Since honoring the Ninth Circuit’s choice in Nexus Pharms., Inc. v. Cent. Admixture Pharm. Servs., Inc., 48 F.4th 1040 (ninth Cir. 2022), as being our third greatest choice of 2022, we’ve got been ready for (and anticipating) a courtroom to use it to a meals labeling case.  And now one has – Collyer v. Catalina Snacks Inc., 2024 U.S. Dist. LEXIS 9637 (N.D. Cal. Jan. 18, 2024). 

Plaintiff’s fraud claims in Collyer allege that the packaging of 4 keto-friendly cereals was deceptive as a result of the cereals don’t comprise an ingredient pictured on the package deal.  For instance, the package deal for the Banana Chocolate cereal has actual bananas pictured, however the banana style comes from “pure flavors.”  Equally, whereas the Apple Cider Donut cereal depicts each an apple and a donut, the product itself incorporates neither apple or cider with the “style” once more coming from pure flavors.  Id. at *2-3.

Earlier than we get to the applying of Nexus, the dialogue of Collyer can be incomplete with out acknowledging that these claims additionally failed the “affordable shopper” commonplace below California’s Unfair Competitors Regulation (UCL), False Promoting Regulation (FAL), and the Shopper Authorized Cures Act (CLRA).  The usual is whether or not a “affordable shopper” can be misled by the product’s representations.  Whereas that is usually a query of reality, in “uncommon conditions” a courtroom can decide that the alleged violations of UCL, FAL, and CLRA “are merely not believable.”  Id. at *9.  That is such a state of affairs.  First, plaintiff admitted that she didn’t consider the cereals contained entire bananas or apples.  Second, subsequent to the pictures of apples, bananas, and donuts have been the phrases “serving suggestion.”  Affordable customers perceive that they don’t seem to be getting entire recent fruit of their field of cereal.  Third, no the place on the packaging is there any misrepresentation of the elements or any assertion that the merchandise are “made with” the “characterizing flavors.”  Lastly, the courtroom couldn’t overlook that the cereals are described as “keto-friendly” and comprise “0g sugar.”  An affordable shopper, particularly one purchasing for a specialty product, would perceive that the cereals don’t comprise apples, bananas or cider – all of which comprise sugar.  Id. at *10-13.  Plaintiff is getting an opportunity to replead these claims to see if she will fulfill her pleading obligations, however given the heightened pleading commonplace for fraud claims, we’re doubtful.

That brings us to Nexus and preemption.  Plaintiff introduced her UCL declare below all three of its prongs – that the labeling was unfair, fraudulent, and illegal.  The illegal declare is predicated on alleged violations of the Meals, Drug, and Beauty Act (FDCA) as included in California’s Sherman Regulation.  Id. at *14.  However claims primarily based on violations of the FDCA are preempted by Buckman Co. v. Plaintiffs’ Authorized Comm, 531 U.S. 341 (2001).  So, historically plaintiffs attempt to flip the equation.  They allege that their claims are for violations of the Sherman Regulation which contains the FDCA and subsequently, they’re bringing parallel state regulation claims.  That’s the place Nexus is available in.  The Ninth Circuit held that false promoting claims that “would require litigation of the alleged underlying FDCA violation in a circumstance the place the FDA had not itself concluded there was a violation” are preempted.  Id. at *16 (citing Nexus, 48 F.4^th at 1048). Collyer additionally throws in just a little language from Stengel v. Medtronic, Inc., 704 F.3d 1224, 1228, 1235 (9^th Cir. 2013) (state regulation claims preempted the place they’re depending on a violation of federal regulation).  Due to this fact, plaintiff’s claims primarily based on the illegal prong of the UCL are dismissed with prejudice.

We’ve got been anticipating this enlargement into food-related litigation since Nexus was determined.  California is a hotbed of food-related litigation thanks in most half to the Farm Contemporary Salmon choice by the California Supreme Court docket which is basically the antithesis of Nexus.   Nexus will not be controlling in state courtroom, however we’re hopeful it may be used to chop again on the plethora of bogus meals class actions in California federal courtroom. Collyer often is the first, however we doubt it is going to be the final.