ASTIANA v. DREYER'S GRAND ICE CREAM, INC.
SKYE ASTIANA, et al., Plaintiffs,
v.
DREYER'S GRAND ICE CREAM, INC., Defendant.
PAMELA RUTLEDGE-MUHS, et al., Plaintiffs,
v.
DREYER'S GRAND ICE CREAM, INC., Defendant.
No. C-11-2910 EMC, Consolidated Cases No. C-11-3164 EMC.
United States District Court, N.D. California.
July 20, 2012.
Skye Astiana, on behalf of herself and all others similarly situated, Plaintiff, represented by Michael D. Braun, Braun Law Group, P.C., Janet Lindner Spielberg, Law Offices of Janet Lindner Spielberg, Joseph N. Kravec, Jr., Stember Feinstein Doyle Payne & Kravec, LLC, Maureen Davidson-Welling, Stember Feinstein Doyle Payne & Kravec, LLC & Wyatt A. Lison, Stember Feinstein Doyle Payne & Kravec, LLC.
Pamela Rutledge-Muhs, Plaintiff, represented by Joseph N. Kravec, Jr., Stember Feinstein Doyle Payne & Kravec, LLC.
Jay Woolwine, Plaintiff, represented by Joseph N. Kravec, Jr., Stember Feinstein Doyle Payne & Kravec, LLC.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS(Docket No. 43)EDWARD M. CHEN, District Judge.
Plaintiffs Skye Astiana, Pamela Rutledge-Muhs, and Jay Woolwine have filed a class action against Defendant Dreyer's Grand Ice Cream, Inc. ("DGIC"), alleging that it violated both federal and state law by misrepresenting that its ice cream (under the brand names Dreyer's, Edy's, and Haagen-Dazs) contained all natural ingredients when in fact they did not. Currently pending before the Court is DGIC's motion to dismiss. DGIC argues, among other things, that the claims asserted by Plaintiffs are preempted and/or are implausible. Having considered the parties briefs and accompanying submissions, as well as the oral argument of counsel, the Court hereby GRANTS in part and DENIES in part DGIC's motion.
I. FACTUAL & PROCEDURAL BACKGROUNDIn the first amended consolidated complaint, Plaintiffs allege as follows.
DGIC manufactures and distributes ice cream under the following brand names: Dreyer's, Edy's, and Haagen-Dazs. See FAC ¶ 12. The Dreyer's and Edy's ice cream are basically the same — Dreyer's is simply used in the western part of the United States and Edy's in the eastern part of the United States. See FAC ¶¶ 12, 47. Haagen-Dazs is a premium line of ice cream. See FAC ¶ 12.
1. In support of their claim that an ingredient is synthetic or artificial, Plaintiffs cite to various regulations which characterize the ingredient as such.
2. "The term `consumer product' means any tangible personal property which is distributed in commerce and which is normally used for personal, family, or household purposes. . . ." 15 U.S.C. § 2301(1). A consumer product can be food. See 40 Fed. Reg. 25721, 25722 (1975) ("Consumer product as defined in the Act includes the following items, and any other items that are tangible personal property and are normally used for personal, family, or household purposes: boats, photographic film and chemicals, clothing, appliances, jewelry, furniture, typewriters, motor homes, automobiles, mobile homes, vehicle parts and accessories, stereos, carpeting, small aircraft, toys, and food.").
3. The Dreyer's/Edy's labels do not say "All Natural Ingredients" or "All Natural" — a more obvious and plain way to convey the supposed message.
4. In its reply brief, DGIC presents evidence that, as of July 2011, Ms. Astiana knew that the glycerin here was in fact artificial and/or synthetic, see Gialia Reply Decl. ¶ 2 (testifying that Ms. Astiana's counsel told him in July 2011 that she intended to amend the complaint to include other artificial and/or synthetic ingredients, including glycerin), but thereafter she continued to buy DGIC's ice cream and even went on to buy other products containing glycerin made by other companies (e.g., products made by a company called Hain Celestial which she sued on April 6, 2012, because of, inter alia, its use glycerin). Even if the Court could give credit to DGIC's evidence at the 12(b)(6) phase, that evidence would not bar any claims being asserted by Ms. Astiana, at least at this juncture of the proceedings. Ms. Astiana has alleged that she made purchases prior to July 2011, i.e., before she purportedly knew that the glycerin was artificial and/or synthetic.
5. Plaintiffs further assert that DGIC "reinforced" this misrepresentation through its use of the "All Natural Flavors" label on the ice cream. FAC ¶ 53.
6. Section 110100(a) provides that "[a]ll food labeling regulations and any amendments to those regulations adopted pursuant to the federal act [i.e., FDCA], in effect on January 1, 1993, or adopted on or after that date shall be the food labeling regulations of this state." Cal. Health & Safety Code § 110100(a).
7. Notably, Plaintiffs admitted at the hearing that the other state law claims added nothing to their complaint. Plaintiffs did not contend, e.g., that different remedies would be available under the other state law claims.
8. Contrary to what DGIC argues, Plaintiffs have alleged that propylene glycol monostearate is a flavor because it imparts flavor and is not derived from a spice, fruit or fruit juice, vegetable or vegetable juice, and so forth. See FAC ¶ 30. Plaintiffs have also alleged the same with respect to alcalized cocoa. See FAC ¶ 29. It is not clear at this point whether potassium carbonate should essentially be considered part of the flavor imparted by the alcalized cocoa; that issue cannot be decided on a Rule 12(b)(6) motion.