Case 3:20-cv-06533-RS Document 40 Filed 03/24/21 Page 1 of 5
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`EUGENIA HARRIS,
`Plaintiff,
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`v.
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`MCDONALD’S CORPORATION,
`Defendant.
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`Case No. 20-cv-06533-RS
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`ORDER GRANTING MOTON TO
`DISMISS, WITH LEAVE TO AMEND
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`In this putative class action against McDonald’s Corporation, plaintiff Eugenia Harris
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`alleges:
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`McDonald’s markets its soft serve ice cream or reduced fat ice
`cream purporting to be flavored only by vanilla under the
`McDonald’s brand. On menu boards and kiosks, the product is
`labeled “Vanilla” or “Vanilla Cone” without qualification.
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`Harris contends this is misleading because testing shows the characteristic vanilla flavor of
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`the product is produced by vanillin derived from sources other than vanilla beans, and that the
`product contains either no “real vanilla” at all, or only “trace or de minimis amounts not detectable
`by even advanced scientific means.” Harris advances claims under California Unfair Competition
`Law, Cal. Bus. & Prof. Code § 17200 et seq. (“UCL”); California False Advertising Law, Cal.
`Bus. & Prof. Code §17500 et seq. (“FAL”); and the California Consumers Legal Remedies Act,
`Cal Civ. Code § 1750 et seq. (“CLRA”).
`McDonald’s seeks dismissal, arguing first that the representation of its product as “vanilla”
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`Case 3:20-cv-06533-RS Document 40 Filed 03/24/21 Page 2 of 5
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`is not misleading because the product undisputedly exhibits the flavor known as “vanilla,” and
`nothing in McDonald’s presentation of the product would give reasonable consumers cause to
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`believe that flavor comes exclusively or predominately from vanilla beans. Because Harris has not
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`pleaded facts showing more than a sheer possibility that reasonable consumers would be misled,
`the motion to dismiss will be granted. McDonald’s additional arguments, some of which have
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`merit and some of which would not independently warrant dismissal, will be addressed in turn.
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`1. Misrepresentation
`Claims under the UCL, FAL, and CLRA are governed by the “reasonable consumer”
`standard. Ebner v. Fresh, Inc., 838 F.3d 958, 965 (9th Cir. 2016). Under this standard, a plaintiff
`must “show that ‘members of the public are likely to be deceived.’” Id. (quoting Williams v.
`Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir. 2008)). This requires more than a “mere
`possibility” that McDonald’s use of the term “vanilla” on its menu boards and kiosks “might
`conceivably be misunderstood by some few consumers viewing it in an unreasonable manner.” Id.
`(quoting Lavie v. Procter & Gamble Co., 105 Cal. App. 4th 496, 508 (2003)). Rather, it must be
`“probable that a significant portion of the general consuming public or of targeted consumers,
`acting reasonably in the circumstances, could be misled.” Lavie, 105 Cal. App. 4th at 508
`(emphasis added); see also Hill v. Roll Int’l Corp., 195 Cal. App. 4th 1295, 1304 (2011)
`(emphasizing that “the standard is not a least sophisticated consumer,” but a reasonable one).
`At the pleading stage, of course, Harris need not prove she can satisfy the “reasonable
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`consumer” standard. Nevertheless, a complaint must have sufficient factual allegations to state a
`claim that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. v.
`Twombly, 550 U.S. 544, 555, 570 (2007)). A claim is facially plausible “when the plaintiff pleads
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`factual content that allows the court to draw the reasonable inference that the defendant is liable
`for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). This standard asks for “more
`than a sheer possibility that a defendant has acted unlawfully.” Id. The determination is a context-
`specific task requiring the court “to draw on its judicial experience and common sense.” Id. at 679.
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`Case 3:20-cv-06533-RS Document 40 Filed 03/24/21 Page 3 of 5
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`Harris alleges that McDonald’s use of “vanilla,” with no additional modifiers, to describe
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`its product is misleading. That assertion, however, plainly is a legal conclusion that is not deemed
`true even on a motion to dismiss. See Twombly, 550 U.S. at 555, 564 (noting that the plaintiffs’
`assertion of an unlawful agreement was a “legal conclusion” and, as such, was not entitled to the
`assumption of truth). While Harris’s further contention as to what reasonable consumers would
`infer from the use of the term “vanilla” on McDonald’s menu boards and kiosks is couched as an
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`allegation of fact, it too is conclusory, as it lacks a factual foundation to support any determination
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`as to what reasonable consumers do (or do not) believe.
`McDonald’s insists “vanilla” is understood only as a description of its product’s flavor, not
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`as a representation of a particular ingredient. While it is beyond dispute that no reasonable
`consumer would understand that a fanciful name for an ice cream flavor—rocky road, for
`example—is a literal descriptor of the ingredients, it is not so clear that a consumer never would
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`assume that flavors like strawberry, chocolate, and vanilla contain, respectively, strawberry,
`chocolate, and vanilla. Nevertheless, particularly in the case of “vanilla”—a word that can be used
`to mean “plain”—it is not obvious or indisputable what “a significant portion of the general
`consuming public or of targeted consumers acting reasonably in the circumstances,” would
`believe.1 Therefore, Harris cannot proceed simply by asserting her own belief and conclusions
`about consumers’ beliefs without additional facts to “nudge” her claim “across the line from
`conceivable to plausible.” Twombly, 550 U.S. at 570. The motion to dismiss must be granted. 2
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`1 “The circumstances” relevant here include the fact that McDonald’s product is sold at a
`relatively low price in a fast-food context, described only as “vanilla cone” on menu boards and
`kiosks. As such, regulations governing sales of packaged ice cream in grocery stores, which
`undisputedly do not apply directly, do not even serve indirectly to support an inference as to what
`consumers are likely to expect from McDonald’s use of the term “vanilla.” It is also worth noting
`that unlike in the case of strawberry, chocolate, and many other flavors, it seems likely that some
`percentage of consumers are not even aware of the so-called “vanilla bean,” the dried fruit of a
`plant in the orchid family.
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`2 This decision is in accord with the majority of cases addressing nearly identical claims. See, e.g.,
`Clark v. West brae Nat., Inc., No. 20-CV-03221-JSC, 2020 WL 7043879, at *3 (N.D. Cal. Dec. 1,
`2020) and cases cited therein. Harris warns that courts risk engaging in “herding” when they
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`Case 3:20-cv-06533-RS Document 40 Filed 03/24/21 Page 4 of 5
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`2. Economic injury
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`Dismissal is also necessary on the independent ground that Harris has not pleaded
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`sufficient facts to support a plausible economic injury. While she conclusorily asserts McDonald’s
`sells its product at a “premium,” she offers no facts to support the counter-intuitive notion that
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`there is such a premium, given the pricing shown in the complaint and the context of the market.
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`3. Pre-suit notice
`McDonald’s seeks dismissal of the claim for damages under the CLRA, for purported
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`failure to give adequate pre-suit notice. California Civil Code section 1782(a) requires that
`“[t]hirty days or more prior to the commencement of an action for damages pursuant to [the
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`CLRA], the consumer shall . . . 1) [n]otify the person alleged to have employed or committed
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`methods, acts, or practices declared unlawful . . . of the particular alleged violations[; and] (2)
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`[d]emand that the person correct, repair, replace or otherwise rectify the goods or services alleged
`to be in violation.” Here, Harris relies on a notice her attorneys gave in the name of another client,
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`who is not a named plaintiff herein, but who, by the allegations in her notice, is a member of the
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`putative class.
`McDonald’s insists the “plain language” of the statute compels a conclusion that the
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`individual who commences that action must be the same “consumer” who provided the notice.
`Although there is some support for such a narrow reading,3 under circumstances like these it
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`would unduly elevate form over substance. The very point of section 1782 is to give defendants an
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`opportunity to avoid damages claims by providing a remedy for the alleged violation. To obtain
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`protection under the statute, however, a defendant must show the remedy has been provided to
`“[a]ll consumers similarly situated.” Section 1782(c). At least where the putative class member
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`uncritically follow the “weight” of otherwise non-precedential cases. Even assuming that can
`sometimes happen, here the other decisions, while not binding in this action, reached the correct
`results.
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`3 See Henderson v. J.M. Smucker Co., 2011 WL 1050637, at *1 (C.D. Cal. Mar. 17, 2011).
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`Case 3:20-cv-06533-RS Document 40 Filed 03/24/21 Page 5 of 5
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`giving notice and the named plaintiff subsequently filing suit are represented by the same counsel,
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`it would be meaningless to impose a requirement that the named plaintiff serve a duplicate notice.
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`This issue would not support dismissal.
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`4. Remedies
`Finally, McDonald’s contends that Harris cannot seek both equitable remedies and
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`damages, and that she lacks standing to seek injunctive relief given that she can no longer say she
`is unaware that McDonald’s product contains little or no vanillin derived from the vanilla plant.
`McDonald’s argument that Sonner v. Premier Nutrition Corp., 971 F.3d 834 (9th Cir. 2020)
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`requires rejection of the equitable claims at the pleading stage is not persuasive. Likewise,
`McDonald’s has not presented a compelling argument that Harris has no basis to seek injunctive
`relief. See Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 970 (9th Cir. 2018) (“Either way, we
`share one district court’s sentiment that we are ‘not persuaded that injunctive relief is never
`available for a consumer who learns after purchasing a product that the label is false.’ [citation]”).
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`These issues also do not support dismissal.
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`The motion to dismiss is granted, with leave to amend, for failure to allege sufficient facts
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`to support a plausible claim of misrepresentation and economic injury. Any amended complaint
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`shall be filed within 30 days of the date of this order.
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`IT IS SO ORDERED.
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`Dated: March 24, 2021
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`______________________________________
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`_____________ _________________________ ________________________________________
`RICHARD SEEBORG
`RICHARD SEEBORG
`Chief United States District Judge
`Chief United States District Judge
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