Sweet Victory: Mott’s “No Sugar Added” Labeling Suit Beats Dismissal

Earlier this month, Judge Susan Illston of the Northern District of California denied defendant Mott’s motion to dismiss plaintiff’s second amended complaint. See Order Denying Defendant’s Motion to Dismiss, Rahman v. Mott’s LLP, No. CV 13-3482 SI (N.D. Cal. April 8, 2014) (available here). In Rahman, plaintiff alleged that Mott’s 100% Apple Juice is improperly labeled as having “no sugar added” under 21 C.F.R. section 101.60(c)(2) because it is not a product that normally contains added sugar and because it fails to disclose that the product is not a low/reduced calorie food (Mr. Rahman is represented by Capstone Law APC).

The court had dismissed plaintiff’s consumer deception and fraud-based claims, leaving only its Unfair Competition Law claim under the “unlawful” prong and holding that plaintiff had not explained how a reasonable consumer was likely to be deceived. Plaintiff amended his complaint, and defendant again sought dismissal on two grounds: (1) primary jurisdiction based ongoing FDA rulemaking and (2) failure to adequately plead claims under the Unfair Competition Law (“UCL”), False Advertising Law (“FAL”), and Consumers Legal Remedies Act (“CLRA”).

As to the primary jurisdiction argument, the plaintiff argued that his claims did not fall within the ambit of the recently proposed FDA rules. (On March 3, 2014, the FDA released a set of proposed rules regarding the nutrition facts label on packaged foods. One of the proposed rules would require manufacturers to disclose the presence or absence of added sugar in a product on the nutrition facts label.) The court agreed, finding that plaintiff’s allegations related to nutrient content claims made on the front label of the product, and not the nutrition facts label. Order at 5. These claims were not implicated by the proposed rules, the court opined, stating, “[n]utrient content claims are governed by 21 C.F.R. § 101.13, which expressly states: ‘Information that is required or permitted by § 101.9 or § 101.36 . . . to be declared in nutrition labeling, and that appears as part of the nutrition label, is not a nutrient content claim and is not subject to the requirements of this section. If such information is declared elsewhere on the label or in labeling, it is a nutrient content claim and is subject to the requirements for nutrient content claims.’ Consistent with this, [the proposed rule] itself states . . . ‘issues related to nutrient content claims and health claims are outside the scope of the rulemaking.’” Id. (internal citations omitted). Furthermore, the FDA expressly denied requests to “amend [its] regulations to prescribe nutrient content claims and health claims related to ‘added sugars,’ [because] those requests are not considered within the scope of this proposed rule.” 79 Fed. Reg. 11880, at 11903.

The court also found that plaintiff had adequately pled that a reasonable consumer could be deceived by the “No Sugar Added” labeling and believe that Mott’s juice is healthier or contains less sugar than other comparable products. Plaintiff had listed several comparable products in his complaint that did not carry the “No Sugar Added” claim, yet which had substantially similar calorie and sugar content. The court also found that plaintiff had properly alleged economic injury consistent with Kwikset Corp v. Superior Court—that the misrepresentations caused him to purchase more of the juice than he otherwise would have. 51 Cal. 4th 310, 330 (2011). Plaintiff’s second amended complaint thus survived Mott’s motion to dismiss fully intact.