A federal court in California has granted in part and denied in part the defendants’ motion to dismiss the first amended complaint in a putative class action alleging that the companies falsely label and market Splenda Essentials with Antioxidants®, Splenda Essentials with Fiber® and Splenda Essentials with B Vitamins®. Bronson v. Johnson & Johnson, Inc., No. 12-4184 (N.D. Cal., order entered April 16, 2013).

Dismissed with leave to amend were claims brought under the Unfair Competition Law, False Advertising Law and Consumers Legal Remedies Act to the extent that the claims include statements made on the defendants’ website or in print ads. The court found that the plaintiffs failed to allege that they relied on these statements when purchasing the products. Also dismissed with leave to amend are claims about the Fiber and B Vitamins products because the plaintiffs relied on lack of scientific substantiation theories which cannot be asserted by private plaintiffs under California law unless they cite sources demonstrating that the product statements were false. The final claim dismissed with leave to amend was unjust enrichment; apparently, the plaintiffs failed to contest the motion as to this claim and did not specify in their complaint that the claim was based on quasi-contract.

Dismissed without leave to amend were preempted claims challenging:
(i) express nutrient-content product statements, such as “20% of the daily
value of antioxidant vitamins C and E” and “1 gram of fiber,” because the Food
and Drug Administration (FDA) does not require companies to distinguish
between synthetically derived antioxidants and those derived from fruit or
that synthetically derived fibers do not provide the same health benefits as
those found in foods; and (ii) the Splenda Essentials name, because the word
“essentials” is mere non-actionable puffery.

The court denied the motion to dismiss as to allegations that “the phrase
‘like those found in fruits and vegetables’ placed next to a photo of berries
misleadingly suggests that the antioxidants are actually derived from fruits
and vegetables, or that they produce the same health benefits as fruits and
vegetables.” The court also allowed the plaintiffs to claim that “the statement
on the Splenda Essentials with B Vitamins label that the product will ‘help
support a healthy metabolism’” is misleading because (i) FDA regulations
pertaining to product “structure/function” claims apply to dietary supplements
and not to foods; (ii) the plaintiffs’ claims are not impliedly preempted
because “[t]he FDA has not created nuanced regulatory guidelines relating to
food structure/function claims”; and (iii) the “safe harbor doctrine” does not
bar the plaintiffs’ claims as to the B Vitamin label because “even if structure/
function claims are permitted by the FDA, the safe harbor defense does not
apply” to allegedly “misleading” labels.

The court left intact the plaintiffs’ claims that Splenda Essentials with Antioxidants’ “labeling is misleading because it suggests that the antioxidants contained in the product, vitamins C and E, were derived from fruits and vegetables, when they are actually ascorbic acid and synthetically created vitamin E,” with the court finding that the “lack of substantiation” theory would be allowed because the plaintiffs had cited at least one source “saying that the vast majority of antioxidant benefits from fruit come from the entire fruit, and not just the vitamin C.” The court refrained from dismissing the plaintiffs’ implied warranty claims to the extent that the food label challenges were not preempted by federal law and were otherwise allowed.

About The Author

For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.

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