Smith v. Gen. Mills Sales, Inc.

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LAKITA SMITH, Plaintiff, v. GENERAL MILLS SALES, INC., Defendant.

No. 22 CV 1529

United States District Court, N.D. Illinois, Eastern Division

March 3, 2023

MEMORANDUM OPINION AND ORDER

Manish S. Shah, United States District Judge

Plaintiff Lakita Smith bought Totino's Pizza Rolls at a grocery store. She says the box misrepresented the content of the Rolls and sued defendant General Mills for violating the Illinois Consumer Fraud Act. She also brought claims for breach of warranty, negligent misrepresentation, fraud, and unjust enrichment. Defendant moves to dismiss. The motion is granted.

I. Legal Standard

“To survive a motion to dismiss, a plaintiff need allege ‘only enough facts to state a claim to relief that is plausible on its face.'” Barwin v. Vill. of Oak Park, 54 F.4th 443, 453 (7th Cir. 2022) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A court reviewing a Rule 12(b)(6) motion to dismiss accepts as true all well-pled facts alleged in the complaint and determines whether “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 453 (quoting Ashcroft v Iqbal, 556 U.S. 662, 678 (2009)). “Legal assertions or recital of the elements of a cause of action supported by mere conclusory statements,” however, do not receive the presumption of truth. Vesely v. Armslist LLC, 762 F.3d 661, 664-65 (7th Cir. 2014) (citation and quotations omitted).

Claims of fraud or deceptive practices under the Illinois Consumer Fraud Act require the plaintiff to meet the heightened pleading standard of Federal Rule of Civil Procedure 9(b). Vanzant v. Hill's Pet Nutrition, Inc., 934 F.3d 730, 738 (7th Cir. 2019). The plaintiff must allege the “who, what, when, where, and how” of the alleged fraud. Id.

II. Facts

A. Statutory Background and Definitions

The Food, Drug, and Cosmetic Act regulates food labeling in the United States. 21 U.S.C. §§ 301, et seq. It bars private rights of action, 21 U.S.C. § 337(a), and (through an amendment by the Nutrition Labeling and Education Act) preempts states from imposing regulations on food labeling that are “not identical to” the federal regulations. 21 U.S.C. § 343-1(a). The “not identical to” principle preempts state requirements that “directly or indirectly” impose obligations that aren't imposed by any federal implementing regulation or merely “differ from those specifically imposed” by the implementing regulations. 21 C.F.R. § 100.1(c)(4). But state-law claims that would not require a different label than the one required by federal regulations are not preempted. Consumers can “enforce a violation of the [Food, Drug, and Cosmetic] Act as a violation of state law.” Turek v. General Mills, Inc., 662 F.3d 423, 426 (7th Cir. 2011); see also Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 58182 (7th Cir. 2012) (Supreme Court has never suggested that “the absence of a private right of action under a federal statute would prevent state law from providing a cause of action based in whole or in part on violations of the federal law”).

The FDCA includes several terms of art that are central to Smith's claims: standard of identity, common or usual name, characterizing ingredient, and natural flavor. A standard of identity “specifies the defining characteristics of a given food,” Nemphos v. Nestle Waters N. Am., Inc., 775 F.3d 616, 621 (4th Cir. 2015), and is set by regulations issued by the Food and Drug Administration. See 21 U.S.C. § 341 (FDA authorized to issue “regulations fixing and establishing for any food, under its common or usual name so far as practicable, a reasonable definition and standard of identity”). “At the consumer level, a standard of identity warrants that individuals will encounter a label reflecting the food's actual contents-that consumers ‘will get what they may reasonably expect to receive.'” Nemphos, 775 F.3d at 622 (quoting F. Sec. Adm'r v. Quaker Oats, 318 U.S. 218, 232 (1943)). So, for instance, bread means something specific (“produced by baking mixed yeast-leavened dough prepared from one or more of” enumerated farinaceous, moistening, and leavening-agent ingredients), as does peanut butter (“prepared by grinding.shelled and roasted peanut ingredients.to which may be added safe and suitable seasoning and stabilizing ingredients” that “do not in the aggregate exceed 10 percent of the weight of the finished food”), as does jelly (“jelled foods” made from a mixture of enumerated fruit-juice ingredients and a combination of optional ingredients). 21 C.F.R. §§ 136.110(a), 164.150 (a), 150.140(a), respectively.

Many foods don't have standards of identity. Those that don't must be labeled with their “common or usual name.” 21 U.S.C. § 343(i). The common or usual name of a food, which can be a coined term, must “accurately identify or describe, in as simple and direct terms as possible, the basic nature of the food or its characterizing properties or ingredients.” 21 C.F.R. § 102.5(a). The name must be “uniform among all identical or similar products and may not be confusingly similar to the name of any other food that is not reasonably encompassed within the same name.” Id.

Some foods have what's called a “characterizing ingredient.” Neither the statute nor regulations define “characterizing ingredient,” but the regulations do offer some examples: strawberries in strawberry shortcake (21 C.F.R. § 101.22(i)(1)(i)) and peanuts in peanut butter (see 21 C.F.R. § 102.23(a)), for instance.^[1]The percentage of a characterizing ingredient, determined by weight of the finished product, must be included on the product's label if the label would otherwise create an erroneous impression that the characterizing ingredient is “present in an amount greater than is actually the case.” 21 C.F.R. §§ 102.5(b), (b)(1). So, too, when the proportion of the ingredient “has a material bearing on price or consumer acceptance.” 21 C.F.R. § 102.5(b).

Finally, “natural flavor” means the essential oil, essence, or distillate, among other things, whose flavoring constituents are derived from food ingredients (including dairy products) and whose “significant function in food is flavoring rather than nutritional.” 21 C.F.R. 101.22(a)(3).

B. Smith's Claims

Smith bought a box of Totino's Pizza Rolls at a grocery store in Chicago. [1] ¶ 66.^[2]The box looked like this, [1] ¶ 1:

IMAGE OMITTED

The product name, “Totino's Pizza Rolls,” is in the center. [1] ¶ 1. The lower left corner describes the product as “Pizza in a Golden Crust.” [1] ¶ 1. Also in the lower left corner is the word “Cheese,” and directly beneath it, in smaller and narrower typeface, “Naturally Flavored.” [1] ¶ 1. The box shows thirteen pieces of what appear to be dough fried or baked in a pillow shape, two with steam rising off them. [1] ¶ 1. One of the pieces has been cut open for an inside view; it shows what appears to be cheese and tomato sauce inside the dough. [1] ¶ 1.^[3]

Based on the box's words and images, Smith expected the Rolls to contain “a non-de minimis amount of ingredients associated with pizza, such as cheese.” See [1] ¶ 3. Specifically, she expected that the cheese in the Rolls would be “mainly traditional cheese from dairy ingredients instead of imitation cheese from vegetable oils.” [1] ¶ 67. But in fact, the third ingredient in the Rolls is “Imitation Mozzarella Cheese,” which contains: water, palm oil, modified corn starch, vegetable oil [], rennet casein, salt, sodium aluminum phosphate, potassium chloride, citric acid, guar gum, potassium sorbate [], sodium citrate, sodium phosphate, and titanium dioxide []. [1] ¶ 23. The fourth ingredient, however, is real cheese (Rehydrated Fat Free Mozzarella Cheese). [1] ¶ 23. Rehydrated Enzyme Modified Cheese is also listed. [1] ¶ 23.

Smith claims that Totino's labeling is misleading and violates federal regulations in three ways.^[4] First, the label doesn't contain the percentage of cheese in the Rolls, which is required because (Smith says) cheese is a characterizing ingredient of pizza. [1] ¶¶ 27-30 (citing 21 C.F.R. § 102.5(b)(2)); [22] at 17-18. The words “naturally flavored”-which plaintiff says is an attempt to “disclaim the presence of cheese”-are insufficient to overcome the misleading impression created by omitting the percentage of cheese, she says. [1] ¶¶ 32-34. Second, Pizza Rolls's natural flavor is used to simulate the flavor of cheese, in violation of federal regulations, plaintiff says. [1] ¶ 34 (citing 21 C.F.R. § 133.193(a)). Third, by not disclosing on the front that the purported “mozzarella cheese blend” is actually an imitation cheese, defendant violates 21 C.F.R. § 101.3(e) and misleads consumers. [1] ¶¶ 37-40. I disregard plaintiff's allegation that the box says “mozzarella cheese blend” on the front because it doesn't-as is clear from the picture plaintiff herself submitted. See [1] ¶ 1; Bogie v. Rosenberg, 705 F.3d 603, 609 (7th Cir. 2013) (“When an exhibit incontrovertibly contradicts the allegations in the complaint, the exhibit ordinarily controls, even when considering a motion to dismiss.”).^[5] Instead, I read the allegation to be that, by failing to disclose on the front of the box that the “cheese” includes imitation cheese, defendant violated federal regulations.

Smith says she wouldn't have bought the Pizza Rolls, or would have paid less for them, if she'd known they weren't made primarily from “traditional cheese” and had imitation cheese in them. See [1] ¶ 70. She says she plans to buy the Pizza Rolls again, but only when she can be assured that the labeling isn't misleading. [1] ¶ 73. Because of her experience with Totino's she's unable to rely on the labeling and representations of other...