Case 4:20-cv-04425-JSW Document 31 Filed 05/12/21 Page 1 of 15
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`Jay R. Shooster (admitted pro hac vice)
`jshooster@richmanlawpolicy.com
`Jaimie Mak (SBN 236505)
`jmak@richmanlawpolicy.com
`535 Mission Street
`San Francisco, CA 94105
`T: (718) 705-4579
`F: (718) 228-8522
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`Attorneys for Plaintiffs
`Sylvia Koh and David Green
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`OAKLAND DIVISION
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`SYLVIA KOH and DAVID GREEN,
`On Behalf of Themselves and All
`Others Similarly Situated,
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`Plaintiffs,
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`v.
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`THE KRAFT HEINZ COMPANY,
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`Defendant.
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`Case No. 4:20-Cv-04425-JSW
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`Judge: Hon. Jeffrey S. White
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`PLAINTIFFS’ STATEMENT OF
`RECENT DECISION
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`Civil L.R. 7-3
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`CASE NO. 4:20-CV-04425-JSW
`STATEMENT OF RECENT DECISION
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`Case 4:20-cv-04425-JSW Document 31 Filed 05/12/21 Page 2 of 15
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`Pursuant to Civil Local Rule 7-3(d) and in further support of Plaintiffs’ Opposition to
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`Defendant’s Motion to Dismiss (ECF No. 28), Plaintiffs respectfully submit the following
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`relevant judicial opinion published after the date Plaintiff’s Opposition was filed with the Court:
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`the most recent ruling in Organic Consumers Association v. Kraft Heinz Co., No. 2020 CA
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`005036 B, 2021 D.C. Super. LEXIS 9 (May 10, 2021) (Order on Motion to Dismiss). A copy of
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`the May 10, 2021 Order is attached hereto as Exhibit A.
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`Dated: May 12, 2021
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`Respectfully submitted,
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`RICHMAN LAW & POLICY
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`By: /s/ Jay R. Shooster
`Jay R. Shooster (admitted pro hac vice)
`jshooster@richmanlawpolicy.com
`Jaimie Mak (SBN 236505)
`jmak@richmanlawpolicy.com
`535 Mission Street
`San Francisco, CA 94105
`T: (718) 705-4579
`F: (718) 228-8522
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`Attorneys for Plaintiffs
` Sylvia Koh and David Green
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`Case 4:20-cv-04425-JSW Document 31 Filed 05/12/21 Page 3 of 15
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`CERTIFICATE OF SERVICE
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`I hereby certify that a copy of the foregoing document was filed electronically with the
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`Clerk of the Court using the CM/ECF system and is available for viewing and downloading from
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`the CM/ECF system. The foregoing document was served upon all counsel of record via the
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`CM/ECF system on this 12th day of May, 2021.
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`/s/ Jay R. Shooster
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`Case 4:20-cv-04425-JSW Document 31 Filed 05/12/21 Page 4 of 15
`Case 4:20-cv-04425—JSW Document 31 Filed 05/12/21 Page 4 of 15
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`EXHIBIT A
`EXHIBIT A
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`Case 4:20-cv-04425-JSW Document 31 Filed 05/12/21 Page 5 of 15
`Filed
`D.C. Superior Court
`05/10/2021 09:44AM
`Clerk of the Court
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`SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
`CIVIL DIVISION
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`ORGANIC CONSUMERS ASSOCIATION :
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` :
`v.
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` :
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` :
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`THE KRAFT HEINZ COMPANY
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`ORDER
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`Case No. 2020 CA 005036 B
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`The Court denies the motion to dismiss or to stay proceedings of defendant The Kraft
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`Heinz Company (“Kraft”).
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`I.
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`
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`BACKGROUND
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`On December 16, 2020, plaintiff Organic Consumers Association (“OCA”), a public
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`interest organization dedicated to consumer protection and accurate food labeling, filed a
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`complaint against Kraft under the D.C. Consumer Protection Procedures Act (“DCCPPA”)
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`seeking injunctive relief for D.C. consumers for Kraft’s allegedly deceptive marketing. OCA
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`alleges that it is unfair and deceptive for Kraft to label cheese products as “natural” when the
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`cows from whose milk the cheese is produced have been given an artificial growth hormone
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`rbST.
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`On February 10, 2021, Kraft filed a motion to dismiss or, in the alternative, to stay the
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`proceedings (“Motion”). On March 29, 2021, OCA filed an opposition (“Opp.”). On April 19,
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`2021, Kraft filed a reply.
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`II.
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`LEGAL STANDARD
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`A complaint should be dismissed under Rule 12(b)(6) if it does not satisfy the
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`requirement of Rule 8(a) that a pleading contain a “short and plain statement of the claim
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`showing that the pleader is entitled to relief.” “To survive a motion to dismiss, a complaint must
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`contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its
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`1
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`Case 4:20-cv-04425-JSW Document 31 Filed 05/12/21 Page 6 of 15
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`face.” Potomac Development Corp. v. District of Columbia, 28 A.3d 531, 544 (D.C. 2011)
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`(cleaned up). “A claim has facial plausibility when the plaintiff pleads factual content that
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`allows the court to draw the reasonable inference that the defendant is liable for the misconduct
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`alleged.” Id. (cleaned up). “Where a complaint pleads facts that are merely consistent with a
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`defendant’s liability, it stops short of the line between possibility and plausibility of entitlement
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`to relief.” Id. (cleaned up). “To satisfy Rule 8(a), plaintiffs must nudge their claims across the
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`line from conceivable to plausible.” Tingling-Clemons v. District of Columbia, 133 A.3d 241,
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`246 (D.C. 2016) (cleaned up).
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`“A complaint should not be dismissed because a court does not believe that a plaintiff
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`will prevail on its claim; indeed it may appear on the face of the pleadings that a recovery is very
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`remote and unlikely but that is not the test.” Carlyle Investment Management, LLC v. Ace
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`American Insurance Co., 131 A.3d 886, 894 (D.C. 2016) (cleaned up). In addition, the Court
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`should “draw all inferences from the factual allegations of the complaint in the plaintiff’s favor.”
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`Id. (cleaned up). However, legal conclusions “are not entitled to the assumption of truth,”
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`Potomac Development Corp., 28 A.3d at 544 (cleaned up), so “[t]hreadbare recitals of the
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`elements of a cause of action, supported by mere conclusory statements, do not suffice.”
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`Sundberg v. TTR Realty, LLC, 109 A.3d 1123, 1128-29 (D.C. 2015) (cleaned up). The
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`“complaint must plead factual content that allows the court to draw the reasonable inference that
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`defendant is liable for the misconduct alleged.” Poola v. Howard University, 147 A.3d 267, 276
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`(D.C. 2016) (cleaned up).
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`III. DISCUSSION
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`
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`Kraft makes three alternative arguments: (a) the Court should dismiss OCA’s complaint
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`because a reasonable consumer would not find Kraft’s use of the term “natural” in its cheese
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`2
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`Case 4:20-cv-04425-JSW Document 31 Filed 05/12/21 Page 7 of 15
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`marketing as false or deceptive; (b) the Court should stay the case pending resolution of a first-
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`filed federal suit; or (c) the case should be dismissed or stayed because the Food and Drug
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`Administration (“FDA”) is conducting a review of the term “natural.” The Court addresses each
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`argument.
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`A.
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`Failure to state a claim
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`OCA alleges that Kraft’s use of the “natural cheese” description violated the DCCPPA
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`because it has a tendency to mislead a reasonable consumer. In D.C. Code § 28-3904, the
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`DCCPA prohibits any “unfair or deceptive trade practice, whether or not any consumer is in fact
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`misled, deceived, or damaged thereby,” including representing that goods have characteristics
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`that they do not have or are of particular standard or quality if in fact they are of another, or
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`using “innuendo or ambiguity as to a material fact, which has a tendency to mislead.” “We
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`consider an alleged unfair trade practice in terms of how the practice would be viewed and
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`understood by a reasonable consumer.” Saucier v. Countrywide Home Loans, 64 A.3d 428, 442
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`(D.C. 2013). The determination of whether a statement is materially misleading to a reasonable
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`consumer is “a question of fact for the jury and not a question of law for the court.” See id. at
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`445. “What a reasonable consumer understands as ‘natural,’ for purposes of a false or
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`misleading representation, is a question of fact.” Organic Consumers Ass’n v. Bigelow Tea Co.,
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`2018 D.C. Super. LEXIS 11, at *10 (D.C. Superior Ct. Oct. 31, 2018). “In rare situations, courts
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`may resolve the issue at the motion-to-dismiss stage, where the pleading does not plausibly
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`allege that a reasonable consumer would be deceived.” Newton v. Kraft Heinz Foods Co., 2018
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`U.S. Dist. LEXIS 241406 at *7-8 (E.D.N.Y. Dec. 18, 2018) (cleaned up).
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`Kraft argues that it is implausible that any reasonable consumer would be deceived by the
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`“natural cheese” description because this description means only that the cheese itself is natural
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`3
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`Case 4:20-cv-04425-JSW Document 31 Filed 05/12/21 Page 8 of 15
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`and OCA does not allege that rbST ends up in any cheese products that it describes as “natural.”
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`Opp. at 8 (arguing the “supply chain” theory should be rejected). Kraft asserts (Reply at 1) that
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`its products do not contain rbST or any other unnatural or artificial ingredient, and OCA does not
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`allege otherwise. OCA alleges only that Kraft’s Parmesan, Asiago, and Romano cheese products
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`are made using milk from cows that were administered rbST. Complaint ¶ 11.
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`However, OCA alleges facts that support a plausible inference that a reasonable
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`consumer understands “natural” to mean that a food was produced without the use of artificial
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`growth hormones such as rbST at any point in the milk or cheese production process, including a
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`consumer survey finding that 64% of consumers believe that the claim “natural” on food means
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`that no artificial growth hormones were used. See Complaint ¶¶ 24-26.1 Animal Legal Defense
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`Fund v. Hormel Foods Corp., 2017 D.C. Super. LEXIS 9, at *6-7 (D.C. Superior Ct. Sep. 20,
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`2017), involved a CPPA challenge to marking of food products as “natural,” and it upheld the
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`sufficiency of the complaint citing “surveys indicating that a majority of consumers believe
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`‘natural’ means more than the mere absence of artificial ingredients.” See Toxin Free USA v.
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`J.M Smucker Co., 2019 D.C. Super. LEXIS 15, at *17-18 (D.C. Superior Ct. Nov. 6, 2019)
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`(relying on consumer surveys cited in the complaint to upheld the sufficiency of allegations that
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`use of the term “natural” to describe a food product is misleading); Friends of the Earth v.
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`Sanderson Farms, Inc., 2018 U.S. Dist. LEXIS 220547 at *12 (N.D. Cal. Dec. 3, 2018)
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`(“Plaintiffs sufficiently allege a reasonable consumer expects a product labeled as ‘natural’ to
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`1 Kraft argues that these survey responses “appear[] to pertain to additives actually
`contained in final food products themselves.” See Motion at 11 n.6. But for the purposes of a
`motion to dismiss, the Court must “draw all inferences from the factual allegations of the
`complaint in the plaintiff’s favor.” Carlyle Investment Management, LLC, 131 A.3d at 894.
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`4
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`Case 4:20-cv-04425-JSW Document 31 Filed 05/12/21 Page 9 of 15
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`have never come into contact with antibiotics during its production, not simply be without
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`antibiotics at point of sale.”) (cleaned up).
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`Moreover, although OCA does not allege that any Kraft cheese labeled “natural” contains
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`rbST, OCA does allege that the final product is altered due to the use of rbST in the supply
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`chain: “Compared to milk produced without rbST, milk from cows treated with rbST can have
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`increased fat content and decreased levels of proteins, as well as higher counts of somatic cells
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`(i.e. pus), which makes milk turn sour more quickly.” Complaint ¶ 37. OCA also alleges that
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`use of rbST in the milk production process results in cheese that may harmfully affect humans.
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`Complaint ¶ 36 (“studies have suggested that rbST use may elevate levels of insulin-like growth
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`factor 1 (IGF-1), increasing the risk of certain cancers in humans who consume milk products”).
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`It is plausible that a reasonable consumer could interpret Kraft’s use of “natural” to mean that its
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`cheese is the same as cheese produced through a completely natural process and that its “natural”
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`cheese presents the same health risks.
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`Another reason why the term “natural” is ambiguous enough to implicate whether the
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`food was produced from animals that were administered artificial products is that the FDA is
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`considering whether the term is broad enough to take into account “food production methods” or
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`“food processing or manufacturing methods.” See FDA Request for Comment on Use of the
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`Term Natural on Food Labeling (Kraft Ex. E). Several years ago, the FDA and the Federal
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`Trade Commission “declined to adopt a definition of ‘natural’ because natural may be used in
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`numerous contexts and may convey different meanings depending on that context.” See Pelayo
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`v. Nestle USA, Inc., 989 F. Supp. 2d 973, 979 (C.D. Cal. 2013). Whether Kraft uses “natural” in
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`a context that plausibly implies that its “natural” cheeses are produced without the use of
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`artificial growth hormones is a question of fact.
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`5
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`Case 4:20-cv-04425-JSW Document 31 Filed 05/12/21 Page 10 of 15
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`Kraft argues that a federal law regulating bioengineered foods supports rejection of
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`OCA’s supply chain theory. 7 U.S.C. § 1639b(b)(2)(A) requires the Secretary of Agriculture to
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`promulgate a regulation that “prohibit[s] a food derived from an animal to be considered a
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`bioengineered food solely because the animal consumed feed produced from, containing, or
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`consisting of a bioengineered substance.” However, food that is not bioengineered is not
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`necessarily natural, and “this provision of GMO disclosure law does not purport to regulate
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`‘natural’ labeling.” See Newton, 2018 U.S. Dist. LEXIS 241406 at *25.
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`Kraft may be correct that some consumers reasonably understand “natural” to mean only
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`that a food product has undergone minimal processing and contains no preservatives or artificial
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`additives. However, OCA “need not allege that every consumer shares the same definition of
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`‘natural,’ only that a reasonable consumer – regardless of the precise definition of natural to
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`which that consumer adheres – could be misled by the use of ‘natural’ on Defendant’s labels.”
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`See Tsan v. Seventh Generation, Inc, 2015 U.S. Dist. LEXIS 149042, at *15 (N.D. Cal.
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`November 3, 2015) (cleaned up). “The reasonable consumer standard requires a probability that
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`a significant portion of the general consuming public or of targeted consumers, acting reasonably
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`in the circumstances, could be misled.” Friends of the Earth, 2018 U.S. Dist. LEXIS 220547 at
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`*7. OCA alleges facts supporting a plausible inference that a significant portion of the general
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`consuming public interprets the “natural” label on Kraft cheese products to mean that no
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`artificial hormones like rbST were used earlier on in the milk or cheese production process.
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`B.
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`First-filed rule
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`Kraft argues that, in the alternative, this lawsuit should be stayed pending resolution of a
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`lawsuit brought in federal court. A putative class action filed in the U.S. District Court for the
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`Northern District of California asserts a DCCPPA and related claims against Kraft based on
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`6
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`Case 4:20-cv-04425-JSW Document 31 Filed 05/12/21 Page 11 of 15
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`equivalent factual allegations. See Koh v. The Kraft Heinz Company, No. 4:20-cv-04425-JSW
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`(N.D. Cal.).2 Plaintiffs David Green and Sylvia Koh filed their case before OCA filed this case.
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`It may be “prudent and efficient” to stay an action in this Court when a related action is
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`pending in federal court, “especially when the federal court was the first to acquire jurisdiction.”
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`Thomas v. Disabled American Veterans Ass’n, 930 A.2d 997, 1000 (D.C. 2007). “The exercise
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`of this power is not a matter of right, but a matter of comity and discretion.” Id. at 1001 n.8
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`(cleaned up). Under the so-called “first-filed” rule, “courts have discretion to stay or dismiss a
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`pending action in favor of a factually-related action in another forum,” and the usual rule is
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`“where two cases between the same parties on the same cause of action are commenced in two
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`different Federal courts, the one which is commenced first is to be allowed to proceed to its
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`conclusion first.” Doe v. Hills, 217 F. Supp. 3d 199, 206 (D.D.C. 2016). “The first-filed rule,
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`however, should not be applied by rote,” and “in deciding whether to allow a second-filed case to
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`proceed despite the pendency of a parallel case elsewhere, district courts may also consider
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`equitable factors such as how close together in time the actions were filed, whether the first-
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`filing plaintiff filed a declaratory judgment action in the face of an impending suit, whether the
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`first action was filed in the midst of good-faith settlement discussions, how far each case has
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`progressed, and the respective convenience and efficiency of each forum.” Id. at 206-07.
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`Kraft does not persuade the Court to exercise its discretion to stay this case pending
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`resolution of the federal case in California. This case involves one claim under D.C. law in a
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`D.C. court. The federal case is a complex class action including multiple claims on behalf of
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`consumers across the country, and apparently still in its early stages, it may take years to resolve.
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`2 The Court can take judicial notice of the complaint in this related proceeding. See S.S.
`v. D.M., 597 A.2d 870, 880-881 (D.C. 1991).
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`Case 4:20-cv-04425-JSW Document 31 Filed 05/12/21 Page 12 of 15
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`In addition, Kraft admits that it moved to dismiss the Koh action because the named plaintiffs
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`lack standing to pursue claims on behalf of out-of-state consumers, including D.C. consumers.
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`See Reply at 4 n.5. Furthermore, the plaintiffs in Koh seek not only declaratory and injunctive
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`relief but also monetary relief, including disgorgement, monetary damages, statutory damages,
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`and punitive damages, while OCA here seeks only declaratory and injunctive relief. This Court
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`is as capable as the California federal court of interpreting and applying the DCCPPA and of
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`resolving this case efficiently and expeditiously.
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`Kraft argues that the Court should not let this case go forward because “Plaintiffs,
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`meanwhile, would gain two bites at the apple to recover the same relief for the same claims in
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`two different courts.” Reply at 4. However, OCA is not a party to the California case nor a
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`member of the putative class (unless it purchased Kraft cheese products). “Only in rare
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`circumstances will a litigant in one cause be compelled to stand aside while a litigant in another
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`settles the rule of law that will define the rights of both.” See Landis v. North American Co., 299
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`U.S. 248, 255, (1936). One attorney (Kim E. Richman) represents the plaintiffs in each case, but
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`Kraft does not cite any case holding that the involvement of one attorney in two separate cases
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`involving related issues justifies a stay of one of the cases. The Court is unwilling to adopt a rule
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`that would discourage separate parties in separate cases from hiring the same lawyer or a law
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`firm because it has relevant expertise.
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`C.
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`Primary jurisdiction
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`Kraft argues that the Court should dismiss or stay this case under the primary jurisdiction
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`doctrine because the FDA is considering a formal definition of “natural.” The Court does not
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`agree.
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`8
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`Case 4:20-cv-04425-JSW Document 31 Filed 05/12/21 Page 13 of 15
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`The primary jurisdiction doctrine applies “whenever enforcement of the claim requires
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`the resolution of issues which, under a regulatory scheme, have been placed within the special
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`competence of an administrative body.” Lawlor v. District of Columbia, 758 A.2d 964, 973
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`(D.C. 2000) (cleaned up). The doctrine “is rooted in teaching that in cases raising issues of fact
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`not within the conventional experience of judges or cases requiring the exercise of administrative
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`discretion, agencies . . . should not be passed over.” D.C. Water & Sewer Authority v. Delon
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`Hampton & Associates, 851 A.2d 410, 417 (D.C. 2004). The doctrine should “be invoked
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`sparingly.” APCC Services, Inc. v. WorldCom, Inc., 305 F. Supp. 2d 1, 12-13 (D.D.C. 2001).
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`Courts have applied a four-factor test when deciding whether to invoke the primary jurisdiction
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`doctrine: “(1) whether the question at issue is within the conventional experience of judges; (2)
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`whether the question lies peculiarly within the agency’s discretion or requires the exercise of
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`agency expertise; (3) whether there exists a danger of inconsistent rulings; and (4) whether a
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`prior application to the agency has been made.” Organic Consumers Ass’n v. Pret A Manger
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`(USA) Ltd., 2019 D.C. Super. LEXIS 5, at *9 (D.C. Superior Ct. April 29, 2019) (cleaned up).
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`Kraft cites a 2018 letter (Kraft Ex. D) from the then FDA Commissioner stating that the
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`FDA was then actively working on developing a definition of “natural.”3 See also 80 Fed. Reg.
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`69909 (formally requesting comments in November 2015 for a comment period which closed in
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`February 2016). “The FDA’s guidance on when, and how, the term ‘natural’ may be used on
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`product labels is relevant to the question of how a reasonable consumer would understand that
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`term.” See Rosillo v. Annie’s Homegrown Inc., 2017 U.S. Dist. LEXIS 190130 at *7 (N.D. Cal.
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`3 Kraft invites the Court to take judicial notice of this letter (Mem. at 7 n.4). OCA does
`not dispute that the Court make take judicial notice of this publicly available document from a
`federal agency. See Aston v. Johnson & Johnson, 248 F. Supp. 3d 43, 47 n.1 (D.D.C. 2017)
`(taking judicial notice of documents “publicly available on the FDA’s website”).
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`Case 4:20-cv-04425-JSW Document 31 Filed 05/12/21 Page 14 of 15
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`Oct. 17, 2017); see Section III.A above. However, any definition by the FDA would not be
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`determinative as to whether a reasonable consumer is likely to be misled by use of the term
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`“natural” on Kraft’s cheese products. The FDA has specialized and expert knowledge
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`concerning food labeling, but OCA’s claim involving the understanding of reasonable consumers
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`in the District of Columbia, “fall[s] directly under the conventional experience of the judiciary.”
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`See Organic Consumers Ass’n v. Pret A Manger (USA) Ltd., 2019 D.C. Super. LEXIS 5, *10-11
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`(D.C. Super. Ct. April 29, 2019); Toxin Free USA v. J.M Smucker Co., 2019 D.C. Super. LEXIS
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`15, at *14-17 (D.C. Superior Ct. Nov. 6, 2019) (rejecting primary jurisdiction argument).
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`Moreover, the Court is unwilling to stay this case for an indefinite period waiting for a
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`decision that may have at most a limited effect on this case. See Organic Consumers Ass’n,
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`2018 D.C. Super. LEXIS 11, at *7-8. It was 2018 when the FDA Commissioner said that the
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`agency was “actively working on this issue,” and it is now 2021. The Commissioner also
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`promised in 2018 that the FDA would “publicly communicate next steps” in 2019, but parties
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`have not informed the Court that the FDA has done so. Kraft gives the Court no reason to
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`believe that the FDA will actually provide guidance in the near or even intermediate term. See
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`Newton, 2018 U.S. Dist. LEXIS 241406, at *10 (“cases clutter dockets around the country at
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`considerable costs, spawning a variety of resolutions in a number of specific factual settings
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`while the bureaucracy reacts in silence.”).
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`For these reasons, dismissal or stay under primary jurisdiction doctrine is not warranted.
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`Case 4:20-cv-04425-JSW Document 31 Filed 05/12/21 Page 15 of 15
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`IV. CONCLUSION
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`Accordingly, the Court denies Kraft’s motion to dismiss or stay proceedings.
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`_____________________________
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` Anthony C. Epstein
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` Judge
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`Date: May 10, 2021
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`Copies via CaseFileXpress to all counsel
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