Cynthia Painter v. Blue Diamond Growers ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 20 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CYNTHIA CARDARELLI PAINTER, No. 17-55901
individually and on behalf of other members
of the general public similarly situated, D.C. No.
2:17-cv-02235-SVW-AJW
Plaintiff-Appellant,
v. MEMORANDUM*
BLUE DIAMOND GROWERS, a
California corporation and DOES, 1-100,
inclusive,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted December 3, 2018
Pasadena, California
Before: D.W. NELSON and WARDLAW, Circuit Judges, and PRATT,** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Robert W. Pratt, United States District Judge for the
Southern District of Iowa, sitting by designation.
Cynthia Painter appeals the district court’s order dismissing her complaint
with prejudice on grounds of preemption and failure to state a claim pursuant to
Federal Rule of Civil Procedure 12(b)(6). On behalf of a putative class, Painter
claims that Blue Diamond Growers (“Blue Diamond”) mislabeled its almond
beverages as “almond milk” when they should be labeled “imitation milk” because
they substitute for and resemble dairy milk but are nutritionally inferior to it. See
21 C.F.R. § 101.3(e)(1). We have jurisdiction under 28 U.S.C. § 1291 and review
the district court’s dismissal de novo. Durnford v. MusclePharm Corp., 907 F.3d
595, 601 (9th Cir. 2018). We affirm.
1. The district court correctly determined that the Federal Food, Drug, and
Cosmetic Act (FDCA), 21 U.S.C. § 301–399i, as amended by the Nutrition
Labeling and Education Act of 1990 § 6(a), 21 U.S.C. § 343-1, contains a broad
preemption provision, which prohibits a state from “directly or indirectly
establish[ing]” food labeling requirements “not identical to” federal requirements.
21 U.S.C. § 343-1(a). Accordingly, Painter’s “mislabeling” claims that seek to use
state law to impose labeling requirements “not identical to” those under 21 U.S.C.
§ 343(c) are preempted. See id. § 343-1(a)(2). The FDCA sets forth the bare
requirement that foods imitating other foods bear a label with “the word ‘imitation’
and, immediately thereafter, the name of the food imitated.” 21 U.S.C. § 343(c);
21 C.F.R. § 101.3(e). Therefore, Painter’s claim that Blue Diamond must
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additionally include either a nutritional comparison of almond milk to dairy milk
or cease using the term “milk” on the label of its almond milk products conflicts
with the FDCA. See Durnford, 907 F.3d at 601 (stating the FDCA displaces food
labeling requirements that “[d]iffer from those specifically imposed by” the federal
statute (quoting 21 C.F.R. § 100.1(c)(4)(ii))).
2. The district court properly dismissed Painter’s deceptive marketing
claims under California’s Unfair Competition Law (UCL), False Advertising Law
(FAL), and Consumers Legal Remedies Act (CLRA) for failing “to state a claim to
relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007); see Cal. Bus. & Prof. Code §§ 17200–210 (UCL); Cal. Bus. & Prof. Code
§§ 17500–509 (FAL); Cal. Civ. Code §§ 1750–84 (CLRA). Under the “reasonable
consumer” standard that governs Painter’s UCL, FAL, and CLRA claims, Painter
“must show that members of the public are likely to be deceived” by Blue
Diamond’s labeling and advertising practices. Ebner v. Fresh, Inc., 838 F.3d 958,
965 (9th Cir. 2016) (internal quotation marks and citation omitted).
Painter’s complaint does not plausibly allege that a reasonable consumer
would be deceived into believing that Blue Diamond’s almond milk products are
nutritionally equivalent to dairy milk based on their package labels and advertising.
Unlike in Williams v. Gerber Products Co., 552 F.3d 934 (9th Cir. 2008), in which
we found that reasonable consumers could mistakenly interpret repeated references
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to “fruit” and images of real fruit on packaging of a product called “fruit juice
snacks” as a representation that the product’s ingredients were all natural, see id. at
939, Painter concedes that Blue Diamond accurately labels and advertises its
almond milk products. The district court correctly concluded that “[n]o reasonable
consumer could be misled by [Blue Diamond’s] unambiguous labeling or factually
accurate nutritional statements.”
Nor can Painter plausibly allege that Blue Diamond’s almond milk
products are mislabeled in violation of federal law. Almond milk is not an
“imitation” of dairy milk within the meaning of 21 U.S.C. § 343(c) and 21 C.F.R. §
101.3(e). Notwithstanding any resemblance to dairy milk, almond milk is not a
“substitute” for dairy milk as contemplated by section 101.3(e)(1) because almond
milk does not involve literally substituting inferior ingredients for those in dairy
milk. See, e.g., 62 Cases of Jam v. United States, 340 U.S. 593, 595, 600 (1951)
(finding that a product that substituted fruit in fruit jam with pectin, a gelatinized,
water-based solution, was properly labeled “imitation jam”). In addition, a
reasonable jury could not conclude that almond milk is “nutritionally inferior” to
dairy milk within the meaning of 21 C.F.R. § 101.3(e)(4), as two distinct food
products necessarily have different nutritional profiles. As the district court
concluded, it is not plausible that a reasonable consumer would “assume that two
distinct products have the same nutritional content.”
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3. The district court did not abuse its discretion in denying Painter leave to
amend her complaint. No amendment to omit existing claims could improve the
plausibility of the consumer confusion allegations Painter asserts. Thus, because
“amendment would be futile,” the district court properly dismissed Painter’s claims
with prejudice. Ventress v. Japan Airlines, 603 F.3d 676, 680 (9th Cir. 2010)
(internal quotation marks and citation omitted).
4. Painter is judicially estopped from requesting on appeal that we invoke
primary jurisdiction. See Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778,
782–83 (9th Cir. 2001). Painter successfully argued against the applicability of the
primary jurisdiction doctrine before the district court and asserts the opposite on
appeal only after an unfavorable ruling. Accordingly, judicial estoppel “precludes
[Painter] from gaining an advantage by asserting one position, and then later
seeking an advantage by taking a clearly inconsistent position.” Hamilton, 270
F.3d at 782.
AFFIRMED. 1
1
Appellant’s motions to take judicial notice (ECF Nos. 43, 47) are
GRANTED.
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