Hawkins v. Kellogg Co.

224 F.Supp.3d 1002

Shavonda HAWKINS, on behalf of herself and all others similarly situated, Plaintiff,

v.KELLOGG COMPANY, Defendant.

Case No. 16–cv–0147–JAH (JMA)

United States District Court, S.D. California.

Signed December 13, 2016

Gregory S. Weston, The Weston Firm, San Diego, CA, for Plaintiff.

Kenneth Kiyul Lee, Jenner & Block, LLP, Los Angeles, CA, for Defendant.

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS (DOC. # 8)

JOHN A. HOUSTON, United States District Judge

INTRODUCTION

Pending before the Court is Defendant Kellogg Company's ("Defendant") motion to dismiss Plaintiff Shavonda Hawkins' ("Plaintiff") complaint. (See Doc. # 8). The motion has been fully briefed by the parties. For the reasons set forth below, the Court GRANTS Defendant's motion to dismiss and DISMISSES Plaintiff's complaint WITH PREJUDICE .

BACKGROUND

Defendant manufactures, distributes, and sells various types of cookies under the brand name Mother's Cookies. (Doc. # 1, ¶¶ 3, 10). Plaintiff is a consumer who has repeatedly purchased Mother's Cookies since January 1, 2008. Id. ¶¶ 8, 11, 64, 95. On January 1, 2016, Plaintiff filed a putative class action lawsuit challenging Defendant's use of partially hydrogenated oil ("PHO") in its cookies. (See Doc. # 1). Plaintiff asserts that PHO is a source of artificial trans fat and that "there is ‘no safe level’ of PHO or artificial trans fat intake" because PHO and artificial trans fat cause inflammation, heart disease, diabetes, cancer, Alzheimer's disease, and cognitive damage. Id. ¶¶ 4, 16, 17, 54. Plaintiff further asserts that there are safe, economical alternatives to PHO, which Defendant "unfairly" declines to use in its cookies. Id. ¶ 7. As a result of purchasing and consuming Defendant's cookies, Plaintiff contends that she suffered both pecuniary and physical injuries, and thus brought suit against Defendant. Id. ¶¶ 86, 87.

In her complaint, Plaintiff asserts claims for: (1) unlawful business practices in violation of California's Unfair Competition Law, California Business and Professions Code §§ 17200 et seq. ("UCL"), (2) unfair business practices in violation of the UCL, (3) nuisance in violation of California Civil Code §§ 3479 –93, and (4) breach of the implied warranty of merchantability. Id. at 23–28.¹ Plaintiff asserts these claims individually and on behalf of a class of all individuals "who purchased in the United States, on or after January 1, 2008 ... for household or personal use, Mother's Cookies products manufactured or distributed by Defendant containing partially hydrogenated oil." Id. ¶ 95. Plaintiff's claims are based solely on Defendant's use of PHO; Plaintiff does not assert that the cookies were mislabeled. Id. ¶ 90.

On March 17, 2016, Defendant filed a motion to dismiss Plaintiff's complaint, arguing that Plaintiff lacks Article III standing, failed to properly allege any of her claims, and that Plaintiff's claims are preempted by federal law. (See Doc. # 8). Alternatively, Defendant requested the Court dismiss or stay the instant action under the doctrine of primary jurisdiction. Id. at 23–24. Plaintiff filed a response in opposition to Defendant's motion to dismiss on April 25, 2016, and Defendant filed a reply in support of its motion to dismiss on May 2, 2016. (See Docs. # 9, 10). The Court then took Defendant's motion to dismiss under submission pursuant to Civil Local Rule 7.1(d.1). (See Doc. # 11).

LEGAL STANDARD

A. 12(b)(1)

The federal court is one of limited jurisdiction. Gould v. Mutual Life Ins. Co. of New York , 790 F.2d 769, 774 (9th Cir. 1986). As such, it cannot reach the merits of any dispute until it confirms its own subject matter jurisdiction. Steel Co. v. Citizens for a Better Environ. , 523 U.S. 83, 94–95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a defendant may seek to dismiss a complaint for lack of subject matter jurisdiction. When considering a Rule 12(b)(1) motion to dismiss, the district court is "free to hear evidence regarding jurisdiction and to rule on that issue prior to trial, resolving factual disputes where necessary."

Augustine v. United States , 704 F.2d 1074, 1077 (9th Cir. 1983). In such circumstances, "[n]o presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Id. (citing Thornhill Publ'g Co. v. Gen. Tel. & Elec. Corp. , 594 F.2d 730, 733 (9th Cir. 1979) ). Plaintiff, as the party seeking to invoke jurisdiction, has the burden of establishing that jurisdiction exists. Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994).

B. 12(b)(6)

Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may move to dismiss a complaint for failure to state a claim for relief. Dismissal is warranted under Rule 12(b)(6) where the complaint lacks a cognizable legal theory or fails to allege sufficient facts to support a cognizable legal theory. Li v. Kerry , 710 F.3d 995, 999 (9th Cir. 2013). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A claim is facially plausible when the factual allegations permit "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. In other words, "the non-conclusory ‘factual content,’ and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Serv. , 572 F.3d 962, 969 (9th Cir. 2009) (citing Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ). "Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal , 556 U.S. at 679, 129 S.Ct. 1937.

In reviewing a motion to dismiss under Rule 12(b)(6), a court must assume the truth of all factual allegations and construe the factual allegations in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co. , 80 F.3d 336, 337–38 (9th Cir. 1996). However, legal conclusions need not be taken as true merely because they are "cast in the form of factual allegations." Ileto v. Glock Inc. , 349 F.3d 1191, 1200 (9th Cir. 2003). "Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ " Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly , 550 U.S. at 557, 127 S.Ct. 1955 ). The court may consider facts alleged in the complaint, documents attached to the complaint, documents relied upon but not attached to the complaint when authenticity is not contested, and matters of which the court takes judicial notice. Lee v. City of Los Angeles , 250 F.3d 668, 688–89 (9th Cir. 2001). If a court determines that a complaint fails to state a claim, the court should grant leave to amend unless it determines that the pleading could not possibly be cured by the allegation of other facts. Doe v. United States , 58 F.3d 494, 497 (9th Cir. 1995).

DISCUSSION

Defendant argues that Plaintiff's complaint should be dismissed for lack of standing, failure to state any claims, and because Plaintiff's claims are preempted by federal law. The Court will first discuss the federal regulations on the use of PHO in human food. Next, the Court will address whether Plaintiff has Article III standing. Then, the Court will address whether federal law provides a basis for Plaintiff's UCL claims and whether Plaintiff's state law claims are preempted by federal law.

A. The Federal Regulatory Scheme on PHO

In 1906, Congress passed the Pure Food and Drugs Act, "which was the first comprehensive federal legislation designed to protect consumers from fraud or misrepresentation in the sale of food and drugs." Yumul v. Smart Balance, Inc. , No. CV 10–00927 MMM (AJWx), 2011 WL 1045555, at *6 (C.D. Cal. Mar. 14, 2011) (citing JAMES T. O'REILLY, FOOD AND DRUG ADMINISTRATION § 3:1–13 (3d ed. 2009)). Then, in 1938, Congress passed the Food, Drug, and Cosmetic Act ("FDCA") as successor legislation. See Federal Food, Drug, & Cosmetic Act, Pub. L. No. 75–717, 52 Stat. 1040 (1938). The FDCA established the Food and Drug Administration ("FDA") within the Department of Health and Human Services and empowered the FDA to protect public health by regulating food safety and labeling. 21 U.S.C. § 393. Specifically, the FDCA requires the FDA to (i) ensure that "foods are safe, wholesome, sanitary, and properly labeled," (ii) promulgate regulations to enforce the provisions of the FDCA, and (iii) enforce its regulations through administrative proceedings. See 21 U.S.C. §§ 371, 393(b)(2)(A) ; 21 C.F.R. § 7.1 et seq .

The FDCA also prohibits "[t]he introduction or delivery for introduction into interstate commerce of any food ... that is adulterated." 21 U.S.C. § 331(a). A food is adulterated "if it ... contains ... any food additive that is unsafe within the meaning of" 21 U.S.C. § 348.² Id. § 342(a)(2)(C)(i). In relevant part, a food additive is deemed unsafe unless there is "a regulation issued ... prescribing the conditions under which such additive may be safely used," and the additive is used in conformity with the regulation. Id. § 348(a)(2). In addition, the FDCA explicitly exempts from the definition of "food additive" foods that are "generally recognized ... as having been adequately shown through scientific procedures (or, in the case of a substance used in food prior to January 1, 1958, through either scientific procedures or experience based on common use in food) to be safe...." Id. § 321(s). This status is referred to as ...