Case 3:20-cv-00647-NJR Document 27 Filed 10/05/20 Page 1 of 11 Page ID #164
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF ILLINOIS
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`Case No. 3:20-CV-00647-NJR
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`HAUNAH VANLANINGHAM and
`DANIELLE SCHWARTZ, individually
`and on behalf of all similarly situated
`current citizens of Illinois,
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` Plaintiffs,
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`v.
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`CAMPBELL SOUP CO.,
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` Defendant.
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`MEMORANDUM AND ORDER
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`ROSENSTENGEL, Chief Judge:
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`
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`Pending before the court is a motion to dismiss (Doc. 19) by Defendant Campbell
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`Soup Co. (“Campbell”). For the reasons set forth below, the Court denies the Motion.
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`FACTUAL & PROCEDURAL BACKGROUND
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`Plaintiffs Haunah Vanlaningham and Danielle Schwartz (“Consumers”) are
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`citizens of Illinois who in 2018 purchased soup manufactured by Campbell which was
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`labelled as containing “no preservatives added” and “made with patience, not
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`preservatives” (Doc. 3-1 at 5). Consumers state that these labels on the soups that they
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`purchased are generally characteristic of soups in Campbell’s “Home Style Soup” and
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`“Slow Kettle Soup” product lines.
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`Consumers filed this action on behalf of a class of Illinois consumers on March 6,
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`2020, in the Circuit Court for St. Clair County, Illinois, seeking monetary damages for
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`deceptive advertising in violation of the Illinois Consumer Fraud and Deceptive Business
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`Page 1 of 11
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF ILLINOIS
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`
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`
`
`
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`Case No. 3:20-CV-00647-NJR
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`
`
`HAUNAH VANLANINGHAM and
`DANIELLE SCHWARTZ, individually
`and on behalf of all similarly situated
`current citizens of Illinois,
`
` Plaintiffs,
`
`v.
`
`CAMPBELL SOUP CO.,
`
` Defendant.
`
`
`MEMORANDUM AND ORDER
`
`
`ROSENSTENGEL, Chief Judge:
`
`
`
`Pending before the court is a motion to dismiss (Doc. 19) by Defendant Campbell
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`Soup Co. (“Campbell”). For the reasons set forth below, the Court denies the Motion.
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`FACTUAL & PROCEDURAL BACKGROUND
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`Plaintiffs Haunah Vanlaningham and Danielle Schwartz (“Consumers”) are
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`citizens of Illinois who in 2018 purchased soup manufactured by Campbell which was
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`labelled as containing “no preservatives added” and “made with patience, not
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`preservatives” (Doc. 3-1 at 5). Consumers state that these labels on the soups that they
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`purchased are generally characteristic of soups in Campbell’s “Home Style Soup” and
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`“Slow Kettle Soup” product lines.
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`Consumers filed this action on behalf of a class of Illinois consumers on March 6,
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`2020, in the Circuit Court for St. Clair County, Illinois, seeking monetary damages for
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`deceptive advertising in violation of the Illinois Consumer Fraud and Deceptive Business
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`Page 1 of 11
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`Case 3:20-cv-00647-NJR Document 27 Filed 10/05/20 Page 2 of 11 Page ID #165
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`Practices Act (“ICFA”) and breach of express warranty under Illinois common law.
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`Campbell removed the action to this Court on July 1, 2020. This Court has jurisdiction
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`pursuant to the Class Action Fairness Act of 2005, 28 U.S.C. § 1332(d), as the Consumers
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`allege a class and (1) the aggregate number of members in the proposed class is 100 or
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`more; (2) the amount in controversy exceeds the sum or value of $5,000,000, exclusive of
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`interests and costs; and (3) the parties are minimally diverse, as Campbell is a New Jersey
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`corporation.
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`Specifically, Consumers state that Campbell represented that their soups lack
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`artificial flavorings and preservatives (the “Representations”), and these Representations
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`enabled them to charge a premium from customers willing to pay extra to avoid those
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`types of ingredients. Consumers allege that the Representations were false, however,
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`because the soups in question contained ingredients including citric acid, ascorbic acid,
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`succinic acid, monosodium glutamate, sodium phosphate, disodium guanylate,
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`disodium inosinate, and xanthan gum (the “Challenged Ingredients”) (Doc. 3-1 at 10).
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`According to Consumers, these ingredients constitute artificial flavors and preservatives.
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`Consumers purchased products from Campbell in reliance on the Representation, paying
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`more than they would have for other similar products without the Representation (Id. at
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`11).
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`On August 7, 2020, Campbell filed the instant motion to dismiss under Federal
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`Rules of Civil Procedure 12(b)(6) and 12(b)(1). Campbell notes that relevant guidance
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`from the FDA indicates that the actual function of an ingredient determines whether it is
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`considered a preservative for labeling purposes, and the Challenged Ingredients are
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`Page 2 of 11
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`Case 3:20-cv-00647-NJR Document 27 Filed 10/05/20 Page 3 of 11 Page ID #166
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`capable of many functions in food (Doc. 20 at 7). Campbell notes that the complaints make
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`no allegations as to the actual function of the Challenged Ingredients in the soups in
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`question (Id.). Campbell further states that Consumers’ claims relate to representations
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`on Campbell’s website and that the complaint fails to allege that Consumers actually saw
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`the website representations before purchasing the soups (Id. at 8). Lastly, Campbell
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`argues that Consumers’ claims are preempted under federal law, as the Representations
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`are identical to statements on other Campbell’s soup products which the FDA has found
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`to be not misleading (Id. at 7).
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`LEGAL STANDARD
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`The purpose of a Rule 12(b)(6) motion is to decide the adequacy of the complaint,
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`not to determine the merits of the case or decide whether a plaintiff will ultimately
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`prevail. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). To survive a Rule
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`12(b)(6) motion to dismiss, a plaintiff only needs to allege enough facts to state a claim
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`for relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A
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`plaintiff need not plead detailed factual allegations, but must provide “more than labels
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`and conclusions, and a formulaic recitation of the elements.” Id. For purposes of a motion
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`to dismiss under Rule 12(b)(6), the Court must accept all well-pleaded facts as true and
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`draw all possible inferences in favor of the plaintiff. McReynolds v. Merrill Lynch & Co.,
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`Inc., 694 F.3d 873, 879 (7th Cir. 2012).
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`A motion to dismiss for lack of standing implicates Federal Rule of Civil Procedure
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`12(b)(1) and falls under a similar standard. See Warth v. Seldin, 422 U.S. 490, 503 (1975).
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`The court must accept all material allegations of the complaint as true, and construe facts
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`Page 3 of 11
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`Case 3:20-cv-00647-NJR Document 27 Filed 10/05/20 Page 4 of 11 Page ID #167
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`in favor of the complaining party. Id.
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`ANALYSIS
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`I.
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`Conflict Preemption
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`Under the doctrine of conflict preemption, a claim under state law is barred where
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`it would “stand as an obstacle to the accomplishment and execution of the full purposes
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`and objectives of federal law.” Patriotic Veterans, Inc. v. Indiana, 736 F.3d 1041, 1049 (7th
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`Cir. 2013) (quotations omitted). Preemption doctrine should not be lightly applied, and
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`the burden is on the party seeking preemption to present a showing of conflict “strong
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`enough to overcome the presumption that state and local regulations can coexist with
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`federal regulation.” Id. “In addition to starting with a presumption against preemption,
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`in order for a court to find conflict preemption it must either be impossible for a private
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`party to comply with both the state and federal law or the state law must stand as an
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`obstacle to the accomplishment and execution of the full purposes and objectives of
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`Congress.” Id. (quotations omitted).
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`To assess whether a state law constitutes an “obstacle,” the Court will consider the
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`federal and state provisions in question in the context of the federal government’s stated
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`goals, the relative powers of state and federal government, and the history and function
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`of the provisions in question. See, e.g., Geier v. Am. Honda Motor Co., 529 U.S. 861, 873-77
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`(2000) (noting stated intent of federal authorities in finding obstacle); Maryland v.
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`Louisiana, 451 U.S. 725, 747-50 (1981) (considering historical development and function of
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`federal provision in finding obstacle); Hines v. Davidowitz, 312 U.S. 52, 67-68 (1941)
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`Page 4 of 11
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`Case 3:20-cv-00647-NJR Document 27 Filed 10/05/20 Page 5 of 11 Page ID #168
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`(discussing relative powers of federal and state governments in the fields of international
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`relations and immigration in finding obstacle).
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`Here, Campbell asserts that the state law claims in this case would conflict with
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`the Federal Meat Inspection Act, 21 U.S.C. § 601 et seq. (“FMIA”), and Poultry Products
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`Inspection Act, 21 U.S.C. § 451 et seq. (“PPIA”). These acts form an integral part of the
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`regulatory structure through which the federal government “administers inspection
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`services, labeling requirements, marketing controls and other health and safety
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`constraints on the meat processing industry.” Windy City Meat Co. v. United States Dep’t
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`of Agriculture, 926 F.2d 672, 675 (7th Cir. 1991). In granting the USDA power to impose
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`standards for labelling of meat products, these statutes require determination of whether
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`labels of meat products are “false or misleading.” E.g., 21 U.S.C. § 457(d). The statutes
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`contain provisions that expressly preempt state labelling requirements “in addition to, or
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`different than” those imposed by the USDA for poultry and meat products. 21 U.S.C.
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`§§ 467e, 678.
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`Based on these preemption provisions, courts in the past have struck down suits
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`that attempt to bring state-law causes of action imposing labelling requirements on
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`poultry and meat products. See Meaunrit v. ConAgra Foods Inc., 2010 WL 2867393 at *6-7
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`(N.D. Cal. July 20, 2010) (collecting cases).
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`Here, it is not disputed that Campbell did go through USDA review and obtained
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`approval for soups in its Slow Kettle and Home Style product lines that contained meat
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`and poultry and that the USDA found that the Representations on those soups were not
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`misleading. If the action in question involved soups that contained meat and poultry,
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`Page 5 of 11
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`Case 3:20-cv-00647-NJR Document 27 Filed 10/05/20 Page 6 of 11 Page ID #169
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`then, it seems evident that preemption would apply. The question for the Court is
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`whether the preemption provisions of the FMIA and PPIA should apply to products that
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`contain no meat or poultry. The Court takes the view that they do not.
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`Campbell argues that allowing Consumers to challenge the Representations on
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`non-meat soups when the USDA has already determined it to be non-misleading on meat
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`and poultry soups would frustrate “Congress’s purpose of promoting consistency and
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`transparency in food labeling” (Doc. 20 at 16). Congress’s purpose in passing the FMIA
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`and PPIA was not to create uniformity in all food labeling, however, but rather across
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`meat and poultry products, and there is no indication that it was Congress’s intent to
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`push states out of the business of regulating food labelling in general. On the contrary,
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`states have long had an interest in the protection of their own citizens from harmful
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`commercial practices, and the regulation of fraudulent and abusive commercial speech
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`has long been a subject of state regulation, not an issue that is inherently federal.
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`Accordingly, the Court is inclined to construe the scope of preemption here narrowly.
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`The Court further notes that there are good practical reasons not to generalize and extend
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`the federal standard applicable to meat products to all other food products—an
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`ingredient that does not function as a preservative or flavoring in one comestible may
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`serve a different function in another, and a concentration of a particular ingredient that
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`is deemed commonplace in a meat product might be unpalatable and unusual in a
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`different type of comestible.
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`Overall, the burden is on Campbell to present evidence showing clear conflict
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`between the federal and state provisions, yet Campbell has presented no persuasive
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`Page 6 of 11
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`Case 3:20-cv-00647-NJR Document 27 Filed 10/05/20 Page 7 of 11 Page ID #170
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`rationale for extending federal laws applying to meat and poultry to all other comestibles.
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`The Court declines to apply preemption doctrine.
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`II.
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`ICFA Claim
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`A.
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`Reasonable Consumer Standard
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`Campbell further asserts that even absent preemption, Consumers’ ICFA claims
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`fail because they fail to allege that the Representation is misleading to a reasonable
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`consumer.
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`To plead a claim under the ICFA, a plaintiff must allege “(1) a deceptive or unfair
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`act or promise by the defendant;” (2) the defendant’s intent that the plaintiff rely on the
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`deceptive or unfair practice; and (3) that the unfair or deceptive practice occurred during
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`a course of conduct involving trade or commerce.” Camasta v. Jos. A. Bank Clothiers, Inc.,
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`761 F.3d 732, 739 (7th Cir. 2014). A plaintiff that is a private party must further show
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`actual damage incurred as a result of defendant’s conduct. Id. In determining what
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`constitutes a deceptive practice, a Court should look to its potential effect on a
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`“reasonable consumer.” E.g., Davis v. G.N. Mortg. Corp, 396 F.3d 869, 884 (7th Cir. 2005).
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`The reasonable consumer test requires “a probability that a significant portion of the
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`general consuming public...acting reasonably in the circumstances, could be misled.” In
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`re: 100% Grated Parmesan Cheese Mktg. & Sales Practices Litig., 275 F. Supp. 3d 910, 921
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`(N.D. Ill. 2017). Allegedly deceptive labels must be viewed in context, and even where a
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`statement might be deceptive in isolation, it may be permissible in conjunction with
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`clarifying language. Id. at 922.
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`Page 7 of 11
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`Case 3:20-cv-00647-NJR Document 27 Filed 10/05/20 Page 8 of 11 Page ID #171
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`There is some disagreement as to whether the reasonable consumer test is properly
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`considered as a basis for a motion to dismiss. Campbell cites Bober v. Glaxo Wellcome Plc,
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`246 F.3d 934, 939 (7th Cir. 2001), for the general proposition that a district court may
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`dismiss an ICFA claim as a matter of law, and further cites a number of district court
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`decisions in which ICFA claims have been dismissed for failing to plead sufficient facts
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`to state a claim under the reasonable consumer test. See, e.g., In re 100% Grated Parmesan
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`Cheese Mktg. & Sales Practices Litig., 275 F. Supp. 3d 910, 922-24 (N.D. Ill. 2017) (finding
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`that where statement in question was ambiguous and would be resolved by looking at
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`ingredients, Court could dismiss as a matter of law); Killeen v. McDonald’s Corp., 317 F.
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`Supp. 3d 1012, 1013 (N.D. Ill. 2018) (differentiating case from one where “plaintiff would
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`have to consult an ingredients list or fine print” and holding that because other available
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`information would dispel deception, court could dismiss as a matter of law); Ibarrola v.
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`Kind, LLC, 83 F. Supp. 3d 751, 758 (N.D. Ill. 2015) (in case involving refined sugar, court
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`concluded that no reasonable consumer could believe proposed interpretation due to
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`impossibility, dismissing); Galanis v. Starbucks Corp., 2016 U.S. Dist. LEXIS 142380 at *6-9
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`(N.D. Ill.) (in dispute over volume of liquid in beverages, finding that no reasonable
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`consumer would expect beverage size to refer to liquid volume without ice and additives
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`rather than capacity of filled receptacle).
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`Consumers, on the other hand, argue that questions of what a reasonable
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`consumer might believe are factual issues not appropriate for resolution on a motion to
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`dismiss, citing a number of unpublished decisions. See, e.g., York v. Andalou Naturals, Inc.,
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`No. 16-cv-00894, 2016 U.S. Dist. LEXIS 169923 (S.D. Ill. Dec. 8, 2016) (finding that
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`Page 8 of 11
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`Case 3:20-cv-00647-NJR Document 27 Filed 10/05/20 Page 9 of 11 Page ID #172
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`reasonable consumer’s understanding for purposes of the Missouri Merchandising
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`Practice Act is a factual question not suited for resolution on a motion to dismiss).
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`There likely are situations where determining a reasonable consumer’s intent
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`would require such a fact-intensive inquiry that it would be inappropriate to make such
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`a determination on a motion to dismiss. The Court does not agree with the view,
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`however, that the reasonable consumer test can never be grounds for dismissal. As the
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`cases that Campbell advances illustrate, there are situations where the construction
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`proposed by a plaintiff may be so illogical or impossible that a Court would be warranted
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`in dismissing as a matter of law a claim under the ICFA.
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`The question remains, however, whether this is such a situation, and whether
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`Consumers’ proposed construction is so facially implausible that dismissal is warranted
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`on the basis of the reasonable consumer standard. This is a high bar to reach on a motion
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`to dismiss under Rule 12(b)(6). The Court notes that the ingredients list would have
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`clarified that the soups in question did contain the ingredients that Consumers argue are
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`preservatives. The question, then, is whether the language on the cans stating that the
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`contents contained “no preservatives” is ambiguous such that it could be clarified by
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`other available information. Here, the Court is of the view that there is an argument to be
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`made that a reasonable consumer, upon seeing “no preservatives” might conceivably
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`find that the language was an unambiguous representation that the contents did not
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`contain the kinds of ingredients generally considered to be preservatives, without regard
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`for whether those ingredients were in fact functioning as preservatives. This
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`interpretation may not, in fact, be the best reading of the language in question. But this
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`Page 9 of 11
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`Case 3:20-cv-00647-NJR Document 27 Filed 10/05/20 Page 10 of 11 Page ID #173
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`line of argument is not so wholly implausible that the Court is prepared to grant a motion
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`to dismiss on this basis.
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`B.
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`Claims regarding “Artificial Flavor” language
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`In addition to arguing that the complaint fails to sufficiently allege that the
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`language regarding preservatives is misleading to a reasonable consumer, Campbell
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`further alleges that claims made by Consumers about artificial flavors fall short because
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`they fail to allege that they saw the language in question before purchasing Campbell’s
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`products. Indeed, the complaint does not allege that Consumers ever saw the language
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`regarding artificial flavors, and they cannot show proximate cause as required under the
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`ICFA based on the website statements.
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`As the Court has discussed, the ICFA requires plaintiffs that are private parties to
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`show actual damages incurred as a result of a defendant’s alleged violation, and this
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`requires a showing of proximate cause. 815 Ill. Comp. Stat. 505/10a; Camasta, 761 F.3d at
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`739. Here, the complaint makes no allegations that indicate Plaintiffs saw the website
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`representations prior to purchase, or that the representations regarding artificial
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`flavorings in any other way proximately caused the alleged injuries. Accordingly, the
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`Consumers cannot sustain their suit based on these allegations. As all of the counts in
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`their complaint are also based on the representations connected with preservatives which
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`were viewed by Consumers prior to purchase, the Court does not see that this failing
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`constitutes grounds to dismiss any portion of the complaint. Should Consumers wish to
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`present arguments going forward on the website statements regarding flavorings, they
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`Page 10 of 11
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`Case 3:20-cv-00647-NJR Document 27 Filed 10/05/20 Page 11 of 11 Page ID #174
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`may seek to amend their complaint if they can plead facts indicating that they actually
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`saw those statements.
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`III. Unjust Enrichment and Breach of Warranty Claims
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`Campbell argues that because Consumers’ ICFA claim fails, their claims for unjust
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`enrichment and breach of warranty should fail also. Here, the Court has declined to
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`dismiss the ICFA claim, and so it will likewise not dismiss the unjust enrichment and
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`breach of warranty claims.
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`IV. Standing for Injunctive Relief
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`Campbell argues that Plaintiffs lack standing to seek an injunction. While the
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`Court notes that the language in the complaint seeking “all such further relief, as may be
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`just and proper” could theoretically be construed as including an injunction, this is in fact
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`standard boilerplate language and Consumers do not appear to be seeking equitable
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`relief at present. Accordingly, the Court is not inclined to consider this issue at present.
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`CONCLUSION
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`For the reasons set forth above, the Court DENIES the Motion to Dismiss.
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`IT IS SO ORDERED.
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`DATED: October 5, 2020
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`____________________________
`NANCY J. ROSENSTENGEL
`Chief U.S. District Judge
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`Page 11 of 11
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