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Case 5:18-cv-06664-BLF Document 66 Filed 10/06/20 Page 1 of 14
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`SAN JOSE DIVISION
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`HAWYUAN YU,
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`Plaintiff,
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`v.
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`DR PEPPER SNAPPLE GROUP, INC., et
`al.,
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`Defendants.
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`Case No. 18-cv-06664-BLF
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`ORDER GRANTING DEFENDANT'S
`MOTION TO DISMISS WITHOUT
`LEAVE TO AMEND
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`[Re: ECF 47]
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`For the second time, Plaintiff Hawyuan Yu brings a complaint against Defendants Dr
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`Pepper Snapple Group, Inc. (“Dr. Pepper”) and Mott’s, LLP (collectively, “Defendants”) on
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`behalf of a putative class. Defendants have filed another motion to dismiss the complaint,
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`advocating for outright dismissal with prejudice or, alternatively, a stay. See Mot., ECF 47.
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`Plaintiff’s main allegation remains the same: Defendants mislead consumers by selling
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`apple juice and applesauce products with the representation “Natural” and/or “All Natural
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`Ingredients” that nonetheless contain trace amounts of a pesticide. The same five causes of action
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`are back again as well. The only thing that has changed is that Plaintiff has added two generic
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`surveys to the allegations the Court already held insufficient once. Since the Ninth Circuit has
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`recently made clear that this addition alone will not do, the Court GRANTS Defendant’s motion to
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`dismiss. Because Plaintiff has already received a second chance at stating a claim upon which
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`relief could be granted, the Court finds further amended futile and dismisses the complaint
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`WITHOUT leave to amend.
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` I.
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`BACKGROUND
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`Plaintiff, an individual consumer, is a citizen of the City and County of San Francisco,
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`Case 5:18-cv-06664-BLF Document 66 Filed 10/06/20 Page 2 of 14
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`California. Am. Compl. (“FAC”) ¶ 27. Defendant Dr. Pepper is incorporated in Delaware with its
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`principal place of business in Plano, Texas. Id. ¶ 31. Defendant Mott’s is a subsidiary of Dr.
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`Pepper and is incorporated in Delaware with its principal place of business in Rye Brook, New
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`York. Id. ¶ 32. Defendants sell several applesauce and apple juice products (“the Products”),
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`including Mott’s Natural Unsweetened Applesauce, Mott’s Healthy Harvest Applesauce, Mott’s
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`Natural 100% Juice Apple Juice, and other varieties of Mott’s brand applesauce and apple juice
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`products that include the representation “Natural” and/or “All Natural Ingredients” on the product
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`package or label. See id. ¶¶ 1, 5, 7. Defendants sell these products nationwide. Id. ¶¶ 10, 33.
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`Plaintiff purchased Mott’s Natural Applesauce and Natural Apple Juice on multiple
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`occasions from a Costco Warehouse in Sunnyvale, California, and a Safeway Store in San Jose,
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`California. FAC ¶ 28. Plaintiff alleges that in deciding to make these purchases, Plaintiff saw,
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`relied upon, and reasonably believed Defendants’ representations that the products were “Natural”
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`and made of “All Natural Ingredients.” Id. ¶ 29. Plaintiff further alleges that he was “willing to
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`pay more for Defendants’ Products because he expected the Products to be free of insecticides and
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`other unnatural chemicals.” Id. ¶ 30.
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`According to the complaint, though, Defendants’ applesauce and apple juice products
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`contain acetamiprid, a “synthetic and unnatural chemical.” See FAC ¶¶ 10, 11. Acetamiprid is a
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`synthetic insecticide used in treating and harvesting crops, including fruits and vegetables. Id. ¶¶
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`12, 13. Acetamiprid may be hazardous to human development and to other animals, including the
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`honeybee. Id. ¶ 12. Acetamiprid is “legal” in connection with food products, insofar as its use is
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`not precluded and certain amounts of residuals are permitted to remain on fruits and vegetables.
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`Id. ¶ 13. Plaintiff’s primary theory of liability is not that the acetamiprid present in Defendants’
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`products exceeds the legal limit, but instead that “[r]easonable consumers who see Defendants’
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`representations that the Products contain ‘All Natural Ingredients’ or are ‘natural’ expect the
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`Products to meet a higher standard than competing products not advertised as ‘natural,’ and do not
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`expect the Products to contain traces of a synthetic insecticide.” Id. ¶¶ 14, 15.
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`According to Plaintiff, Defendants’ representations that the Products are made of “All
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`Natural Ingredients” and/or are “Natural” are false and misleading because a reasonable consumer
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`Case 5:18-cv-06664-BLF Document 66 Filed 10/06/20 Page 3 of 14
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`believes that Products that are “natural” do not contain a synthetic and unnatural pesticide, even in
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`residual amounts. FAC ¶ 37. Plaintiff cites a study conducted in January 2019 (“2019 Study”) that
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`stated that 68.1 percent of consumers would consider food produced from crops sprayed with
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`synthetic pesticides not natural. FAC ¶ 38; Ex. C, the 2019 Study at 29, ECF 48-3. Plaintiff also
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`cites a 2015 Consumer Reports phone survey (“2015 Consumer Reports Survey”) that found that
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`63 percent of respondents think that the natural label on packaged and processed foods means that
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`“no toxic pesticides were used.” FAC ¶ 39; Ex. B, 2015 Consumer Reports Survey at 6, ECF 48-3.
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`The 2015 Consumer Reports Survey also states that “Consumers were asked about their
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`perception of the natural and organic labels. The organic food label is meaningful, is backed by
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`federal regulations, and verified by third-party inspections; the natural label, however, is
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`essentially meaningless (little regulation/verification).” 2015 Consumer Reports Survey at 4.
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`Plaintiff proposes a nationwide class of consumers who purchased Defendants’ Products-
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`in-question, as well as a California subclass. See FAC ¶¶ 72–87. Plaintiff asserts five causes of
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`action: (1) Unfair and Deceptive Acts and Practices under the California Legal Remedies Act
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`(“CLRA”), Cal. Civ. Code §§ 1750–1785 (on behalf of the California subclass); (2) Violation of
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`California’s False Advertising Law (“FAL”), Cal. Bus. & Prof. Code §§ 17500 et seq. (on behalf
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`of the California subclass); (3) Violation of California’s Unfair Competition Law (“UCL”), Cal.
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`Bus. & Prof. Code §§ 17200 et seq. (on behalf of the California subclass); (4) Breach of Express
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`Warranty (on behalf of the nationwide class); and (5) Unjust enrichment (on behalf of the
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`nationwide class). See id. ¶¶ 88-128.
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`The Court previously granted Defendants’ motion to dismiss the original complaint on all
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`five claims with leave to amend. See Order (“Dismissal Order”), ECF 40. The Court also stayed
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`the case through the end of February 2020 under the primary jurisdiction doctrine because of
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`ongoing FDA regulatory proceedings to define the term ‘natural’ for food labeling. Dismissal
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`Order 8–10. That process has yet to conclude.
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` II. LEGAL STANDARD
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`A. Rule 12(b)(6)
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`“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
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`Case 5:18-cv-06664-BLF Document 66 Filed 10/06/20 Page 4 of 14
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`accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.
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`662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). When
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`considering such a motion, the Court “accept[s] factual allegations in the complaint as true and
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`construe[s] the pleadings in the light most favorable to the nonmoving party.” Manzarek v. St.
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`Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). However, the Court need not
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`“accept as true allegations that contradict matters properly subject to judicial notice” or
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`“allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable
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`inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (internal quotation
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`marks and citations omitted). “Threadbare recitals of the elements of a cause of action, supported
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`by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S.
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`at 555).
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`B. Rule 12(b)(1)
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`“Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of
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`Am., 511 U.S. 375, 377 (1994). As such, a federal court has an independent obligation to ensure
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`that it has subject matter jurisdiction over a matter. See Fed. R. Civ. P. 12(h)(3); Snell v.
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`Cleveland, Inc., 316 F.3d 822, 826 (9th Cir. 2002). On a motion to dismiss pursuant to Rule
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`12(b)(1), which challenges a court’s subject matter jurisdiction over a claim, the burden is on the
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`plaintiff, as the party asserting jurisdiction, to establish that subject matter jurisdiction exists.
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`Kokkonen, 511 U.S. at 377. A facial jurisdictional challenge asserts that even if assumed true, “the
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`allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction.”
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`Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).
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`C. Leave to Amend
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`In deciding whether to grant leave to amend, the Court must consider the factors set forth
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`by the Supreme Court in Foman v. Davis, 371 U.S. 178 (1962), and discussed at length by the
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`Ninth Circuit in Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048 (9th Cir. 2009). A district
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`court ordinarily must grant leave to amend unless one or more of the Foman factors is present: (1)
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`undue delay, (2) bad faith or dilatory motive, (3) repeated failure to cure deficiencies by
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`amendment, (4) undue prejudice to the opposing party, or (5) futility of amendment. Eminence
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`Case 5:18-cv-06664-BLF Document 66 Filed 10/06/20 Page 5 of 14
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`Capital, 316 F.3d at 1052. “[I]t is the consideration of prejudice to the opposing party that carries
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`the greatest weight.” Id. However, a strong showing with respect to one of the other factors may
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`warrant denial of leave to amend. Id. Dismissal without leave to amend is proper only if it is clear
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`that “the complaint could not be saved by any amendment.” Intri-Plex Techs., Inc. v. Crest Group,
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`Inc., 499 F.3d 1048, 1056 (9th Cir. 2007) (internal citations and quotations omitted).
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` III. Request for Judicial Notice
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`Defendants request that the Court take judicial notice of A) copies of the Applesauce and
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`Apple Juice Product labels as depicted in paragraphs 5 and 7 of the amended complaint; B) the
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`2015 Consumer Reports Survey referenced in the amended complaint; C) the 2019 Study
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`referenced in the amended complaint; D) a copy of public statements made by Center for Food
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`Safety and Applied Nutrition (CFSAN) Director Susan T. Mayne; and E) a letter from Scott
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`Gottlieb, former commissioner of the FDA, to U.S. Representative David Valado. Req. for
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`Judicial Notice 1, ECF 48. The Court is unaware of any opposition to Defendants’ request for
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`judicial notice.
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`The Court may take judicial notice of documents referenced in the complaint, as well as
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`matters in the public record. See Lee v. City of Los Angeles, 250 F.3d 668, 688–89 (9th Cir. 2001),
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`overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119, 1125–26 (9th
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`Cir. 2002). In the context of food labels, courts regularly take judicial notice of product labels
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`when those product labels form the basis of the relevant causes of action. See, e.g., Barnes v.
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`Campbell Soup Co., 2013 WL 5530017, at *3 (N.D. Cal. July 25, 2013) (taking judicial notice of
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`photocopies of Campbell’s “100% Natural” soup labels). In addition, the Court may take judicial
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`notice of matters that are either “generally known within the trial court’s territorial jurisdiction” or
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`“can be accurately and readily determined from sources whose accuracy cannot reasonably be
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`questioned.” Fed. R. Evid. 201(b). Public records, including judgments and other court documents,
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`are proper subjects of judicial notice. See, e.g., United States v. Black, 482 F.3d 1035, 1041 (9th
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`Cir. 2007). However, “[j]ust because the document itself is susceptible to judicial notice does not
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`mean that every assertion of fact within that document is judicially noticeable for its truth.” Khoja
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`Case 5:18-cv-06664-BLF Document 66 Filed 10/06/20 Page 6 of 14
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`v. Orexigen Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018).
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`The Court finds Defendants’ requests for judicial notice proper because Plaintiff references
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`Exhibits A-C in the amended complaint, and Exhibits D and E are matters in the public record.
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`IV. DISCUSSION
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`Defendants set forth the following four issues to be decided:
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`1. Whether the Court should dismiss Plaintiff’s consumer protection claims with
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`prejudice because the amended complaint still does not plausibly allege that a
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`“reasonable consumer” interprets the terms “Natural” and “All Natural Ingredients” to
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`mean “the utter absence of residual pesticides.”
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`2. Whether the Court should dismiss Plaintiff’s breach of warranty and unjust enrichment
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`claims with prejudice because—as this Court previously held— these claims
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`necessarily fail if Plaintiff’s consumer protection claims fail.
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`3. Whether Plaintiff’s request for injunctive relief should be dismissed due to lack of
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`Article III standing, when the Amended Complaint makes no attempt to plead future
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`purchase intent.
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`4. Whether, if the amended complaint is not dismissed with prejudice, the case should be
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`stayed on primary jurisdiction grounds in deference to continued FDA proceedings
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`regarding use of the term “natural” on food labeling.
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`Mot. 6-7. The Court addresses each issue in turn.
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`A. Reasonable Consumer
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`Defendants argue that Plaintiff’s UCL, FAL, and CLRA claims must be dismissed because
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`he has not alleged that a “reasonable consumer” would be deceived by the Products’ labeling.
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`Mot. 8.
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`“The Ninth Circuit has explained that ‘these [three] California statutes are governed by the
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`‘reasonable consumer’ test.” Cheslow v. Ghirardelli Chocolate Co., 445 F. Supp. 3d 8, 15 (N.D.
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`Cal. 2020) (quoting Williams v. Gerber Prod. Co., 552 F.3d 934, 938 (9th Cir. 2008)). “Under the
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`reasonable consumer standard, [plaintiffs] must show that members of the public are likely to be
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`deceived.” Williams, 552 F.3d at 938. “The reasonable consumer test requires more than a mere
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`possibility that defendant's product ‘might conceivably be misunderstood by some few consumers
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`viewing it in an unreasonable manner.’ Rather, the test requires a probability ‘that a significant
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`portion of the general consuming public or of targeted consumers, acting reasonably in the
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`circumstances, could be misled.’” Cheslow, 445 F. Supp. 3d at 16 (quoting Lavie v. Procter &
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`Gamble Co., 129 Cal.Rptr.2d 486, 495 (Cal. Ct. App. 2003)). Normally the reasonable consumer
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`question is not resolved at the motion to dismiss stage, but in rare circumstances the Court may
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`determine, as a matter of law, that the alleged violations are simply not plausible. Cheslow, 445 F.
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`Supp. 3d at 16 (finding on a motion to dismiss that plaintiff’s theories and survey evidence
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`regarding a reasonable consumer’s understanding were not plausible as a matter of law); see also
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`Becerra, 945 F.3d at 1231 (affirming district court’s dismissal regarding the reasonable
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`consumer’s understanding of the word “diet”).
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`According to Defendants, Plaintiff’s theory of deception—reasonable consumers interpret
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`the word natural to mean a food product that is completely free of any trace pesticides—has been
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`rejected by several courts: Parks v. Ainsworth Pet Nutrition, LLC, 377 F. Supp. 3d 241 (S.D.N.Y.
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`2019); Axon v. Citrus World, Inc., 354 F. Supp. 3d 170 (E.D.N.Y. 2018), aff’d sub nom. Axon v.
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`Florida’s Nat. Growers, Inc., 813 F. App’x 701 (2d Cir. 2020) ; and In re General Mills
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`Glyphosate Litig., No. 16-2869, 2017 WL 2983877 (D. Minn. July 12, 2017). Mot. 9. And the
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`Ninth Circuit recently held in Becerra v. Dr. Pepper/Seven Up, Inc., 945 F.3d 1225, 1231 (9th Cir.
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`2019) that a plaintiff cannot rely on consumer surveys alone to make plausible the allegation that
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`reasonable consumers are misled when the complaint does not otherwise plead facts establishing
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`deception. Mot. 10. Further, Defendants argue that the Axon and Parks courts have rejected these
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`exact two surveys and held that they do not render plausible the idea that a reasonable consumer
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`believes the word “natural” on a food label indicates the complete absence of trace pesticides.
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`Mot. 12-13.
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`Plaintiff responds that the Axon, Parks, and General Mills cases are distinguishable and
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`cites to several Washington, D.C. superior court cases in an attempt to demonstrate that the weight
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`of authority is behind his interpretation of the word “natural,” which implies a food product with
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`no trace pesticides. Opp’n 4-8. Plaintiff also argues that this case is analogous to Tran v. Sioux
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`Honey Ass’n, Coop., No. 8:17-CV-00110-JLS-SS, 2020 WL 905571 (C.D. Cal. Feb. 24, 2020),
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`which concerned the word “pure” as opposed to “natural.” Opp’n 4-5. And Plaintiff cabins
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`Becerra to the particular surveys at issue in that case and whether they nudged that plaintiff’s
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`allegations about the reasonable consumer’s understanding of the word “diet” from theoretical to
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`plausible. Opp’n 10.
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`The Court agrees with Defendants, and the weight of authority in the federal courts, that
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`Plaintiff’s reasonable consumer theory is not plausible as a matter of law. The Court also bound by
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`Becerra’s holding that adding surveys cannot alone salvage implausible claims. 945 F. 3d at 1231.
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`The only material difference between this amended complaint and the original complaint that the
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`Court dismissed on June 18, 2019, is the addition of the two surveys. Under Becerra, this is
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`insufficient to survive a motion to dismiss.
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`1. Existing Precedent
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`In Parks, the plaintiff challenged the defendants’ labeling of premium dog food as
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`“natural” when it contained trace amounts of an herbicide. 377 F. Supp. 3d at 244. The products
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`did not disclose the presence of glyphosate, the herbicide. Id. The plaintiff (who was represented
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`by the same law firm representing Plaintiff here) made similar claims: he relied on the
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`representation that the products were “natural” when he purchased them, and he was willing to pay
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`more for the products because he expected them to be free of pesticides and other unnatural
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`chemicals. Id. Plaintiff argued that if glyphosate is in the products at any level, then the products
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`cannot be called “natural.” Id. at 247. The court found this implausible, stating, “a reasonable
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`consumer would not be so absolutist as to require that “natural” means there is no glyphosate,
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`even an accidental and innocuous amount, in the Products.” Id.
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`Axon concerned the brand Florida’s Natural orange juice. 354 F.Supp.3d at 174. The
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`plaintiff (also represented by the same law firm representing Plaintiff here) alleged that the use of
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`the term “natural” in the company’s brand name is deceptive because glyphosate is not a natural
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`ingredient. Id. In ruling on the motion to dismiss, the court disagreed, stating, “Given the
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`widespread use of herbicides, the court finds it implausible that a reasonable consumer would
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`believe that a product labeled Florida’s Natural could not contain a trace amount of glyphosate
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`that is far below the amount deemed tolerable by the FDA.” Id. at 183 (internal brackets and
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`quotations omitted). The Second Circuit affirmed the district court’s application of the reasonable
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`consumer standard and holding that the plaintiff failed to state a claim as a matter of law. Axon v.
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`Florida’s Natural Growers, Inc., 813 F. App’x 701, 703 (2d Cir. 2020).
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`In General Mills, the plaintiff challenged the labeling of Nature Valley products as “Made
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`with 100% Natural Whole Grain Oats” when they contained trace amounts of the chemical
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`glyphosate. 2017 WL 2983877, at *1. The plaintiff here (again represented by the same law firm)
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`hit the same dead-end. That court concluded, “[i]t is implausible that a reasonable consumer would
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`believe that a product labelled as having one ingredient—oats—that is “100% Natural” could not
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`contain a trace amount of glyphosate that is far below the amount permitted for organic products.”
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`Id. at *5.
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`The FDA regulates acetamiprid like it does glyphosate: as pesticides, neither is required to
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`be disclosed on food labels, and the pesticides are allowed to be present in foods in specified trace
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`amounts, known as tolerances, without the food being deemed unsafe or adulterated. 21 U.S.C. §§
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`346a(a)(1)(A), 346a(a)(4). Plaintiff does not allege that acetamiprid is present in an unsafe
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`amount, and the amount Plaintiff claims is in the Products is well below the FDA established
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`tolerance. 40 C.F.R. § 180.578. As such, the Court finds the reasoning in the Axon, Parks, and
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`General Mills cases analogous here.
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`At the same time, the Court finds Tran v. Sioux Honey Ass’n, Coop., No. 8:17-CV-00110-
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`JLS-SS, 2020 WL 905571 (C.D. Cal. Feb. 24, 2020) distinguishable. Plaintiff cites to the order
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`granting class certification, which did not evaluate the reasonable consumer standard. This
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`occurred in an earlier order, see Tran v. Sioux Honey Ass’n, Coop., No. 8:17-CV-110-JLS-JCGX,
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`2018 WL 10612686, at *5 (C.D. Cal. Aug. 20, 2018), and the court focused on the dictionary
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`definition of the word “pure” in declining to decide the reasonable consumer test as a matter of
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`law. 2018 WL 10612686, at *5. “Pure” and “natural” are obviously different terms, and the Court
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`will interpret the word “natural” in the same way as the other federal courts.1
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`1 The Defendants in Tran were recently granted summary judgment as the Court found there was
`no evidence that reasonable consumers would be misled by manufacturer’s labeling of its products
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`Case 5:18-cv-06664-BLF Document 66 Filed 10/06/20 Page 10 of 14
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`2. Plaintiff’s Surveys
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`As Defendants indicate, the surveys Plaintiff relies on to push the complaint from mere
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`conjecture to plausible have been rejected by other courts in the same context. In the Axon case,
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`the plaintiff amended the dismissed complaint with the 2015 Consumer Reports Survey and cited
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`the same finding that “63 percent of respondents think that the natural label on packaged and
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`processed foods means that ‘no toxic pesticides were used.’” FAC ¶ 39; Axon v. Citrus World,
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`Inc., No. 18-CV-4162, 2019 WL 8223527, at *1 (E.D.N.Y. Jan. 14, 2019), aff'd sub nom. Axon v.
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`Florida's Nat. Growers, Inc., 813 F. App’x 701 (2d Cir. 2020). The court dismissed the complaint
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`with prejudice and detailed the weaknesses of the survey:
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`The 2015 Survey simply states that a majority of consumers believe that the “natural” label
`on packaged/processed foods means that no toxic pesticides or artificial
`materials/chemicals were used. It does not include details on how it defined “toxic
`pesticides,” “artificial materials/chemicals,” the “use” of such products, or a “‘natural’
`label.”
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`2019 WL 8223527, at *2. Both the 2015 Consumer Reports Survey and the 2019 Study were
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`added to the amended complaint in Parks, but it was dismissed with prejudice, too. Mot. 13; Parks
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`v. Ainsworth Pet Nutrition, LLC, No. 18 CIV. 6936 (LLS), 2020 WL 832863, at *1 (S.D.N.Y. Feb.
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`20, 2020).
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`Plaintiffs argue that Defendants are seeking to impose too exacting of an evidentiary
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`burden at the motion to dismiss stage. Opp’n 12–15. The Court agrees that it must take all facts
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`properly pled by the Plaintiff as true. However, Plaintiff doesn’t have carte blanche to take
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`illogical leaps and bounds and leave the Court to connect the dots. Regarding the 2015 Consumer
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`Reports Survey’s claim that “63 percent of respondents think that the natural label on packaged
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`and processed foods means that “no toxic pesticides were used,” Plaintiff argues in its opposition
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`brief that there is no indication that “toxic” is limited specifically to toxicity in humans. Opp’n 12.
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`The theory of the case, Plaintiff argues, goes beyond just caring about the amount of pesticides
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`present in the final Products and instead encompasses consumers wanting to support natural
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`as “Pure” or “100% Pure,” in spite of a survey commissioned by the plaintiffs. Tran v. Sioux
`Honey Ass’n, Coop., No. 8:17-CV-00110-JLS-SS, 2020 WL 3989444 (C.D. Cal. July 13, 2020).
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`Case 5:18-cv-06664-BLF Document 66 Filed 10/06/20 Page 11 of 14
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`products because they care about protecting the environment in general. Opp’n 12–13. This,
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`however, is not pled in Plaintiff’s complaint. Plaintiff states that neonicotinoids like acetamiprid
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`are believed to pose a risk to honeybees by playing a role in colony collapse disorder. FAC ¶ 45.
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`Plaintiff then states that reasonable consumers don’t expect acetamiprid to be present in “natural”
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`applesauce or applesauce made with “all natural ingredients.” Id. ¶ 46. Plaintiff then jumps to a
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`different section of the 2015 Consumer Reports Survey that states that protecting the environment
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`from chemicals was either very important or important to almost 90 percent of U.S. consumers
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`when shopping for food. Id. ¶ 47. This, though, doesn’t distinguish at all between people who
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`select natural products versus those who purchase products that make no representations at all.
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`The Court cannot read into the pleadings allegations that simply are not there.
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`The 2015 Consumer Reports Survey arguably undermines, rather than supports, Plaintiff’s
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`argument about the reasonable consumer’s interpretation of the word “natural.” It states,
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`“Consumers were asked about their perception of the natural and organic labels. The organic food
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`label is meaningful, is backed by federal regulations, and verified by third-party inspections; the
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`natural label, however, is essentially meaningless (little regulation/verification).” 2015 Consumer
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`Reports Survey at 4. Assuming all fact assertions are true, as the Court must, the Court finds this
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`survey does not help plaintiff allege a plausible claim.
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`Finally, the 2019 Study is tangentially related to Plaintiff’s claims, at best. The 2019
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`Study, conducted for the Corn Refiners Association, concerns crop production, not food labeling.
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`The Court does not find it helpful in Plaintiff’s quest to plead a plausible claim. Other courts in
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`this district have held surveys specifically commissioned for the case insufficient as a matter of
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`law when the pleadings had previously been dismissed for failing to state a claim. See Cheslow,
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`2020 WL 4039365, at *5–*7 (unreasonable for plaintiffs to think that the term “white” in “white
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`chips” meant white chocolate chips). If the survey in Cheslow and the survey in Becerra—which
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`was created specifically for the product in question, diet soda—wasn’t enough to bolster a
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`plaintiff’s claim into the realm of plausibility, these two generic surveys aren’t enough for Plaintiff
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`here.
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`3. Conclusion
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`Case 5:18-cv-06664-BLF Document 66 Filed 10/06/20 Page 12 of 14
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`The Court finds that Plaintiff has failed to plausibly allege that a reasonable consumer
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`would believe that the Products labeled natural are free of any trace pesticides whatsoever. Since
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`the pleadings remain deficient, the Court finds further amendment futile under Becerra and
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`GRANTS Defendants’ motion to dismiss as to the UCL, FAL, and CLRA WITH PREJUDICE.
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`B. Breach of Warranty and Unjust Enrichment Claims
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`Previously, the Court dismissed the breach of warranty and unjust enrichment claims for
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`the same reason it dismissed with UCL, FAL, and CLRA claims. Dismissal Order 6. Defendants
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`argue the same thing should happen again, as Plaintiff’s breach of warranty and unjust enrichment
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`claims rely on deception that, as a matter of law, does not exist. Mot. 14. Plaintiff simply states
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`that Defendants have not offered further arguments as to why Plaintiff’s allegations of reasonable
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`consumer conduct are implausible. Opp’n 18–19. The Court agrees with Defendants and, for the
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`reasons articulated above, GRANTS the motion to dismiss on these two claims WITH
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`PREJUDICE.
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`C. Injunctive Relief
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`As to the final claim, Defendants argue that Plaintiff lacks standing to pursue injunctive
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`relief because Plaintiff has not pled that he plans to purchase the product at issue in the future.
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`Indeed, the Court explicitly stated in its previous dismissal order that “standing for injunctive
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`relief requires some plausible allegation of the plaintiff’s intent to buy the product at issue in the
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`future.” Dismissal Order 8. Despite this rather clear instruction, Plaintiff did not plead a future
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`intent to purchase. Instead, Plaintiff argues that 1) Defendants only bring this motion under Rule
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`12(b)(6), not 12(b)(1), and 2) under Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 969 (9th
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`Cir. 2018), he doesn’t need to plead plans of future purchase because threat of encountering the
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`misleading product label in the future is sufficient future harm. Opp’n 19–20. However, after
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`Defendants challenged Plaintiff’s lack of future injury, Plaintiff submitted a declaration with his
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`opposition brief addressing his future purchasing plans. Opp’n 21. Plaintiff writes that he plans to
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`continue purchasing applesauce and apple juice in the future and will consider the Mott’s brand
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`when making his purchases but that he lacks “the knowledge and means necessary to determine
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`whether the Mott’s Products are in fact “Natural,” whether the Mott’s Natural Applesauce truly
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`Case 5:18-cv-06664-BLF Document 66 Filed 10/06/20 Page 13 of 14
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`contains “All Natural Ingredients,” or to know the true contents and quality of the products.” Decl.
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`of Hawyuan Yu ¶¶ 4–5, ECF 51-1. Defendants reply that they do challenge Plaintiff’s standing
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`under Rule 12(b)(1) and updated the caption on the reply brief to reflect that, and even if the Court
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`accepts Plaintiff’s declaration, he still does not have standing. Reply 10–11, ECF 54.
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`“A plaint

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