA, FAL, and UCL claims because Plaintiff failed

5 to allege that Plaintiff “purchased or otherwise suffered injury from [D]efendant’s” Products other

6 than the Whole Grain Bagel. Mot. at 24.

7 “The majority of the courts in this district and elsewhere in California reject the

8 proposition that a plaintiff can not suffer injury in fact based on products that the plaintiff did not

9 buy.” Coleman-Anacleto v. Samsung Elecs. Am., Inc., 2016 WL 4729302, at *9 (N.D. Cal. Sept.

10 12, 2016). Some courts reserve the question of whether plaintiffs may assert claims based on

11 products they did not buy until ruling on a motion for class certification. See, e.g., Forcellati v.

12 Hyland’s, Inc., 876 F. Supp. 2d 1155, 1161 (C.D. Cal. 2012); Cardenas v. NBTY, Inc., 870 F.

13 Supp. 2d 984, 992 (E.D. Cal. 2012); Clancy v. The Bromley Tea Co., 308 F.R.D. 564, 571 (N.D.

14 Cal. 2013). Others “hold that a plaintiff may have standing to assert claims for unnamed class

15 members based on products he or she did not purchase so long as the products and alleged

16 misrepresentations are substantially similar.” Miller v. Ghirardelli Chocolate Co., 912 F. Supp.

17 2d 861, 869 (N.D. Cal. 2012) (citing cases).

18 This Court has consistently applied the “substantially similar” approach when analyzing

19 standing challenges. See, e.g., Coleman-Anacleto, 2016 WL 4729302, at *10 (N.D. Cal. Sept. 12,

20 2016); Philips v. Ford Motor Co., 2015 WL 4111448, at *6 (N.D. Cal. July 7, 2015); Bruton v.

21 Gerber Prods. Co., 2014 WL 172111, at *8 (N.D. Cal. Jan. 15, 2014); Kane, 2013 WL 5289253,

22 at *10–11; Brazil, 2013 WL 5312418, at *7–8 (N.D. Cal. Sept. 23, 2013). This case law dictates

23 that, “in asserting claims based on products a plaintiff did not purchase, but which are nevertheless

24 substantially similar to products a plaintiff did purchase, a plaintiff is not suing over an injury she

25 did not suffer. Rather, a plaintiff in that scenario is suing over an injury she personally suffered

26 and asserting that others who purchased similar products suffered substantially the same injury,

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1 even if the products that caused the injury were not identical in every respect.” Bruton, 2014 WL

2 172111, at *8 (citations omitted).

3 Moreover, this Court has previously explained that the substantially similar approach is

4 consistent with the Ninth Circuit’s admonition that courts “should not be too rigid in applying

5 standing requirements to proposed classes.” Brazil, 2013 WL 5312418, at *4 (quoting Lanovaz v.

6 Twining’s N. Am., Inc., 2013 WL 2285221, at *2 (N.D. Cal. May 23, 2013)). In particular, when

7 evaluating whether a plaintiff has standing to sue on behalf of others who have suffered similar,

8 but not identical injuries, the Ninth Circuit has held that in “determining what constitutes the same

9 type of relief or the same kind of injury, we must be careful not to employ too narrow or technical

10 an approach. Rather, we must examine the questions realistically: we must reject the temptation

11 to parse too finely, and consider instead the context of the inquiry.” Id. (quoting Armstrong v.

12 Davis, 275 F.3d 849, 867 (9th Cir. 2001), abrogated on other grounds by Johnson v. California,

13 543 U.S. 499, 504–05 (2005)).

14 In the instant case, it is impossible to say on the facts alleged in the complaint whether the

15 “Whole Grain Bagel” and other “bread products” that Plaintiff allegedly purchased are

16 substantially similar to the Products that Plaintiff seeks to challenge. The complaint never defines

17 “bread product,” and in fact, the complaint is wholly devoid of details about any of the “bread

18 products” that Plaintiff purchased or the Products that Plaintiff seeks to challenge. Accordingly,

19 the Court simply cannot say that the unpurchased Products are substantially similar to the Whole

20 Grain Bagel and other unspecified “bread products” that Plaintiff did in fact purchase. When a

21 complaint fails to adequately allege how products a plaintiff purchased are in fact substantially

22 similar to products that the plaintiff challenges, the Court must dismiss the complaint to the extent

23 it seeks to bring claims on the basis of unpurchased products. See, e.g., Bruton, 2014 WL 172111,

24 at *8 (dismissing complaint when complaint “failed to explain how these [unpurchased] categories

25 of products are substantially similar in kind to the Purchased Products”).

26 Accordingly, the Court GRANTS Defendant’s motion to dismiss in part the complaint to

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1 the extent the allegations are based on Products that Plaintiff did not purchase.5 The Court finds

2 that granting Plaintiff leave to amend the complaint would not be futile, cause undue delay, or

3 unduly prejudice Defendant, and that Plaintiff has not acted in bad faith. Leadsinger, 512 F.3d at

4 532. The Court therefore GRANTS Plaintiff leave to amend.

5 Finally, the Court proceeds to consider whether Plaintiff has pleaded reliance on alleged

6 misrepresentations by Defendant with sufficient particularity under Federal Rule of Civil

7 Procedure 9(b).

8 E. Plaintiff does not adequately allege reliance on specific statements.

9 Defendant argues that Plaintiff has failed to identify which of Defendant’s alleged

10 representations Plaintiff actually relied on “prior to making her purchase.” Mot. at 17.

11 Accordingly, Defendant claims that Plaintiff has not met the pleading standard of Federal Rule of

12 Civil Procedure 9(b).6 Id. Plaintiff concedes that Plaintiff does not “allege reliance on a specific

13 advertisement.” Opp. at 1–2. However, Plaintiff argues that Plaintiff has satisfied an exception

14 under California law established by In re Tobacco II Cases, 46 Cal. 4th 298 (2009), which permits

15 Plaintiff to plead her claims without alleging reliance on any specific representations. Id. at 2.

16 The Court agrees with Defendant. Plaintiff fails to allege reliance on Defendant’s

17 representations with the specificity required by Federal Rule of Civil Procedure 9(b). Further, the

18 In re Tobacco II exception that Plaintiff invokes is narrow and unavailable under the facts alleged

19 in Plaintiff’s complaint. The Court first addresses Plaintiff’s failure to plead reliance with

20

21 5 Defendant frames the challenge to Plaintiff’s standing to bring claims for substantially similar

products as a motion to strike, but cites case law involving motions to dismiss. See Mot. at 24;

22 Carrea, 2011 WL 159380, at *3 (holding that because plaintiff did not “allege[] that he

purchased” certain challenged products, “[a]ny claims as to the [challenged] products are therefore

23 dismissed without prejudice”). Accordingly, the Court construes Defendant’s motion to strike for

lack of standing as a motion to dismiss.

24

6 Defendant also occasionally invokes Federal Rule of Civil Procedure 8(a). Mot. at 17.

25 However, Rule 9(b), not Rule 8(a), sets forth the pleading standard that a plaintiff’s allegations of

reliance must satisfy in fraud cases. See, e.g., In re Volkswagen “Clean Diesel” Mktg., Sales

26 Practices, and Prods. Liab. Litig., 349 F. Supp. 3d 881, 917 (N.D. Cal. 2018) (explaining that

plaintiffs’ allegations of reliance in fraud claims must satisfy Rule 9(b) standards). Accordingly,

27 the Court analyzes Defendant’s arguments under Rule 9(b).

19

1 sufficient specificity to satisfy the standard set by Rule 9(b). The Court then turns to the

2 unavailability of the In re Tobacco II exception to this standard.

3 1. Plaintiff fails to meet the heightened pleading standard of Federal Rules of Civil

Procedure 9(b).

4

Federal Rule of Civil Procedure 9(b)’s heightened pleading requirement applies to

5

Plaintiff’s CLRA, FAL, and UCL claims because all three of these claims are based on

6

Defendant’s allegedly fraudulent course of conduct: Defendant’s alleged misrepresentations that

7

the Products are “clean” or “100% clean.” See Kearns v. Ford Motor Co., 567 F.3d 1120, 1125

8

(9th Cir. 2009) (“[W]e have specifically ruled that Rule 9(b)’s heightened pleading standards

9

apply to claims for violations of the CLRA and UCL.”); Brazil v. Dole Food Co., Inc., 935 F.

10

Supp. 2d 947, 963 (N.D. Cal. 2013) (applying Rule 9(b)’s heightened pleading standard to FAL

11

claims for misleading, deceptive, and untrue advertising); see also Vess v. Ciba-Geigy Corp. USA,

12

317 F.3d 1097, 1106 (9th Cir. 2003) (stating that when a plaintiff “allege[s] a unified course of

13

fraudulent conduct and rel[ies] entirely on that course of conduct as the basis of a claim . . . the

14

claim is said to be ‘grounded in fraud’ . . . and the pleading of that claim as a whole must satisfy

15

the particularity requirement of Rule 9(b)”).

16

When CLRA, FAL, and UCL claims are premised on misleading advertising or labeling,

17

Rule 9(b) requires the plaintiff to allege “the particular circumstances surrounding [the]

18

representations” at issue. Kearns, 567 F.3d at 1126. This rule applies regardless of whether the

19

statements at issue are misleading because they are affirmative misrepresentations or because they

20

contain material omissions. See, e.g., Williamson v. Reinalt-Thomas Corp., 2012 WL 1438812, at

21

*13 (N.D. Cal. Apr. 25, 2012) (citing Kearns, 567 F.3d at 1127, for the proposition that “a claim

22

based on a nondisclosure or omission is a claim for misrepresentation in a cause of action for

23

fraud, and it must be pleaded with particularity under Rule 9(b)”).

24

In the instant case, Plaintiff alleges that at unspecified times, Plaintiff purchased

25

unspecified “bread products,” “including the Whole Grain Bagel[,] on multiple occasions” from

26

three of Defendant’s retail outlets. Compl. ¶ 65. Plaintiff also makes the rote allegation that in

27

20

1 deciding to make these purchases, Plaintiff “saw, relied upon, and reasonably believed”

2 Defendant’s “representations that the Products were ‘100% clean’ or ‘clean.’” Id. ¶ 66.

3 These allegations do not satisfy the heightened pleading standard of Rule 9(b). It is

4 unclear which, if any, of the “representative” advertisements described in the complaint Plaintiff

5 actually relied upon before Plaintiff decided to purchase the unspecified Products. This is

6 particularly significant because each of the “representative” advertisements that Plaintiff includes

7 in the complaint contains different language. See Compl. ¶¶ 16, 17.

8 Plaintiff’s failure to specify which Products she purchased compounds the uncertainty.

9 Indeed, one of the “representative” advertisements that Plaintiff reproduces in the complaint refers

10 to Defendant’s “salad dressing,” see id. ¶ 16, but Plaintiff never alleges that Plaintiff purchased

11 salad dressing from Defendant.

12 Nor does Plaintiff provide any information about when Plaintiff allegedly viewed

13 Defendant’s advertisements, or which ones Plaintiff found to be material in making her purchases.

14 The complaint therefore “fails to give [Defendant] the opportunity to respond to the alleged

15 misconduct.” Kearns, 567 F.3d at 1126.

16 “[T]his Court and other courts in this circuit have held that a plaintiff does not satisfy Rule

17 9(b) when the plaintiff generally identifies allegedly misleading statements but fails to specify

18 which statements the plaintiff actually saw and relied upon.” In re Arris Cable Modem Consumer

19 Litig., 2018 WL 288085, at *8 (N.D. Cal. Jan. 4, 2018). Pirozzi v. Apple Inc., 913 F. Supp. 2d 840

20 (N.D. Cal. 2012), illustrates this principle. In Pirozzi, the plaintiff cited a number of statements by

21 the defendant that allegedly indicated that plaintiff’s personal information would be kept secure.

22 Id. at 845–46. However, the plaintiff failed “to provide the particulars of her own experience

23 reviewing or relying upon any of those statements.” Id. at 850. Indeed, the plaintiff did not

24 “specify when she was exposed to the statements or which ones she found material to her

25 decisions to purchase” products from the defendant. Id. Accordingly, the court dismissed the

26 complaint for failure to meet the heightened pleading standard of Rule 9(b). See also In re Arris,

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21

1 2018 WL 288085, at *9 (dismissing complaint under Rule 9(b) because the complaint identified “a

2 range of statements” that were allegedly misleading, but plaintiffs did not specify “which

3 statements any of them saw or relied on in deciding to buy” products from the defendant).

4 That is the precise strategy that Plaintiff seeks to employ in the instant case. As outlined

5 above, Plaintiff only identifies a range of “representative” advertisements that Plaintiff alleges to

6 be misleading, but Plaintiff provides no indication of which statements, if any, Plaintiff herself

7 relied on before purchasing the unspecified Products. This failure undermines Defendant’s ability

8 to “defend against the charge.” Semegen v. Weidner, 780 F.2d 727, 731 (9th Cir. 1985).

9 Accordingly, the Court concludes that Plaintiff fails to meet the heightened pleading standard of

10 Rule 9(b). The Court proceeds to consider whether the In re Tobacco II exception nevertheless

11 saves Plaintiff’s complaint from dismissal.

12 2. Plaintiff does not satisfy the In re Tobacco II exception.

13 Plaintiff does not dispute that the complaint fails to sufficiently plead reliance on specific

14 misstatements to satisfy the requirements of Rule 9(b). However, Plaintiff nevertheless claims

15 that Plaintiff “need not allege reliance on a specific advertisement” because of the impact of a

16 California Supreme Court decision, In re Tobacco II, 46 Cal. 4th 298. The Court disagrees. In re

17 Tobacco II does not apply to the instant case under the facts alleged in the complaint.

18 In In re Tobacco II, the California Supreme Court held that in narrow circumstances, a

19 plaintiff may state a UCL claim for a fraudulent advertising campaign without alleging reliance on

20 any specific misrepresentations. 46 Cal. 4th at 327. In re Tobacco II concerned a putative class of

21 plaintiffs that brought a UCL claim against defendants for alleged misrepresentations concerning

22 the safety of cigarettes. Id. at 327–28. In evaluating this claim, the California Supreme Court

23 explained that when “a plaintiff alleges exposure to a long-term advertising campaign, the plaintiff

24 is not required to plead with an unrealistic degree of specificity that the plaintiff relied on

25 particular advertisements or statements.” Id. Accordingly, the California Supreme Court held that

26 a plaintiff may “plead and prove actual reliance” without pointing to “specific misrepresentations”

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22

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 Plaintiff has not pleaded facts to show that the In re Tobacco II exception applies to the

17 instant case. Plaintiff makes no assertion that Defendant’s alleged misrepresentations were made

18 pursuant to a “long-term advertising campaign,” much less that Plaintiff “has been exposed to

19 numerous advertisements over a period of decades.” Kane, 2013 WL 5289253, at *9. In fact,

20 Plaintiff makes no allegation whatsoever concerning the duration or pervasiveness of Defendant’s

21 alleged advertising campaign, which renders In re Tobacco II wholly inapplicable. See, e.g.,

22 Delacruz v. Cytosport, Inc., 2012 WL 1215243, at *8 (N.D. Cal. Apr. 11, 2012) (dismissing

23 complaint for failure to sufficiently plead reliance when plaintiff failed to allege the existence of

24 “advertising campaign [that] approached the longevity and pervasiveness of the marketing at issue

25 in Tobacco II”); see also Bronson v. Johnson & Johnson, Inc., 2013 WL 1629191, at *3 (N.D.

26 Cal. Apr. 16, 2013) (“At best, Defendants’ marketing campaign began in 2012, which is

27

23

1 substantially less than the ‘long-term’ campaign at issue in Tobacco II that lasted at least seven

2 years.”).

3 Plaintiff relies solely on the allegation that Defendant’s “representations are ubiquitous at

4 the point of sale of the Products—on bags, signs, and labels throughout [Defendant’s] physical

5 locations.” Compl. ¶ 15; Opp. at 1. However, Plaintiff provides insufficient details to allege that

6 Defendant’s representations approach the “longevity and pervasiveness of the marketing at issue

7 in Tobacco II.” 2012 WL 1215243, at *8. It is unclear, for instance, which statements Plaintiff

8 seeks to challenge. As noted above, one of the “representative” advertisements that Plaintiff

9 reproduces in the complaint refers to Defendant’s “salad dressing,” see id. ¶ 16, but Plaintiff never

10 alleges that Plaintiff purchased salad dressing from Defendant. Further, Plaintiff provides no

11 information concerning the timing or duration of the alleged misstatements, nor does Plaintiff

12 describe their location with any specificity.

13 Plaintiff’s allegations therefore closely resemble the ones at issue in PETA v. Whole Foods

14 Mkt. Cal., 2016 WL 362229 (N.D. Cal. Jan. 29, 2016). In PETA, as in the instant case, the

15 plaintiffs alleged that defendant’s “in-store advertisements on placards, signs, and napkins”

16 “inundated” the plaintiffs when they entered defendant’s stores. Id. at *1, 5. However, the PETA

17 court held that in order to benefit from the In re Tobacco II exception, plaintiffs were required to

18 plead additional facts, including “which signs and placards were deceptive advertising,” and “over

19 what time period they were placed in the store.” Id.

20 The same is true here. The unadorned assertion that allegedly fraudulent representations

21 are “ubiquitous at the point of sale” is insufficient to plead an advertising campaign of the

22 necessary “longevity and pervasiveness” required to invoke In re Tobacco II. See also Anderson

23 v. SeaWorld Parks and Entm’t, Inc., 2016 WL 8929295, at *8 (N.D. Cal. Nov. 7, 2016) (rejecting

24 applicability of In re Tobacco II because plaintiff failed to “include particular details about the

25 extent and pervasiveness of the [defendant’s] advertising campaign”).

26 Finally, Plaintiff’s reliance on Schneider v. Chipotle Mexican Grill, Inc., 328 F.R.D. 520

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24

1 (N.D. Cal. 2018), the sole case Plaintiff cites in support of her position other than In re Tobacco II

2 itself, is misplaced. Opp. at 2. In Schneider, the issue before the Court was class certification

3 under Rule 23, not the pleading standard for reliance under Rule 9(b). 328 F.R.D. at 540. Further,

4 the Schneider court specifically found that “[t]his case does not involve the type of massive

5 advertising campaign that gives rise to a presumption of exposure to all class members,” as would

6 be the case if In re Tobacco II applied to the facts before the Schneider court. Id. (emphasis

7 added). Thus, to the extent the Schneider court does refer to In re Tobacco II, the Schneider

8 court’s decision in fact undermines Plaintiff’s position. Id.

9 Because the Court concludes that Plaintiff has failed to satisfy the heightened pleading

10 standard of Rule 9(b) and does not qualify for the exception contemplated by In re Tobacco II, the

11 Court therefore GRANTS Defendant’s motion to dismiss the complaint in its entirety.7 Further,

12 the Court finds that granting Plaintiff leave to amend the complaint would not be futile, cause

13 undue delay, or unduly prejudice Defendant, and that Plaintiff has not acted in bad faith.

14 Leadsinger, 512 F.3d at 532. The Court therefore GRANTS Plaintiff leave to amend.8

15 IV. CONCLUSION

16 For the foregoing reasons, the Court GRANTS Defendant’s motion to dismiss with leave

17 to amend. The Court DENIES Defendant’s request to stay the instant case, and the Court

18 DENIES as moot Defendant’s request to strike portions of Plaintiff’s complaint.

19

20

7 The Court need not consider the exhibits that are the subject of Defendant’s two requests for

21 judicial notice in order to resolve the instant motion. Accordingly, Defendant’s requests for

judicial notice are DENIED as moot. ECF Nos. 22, 29; see, e.g., Davis v. Apperience Corp., 2014

22 WL 5528232, at *1 (N.D. Cal. Oct. 31, 2014) (“In support of their present motion, defendants

request judicial notice of two exhibits . . . . Because this order need not reach those exhibits to

23 decide the present motion, the request for judicial notice is DENIED AS MOOT.”).

24 8 Defendant also argues that Plaintiff lacks class standing to the extent that Plaintiff “seeks to

represent a class based on ads she did not rely on.” Mot. at 25. The Court need not reach the

25 question of Plaintiff’s standing to serve as class representative at the motion to dismiss stage.

Further, as discussed above, dismissal of the complaint renders Defendant’s “alternative” request

26 for an order striking portions of the complaint on this basis moot. See supra Section III.

Nevertheless, and as outlined by the foregoing, Plaintiff must adequately allege reliance in order to

27 state a claim sufficient to survive a motion to dismiss. See supra Section III.E.

25

1 Plaintiff shall file any amended complaint within 30 days of this Order. In the amended

2 complaint, to the extent that Plaintiff does not plead the existence of an advertising campaign of

3 the necessary “extent and pervasiveness” to satisfy the In re Tobacco II exception, Plaintiff shall

4 set forth in chart form the misstatements that Plaintiff challenges on a numbered, statement-by-

5 statement basis: (1) the challenged statement; (2) the location and timing of the statement; (3) the

6 Product(s) covered by the statement; (4) the date on which Plaintiff witnessed the statement; and

7 (5) the Product(s) Plaintiff purchased on the basis of the statement.

8 Failure to file an amended complaint within 30 days of this Order or failure to cure

9 deficiencies identified herein or in Defendant’s motion to dismiss will result in dismissal of the

10 deficient claims with prejudice. Plaintiff may not add new causes of action or new parties without

11 a stipulation or leave of the Court.

12 IT IS SO ORDERED.

13

14 Dated: October 29, 2019

15 ______________________________________

LUCY H. KOH

16 United States District Judge

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