Case: 1:20-cv-01501 Document #: 34 Filed: 12/30/21 Page 1 of 47 PageID #:964
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`No. 20-cv-01501
`Judge Franklin U. Valderrama
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`JACQUELINE WILLARD,
`an individual, and
`AMIE BLACKMAN, an individual,
`on behalf of themselves individually,
`and on behalf of all others similarly
`situated, and the general public,
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`Plaintiffs,
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`
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`v.
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`TROPICANA MANUFACTURING
`COMPANY, INC.,
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`Defendant.
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`
`MEMORANDUM OPINION AND ORDER
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`This case is about fruit juice. Plaintiffs Jacqueline Willard (Willard) and Amie
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`Blackman (Blackman) (collectively, Plaintiffs), bring claims on behalf of themselves
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`and all other similarly situated against defendant Tropicana Manufacturing
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`Company, Inc. (Defendant or Tropicana), alleging that Defendant misbrands and
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`falsely advertises ten Tropicana juice products, in Illinois, California, and throughout
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`the United States, in violation of federal and state unfair competition, false
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`advertising, and consumer protection laws. R. 1, Compl.1 Defendant moves to dismiss
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`the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). R. 23, Mot.
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`1Citations to the docket are indicated by “R.” followed by the docket number or filing name,
`and where necessary, a page or paragraph citation.
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`Case: 1:20-cv-01501 Document #: 34 Filed: 12/30/21 Page 2 of 47 PageID #:965
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`Dismiss. For the reasons below, the Court grants in part and denies in part
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`Defendant’s motion.
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`Background
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`Defendant manufactures, packages, labels, advertises, markets, and sells
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`numerous fruit juice products in California, Illinois, and throughout the United
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`States. Compl. ¶¶ 7, 9.2 Plaintiffs challenge the labeling of ten Tropicana juice
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`products: “Trop 50 Farmstand Apple,” “Tropicana 100% Juice Apple Juice,” “Trop 50
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`No Pulp,” “Trop 50 Orange Mango,” “Trop 50 Orange Peach,” “Trop 50 Pomegranate
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`Blueberry,” “Trop 50 with Calcium & Vitamin D,” “Trop 50 with Vitamin C & Zinc,”
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`“Tropicana Grape Drink,” and “Tropicana Fruit Medley” (collectively, the Products).
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`Id. ¶¶ 34–36.
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`All of the Products contain an ingredient called dl-malic acid, which Plaintiffs
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`claim is an artificial flavoring agent, which confers a “tart, fruity” flavor to the
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`Products. Id. ¶¶ 37, 50–51. Plaintiffs allege that the Products’ labels violate federal
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`and states law by: (1) failing to include an “artificially flavored” label on the front and
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`back of the Products’ packaging, despite containing malic acid; (2) deceiving
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`consumers into believing the Products are “all natural” based on the inclusion of the
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`characterizing fruit flavor; and (3) misleadingly identifying “dl-malic acid” only as
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`generic “malic acid” in the ingredient list. Id. ¶¶ 14, 17, 19, 20, 25, 41, 42, 44, 52, 59,
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`60, 61, 68, 72, 73, 75. Plaintiffs allege that they justifiably relied upon and were
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`deceived by the Products’ deceptive labeling when they purchased one or more of the
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`2The Court accepts as true all of the well-pleaded facts in the Complaint and draws all
`reasonable inferences in favor of Plaintiffs. Platt v. Brown, 872 F.3d 848, 851 (7th Cir. 2017).
`2
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`Case: 1:20-cv-01501 Document #: 34 Filed: 12/30/21 Page 3 of 47 PageID #:966
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`Products. Compl. ¶¶ 79–83. Plaintiffs allege that the following photograph is a true
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`and accurate copy of the front label of the “Trop 50 Farmstand Apple” Product:
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`Id. ¶ 23. Similarly, Plaintiffs allege that the following photograph is a true and
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`accurate copy of the front label of the “Tropicana 100% Juice Apple Juice” Product:
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`Case: 1:20-cv-01501 Document #: 34 Filed: 12/30/21 Page 4 of 47 PageID #:967
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`Id. ¶ 30. Plaintiffs do not include photographs of the other eight Products in the
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`Complaint.
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`Based on these allegations, Plaintiffs filed a class action complaint against
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`Defendant, bringing six claims under Illinois and California law, specifically: (1)
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`violation the Illinois Consumer Fraud and Deceptive Business Practices Act, 815
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`ILCS § 505/1, et seq. (ICFA); (2) violation of the “unlawful” and “unfair” prongs of
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`California’s Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 (UCL); (3)
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`violation of California’s Consumer Legal Remedies Act, Cal. Civ. Code § 1750 (CLRA);
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`(4) violation of California’s False Advertising Law, Cal. Bus. & Prof. Code § 17500
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`(FAL); (5) fraud by omission under 815 ILCS 505/2 and Cal. Civ. Code §§ 1709-1710;
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`and (6) negligent misrepresentation under Illinois common law and Cal. Civ. Code §§
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`1709–1710. Compl. ¶¶ 114–94. Plaintiffs seek to represent a nationwide class of
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`consumers, as well as Illinois and California sub-classes. Id. ¶¶ 93–95. Defendant
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`now moves to dismiss the Complaint pursuant to Rule 12(b)(6), arguing that
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`Case: 1:20-cv-01501 Document #: 34 Filed: 12/30/21 Page 5 of 47 PageID #:968
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`Plaintiffs’ claims are preempted, implausible, and inadequately pled. Mot. Dismiss.
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`Defendant also argues that Plaintiffs lack standing to bring their claims under Article
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`III. Id.
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`Standard of Review
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`A Rule 12(b)(1) motion tests whether the court has subject matter jurisdiction.
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`Fed. R. Civ. P. 12(b)(1). Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570
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`F.3d 811, 820 (7th Cir. 2009). Standing is an “essential component of Article III’s case-
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`or-controversy requirement,” and the plaintiff “bears the burden of establishing
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`standing . . . in the same way as any other matter on which the plaintiff bears the
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`burden of proof . . . .” Apex Digit., Inc. v. Sears Roebuck & Co., 572 F.3d 440, 443 (7th
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`Cir. 2009). In order to survive a Rule 12(b)(1) motion, the plaintiff bears the burden
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`of establishing subject matter jurisdiction. Ctr. for Dermatology & Skin Cancer, Ltd.
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`v. Burwell, 770 F.3d 586, 588–89 (7th Cir. 2014). When deciding a facial challenge to
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`subject matter
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`jurisdiction—that is, when the defendant argues that the
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`plaintiff's allegations as to jurisdiction are inadequate—“the court must accept all
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`well-pleaded factual allegations as true and draw all reasonable inferences in favor
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`of the plaintiff.” Silha v. ACT, Inc., 807 F.3d 169, 173 (7th Cir. 2015) (citing Apex
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`Digit., 572 F.3d at 443–44).
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`A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the
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`complaint. Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811,
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`820 (7th Cir. 2009). To survive a motion to dismiss, a complaint need only contain
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`factual allegations, accepted as true, sufficient to “state a claim to relief that is
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`Case: 1:20-cv-01501 Document #: 34 Filed: 12/30/21 Page 6 of 47 PageID #:969
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`plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp.
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`v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the
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`plaintiff pleads factual content that allows the court to draw the reasonable inference
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`that the defendant is liable for the misconduct alleged.” Id. The allegations “must be
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`enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at
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`555. The allegations that are entitled to the assumption of truth are those that are
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`factual, rather than mere legal conclusions. Iqbal, 556 U.S. at 678–79.
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`Under Rule 8(a)(2), a complaint must include only “a short and plain statement
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`of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
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`However, claims alleging fraud must also satisfy the heightened pleading
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`requirement of Rule 9(b), which requires that “[i]n alleging fraud or mistake, a party
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`must state with particularity the circumstances constituting fraud or mistake.” Fed.
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`R. Civ. P. 9(b). And Rule 9(b)’s heightened pleading standard applies to securities
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`fraud claims. Cornielsen v. Infinium Cap. Mgmt., LLC, 916 F.3d 589, 598 (7th Cir.
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`2019). So, generally speaking, Rule 9(b) requires a complaint to “state the identity of
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`the person making the misrepresentation, the time, place, and content of the
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`misrepresentation, and the method by which the misrepresentation was
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`communicated to the plaintiff.” Uni*Quality, Inc. v. Infotronx, Inc., 974 F.2d 918, 923
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`(7th Cir. 1992) (internal citation omitted). Put differently, a complaint “must describe
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`the who, what, when, where, and how of the fraud.” Pirelli Armstrong Tire Corp.
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`Retiree Med. Benefits Tr. v. Walgreen Co., 631 F.3d 436, 441–42 (7th Cir. 2011)
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`(internal quotation marks and citation omitted).
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`Case: 1:20-cv-01501 Document #: 34 Filed: 12/30/21 Page 7 of 47 PageID #:970
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`Analysis
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`I. Article III Standing for Non-Purchased Products
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`Though Defendant does not explicitly reference Rule 12(b)(1), it argues that
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`Plaintiffs lack standing to pursue claims for any of the Products that they did not
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`purchase. Mot. Dismiss at 15–17. Plaintiffs counter that they do have standing to
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`assert claims for all of the Products, even if Plaintiffs did not purchase them, because
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`the Products—and Plaintiffs’ claims regarding them—are all substantially similar.
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`Resp. at 11.
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`Article III standing is a matter of subject matter jurisdiction, consisting of
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`three elements: “[t]he plaintiff must have (1) suffered an injury in fact, (2) that is
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`fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be
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`redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540,
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`1547 (2016); see also TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203 (2021). The
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`complaint “need only plausibly suggest each element of standing.” Bazile v. Fin. Sys.
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`of Green Bay, Inc., 983 F.3d 274, 278 (7th Cir. 2020) (internal citations omitted).
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`Although neither party starts with the standing argument, the Court must ensure it
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`has proper subject matter jurisdiction over Plaintiffs’ claims before it can address
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`Defendant’s 12(b)(6) arguments. Cook v. Winfrey, 141 F.3d 322, 325 (7th Cir. 1998)
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`(“It is axiomatic that a federal court must assure itself that it possesses jurisdiction
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`over the subject matter of an action before it can proceed to take any action respecting
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`the merits of the action.”) (citations omitted).
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`Case: 1:20-cv-01501 Document #: 34 Filed: 12/30/21 Page 8 of 47 PageID #:971
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`Here, Plaintiffs allege that “Willard purchased one or more of the Products
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`several times since April 2018” and “purchased one of the Products most recently on
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`January 5, 2020 at a Jewel-Osco supermarket . . . in Elmhurst, Illinois.” Compl.
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`¶¶ 79–80. Similarly, they allege that “Blackman purchased one or more of the
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`Products several times since 2016 at various locations in San Diego County,
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`California during the Class Period defined herein.” Id. ¶ 81. But Defendant points
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`out that Plaintiffs do not allege that they purchased all ten Products—in fact, they
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`do not claim which of the ten Products they purchased. Mot. Dismiss at 15–16.
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`When evaluating Article III standing, the Court is bound by Seventh Circuit
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`precedent, to the extent it exists. See Int’l Ass’n of Sheet Metal, Air, Rail & Transp.
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`Workers, Transp. Div. v. BNSF Ry. Co., 2021 WL 2709143, at *3 (N.D. Ill. July 1,
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`2021); see Ins. Tr. v. River Trails Sch., 2003 WL 22016880, at *1 (N.D. Ill. Aug. 27,
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`2003) (out-of-Circuit authority is persuasive “in the absence of binding precedent
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`from within”). As Defendant correctly notes, Plaintiffs rely solely on authority from
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`California district courts to support their contention that they have standing to bring
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`claims based on the labels on all of the Products. Reply at 11–12; Resp. at 11–12. But
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`the parties did not cite—and the Court is unaware of—existing Seventh Circuit law
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`directly on point at the time the parties filed their briefs, so out-of-Circuit district
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`cases can be persuasive authority.
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`However, the Court agrees with Defendant’s interpretation of Payton v. Cnty.
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`of Kane, 308 F.3d 673 (7th Cir. 2002), reading it to stand for the proposition that
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`Case: 1:20-cv-01501 Document #: 34 Filed: 12/30/21 Page 9 of 47 PageID #:972
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`Plaintiffs cannot rely on the “substantially similar test” to acquire standing. Mot.
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`Dismiss at 17; Reply at 12. In Payton, the Seventh Circuit cautioned:
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`This is not a case where the named plaintiff is trying to piggy-back on the
`injuries of the unnamed class members. That, of course, would be
`impermissible, in light of the fact that a named plaintiff cannot acquire
`standing to sue by bringing his action on behalf of others who suffered injury
`which would have afforded them standing had they been named plaintiffs; it
`bears repeating that a person cannot predicate standing on injury which he
`does not share. Standing cannot be acquired through the back door of a class
`action.
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`308 F.3d at 682 (internal quotation marks and citation omitted). The majority of the
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`courts in the Northern District of Illinois courts that have addressed this issue have
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`determined that class-action plaintiffs are prohibited from overcoming the
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`requirements of Article III standing simply by arguing that non-purchased products
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`are substantially similar to purchased products. See Bakopoulos v. Mars Petcare US,
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`Inc., 2021 WL 2915215, at *3 (N.D. Ill. July 12, 2021) (“Plaintiffs have no injury-in-
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`fact caused by products that they did not buy, and therefore lack standing with
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`respect to those products.”); Brodsky v. Aldi Inc., 2021 WL 4439304, at *3 (N.D. Ill.
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`Sept. 28, 2021); Cowen v. Lenny & Larry’s, Inc., 2017 WL 4572201, at *3 (N.D. Ill.
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`Oct. 12, 2017); Porter v. NBTY, Inc., 2016 WL 6948379, at *3 (N.D. Ill. Nov. 28, 2016);
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`Pearson v. Target Corp., 2012 WL 7761986, at *1 (N.D. Ill. Nov. 9, 2012); Padilla v.
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`Costco Wholesale Corp., 2012 WL 2397012, at *3 (N.D. Ill. June 21, 2012). But, there
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`is an in-District split on the issue, and several courts have allowed consumer-fraud
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`claims based on substantially similar products to survive until at least the class
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`certification stage. See Carrol v. S.C. Johnsons & Son, Inc., 2018 WL 1695421, at *4
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`(N.D. Ill. Mar. 29, 2018); Ulrich v. Probalance, Inc., 2017 WL 3581183, at *6 (N.D. Ill.
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`Case: 1:20-cv-01501 Document #: 34 Filed: 12/30/21 Page 10 of 47 PageID #:973
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`Aug. 18, 2017); Wagner v. Gen. Nutrition Corp., 2017 WL 3070772, at *5 (N.D. Ill.
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`July 19, 2017); Mednick v. Precor, Inc., 2014 WL 6474915, at *3 (N.D. Ill. Nov. 13,
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`2014). However, the parties in Wagner agreed that the substantial similarity test
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`applied, so the court did not analyze the question. 2017 WL 3070772, at *5. The court
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`in Mednick did not cite to Payton and assumed that the substantial similarity test
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`was valid. 2014 WL 6474915, at *3. The courts in Carrol and Ulrich relied on Wagner
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`and Mednick in allowing consumer fraud claims based on un-purchased products to
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`proceed based on the substantial similarity test. Carrol, 2018 WL 1695421, at *4;
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`Ulrich, 2017 WL 3581183, at *6. Still other courts in this District have found the
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`issue to be a Rule 23 class certification issue rather than an Article III standing issue.
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`See Texas Hill Country Landscaping, Inc. v. Caterpillar, Inc., 522 F. Supp. 3d 402,
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`408–09 (N.D. Ill. 2021); Friend v. FGF Brands (USA) Inc., 2019 WL 2482728, at *3
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`(N.D. Ill. June 12, 2019); Bolden v. Barilla Am., Inc., 19-cv-02237, ECF No. 82 at 12–
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`14 (N.D. Ill. Dec. 15, 2021).
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`The Court finds the reasoning of the first line of cases to be most persuasive,
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`and agrees with the analysis in Bakopoulos, which reasoned, “[w]hether these
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`plaintiffs may be adequate class representatives for absent class members injured by
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`similar products is a different question than the issue here. At this stage of the case,
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`there is no class and plaintiffs cannot bypass the ‘irreducible constitutional minimum’
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`of Article III standing for their individual claims.” 2021 WL 2915215, at *3 (quoting
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`Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). The court dismissed the plaintiffs’
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`claims relating to products they did not purchase for lack of standing. Id. This
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`Case: 1:20-cv-01501 Document #: 34 Filed: 12/30/21 Page 11 of 47 PageID #:974
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`conclusion is supported by a recent Seventh Circuit case affirming a district court’s
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`holding that a plaintiff lacked standing in a class action consumer products case
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`where he alleged injury relating to products that he did not buy that were similar to
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`those he had bought. Weaver v. Champion Petfoods USA Inc., 3 F.4th 927, 936 (7th
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`Cir. 2021). True, the Seventh Circuit did not engage in any analysis of the issue, but
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`even if its language is non-binding dicta, for the reasons explained above, the Court
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`is persuaded by the reasoning of the in-District cases finding that class-action
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`plaintiffs cannot overcome Article III’s standing requirement simply by arguing that
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`products are substantially similar.
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`Defendant does not argue that Plaintiffs lack standing to assert claims relating
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`to any Products they did purchase, and the Court agrees that Plaintiffs have satisfied
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`the standing requirements as to purchased products by alleging that they “would not
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`have purchased the Products in the absence of Defendant’s misrepresentations and
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`omissions or would only have been willing to pay less for the Products than they did.”
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`Compl. ¶ 87; see Muir v. Playtex Prod., LLC, 983 F. Supp. 2d 980, 986 (N.D. Ill. 2013)
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`(citing In re Aqua Dots Products Liability Litig., 654 F.3d 748 (7th Cir. 2011)); see
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`also Gross v. Vilore Foods Co., Inc., 2021 WL 1428487, at *3 (S.D. Cal. Apr. 15, 2021).
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`Therefore, the Court finds that Plaintiffs lack standing to assert claims over
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`any Products that they did not actually purchase. They do, however, have standing
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`to assert claims based on any Products they did purchase.
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`The Court having addressed the standing issue, now turns to Defendant’s Rule
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`12(b)(6) arguments and will first address Defendant’s argument that Plaintiffs fail to
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`Case: 1:20-cv-01501 Document #: 34 Filed: 12/30/21 Page 12 of 47 PageID #:975
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`satisfy Rule 9(b)’s requirements by failing to specify which of the Products Plaintiffs
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`purchased below. See infra Section IV.
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`II. Preemption under the Federal Food, Drug, and Cosmetic Act
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`Defendant first argues that all of Plaintiffs’ claims are preempted by federal
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`statutes. The Supremacy Clause of the U.S. Constitution provides that the
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`Constitution and laws of the United States shall be the “supreme law of the land.”
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`U.S. Const. art. VI, cl.2. The Supremacy clause “invalidates state laws that interfere
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`with, or are contrary to federal law.” Nelson v. Great Lakes Educ. Loan Servs., 928
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`F.3d 639, 646 (7th Cir. 2019) (quoting Hillsborough County v. Automated Medical
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`Labs., Inc., 471 U.S. 707, 712-713 (1985)). There are three types of preemption:
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`express, field, and conflict. Id.
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`At issue here is express preemption, which exists when Congress clearly
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`declares its intention to preempt state law. Nelson, 928 F.3d at 646. Defendant argues
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`that Plaintiffs’ claims are preempted by the Federal Food, Drug, and Cosmetic Act,
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`21 U.S.C. § 301 et seq. (FDCA), and specifically the Nutrition Labeling and Education
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`Act of 1990, 21 U.S.C. § 343 (NLEA), which amended the FDCA “to ensure uniform
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`labeling of food products.” Mot. Dismiss at 4–12 (quoting Lateef v. Pharmavite LLC,
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`2012 WL5269619, at *2 (N.D. Ill. Oct. 24, 2012)). Plaintiffs, on the other hand,
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`contend that Plaintiffs’ state law claims are identical to the federal regulations and
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`Case: 1:20-cv-01501 Document #: 34 Filed: 12/30/21 Page 13 of 47 PageID #:976
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`therefore, not preempted. Resp. at 3–9 (citing Clancy v. The Bromley Tea Co., 308
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`F.R.D. 564, 573 (N.D. Cal. 2013)).
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` The NLEA includes an express preemption provision that forbids states from
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`imposing food labeling requirements “not identical” to the federal requirements. See
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`21 U.S.C. § 343-1(a). The preclusive effect of the express preemption provision
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`extends “beyond positive enactments, such as statutes and regulations, to embrace
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`common-law duties.” Bates v. Dow Agrosciences LLC, 544 U.S. 431, 443 (2005).
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`Defendant contends that Plaintiffs’ claims, asserting violations of state consumer
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`protection statutes and related causes of action, fall within the purview of the NLEA’s
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`express preemption provision, as Plaintiffs attempt to impose labeling requirements
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`“not identical” to those established by federal regulations. Mot. Dismiss at 5–6.
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`Defendant raises three preemption arguments: (1) Plaintiffs’ claim that malic acid
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`functions as a flavor is contrary to federal regulations; (2) Plaintiffs’ claim that
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`Defendant misleadingly labels the Products’ “characterizing flavors” is contrary to
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`federal regulations; (3) federal regulations allow Defendant to include the common
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`name “malic acid” on the Products’ ingredient lists. Id. at 4–12. The Court addresses
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`each argument in turn.
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`A. Malic Acid as an “Artificial Flavor”
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`First, Defendant argues that both FDA regulations and Plaintiffs’ Complaint
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`demonstrate that malic acid is not an “artificial flavor” (much less a characterizing
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`flavor) and therefore requiring Defendant to disclose it as such is contrary to federal
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`regulations. Mot. Dismiss at 6–10. Plaintiffs retort that Defendant’s argument that
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`Case: 1:20-cv-01501 Document #: 34 Filed: 12/30/21 Page 14 of 47 PageID #:977
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`malic acid is a flavor enhancer rather than a flavor is a factual question not properly
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`decided on a motion to dismiss. Resp. at 5–6. The Court agrees with Plaintiffs.
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`Food and Drug Administration (FDA) federal regulations require that “[i]f any
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`characterizing flavor of a Product is not created exclusively by the identified
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`ingredient, the product’s front label must state that the product is flavored with
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`either, or both of, natural or artificial flavorings. If any artificial flavor is present
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`which ‘simulates, resembles or reinforces’ the characterizing flavor, the food must be
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`prominently labeled as ‘Artificially Flavored.’” Compl. ¶¶ 58–59 (citing 21 C.F.R.
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`§§ 101.22(i)(3)-(4)). FDA regulations recognize that malic acid can have a variety of
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`functions, including as a flavoring agent and adjuvant, a flavor enhancer, or a pH
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`control agent. 21 C.F.R. § 184.1069(c). A “flavor” is “any substance, the function of
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`which is to impart flavor.” Id. § 101.22(a)(1). Similarly, a “flavoring agent and
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`adjuvant[s]” is a substance “added to impart or help impart taste or aroma in food.”
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`On the other hand, a “flavor enhancer” is a substance “added to supplement, enhance,
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`or modify the original taste and/or aroma of a food, without imparting a characteristic
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`taste or aroma of its own.” Id. § 170.3(o)(11).
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`Plaintiffs allege that “[t]he fruits named and illustrated on the Products’ front
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`labels are [] characterizing flavors for those Products.” Compl. ¶ 57. The Complaint
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`further alleges that “[t]he dl-malic acid is a flavoring material [] included in the
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`Products to create, simulate and reinforce the characterizing fruit flavors.” Id. ¶ 136;
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`see also id. ¶¶ 37, 44, 47, 60. Although Defendant concedes that the malic acid used
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`in the Products is artificial, it insists that it is not a “flavor” because it does not give
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`Case: 1:20-cv-01501 Document #: 34 Filed: 12/30/21 Page 15 of 47 PageID #:978
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`the Products an “original taste” but rather enhances the characterizing flavors from
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`another sources. Mot. Dismiss at 6–7. Defendant argues that it is impossible for malic
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`acid to confer the characterizing fruit flavors to all ten of the Products, which vary in
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`their fruit flavors from apple, to pomegranate blueberry, to orange mango, to grape,
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`to name a few. Id. at 6, 8–93; see Compl. ¶¶ 36, 55–57. In Defendant’s view, malic acid
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`functions like an artificial sweetener, used to enhance flavor, not impart an original
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`flavor. Id. at 9–10 (citing Viggiano v. Hansen Nat. Corp., 944 F. Supp. 2d 877, 889
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`(C.D. Cal. 2013) (sweeteners are not “flavors” because “they do not give the product
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`an original taste—rather, they sweeten or amplify whatever characterizing flavor it
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`has from another source”)).
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`Plaintiffs, however, point out that numerous courts have found that the
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`question of whether malic acid functions as a flavor or a flavor enhancer in a
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`particular food product is a factual dispute inappropriate for resolution on a motion
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`to dismiss. Resp. at 6 (citing Allred v. Frito-Lay, 2018 WL 1185227, at *4–5 (S.D. Cal.
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`Mar. 7, 2018) (concluding that whether malic acid is a “flavor” under federal
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`regulations is a “factual determination that would be inappropriately resolved on a
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`motion to dismiss”); Allred v. Kellogg Co., 2018 WL 1158885, at *2 (S.D. Cal. Feb. 23,
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`3Defendant asks the Court take to judicial notice of eighteen other lawsuits filed by Plaintiffs’
`counsel in which the complaints allege that malic acid simulates over eighty flavors. Mot.
`Dismiss at 9 (citing R. 23-1, Mot. Dismiss, Appen. A, Request Jud. Not.). Plaintiffs do not
`oppose Defendant’s request for judicial notice, see Resp., and the Court agrees with Defendant
`that it may properly take judicial notice of the previously filed complaints. Fed. R. Evid.
`201(b); see also Parunago v. Comm. Health Sys., Inc., 858 F.3d 452, 457 (7th Cir. 2017);
`McCray v. Hermen, 2000 WL 684197, at *2 n.1 (N.D. Ill. May 23, 2000) (“Included in [matters
`appropriate for judicial notice] are proceedings in other courts, both within and outside of the
`federal judicial system, if the proceedings have a direct relation to matters at issue.”)
`(internal quotation marks and citation omitted).
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`Case: 1:20-cv-01501 Document #: 34 Filed: 12/30/21 Page 16 of 47 PageID #:979
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`2018) (“At this stage, the Court cannot look beyond the pleadings and must take
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`reasonable allegations as true. Both of these hurdles are appropriate for summary
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`judgment, but at this stage, the Court finds Allred has sufficiently pled the
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`ingredients are artificial and used as flavoring agents.”); see also Hilsley v. Ocean
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`Spray Cranberries, Inc., 2018 WL 5617701 (S.D. Cal. Oct. 30, 2018) (denying the
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`defendant’s motion for summary judgment where the plaintiff’s expert opined that
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`malic acid is used for flavoring purposes as opposed to a pH control agent)); see also
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`Hayes v. Gen. Mills, Inc., 2021 WL 3207749, at *4 (N.D. Ill. July 29, 2021) (collecting
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`cases and holding that “[a] more developed record may demonstrate that the malic
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`acid in the Products does not function as a flavor, but to make such a factual
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`determination at [the motion to dismiss] juncture would be premature”).
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`Defendant attempts to distinguish these cases by arguing that the webpage
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`cited by Plaintiffs in support of their allegation that malic acid confers a “tart, fruity
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`flavor to food products” undermines Plaintiffs’ argument that malic acid acts as a
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`flavor in the Products. Mot. Dismiss at 7–8 (citing Compl. ¶ 50 n.4 (citing “Malic
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`Acid,” by The Chemical Company, https://thechemco.com/chemical/malic-acid4)).
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`Defendant is correct that Plaintiffs’ Complaint cites to the section of the article that
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`states that “[i]n liquid calcium supplements, Malic Acid adds a tart and fruity flavor
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`while controlling the pH.” Mot. Dismiss at 7 (citing Compl. ¶ 50 n.4 (citing “Malic
`
`
`4Defendant also requests that the Court consider the website, and again Plaintiffs do not
`oppose the request. Request Jud. Not. at 12; Resp. Again, the Court agrees with Defendant
`that it can properly consider the website, as it is “referenced in the complaint and central to
`plaintiff’s claims.” Request Jud. Not. at 12 (quoting Shachter v. City of Chi., 2019 WL
`4750083, at *2 n.2 (N.D. Ill. Sept. 30, 2019)); see also Mueller v. Apple Leisure Corp., 880 F.3d
`890, 895 (7th Cir. 2018).
`
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`Case: 1:20-cv-01501 Document #: 34 Filed: 12/30/21 Page 17 of 47 PageID #:980
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`Acid”)) (emphasis added). The section on “non-carbonated beverages” like “fruit
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`drinks” states that “malic acid is a preferred acidulant . . . because it enhances fruit
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`flavors, improves pH stability, and masks the aftertaste of some salts.” “Malic Acid.”
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`The Court agrees with Defendant that Plaintiffs’ selective citation does not directly
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`support their allegations. See Reply at 5–6, 10 (citing Alamilla v. Hain Celestial Grp.,
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`Inc., 30 F. Supp. 3d 943, 944 (N.D. Cal. 2014)).
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`In Alamilla, the court examined an article referenced in the plaintiffs’
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`complaint and determined that the article’s conclusion, that pressurization has “little
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`or no effects on nutritional and sensory quality aspects of foods”, directly undermined
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`the plaintiffs’ claim that the defendants’ pressure treatment deprived the at-issue
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`products of nutritional value. 30 F. Supp. 3d at 944 (internal citations omitted). Here,
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`on the other hand, as noted above, the article cited by Plaintiffs states that “Malic
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`Acid is a preferred acidulant for still beverages (fruit drinks . . .), because it enhances
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`fruit flavors, improves pH stability, and masks the aftertaste of some salts.” “Malic
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`Acid.” True, the article does not state that malic acid adds a “tart and fruity flavor”
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`to fruit juices, as it does to calcium supplements. Id. But neither does it state that
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`malic acid only enhances fruit flavors in fruit drinks, nor that it does not add a “tart
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`and fruity flavor” to fruit juices. Id. So, the website may not directly support
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`Plaintiffs’ allegations that malic acid “create[s], simulate[s] and reinforce[s] the
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`characterizing fruit flavors” in the Products, but it does not undermine them either.
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`In fact, the Court finds that the website, read as a whole, underscores the conclusion
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`that many courts have come to, that determining whether malic acid acts as a “flavor”
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`or “flavor enhancer” is a factual question not appropriate for resolution on a motion
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`to dismiss.
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`Reading the allegations in the Complaint in the light most favorable to
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`Plaintiffs, as it must, the Court finds that Plaintiffs have adequately alleged that the
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`malic acid used in the Products acts as a flavor, not just a flavoring agent.5
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`B. Labeling of Characterizing Fruit Flavors without Artificial
`Disclaimer
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`Defendant next argues that, even if the Court finds that Plaintiffs have
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`adequately pled that malic acid is an artificial flavor, Plaintiffs’ claims are still
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`preempted by federal regulations. Mot. Dismiss at 8.
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`The federal regulations require a front-of-pack “Artificially Flavored”
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`statement only if malic acid “simulates, resembles, or reinforces” the characterizing
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`flavor of the Products. Id. (citing 21 C.F.R. § 101.22(i)). Plaintiffs allege that various
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`fruit flavors are the characterizing flavors of the various Products. Compl. ¶¶ 55
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`(“Apple is a characterizing flavor”), 56 (“Orange is a characterizing flavor”), 57 (“The
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`fruits named and illustrated on the other Products’ front labels are similarly
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`characterizing flavors for those Products”). Defendant contends that Plaintiffs’ “bare,
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`conclusory assertion” that malic acid “simulates” each characterizing fruit flavor is
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`5Nor is the Court persuaded by Defendant’s argument, raised in a footnote, that malic acid
`should not be considered an artificial flavor because it does not “appear[ ] on the lists of
`artificial flavors promulgated by the FDA.” Mot. Dismiss at 10 n.4 (citing Viggiano, 944 F.
`Supp. 2d at 889 (citing 21 C.F.R. § 172.515(b); 21 C.F.R. § 182.60)). As Plaintiffs point out,
`21 C.F.R. § 101.22 states that these lists are not exhaustive (Resp. at 7 (citing 21 C.F.R.
`§101.22)) and other courts have held that, “simply because malic acid is not on these lists
`does not mean that the FDA has determined malic acid is not an artificial flavor” (id. (quoting
`Frito-Lay, 2018 WL 1185227, at *4)).
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`insufficient to state a viable omission claim, and moreover is nonsensical because, as
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`noted above, there is no way malic acid could simulate the characterizing fruit flavors
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`in the Products in Plaintiffs’ Complaint, not to say the eighty fruit flavors at issue in
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`the other judicially noticed complaints filed by Plaintiffs’ counsel. Mot. Dismiss at 8–
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`9.
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`Plaintiffs retort that the Complaint sufficiently alleges that malic acid
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`“simulates, resembles, or rein