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2 3 4 5 6 7 United States District Court 8 Central District of California 9 10

11 KERRY LAMONS, Case № 5:23-cv-00654-ODW (KKx)

12 Plaintiff, 13 ORDER GRANTING DEFENDANT’S v. 14 MOTION TO DISMISS [20] GLANBIA PERFORMANCE 15 NUTRITION (NA), Inc. et al., 16 Defendants. 17 18 19 I. INTRODUCTION 20 Plaintiff Kerry Lamons brings this putative class action against Defendant 21 Glanbia Performance Nutrition (NA) Inc. (“Glanbia”), alleging Glanbia purposely 22 misrepresents the calorie contents of certain nutritional powders. (First. Am. Compl. 23 (“FAC”), ECF No. 18.) Glanbia now moves to dismiss pursuant to Federal Rule of 24 Civil Procedure (“Rule”) 12(b)(6). (Mot. Dismiss (“Motion” or “Mot.”), ECF 25 No. 20-1.) For the following reasons, the Court GRANTS Glanbia’s Motion.1 26 27

28 1 Having carefully considered the papers filed in connection with the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15 1 II. BACKGROUND 2 On September 6, 2021, Lamons purchased one of Glanbia’s products, Optimum 3 Nutrition Essential Amino Energy + Electrolytes. (FAC ¶ 16.) Before purchasing this 4 product, Lamons reviewed its label and other marketing materials, all of which claimed 5 the product contains only “5 Calories.” (Id.) However, independent laboratory testing 6 revealed that this product contains approximately thirty-four calories per serving. (Id. 7 ¶ 26.) 8 With this action, Lamons seeks to represent a class of individuals who purchased 9 any of more than two dozen “substantial[ly] similar” Glanbia products, which Lamons 10 collectively refers to as the “Product/Products” throughout the First Amended 11 Complaint. (Id. ¶¶ 2, 3.) Lamons alleges that Glanbia purposely misbrands the calorie 12 contents of these products by stating the products contain 0 calories, “5 to 10 Calories 13 Per Serving with Zero Sugar,” or omitting the term calories from labels. (Id. ¶ 2.) 14 Lamons further alleges that “the actual Caloric range for all of the . . . products amounts 15 to 35 to 55 Calories depending on formulation and use guidance.” (Id. (emphasis 16 omitted).) 17 On February 27, 2023, Lamons filed the initial Complaint in the Superior Court 18 of the State of California for the County of Riverside. (Not. Removal (“NOR”) Ex. 1 19 (“Compl.”), ECF No. 1-1.). On April 14, 2023, Glanbia removed the action to this 20 Court under the Class Action Fairness Act (“CAFA”). (NOR, ECF No. 1.) After 21 Glanbia moved to dismiss the Complaint, Lamons amended her claims. In the First 22 Amended Complaint, Lamons asserts seven causes of action: (1) breach of express 23 warranty; (2) breach of implied warranty of merchantability; (3) common law fraud; 24 (4) violations of California’s False Advertising Law, Cal. Bus. & Prof. Code. §§ 17500 25 et seq.; (5) violations of California’s Legal Remedies Act, Cal. Civ. Code §§ 1750– 26 1785; (6) violations of California’s Unfair Competition Law, Cal. Bus. & Prof. Code. 27 §§ 17200–17210; and (7) unjust enrichment. (FAC ¶¶ 47–128.) 28 1 Glanbia now moves to dismiss Lamons’s claims. (Mot.) The Motion is fully 2 briefed. (Opp’n, ECF No. 25; Reply, ECF No. 26.) 3 III. LEGAL STANDARD 4 A court may dismiss a complaint under Rule 12(b)(6) for lack of a cognizable 5 legal theory or insufficient facts pleaded to support an otherwise cognizable legal 6 theory. Balistreri v. Pacifica Police Dep’t,

(9th Cir. 1990). To 7 survive a dismissal motion, a complaint need only satisfy “the minimal notice pleading 8 requirements of Rule 8(a)(2)”—“a short and plain statement of the claim.” Porter v.

F.3d 483, 494 (9th Cir. 2003). The factual “allegations must be enough to 10 raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly,

(2007). Pursuant to this standard, the complaint must “contain sufficient 12 factual matter, accepted as true, to state a claim to relief that is plausible on its face.” 13 Ashcroft v. Iqbal,

(2009) (internal quotation marks omitted). 14 The determination of whether a complaint satisfies the plausibility standard is a 15 “context-specific task that requires the reviewing court to draw on its judicial 16 experience and common sense.”

. A court is generally limited to the pleadings 17 and must construe “[a]ll factual allegations set forth in the complaint . . . as true 18 and . . . in the light most favorable” to the plaintiff. Lee v. City of Los Angeles,

(9th Cir. 2001) (internal quotation marks omitted). However, a court need not 20 blindly accept “allegations that are merely conclusory, unwarranted deductions of fact, 21 or unreasonable inferences.” Sprewell v. Golden State Warriors,

, 988 22 (9th Cir. 2001). Ultimately, there must be sufficient factual allegations “to give fair 23 notice and to enable the opposing party to defend itself effectively,” and the “allegations 24 that are taken as true must plausibly suggest an entitlement to relief, such that it is not 25 unfair to require the opposing party to be subjected to the expense of discovery and 26 continued litigation.” Starr v. Baca,

(9th Cir. 2011). 27 Moreover, where a claim includes allegations of fraud, Rule 9(b) requires a party 28 to “state with particularity the circumstances constituting fraud.” Fed. R. Civ. P. 9(b). 1 IV. DISCUSSION 2 Glanbia moves to dismiss Lamons’s claims on several bases, including that 3 federal law preempts Lamons’s claims. (Mot. 8–16.) 4 A. Preemption 5 Pursuant to the Supremacy Clause, U.S. Const. art. VI, cl. 2, federal law preempts 6 state law when “(1) Congress enacts a statute that explicitly pre-empts state law; 7 (2) state law actually conflicts with federal law; or (3) federal law occupies a legislative 8 field to such an extent that it is reasonable to conclude that Congress left no room for 9 state regulation in that field.” Chae v. SLM Corp.,

(9th Cir. 2010). 10 Regardless of the type of preemption the “purpose of Congress is the ultimate 11 touchstone of pre-emption analysis.” Cipollone v. Liggett Grp., Inc.,

, 516 12 (1992) (internal quotation marks omitted). 13 The Federal Food, Drug, and Cosmetic Act (“FDCA”) prohibits the 14 “misbranding of any food.”

(b). “To avoid a patchwork quilt of 15 conflicting state labeling laws, the FDCA includes a preemption provision that 16 establishes a national and uniform standard for certain labeling statements,” including 17 nutrition labeling. Greenberg v. Target Corp.,

(9th Cir. 2021). It 18 provides that “no State or political subdivision of a State may directly or indirectly 19 establish . . . any requirement for nutrition labeling of food that is not identical to the 20 requirement of section 343(q),” which requires the inclusion of certain nutrition 21 information on food labels.

(a)(4), 343(q). 22 A state law is “not identical to the requirement of” a specified section if “the State 23 requirement directly or indirectly imposes obligations or contains provisions 24 concerning the composition or labeling of food [that] . . . [a]re not imposed by or 25 contained in the [FDCA or applicable federal regulation] . . . or [d]iffer from those 26 specifically imposed by or contained in the applicable provision” of the FDCA or 27 28 1 applicable federal regulation.2

(c)(4). Because the FDCA “preempts 2 state-law requirements for claims about dietary supplements that differ from the 3 FDCA’s requirements, private plaintiffs may bring only actions to enforce violations of 4 state laws imposing requirements identical to those contained in the FDCA.” Hollins 5 v. Walmart Inc.,

(9th Cir. 2023) (internal citations and quotation 6 marks omitted). Therefore, “a state-law misbranding claim” that would allow “a state 7 to impose requirements . . . different from those permitted under the FDCA . . . is 8 preempted.”

(quoting Durnford v. MusclePharm Corp.,

(9th Cir. 9 2018)). 10 “[W]here, as here, an FDA regulation provides that the question of compliance 11 must be determined using the method specified therein, a state law claim that seeks to 12 establish a violation of such regulation by a different methodology is preempted.” Mee 13 v. I.A. Nutrition, Inc., No. C-14-5006 MMC,

, at *4 (N.D. Cal. 14 May 13, 2015) (citing Salazar v. Honest Tea, Inc.,

(E.D. Cal. 15 2014)). Under the FDCA, the nutrition label for food must provide the total number of 16 calories in each serving size.

(q)(1)(C). The FDCA’s implementing 17 regulations provide that the total number of calories may be calculated using one of five 18 methods (“Five Methods”):(1) the Atwater method; (2) a method that assigns 4, 4, and 19 9 calories per gram for protein, total carbohydrate, and total fat, respectively; (3) a 20 method that assigns 4, 4, and 9 calories per gram for protein, total carbohydrate (less 21 the amount of non-digestible carbohydrates and sugar alcohols), and total fat, 22 respectively; (4) data for specific food factors for particular foods or ingredients 23 approved by the Food and Drug Administration (“FDA”); and (5) bomb calorimetry. 24

(c). A “safe-harbor” provision allows the “total number of calories” 25 measured by any of the Five Methods to be as much as 20% greater than the calorie 26 content listed on a label.

at § 101.9(g)(5). 27

28 2 State common law causes of action are considered state “requirements” subject to preemption. See Riegel v. Medtronic, Inc.,

(2008). 1 Here, Lamons alleges that she had “independent laboratory testing” conducted 2 on “the Optimum Nutrition Product” and “the BSN Product,” revealing each product 3 contains far more calories than represented on the product’s labels and advertising 4 materials. (Id. at ¶ 26.) However, Lamons fails to allege any facts about the testing of 5 these two products and how it complied with FDA regulations. Without more, Lamons 6 fails to plausibly allege that the independent testing was FDA-compliant. See Mee, 7

, at *4; see also Anglin v. Edgewell Pers. Care Co., No. 4:18-cv- 8 00639-NCC,

, at *11 (E.D. Mo. Dec. 7, 2018) (“The substance of 9 the allegations is particularly important in determining the sufficiency of those 10 allegations in situations where, as here, the governing FDA regulation imposes a 11 specific, lengthy, and very detailed methodology for testing the products.” (emphasis in 12 original)); Curran v. Bayer Healthcare LLC, No. 17 C 7930,

, at *3 13 (N.D. Ill. May 30, 2018) (“[P]laintiff needs to include some facts about his testing 14 procedure in order to make it plausible that defendant’s label was not in compliance 15 with the requirements of

. . . . He needs to include at least some 16 facts about his testing.”). 17 Elsewhere in the First Amended Complaint, Lamons alleges in a conclusory 18 fashion that she “analyzed the Product and evaluated it in accordance with each of the 19 five methods provided by the FDA regulations and has concluded that every one of the 20 five methods’ results yield a caloric value that exceeds the claims on the Product’s label 21 by more than twenty percent (20%).” (FAC ¶ 8.) Here, although Lamons alleges the 22 testing complied with FDA regulations, she again fails to allege any facts about the 23 testing and how it complied with FDA regulations.3 Furthermore, because Lamons 24 defines the term “Product” to include more than two dozen individual products, (see

25 ¶ 2), it is not clear what products she tested according to methods that comply with FDA 26 regulations. Accordingly, the Court finds this allegation is conclusory and fails to 27

28 3 Moreover, in the Opposition, Lamons appears to contradict this allegation, arguing that she “is not required to perform testing on twelve products at the pleading stage.” (Opp’n 11.) 1 support a plausible conclusion that Lamons’s testing of each of the products at issue 2 complied with FDA regulations, let alone that each of the Five Methods revealed that 3 each product is mislabeled under the FDCA. 4 The Court acknowledges that disagreement exists regarding whether specific 5 compliance with FDA testing is a pleading requirement. Compare Salazar,

3d at 1313 (dismissing claims as preempted where plaintiff failed to allege compliance 7 with FDA testing protocols); Mee,

, at *3–4 (same); with Smith v. 8 Allmax Nutrition, Inc., No. 1:15-cv-00744-SAB,

, at *7 (E.D. Cal. 9 Dec. 24, 2015) (finding allegations of testing methodology not required at pleading 10 stage); Clay v. Cytosport, Inc., No. 15-cv-165 L (DHB),

, at *4 11 (S.D. Cal. Aug. 19, 2015) (same). However, the Court finds that requiring at least some 12 facts to support a plausible inference of FDA-compliant testing is proper. This is 13 particularly true where Lamons alleges Glanbia purposely misbrands its products in an 14 effort to deceive customers, implicating the particularity pleading standard under 15 Rule 9(b). 16 Accordingly, the Court GRANTS Glanbia’s Motion to Dismiss.4 17 B. Leave to Amend 18 Where a district court grants a motion to dismiss, it should generally provide 19 leave to amend unless it is clear the complaint could not be saved by any amendment. 20 See Fed. R. Civ. P. 15(a); Manzarek v. St. Paul Fire & Marine Ins. Co.,

, 21 1031 (9th Cir. 2008). To the extent Lamons can amend her allegations in good faith to 22 allege that independent testing of the identified products complied with the FDA 23 regulations for caloric testing, Lamons may amend within twenty-one days of this 24 Order. 25 26 27

28 4 In light of the Court’s ruling on the issue of preemption, the Court need not address Glanbia’s additional arguments in support of dismissal. 1 Vv. CONCLUSION 2 For the reasons discussed above, the Court GRANTS Glanbia’s Motion to 3 || Dismiss WITH LEAVE TO AMEND to allege FDA-compliant testing of the products 4|| atissue. (ECF No. 20.) If Lamons chooses to amend, the Second Amended Complaint 5 || is due no later than twenty-one days from the date of this Order, in which case Glanbia 6 || shall answer or otherwise respond within fourteen days of the filing. If Lamons does 7 || not timely amend, the dismissal shall be deemed a dismissal with prejudice as of the 8 | lapse of the deadline to amend. 9 10 11 IT IS SO ORDERED. 12 13 August 31, 2023 14 “ g Géedliot 16 OTIS D. WRIGHT, II 4 UNITED STATES DISTRICT JUDGE

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