Nacarino v. Chobani, LLC

668 F.Supp.3d 881

Elena NACARINO, Plaintiff, v. CHOBANI, LLC, Defendant.

Case No. 20-cv-07437-EMC

United States District Court, N.D. California

Signed February 4, 2022

Michael Robert Reese, Sue Jung Nam, Reese LLP, New York, NY, Charles Douglas Moore, Pro Hac Vice, Reese LLP, Minneapolis, MN, George Volney Granade, Reese LLP, Los Angeles, CA, Kate Jeffery Stoia, Reese LLP, San Francisco, CA, Spencer Sheehan, Pro Hac Vice, Sheehan & Associates, P.C., Great Neck, NY, for Plaintiff.

Claudia Maria Vetesi, Yelena Gankin, Morrison & Foerster LLP, San Francisco, CA, Brittany Lynn Scheinok, Morrison & Foerster LLP, San Diego, CA, Jamie A. Levitt, Pro Hac Vice, Morrison & Foerster, LLP, New York, NY, Joseph R. Palmore, Pro Hac Vice, Morrison & Foerster LLP, Washington, DC, Nicole V. Ozeran, Morrison & Foerster LLP, Los Angeles, CA, for Defendant.

ORDER DENYING DEFENDANT'S MOTION TO DISMISS THIRD AMENDED COMPLAINT

Docket No. 54

EDWARD M. CHEN, United States District Judge

I. INTRODUCTION

Plaintiff Elena Nacarino ("Plaintiff") brings this putative class action against Defendant Chobani, LLC ("Defendant" or "Chobani") based in California consumer-protection law over allegedly unlawful labeling on a Chobani yogurt container. See Third Amended Complaint ("TAC"); Docket No. 51. Plaintiff now specifically alleges that the "unqualified 'Vanilla' representation on the front of the packaging, which she relied upon in making her purchase, violated FDA regulations in that the vanilla flavor of the Product is not independently derived from the vanilla plant but rather contains other non-vanilla plant flavoring that simulates, resembles, or reinforces the characterizing vanilla flavor of the Product." Id. ¶ 7 (emphasis added). Pending before the Court is Defendant's motion to dismiss Plaintiff's third amended complaint. See Motion to Dismiss ("MTD"); Docket No. 54. For the following reasons, the Court DENIES Defendant's motion to dismiss.

II. BACKGROUND

The Court previously noted that this case was one of many recent putative class actions targeting allegedly deceptive labeling on vanilla food products that are not flavored, either exclusively or in significant part, with vanilla extract or vanilla bean. See, e.g., Clark v. Westbrae Natural, Inc., 2020 WL 7043879 (N.D. Cal. Dec. 1, 2020) ("Clark I"); Cosgrove v. Blue Diamond Growers, 2020 WL 7211218 (S.D.N.Y. Dec. 7, 2020); Zaback v. Kellogg Sales Co., 2020 WL 6381987 (S.D. Cal. Oct. 29, 2020). Notably, many plaintiffs have focused on manufacturers' use of the term "vanilla" on product labels. See, e.g., Clark I, 2020 WL 7043879; Cosgrove, 2020 WL 7211218; Pichardo v. Only What You Need, Inc., 2020 WL 6323775 (S.D.N.Y. Oct. 27, 2020).

Plaintiff's counsel filed this case on behalf of Plaintiff Elena Nacarino and a purported class of California consumers on October 23, 2020. See Complaint; Docket No. 1. After a hearing on Defendant's motion to dismiss the second amended complaint, this Court issued an order granting in part and denying in part Defendant's motion to dismiss Plaintiff's second amended complaint with leave to amend. See Order; Docket No. 48 (August 9, 2021).

According to the second amended complaint, Plaintiff purchased a container of Chobani yogurt (the "Product") at a Whole Foods grocery store in San Francisco, California, in 2020. SAC ¶ 8; Docket No. 26. The Product is named "Greek Yogurt Vanilla Blended," displaying what Plaintiff terms the "Vanilla Representations" on its container: (1) the word "Vanilla," without qualifiers, on the front; (2) images of the vanilla flower and vanilla bean on all sides; and (3) the following text on the back:

Carried from some far-off, exotic place, where a little flower became a little bean. And that little bean, suspended and unremarkable, the cloak that conceals the magic within. Flavor like perfume, folded up in earthen envelopes, rich and warm and wonderful. Entirely vanilla, gently opening like the blossom that began it all.

Id. ¶¶ 2-5 (emphasis added). Plaintiff relied on the vanilla representations in concluding that the Product's vanilla flavor comes "exclusively from ingredients derived from the vanilla plant, such as vanilla beans or vanilla extract," and in purchasing the Product. See id. ¶¶ 6, 8 (emphasis in original). Plaintiff brought claims under (1) the unlawful prong of California's Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code § 17200 et seq.; (2) the unfair and fraudulent prongs of the UCL; (3) California's False Advertising Law ("FAL"), Cal. Bus. & Prof. Code §§ 17500 et seq.; and (4) California's Consumer Legal Remedies Act ("CLRA"), Cal. Civ. Code § 1750 et seq. See id. ¶¶ 62-8. Additionally, Plaintiff sought declaratory relief, restitution and disgorgement, injunctive relief, compensatory and punitive damages, and attorneys' fees and costs. See id., Prayer for Relief at 25.

In its August 9, 2021 Order, the Court held that no reasonable consumer would take the Product's use of the word "vanilla" on the front and the package's vanilla imagery as indicating that the Product's flavor is derived exclusively from the vanilla plant, as the Product does not display any statements "even arguably conveying that vanilla bean or extract is the exclusive source of its vanilla flavor." Order at 11-12. The Court emphasized that "[h]ere, the Product nowhere asserts that it is, e.g., 'made with all-natural vanilla' or '100%' vanilla, nor displays any other statements even arguably conveying that vanilla bean or extract is the exclusive source of its vanilla flavor." Id. at 13. As such, the Court dismissed Plaintiff's claims under the unfair and fraudulent prongs of the UCL, the FAL, and the CLRA without leave to amend "since further amendment would be futile, given the manifest implausibility of her deceptive labeling claims . . . ." Id. at 15.

However, the Court found that Plaintiff "adequately alleged that the Product does not comply with [21 C.F.R. §] 101.22(i), as she asserts that the Product's flavoring does not derive exclusively from the vanilla plant and that its label does not include 'with other natural flavor' in compliance with the prescriptive terms of Section 101.22(i)(1)(iii)." Id. at 16. Section 101.22(i)(1) provides in its entirety:

(1) If the food contains no artificial flavor which simulates, resembles or reinforces the characterizing flavor, the name of the food on the principal display panel or panels of the label shall be accompanied by the common or usual name of the characterizing flavor, e.g., "vanilla", in letters not less than one-half the height of the letters used in the name of the food, except that:

(i) If the food is one that is commonly expected to contain a characterizing food ingredient, e.g., strawberries in "strawberry shortcake", and the food contains natural flavor derived from such ingredient and an amount of characterizing ingredient insufficient to independently characterize the food, or the food contains no such ingredient, the name of the characterizing flavor may be immediately preceded by the word "natural" and shall be immediately followed by the word "flavored" in letters not less than one half the height of the letters in the name of the characterizing flavor, e.g., "natural strawberry flavored shortcake," or "strawberry flavored shortcake".

(ii) If none of the natural flavor used in the food is derived from the product whose flavor is simulated, the food in which the flavor is used shall be labeled either with the flavor of the product from which the flavor is derived or as "artificially flavored."

(iii) If the food contains both a characterizing flavor from the product whose flavor is simulated and other natural flavor which simulates, resembles or reinforces the characterizing flavor, the food shall be labeled in accordance with the introductory text and paragraph (i)(1)(i) of this section and the name of the food shall be immediately followed by the words "with other natural flavor" in letters not less than one-half the height of the letters used in the name of the characterizing flavor.

21 C.F.R. § 101.22(i)(1). As relevant here, this Section states that a manufacturer can label its product as a "vanilla" product so long as it contains no artificial ingredients that provide the vanilla flavor, although there are certain exceptions. Additionally, § 101.22(i)(1)(iii) "means that if, for example a product does not contain enough real vanilla to independently characterize a product's vanilla flavor (hence, the product falls within (i)(1)(i)), and the product contains other natural flavors which simulate, resemble or reinforce the vanilla flavor, then the label must comply with (i)(1)(i) and have the word 'natural' precede 'vanilla' and it must also say 'with other natural flavor' after the name on the food." Clark v. Westbrae Natural Inc., 2021 WL 1580827, at *6 (N.D. Cal. Apr. 22, 2021) ("Clark II").

The Court further explained in its Order that given the "allegedly stark differences in" the mass spectrometry testing results on the Product and competitor products noted in the SAC, Plaintiff "plausibly pled that the Product is not exclusively flavored with 'real' vanilla." Order at 16. "The marked differences in vanillin levels between the Product and competitor yogurts plausibly imply that the Product's vanillin does not come solely from the vanilla plant" and as such, the Court denied Defendant's motion to dismiss with respect to Plaintiff's claim under the UCL's unlawful prong which was predicated on the violation of the C.F.R. Id. at 17. The Court specifically found that "the difference in aromatic compound levels and the disparity among vanillin levels between the Product and competitor yogurts provide[d] an adequate factual basis for [Plaintiff] to state a plausible federal violation and resultant claim under the UCL's unlawful prong." Id. (emphasis added).

Further, the Court determined that Plaintiff "may pursue only some of the equitable remedies that she requests under...