Hadley v. Kellogg Sales Co. (243 F. Supp. 3d 1074, 2017)

ORDER GRANTING DEFENDANT’S MOTION TO DISMISS

LUCY H. KOH, United States District Judge

Plaintiff Stephen Hadley (“Plaintiff’) brings the instant suit against Defendant Kellogg Sales Company (“Defendant”) for allegedly misleading statements on Defendant’s food product packaging. Before the Court is Defendant’s Motion to Dismiss. ECF No. 44 (“Mot.”). Having considered the parties’ briefing, the relevant law, and the record in this case, the Court GRANTS Defendant’s Motion to Dismiss.

I. BACKGROUND

Á. Factual Background

Defendant is a “multi-billion dollar food company that manufactures, markets, and sells a wide variety of cereals and bars, among other foods.” ECF No. 27, First Amended Complaint (“FAC”) ¶ 109. Defendant is allegedly “the world’s leading producer of cereal.” Id. Defendant allegedly has “positioned itself in the market as a purportedly ‘health/ brand of processed food, by using various labeling statements to suggest its foods, especially its cereals and bars, are healthy choices.” Id. ¶ 113.

Plaintiff “has been a frequent cereal eater for many years.” Id. ¶366. Over the past several years, Plaintiff has purchased Defendant’s breakfast cereals and cereal bars. Id. ¶ 367-68. During that time period, Plaintiff allegedly “tried to choose healthy options, and has been willing to pay more for cereals he believes are healthy.” Id. at 366.

This case concerns statements on the packaging for breakfast cereals and cereal bars sold by Defendant that allegedly indicate that Defendant’s products are healthy when “excess sugar” allegedly causes those products to be unhealthy. Plaintiff alleges that twelve of Defendant’s product lines are sold with misleading packaging. See FAC ¶¶ 122-23. Those product lines are (1) Kellogg’s Raisin Bran, (2) Kellogg’s Krave, (3) Kellogg’s Frosted Mini-Wheats, (4) Kellogg’s Smart Start—Original Antioxidants, (5) Kellogg’s Crunchy Nut, (6) Nutri-Grain Cereal Bars, (7) Nutri-grain Soft-Baked Breakfast Bars, (8) Nutri-Grain Oat & Harvest Bars, (9) Nutri-Grain Harvest Hearty Breakfast Bars, (10) Nu-tri-Grain Fruit Crunch Granola Bars, (11) Nutri-Grain Crunch Crunchy Breakfast Bars, and (12) Nutri-Grain Fruit & Nut Chewy Breakfast Bars. Id. Some of these product lines have multiple variants such that there are 53 products total that Plaintiff alleges are being sold with packaging that is misleading. Id.

In general, Defendant’s products are alleged to contain 10 to 19 grams of total sugar per serving and are 20 to 40% sugar by calorie. Id. However, the FAC indicates that there is a difference between “total sugar,” which is composed of all sugar in a product, including those provided by fruit, and “added sugar,” which is composed of sugar that does not naturally occur in the ingredients of the product. Id.

The FAC alleges that the consumption of added sugar (as opposed to total sugar) can have significant health impacts on individuals. Specifically, the FAC alleges that people in the United States consume excess added sugar, that people can become addicted to added sugar, and that excess added sugar consumption is linked to metabolic syndrome, type 2 diabetes, cardiovascular disease, liver disease, obesity, inflammation, high cholesterol, hypertension, Alzheimer’s disease, and some cancers. FAC ¶¶ 9-108. This link allegedly has been shown in multiple studies where the subjects of the study consumed 35 to 75 grams of added sugar (the amount of sugar in 1 to 2 cans of soda) per day. Id.

Moreover, the FAC alleges that the American Heart Association (“AHA”) has found that a person is “safe” to consume up to 5% of his or her daily calories in added sugar, which amounts to approximately 25 grams of added sugar on a 2000 calorie diet. Id. ¶ 25. On the other hand, the United States Food and Drug Administration (“FDA”) has concluded that the Daily Recommended Value (“DRV”) of added sugars is 10% of a person’s daily calories, or approximately 50 grams of added sugar. Based on these values, Plaintiff alleges that Defendant’s products have a higher percentage of total sugar per serving (2(M0% of total calories per serving) than the daily “safe” percentage of added sugar recommended by the AHA or the DRV recommended by the FDA. Id. The FAC does not explain why the per-serving total sugar percentage in the products should be compared to the recommended daily added sugar consumption percentage suggested by the AHA and the FDA.

Plaintiff alleges that the packaging for Defendant’s products contains multiple statements touting the health and wellness benefits of consuming Defendant’s products. For example, the packaging for Defendant’s products contains statements like “Heart Healthy,” “Great taste that does your heart good,” “Start with a healthy spoonful,” “Invest in your health invest in yourself,” “nutritious,” “Good source'* of whole grains,” and “good source of fiber.” FAC ¶¶ 127-219.

.As an examples Plaintiff alleges that Raisin Bran contains the following “health and wellness” claims:

a. “HEART HEALTHY”

b. “Kellogg’s Heart Healthy Selection”

c. “GREAT TASTE THAT DOES YOUR HEART GOOD”

d. “HEART HEALTHY / Whole grains can help support, a healthy lifestyle.”

e. “+ HEART HEALTH + / Kellogg’s Raisin Bran / With crispy bran flakes made from whole grain wheat, all three varieties of Kellogg’s Raisin Bran are good sources of fiber.”

f. “Start with a healthy Spoonful”

g. “Invest in your health invest in yourself’

h. “Get health & nutrition tips at Kel-loggs.com/Healthylnvestments”

i. “Kellogg’s offers a full breakfast portfolio that features essential nutrients to help you start right and make the most of.every day.” [picturing Raisin Bran]

j. “NUTRIENTS FOR EVERY DAY/ Kellogg’s breakfasts offer the nutrients our bodies want to work and feel their best.”

. k. “A serving of Kellogg’s cereals with one cup of low-fat milk offers a tasty combination of carbs and protein that helps recharge your body. Protein helps you rebuild and carbs help you refuel.”

l. “A great way to START THE DAY / A breakfast of Kellogg’s cereal and milk is nutritious at its most delicious; Every spoonful has ■ grains to help recharge your body. So go ahead, .pour your favorite bowl of crunchy goodness. It just ■fuels right!”

m. “Goodness of Simple Grain”

n. Whole Grains Council Stamp

o. “FIBER / Fiber, like bran fiber, plays a very important party in your digestive health and overall well-being,”

p. “MADE WITH REAL FRUIT” ■

q, “REAL FRUIT / Delicious raisins add a sweetness you’ll love to every morning”

r. “BREAKFAST BRAINPOWER”

Id. ¶ 128. In contrast, other products such as Defendant’s Nutri-Grain Fruit Crunch Granola ’ Bars- and Nutri-Grain Crunch-Crunchy Breakfast Bars contain only a single challenged statement: “MADE WITH Real Fruit.” Id. ¶ 280.

B. Procedural History

On August 29, 2016, Plaintiff filed a complaint. ECF No. 1. On October 31, 2016, Defendant filed a motion to dismiss. ECF No. 22. In lieu of filing a response, on November 14, 2016, Plaintiff filed a First Amended Complaint. ECF No. 27 (“FAC”). The FAC alleged five causes of action including (1) violation of the California False Advertising Law (“FAL”), (2) violation of-the California Consumers Legal Remedies Act (“CLRA”), (3) violation of the California Unfair Competition Law (“UCL”) under the fraudulent, unfair, and unlawful prongs, (4)' breach of express warranty, and (5) breach of the implied warranty of merchantability. Id.

On December 8, 2016, Defendant filed the instant motion to dismiss the FAC. ECF No. 44’ (“Mot.”). On January 6, 2017, Plaintiff filed an opposition, ECF No. 49 (“Opp’n”), and on January 19, 2017, Defendant filed a reply, ECF No. 60 (“Reply”).

II. LEGAL STANDARD

A. Rule 8(a)

Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a complaint to include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A complaint that fails to meet this standard may be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6), The United States Supreme Court has held that Rule 8(a) requires a plaintiff to plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference, that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted' unlawfully.” Id. (internal quotation marks omitted). For purposes of ruling on a Rule 12(b)(6) motion, a court “accept[s] factual allegations in the complaint as true and construe[s] the pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008).

However, a court need not accept as true allegations contradicted by judicially noticeable facts, Shwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000), and the “court may look beyond the plaintiffs complaint to matters of public record” without converting the Rule 12(b)(6) motion into one for summary judgment, Shaw v. Hahn, 56 F.3d 1128, 1129 n.1 (9th Cir. 1995). Nor is a court required to “■ ‘assume the truth of legal conclusions merely because they are cast in the form of factual allegations.’ ” Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (per curiam) (quoting W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981)). Mere “con-clusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss.” Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004); accord Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Furthermore, “a plaintiff may plead herself out of court” if she “plead[s] facts which establish that [s]he cannot prevail on h[er] ... claim.” Weisbuch v. Cty. of L.A., 119 F.3d 778, 783 n.1 (9th Cir. 1997) (internal quotation marks and citation omitted). .

B. Rule 9(b)

Claims sounding in fraud or mistake are subject to the heightened pleading requirements of Federal Rule of Civil Procedure 9(b), which requires that a plaintiff alleging fraud “must state with particularity the circumstances constituting fraud.” Fed. R. Civ. P. 9(b); see Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir. 2009). To satisfy Rule’s 9(b)’s heightened standard, the allegations must be “specific enough to give defendants notice of the particular misconduct which is alleged to constitute the fraud charged so that they can defend against the charge and not just deny that they have done anything wrong.” Semegen v. Weidner, 780 F.2d 727, 731 (9th Cir. 1985). Thus, claims sounding in fraud must allege “an account of the time, place, and specific -content of the false representations as well as the identities of the parties to the misrepresentations.” Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th- Cir. 2007) (per curiam) (internal quotation marks omitted). “The plaintiff must set forth what is false or misleading about a statement, and why it is false.” In re Glenfed, Inc. Sec. Litig., 42 F.3d 1541, 1548 (9th Cir. 1994) (en banc), superseded by statute on other grounds as stated in Ronconi v. Larkin, 253 F.3d 423, 429 n.6 (9th Cir. 2001).

C. Leave to Amend

If the Court determines that the complaint should be dismissed, it must then decide whether to grant leave to amend. Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend “should be freely granted when justice so requires,” bearing in mind that “the underlying purpose of Rule 15 ... [is] to facilitate decision on the merits, rather than on the pleadings or technicalities.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (internal quotation marks omitted). Nonetheless, a court “may exercise its discretion to deny leave to amend due to ‘undue delay, bad faith or dilatory motive on part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party ..., [and] futility of amendment.’ ” Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 892-93 (9th Cir. 2010) (alterations in original) (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)).

III. DISCUSSION

The main thrust of Plaintiffs FAC is that Defendant represents that its products are healthy even though Defendant’s products contain excess, unhealthy amounts of added sugar. Defendant challenges Plaintiffs causes of action by arguing that (1) Plaintiffs causes of action under the FAL, the CLRA,. and the UCL fail because Plaintiff has inadequately alleged fraud, (2) Plaintiffs cause of action fails under the unlawful prong of the UCL because Plaintiff has not adequately alleged a violation of any law or regulation, (3) the statements on Defendant’s packaging are puffery, and therefore cannot create an express warranty, and (4) that the implied warranty of merchantability has not been violated. Defendant also argues that Plaintiff does not have standing to seek injunc-tive relief. Plaintiff and Defendant both include requests for judicial notice in support of the instant motion. The Court first addresses the parties’ requests for judicial notice and then addresses each of the above arguments in turn.

A. Requests for Judicial Notice

The Court first addresses Defendant’s request for judicial notice, ECF No. 45, and Plaintiffs request for judicial notice, ECF No. 49-1. The Court may take judicial notice of matters that are either “generally known within the trial court’s territorial jurisdiction” or “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). Public records, including judgments and other publicly filed documents, are proper subjects of judicial notice. See, e.g., United States v. Black, 482 F.3d 1035, 1041 (9th Cir. 2007) (“[Courts] may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.”); Rothman v. Gregor, 220 F.3d 81, 92 (2d Cir. 2000) (taking judicial notice of a filed complaint as a public record).

However, to the extent any facts in documents subject to judicial notice are subject to reasonable dispute, the Court will not take judicial notice of those facts. See Lee v. City of L.A., 250 F.3d 668, 689 (9th Cir. 2001) (“A court may take judicial notice of matters of public record ... But a court may not take judicial notice of a fact that is subject to reasonable dispute.”) (internal quotation marks omitted), overruled on other grounds by Galbraith v. Cty. of Santa Clara, 307 F.3d 1119 (9th Cir. 2002).

In ECF Number 45, Defendant requests judicial notice of the following documents:

• An image of the packaging for Kellogg’s Raisin Bran during the alleged class period;

• Food Labeling; General Requirement for Health Claims for Food, 58 Fed. Reg. 2478 (Jan. 6,1993);

• Food Labeling: Nutrient Content Claims, Definition of Term: Healthy, 59 Fed. Reg. 24232 (May 10,1994);

• Food Labeling: Added Sugars; Availability of Citizen Petition, 65 Fed. Reg. 39414 (June 26, 2000);

• Food Labeling: Revision of the Nutrition and Supplement Facts Labels, 81 Fed. Reg. 33742 (May 27, 2016);

• Food Labeling: Revision of the Nutrition and Supplement Facts Labels, 79 Fed. Reg. 11880 (Mar. 3, 2014);

• Food Labeling; Serving Sizes, 58 Fed. Reg. 2229, 2284 (Jan. 6, 1993).

■ • H.R. Rep. No. 101-538 (1990), reprinted in 1990 U.S.C.C.A.N. 3336, 3337;

• H.R. Rep. No. 114-205 (2015-2016);

As to Defendant’s request for judicial notice of an image of the packaging for Raisin Bran, the Court notes that the FAC already contains an image of the packaging in question, but omits the nutrition labeling on the side of the packaging for Raisin Bran. “A district court ruling on a motion to dismiss may consider documents ‘whose contents are alleged in a complaint [or whose contents are essential to a claim] and whose authenticity no party questions, but which are not physically attached to the [plaintiffs] pleading.’ ” Parrino v. FHP, Inc., 146 F.3d 699, 705 (9th Cir. 1998) (as amended). Moreover, “[c]ourts addressing motions to dismiss product-labeling claims routinely take judicial notice of images of the product packaging.” Kanfer v. Pharmacare US, Inc., 142 F.Supp.3d 1091, 1098-99 (S.D. Cal. 2015). Accordingly, the Court GRANTS Defendant’s request for judicial notice of an image of the packaging for Raisin Bran.

As to Defendant’s request for judicial notice of the remaining documents, six of the documents are published in the Federal Register and the remaining two documents are publicly available congressional records. The documents in the federal register are subject to judicial notice. See 44 U.S.C. § 1507 (“The contents of the Federal Register shall be judicially noticed .... ”). Similarly, courts regularly take judicial notice of congressional records. See, e.g., Morning Star Packing Co. v. S.K. Foods, L.P., 2015 WL 3797774, at *2 (E.D. Cal. June 18, 2015) (taking judicial notice of congressional records). Accordingly, the Court GRANTS Defendant’s request for judicial notice as to the documents in the federal register and the congressional records.

In ECF No. 49-1, Plaintiff requests judicial notice of eighteen different “facts” from various sources, such as a website, a book, newspapers, and a scientific report. These eighteen facts originate from the following five sources:

• Raisin Bran Deconstructed—Sugar and Fiber Math, HUFFINGTON POST BLOG (June 28, 2010), available at http://www.huffingtonpost. com/hemi-weingarten/raisin-brand econstructed_b_552981.html.

• Anahad O’Connor, How the Sugar Industry Shifted Blame to Fat, N.Y. TIMES (Sept. 12, 2016)

• Gary Taubes and Cristen Couzens, Big Sugar's Sweet Little Lies, Hoiv the Industry Kept Scientists from Asking: Does Sugar Kill?, MOTHER JONES (November/December 2012).

• FREDERICK J. STARE, ADVENTURES IN NUTRITION (1991).

• Scientific Report of the 2015 Dietary Guidelines Advisory Committee, available on the Office of Disease Prevention and Health Promotion’s website at https://health.gov/dietary guidelines/2015-scientific-report/

As to the first four sources, a Court may only take judicial notice of publications to “indicate what was in the public realm at the time, not whether the contents of those articles were in fact true,” Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 2010); see also Heliotrope Gen., Inc. v. Ford Motor Co., 189 F.3d 971, 981 n.18 (9th Cir. 1999) (“When considering a motion for judgment on the pleadings, this court may consider facts that ‘are contained in materials of which the court may take judicial notice.’ We take judicial notice that the market was aware of the information contained in news articles submitted by the defendants”).

From these first four publications, Plaintiff seeks judicial notice of the fact that these publications' have published factual statements about the level of sugar in Raisin Bran and various actions taken by the “sugar industry” to suppress research on the health effects of sugar. See, e.g., ECF No. 49-1 (seeking judicial notice of the fact that “[according to a September 12, 2016 New York Times article, ‘internal sugar industry documents ... suggest that five decades of research into the role of nutrition and heart disease, including many of today’s dietary recommendations, may have been largely shaped by the sugar industry.’ ”). Indeed, Plaintiff specifies that he is only seeking judicial notice of the fact that certain statements were made in the publications, not for the truth of those statements. ECF No. 49-2.

However, the fact that publications made statements about the sugar industry or about the level of sugar in Raisin Bran, thus putting that information in the public realm, is not relevant to determining whether the labeling on Defendant’s packaging is actually false or misleading, or whether an express warranty or the implied warranty of merchantability has been breached. Gerritsen v. Warner Bros. Entm’t Inc., 112 F.Supp.3d 1011, 1030 (C.D. Cal. 2015) (denying request for judicial notice of press releases and news articles because “it is irrelevant, for purposes of defendants’ motion to dismiss, that the information in the press releases and news articles was publicly available”). The underlying facts in those articles might be relevant, but Plaintiff cannot use a request for judicial notice of the fact that publications have published material as a backdoor avenue for introducing evidence of the facts themselves. Id. Accordingly, the Court DENIES Plaintiffs request for judicial notice of the first-four articles listed above.

However, as to the Scientific Report of the 2015 Dietary Guidelines Advisory Committee, the Court GRANTS judicial notice of the document because it is a document published on a government website. See id. at 1033 (“[T]he court can take judicial notice of ‘[p]ublic records and government documents available from reliable sources on the Internet,’ such as websites run by governmental agencies.”). However, as noted above, the Court does not take judicial notice of facts subject to reasonable dispute within the document. See Lee, 250 F.3d at 689 (“A court may take judicial notice of matters of public record ,... But a court may not take judicial notice of a fact that is subject to reasonable dispute.”).

B. The FAL, CLRA, and UCL Causes of Action

Plaintiff brings causes of actions under the FAL, the CLRA, and the UCL, for .allegedly misleading statements on Plaintiffs product packaging, The FAL and the CLRA prohibit false or misleading advertising. Specifically, the FAL prohibits the dissemination of any statement concerning property or services “which is untrue or misleading, and which is known, or which by the exercise of. reasonable care should be known, to be untrue or misleading.” Cal. Bus. & Prof. Code § 17500.

The CLRA prohibits certain “unfair methods of competition and unfair or deceptive acts or practices undertaken by any person in a transaction intended to result or which results in the sale or lease of goods or services to any consumer.” Cal. Civ. Code § 1770(a). One practice proscribed by the CLRA is “[Representing that goods or services are of a particular standard, quality, or grade ... if they are of another.” Id. § 1770(a)(7).

The UCL creates a cause of action for business practices that are- (1) unlawful, (2) unfair, or (3) fraudulent. Cal. Bus. & Prof. Code § 17200. Each “prong” of the UCL provides a separate and distinct theory of liability. Lozano v. AT & T Wireless Servs., Inc., 504 F.3d 718, 731 (9th Cir. 2007). Plaintiff asserts causes of action under all three prongs. Generally, a violation of the FAL or the CLRA is also a violation of the fraudulent prong of the UCL. See In re Tobacco II Cases, 46 Cal.4th 298, 312 n.8, 93 Cal.Rptr.3d 559, 207 P.3d 20 (2009); Consumer Advocates v. Echostar Satellite Corp., 113 Cal.App.4th 1351, 1360, 8 Cal.Rptr.3d 22 (2003). The Court first addresses the FAL, the CLRA, and the fraudulent prong of the UCL together, then addresses the unlawful prong, and finally addresses the unfair prong of the UCL.

1. The FAL, CLRA, and the Fraudulent Prong of the 1 UCL

Under the FAL, the CLRA, and the. fraudulent prong of the UCL, conduct is considered deceptive or misleading if the conduct is “likely to deceive” a “reasonable consumer.” Williams v. Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir. 2008). Because the same standard for fraudulent activity governs all three statutes, courts often analyze the three statutes together. See, e.g., In re Sony Gaming Networks & Customer Data Sec. Breach Litig., 996 F.Supp.2d 942, 985 (S.D. Cal. 2014) (“Courts often analyze .these statutes together because they share similar attributes.”); Consumer Advocates, 113 Cal.App.4th at 1360-62, 8 Cal.Rptr.3d 22 (analyzing the UCL, FAL, and CLRA together).

The parties do not dispute that Plaintiffs causes of action under the FAL, the CLRA, and the fraudulent prong of the UCL rise or fall together. Accordingly, the Court considers these three causes of action together. In. the instant case, Plaintiff alleges that .Defendants misrepresented that Defendant’s products are healthy when they allegedly are not healthy due to either: (1) the presence of excess, unhealthy amounts of .added sugar, and (2) as to a small subset of products, the use of trans fats in the products. The Court addresses each argument in turn.

a. Causes of Action Based on Added Sugar

Plaintiff’s added sugar-based FAL, CLRA, and UCL fraudulent prong causes of action are based on the following logical steps: (1) Defendant’s labeling indicates that Defendant’s cereals and cereal bars are healthy, (2) Defendant’s cereals and cereal bars contain excessive added sugar, (3) excessive added sugar is unhealthy, and therefore ■ (4) Defendant’s statements that its cereal and cereal bars are healthy are false or misleading. Mot. at 7 (“Plaintiffs entire [FAC] is predicated on the assumption that ‘[e]xcessive consumption of added sugar is toxic to the human body,’ and that [Defendant’s] Products cannot be marketed as healthy because they contain ‘excessive’ added sugar.”). Plaintiff agrees in his opposition that his causes of action are largely premised on Defendant’s “excessive” use of added sugar. Opp’n at 3-4.

Defendant argues that Plaintiff has failed to state a claim because Plaintiff has inadequately alleged the amount of added sugar in Defendant’s products, as opposed to total sugar, and that Plaintiff has inadequately alleged that the amount of added sugar is excessive to the point of being unhealthy. The Court agrees. Plaintiff has inadequately alleged the amount of added sugar in Defendant’s products, and thus has inadequately alleged that the amount of added sugar could plausibly be considered excessive and unhealthy.

Federal Rule of Civil Procedure 9(b) requires specific factual pleading that indicates why allegedly fraudulent statements are false or misleading. See In re Glenfed, 42 F.3d at 1548 (“The plaintiff must set forth what is false or misleading about a statement, and why it is false.”). Plaintiff must satisfy this standard for each product with packaging that Plaintiff alleges contains false or misleading statements. Id. As noted above, Plaintiff alleges that Defendant’s labeling is fraudulent due to the presence of excessive added sugar. However, the FAC contains specific allegations only concerning the amount of total sugar in each of Defendant’s products rather than the amount of added sugar.- Plaintiffs FAC even notes that “the produces’] total sugar content is not entirely added sugar” because “in some cases, Kellogg’s foods include fruit,” which contribute to the total sugar amount, but not to the added sugar amount. FAC ¶ 114 n.91; Opp’n at 3. However, Plaintiffs FAC does not specify the difference between the amount of added sugar and total sugar in each of the 53 products in dispute.

Plaintiffs FAC also alleges in a footnote that “even discounting sugars that are not added, Kellogg’s products still contain high levels of added sugar that greatly exceed science-based recommendations for maximum caloric consumption.” FAC ¶ 114 n.91. This conclusory allegation is insufficient to satisfy the requirements of Rule 9(b). Moreover, Plaintiff refers to science-based recommendations in plural without specifying what “science-based” recommendation for added sugar has been exceeded by Defendant’s products. The Court notes that Plaintiff often refers in the FAC to the American Heart Association’s recommendation that a person limit his or her added sugar intake to 5% of daily calories. However, the FAC contains no allegation that, after subtracting the sugar from fruit from the total sugar, the amount of added sugar exceeds that specific benchmark. Instead, the FAC states merely that the amount of added sugar after subtracting the sugar from fruit is still “excessive” or greater than “science-based recommendations.” Id. ¶¶ 114 n.91, 224, 225, 228.

Plaintiff argues that he need not allege the amount of added sugar “in exacti-tudes” because “the precise amount of added sugar in these products is currently within Kellogg’s exclusive knowledge.” Opp’n at 3 (citing Neubronner v. Milken, 6 F.3d 666, 672 (9th Cir. 1993)). However, “neither the [FAC] nor Plaintiffs opposition to Defendants’ instant motion demonstrate that the evidence of the alleged fraud is exclusively within Defendants’ possession or that Plaintiffs have no knowledge of the relevant facts.” Sacramento E.D.M., Inc. v. Hynes Aviation Indus., Inc., 965 F.Supp.2d 1141, 1151 (E.D. Cal. 2013). In the instant suit, Plaintiff alleges that Defendant’s product labels, which allegedly indicate that Defendant’s products are healthy, are false or misleading because the levels of added sugar in Defendant’s products cause them to be unhealthy. Thus, unless Plaintiffs claims are groundless, Plaintiff must have access to at least some knowledge concerning the amount of added sugar in Plaintiffs products. Presumably, Plaintiff conducted a proper Rule 11 investigation before filing the instant suit. Moreover, even if the precise amount of added sugar in Defendant’s products is in Defendant’s exclusive possession, Plaintiff still fails to even allege for which of the 53 products there is a discrepancy between the amounts of added sugar and total sugar. Instead, Plaintiff simply uses the amount of total sugar throughout the FAC to make the added sugar content seem higher than it is in reality.

Moreover, despite Plaintiffs argument that he has no knowledge of how much added sugar is in each of Defendant’s products—and the lack of such information in the FAC—Plaintiffs opposition to the instant motion provides an estimate of the amount of added sugar in Raisin Bran. Plaintiff uses information from a newspaper article about the number of raisins in Raisin Bran, and the sugar content of raisins, to estimate the amount of added sugar in Raisin Bran. These calculations show that added sugar composes only half of Raisin Bran’s alleged quantity of total sugar per serving. Opp’n at 4 (noting that the alleged 18 grams of total sugar per serving in Raisin Bran is only composed of 9 grams of added sugar). Rather than supporting Plaintiffs allegations, Plaintiffs calculations in his opposition undermine the contention that information about added sugar is exclusively in Defendant’s knowledge. Moreover, the wide disparity between the alleged total sugar content in the FAC for Raisin Bran (18 grams total sugar per serving) and the calculated amount of added sugar in Plaintiffs opposition (9 grams added sugar per serving) underscores the need for more detailed factual allegations.

The Ninth Circuit has stated that “Rule 9(b) serves three purposes: (1) to provide defendants with adequate notice to allow them to defend the charge and deter plaintiffs from the filing of complaints ‘as a pretext for the discovery of unknown wrongs’; (2) to protect those whose reputation would be harmed as a result of being subject to fraud charges; and (3) to ‘prohibit [] plaintiff[s] from unilaterally imposing upon the court, the parties and society enormous social and economic costs absent some factual basis.’” Kearns, 567 F.3d at 1125. Here, as noted above, Plaintiffs theory of the case—the reason the labels are misleading and the reason Plaintiff has suffered harm—is based on the presence of excessive added sugar in Defendant’s product. However, the FAC does not allege the amount of added sugar for each product and that the specific amount of added sugar for each product is unhealthy. Thus, Plaintiff has failed to provide an adequate factual basis for its assertion that Defendant’s product labels are false or misleading, and fails to satisfy the requirements of Rule 9(b).

Thus, the Court GRANTS Defendant’s motion to dismiss on Plaintiffs causes of action for violation of the FAL, CLRA, and the fraudulent prong of the UCL.

The Court notes that Defendant moved to dismiss Plaintiffs original complaint based on Plaintiffs failure to adequately plead the amount of added sugar and that the amount of added sugar is unhealthy. ECF No. 22 at 14. After Plaintiff filed the FAC on November 14, 2016, the Court denied Defendant’s motion to dismiss as moot. ECF No. 31. In that order, the Court noted that “Plaintiff has now amended the complaint in light of the deficiencies identified in Defendant’s motion to dismiss” and that “if the Court grants any future motion to dismiss the amended complaint based on these deficiencies, the Court will dismiss the amended complaint with prejudice.” Id. Although the Court is granting Defendant’s motion to dismiss based on deficiencies Defendant identified in Plaintiffs original complaint, the Court provides leave to amend because this information may be in Defendant’s exclusive control.

h. Causes of Action Based on the Presence of Trans Fat

Plaintiff also alleges that two product types—Nutri-Grain Fruit Crunch Granola Bars and Nutri-Grain Crunch Crunchy Breakfast Bars (both types of Nutri-Grain bar come in two flavors, Apple Cobbler and Strawberry Parfait) (collectively, the “Nutri-Grain bars”)—include partially hydrogenated vegetable -oil, which allegedly “is the single worst nutrient (the only nutrient worse than sugar) in terms of its effect on bodily health, and particularly heart health.” FAC ¶¶ 290-91. The only challenged statement on the Nutri-Grain bars’ packaging is “MADE WITH Real Fruit.”

Defendant argues that Plaintiff does not have a cause of action based on these statements because (1) the statement “MADE WITH Real Fruit” is preempted, and (2) the statement is not misleading. The Court finds below that Plaintiff has failed- to adequately allege how “MADE WITH Real Fruit” is misleading and thus need not reach whether a cause of action based on the statement is-preempted.

As noted above, to state a claim under the FAL, the CLRA, or the fraudulent prong of the UCL, Plaintiff must allege that the packaging for Defendant’s products is “likely to deceive” a “reasonable consumer.” Williams, 552 F.3d at 938. “[T]hese laws prohibit ‘not only advertising which is false, but also advertising which[,] although true, is either actually misleading or which has a capacity, likelihood or tendency to deceive or confuse the public.’” Kasky v. Nike, Inc., 27 Cal.4th 939, 951, 119 Cal.Rptr.2d 296, 45 P.3d 243 (2002) (quoting Leoni v. State Bar, 39 Cal.3d 609, 626, 217 Cal.Rptr. 423, 704 P.2d 183 (1985)). “[Whether a business practice is deceptive will usually be a question of fact not appropriate for decision on demurrer.” Williams, 552 F.3d at 938. However, Plaintiff must allege “more than a mere possibility that the advertisement might conceivably be misunderstood by some few consumers viewing it in an ■ unreasonable manner.” Brod v. Sioux Honey Ass’n, Co-op, 927 F.Supp.2d 811, 828 (N.D. Cal. 2013) (citing Lavie v. Procter & Gamble Co., 105 Cal.App.4th 496, 608, 129 Cal.Rptr.2d 486 (Cal. Ct. App. 2003)).

Here, the statement “MADE WITH Real Fruit” is a factually true statement. Plaintiff does not contest that it is factually true that the Nutri-Grain bars are made •with real fruit. The statement “MADE WITH Real Fruit” does not reference the presence, or lack thereof, of trans fat. In fact, the product packaging for the Nutri-Grain bars does not mention trans fat at all. Defendant’s factually true statement would not cause a reasonable consumer to believe that the Nutri-Grain Bars are free of trans fat.

Indeed, many courts in this circuit have addressed similar factually true statements on product labels and have found that reasonable consumers would not be misled. For example, in Delacruz v. Cytosport, Inc., 2012 WL 1216243 (N.D. Cal. April 11. 2012), a district court in this district addressed the labeling for “Muscle Milk Bars.” Id. at *2. The Muscle Milk bars allegedly contained 11 grams of total fat and 8 grams of saturated fat and “unhealthy ingredients like fractionated palm kernel oil, and partially hydrogenated palm oil.” Id. The World Health Organization had linked these ingredients to “increased risk of cardiovascular disease.” Id. Despite these ingredients, the court held that the statements “25g Protein for Healthy, Sustained Energy” and “Og Trans Fat” were not misleading because “Plaintiff does not claim that the bars do not contain twenty-five grams of protein” or that the fats in the bar “are trans fats.” Id. at *7.

Similarly, in Red v. Kraft Foods, Inc., 2012 WL 6504011 (C.D. Cal. Oct. 26, 2012), a. district court in the Central District of California held that the statement “Made with Real Vegetables” was not misleading on a box of crackers. Id. at *2. The Red court held that “it strains credulity to imagine that a reasonable consumer will be deceived into thinking a box of crackers is healthful or contains huge amounts of vegetables simply because there are pictures of vegetables and the true phrase ‘Made with Real Vegetables’ on the box.” Id. at *4.

Nevertheless, Plaintiff argues that the statement “MADE WITH Real Fruit” “is ‘calling out’ the supposedly beneficial aspects of its cereals and bars, and particularly their whole grain, fiber, or ‘real fruit’ content.” Opp’n at 7; FAC ¶ 255. However, Plaintiff fails to allege what benefit from real fruit is false. In.addition, Plaintiffs FAC alleges that the “health and wellness” claims on the Nutri-Grain bar packaging are made despite the presence of unhealthy trans fat. FAC ¶ 290. However, Plaintiff fails to provide any authority for the contention that a food manufacturer cannot state that a food product contains a certain ingredient, whether it is real fruit or some other ingredient such as whole grains, if that product also contains trans fat.

The one case Plaintiff cites for the principle that the factually true statement “MADE WITH Real Fruit” could be misleading is Lam v. General Mills, Inc., 859 F.Supp.2d 1097 (N.D. Cal. 2012). However, the Lam -court held that the statement in that case was misleading because even though the packaging at issue featured the word' “strawberry,” the real fruit in the product were “pears from concentrate.” Id. Here, Plaintiff does not contend that the type of fruit inside, the Nutri-Grain bars was anything other' than what was represented on the product packaging for the Nutri-Grain bars. It is not misleading for a product to state it is made with real fruit when that statement-accurately.represents that the product contains real fruit and does not misrepresent the type of fruit the product contains. See Jones v. ConAgra Foods, Inc., 912 F.Supp.2d 889, 899. (N.D. Cal. 2012) (“Thus, where a court can conclude as a matter of law that members of the public are not likely to be deceived by the product packaging, dismissal is appropriate.”).

Accordingly, the Court GRANTS Plaintiffs motion to dismiss Plaintiffs claims for violation of the FAL, CLRA, and fraudulent prong of the UCL with respect to Plaintiffs- allegations concerning the claim “MADE WITH Real Fruit” and trans fats. Defendant’s motion to dismiss the original complaint identified the same deficiency with Plaintiffs “MADE WITH Real Fruit” claims. The Court warned Plaintiff that failure to correct the deficiencies identified in Defendant’s motion to dismiss would result in Plaintiffs claims being dismissed with prejudice. Plaintiffs FAC fails to cure the deficiencies with Plaintiffs “MADE WITH Real Fruit” claims. Accordingly, the Court finds that amendment would be futile on this issue. Carvalho, 629 F.3d at 892 (holding that futility is a ground for not providing leave to amend). Therefore, the dismissal is with prejudice.

2. Unlawful Prong of the UCL

Plaintiff alleges that Defendant’s labeling violates the unlawful prong of the UCL. “By proscribing any unlawful business practice, the UCL borrows violations of other laws and treats them as unlawful practices that the unfair competition law makes independently actionable.” Alvarez v. Chevron Corp., 656 F.3d 925, 933 n.8 (9th Cir. 2011) (alteration and internal quotation marks omitted). “Virtually any law—federal, state or local—can serve as a predicate for an action under [the UCL].” Smith v. State Farm Mut. Auto. Ins. Co., 93 Cal.App.4th 700, 718, 113 Cal.Rptr.2d 399 (2001). “If a plaintiff cannot state a claim under the predicate law, however, [the UCL] claim also fails.” Stokes v. CitiMortgage, Inc., 2014 WL 4359193, at *11 (C.D. Cal. Sept. 3, 2014) (internal quotation marks omitted).

Where Plaintiff has alleged a “unified course of fraudulent conduct,” Rule 9(b)’s particularity requirement applies to the unlawful and unfair prong of the UCL in addition to the above-discussed fraudulent prong. See Kearns, 567 F.3d at 1126-27 (“We held in Vess [v. Cibar-Geigy Corp., 317 F.3d 1097 (9th Cir. 2003),] that if “the claim is said to be ‘grounded in fraud’ ... the pleading of that claim as a whole must satisfy the particularity requirement of Rule 9(b).”); see also Wilson v. Frito-Lay N. Am., Inc., 2013 WL 1320468, at *5 (N.D. Cal. Apr. 1, 2013) (“[T]he rule is that plaintiffs need not satisfy Rule 9(b) as to the UCL’s unlawful prong when the basis of their claim does not sound in fraud. However, when it does, and especially when a plaintiff alleges a unified course of fraudulent conduct that forms the basis of their UCL claims, plaintiffs must plead the UCL claims with specificity.” (citing Vess, 317 F.3d at 1105-06)).

Here, Plaintiff alleges that Defendant has violated the unlawful prong of the UCL through Defendant’s violation of four other statutes: (1) the FAL; (2) the CLRA; (3) the California Sherman Food, Drug, and Cosmetic law, Cal. Health & Safety Code § 109875 et seq. (the “Sherman law”); and (4) the federal Food, Drug, and Cosmetics Act, 21 U.S.C. § 301 et seq. (“FDCA”). The Court first addresses the FAL and the CLRA and then addresses the Sherman law and the FDCA.

With respect to Plaintiffs unlawful prong UCL cause of action based on violations of the FAL and the CLRA, Plaintiff alleges the same fraudulent conduct the Court found was inadequately alleged in the prior section. Therefore, because the Court concluded above that Plaintiff has inadequately alleged a violation of the FAL and CLRA under the requirements of Rule 9(b), that holding also precludes Plaintiff from basing his unlawful prong UCL cause of action on violations of those two statutes. See Stokes, 2014 WL 4359193 at *11 (“If a plaintiff cannot state a claim under the predicate law, however, [the UCL] claim also fails.”).

Regarding the Sherman law and the FDCA, Plaintiff alleges Defendant violated these statutes by violating FDA regulations promulgated under the FDCA. Through the Sherman law, California has expressly adopted the federal labeling requirements described in the FDCA. See Cal. Health & Safety Code § 110100 (“All food labeling regulations and any amendments to those regulations adopted pursuant to the federal act, in effect on January 1, 1993, or adopted on or after that date shall be the food labeling regulations of this state.”). Accordingly, because the Sherman law adopts federal labeling requirements, whether Plaintiff has violated the FDCA through violations of implementing FDA regulations will also determine whether Plaintiff has violated the Sherman law.

The FDCA governs whether a product is “misbranded” because of improper labeling. The FDCA identifies multiple ways to misbrand a food product. See 21 U.S.C. § 343(a)-(y). One way to misbrand a food product is to use nutrient content claims or health claims under 21 U.S.C. § 343(r). Under § 343(r), a product is considered to be “misbranded” if it contains a claim that “(A) characterizes the level of any nutrient which is of the type required by paragraph (q)(l) or (q)(2) to be in the label” or “(B) characterizes the relationship of any nutrient which is of the type required by paragraph (q)(l) or (q)(2) ... to a disease or health-related condition” unless the claim is made in accordance with the requirements under the statute. 21 U.S.C. § 343(r).

The FDA regulations that implement § 343(r) specify that there are three types of claims under § 343(r)(A) and (B): expressed nutrient content claims, implied nutrient content claims, and health claims. See 21 C.F.R. §§ 101.13 (addressing express and implied nutrient content claims), 101.65 (implied nutrient content claims), 101.14 (health claims). “An expressed nutrient content claim is any direct statement about the level (or range) of a nutrient in the food, e.g., ‘low sodium’ or ‘contains 100 calories.’ ” Id. § 101.13(b)(1). An implied nutrient content claim, in contrast, encompasses statements that either “[d]escribe[ ] the food or an ingredient therein in a manner that suggests that a nutrient is absent or present in a certain amount (e.g., “high in oat bran”),” or “[s]uggest[] that the food, .because of its nutrient content, may be useful in maintaining healthy dietary practices.” Id. § 101.13(b)(2). A health claim is “any claim ... that expressly or by implication, ... characterizes the relationship of any substance to a disease or health-related condition.” Id. § 101.14(a)(1). These implementing regulations provide specific requirements for making nutrient content claims and health claims.

Plaintiff alleges that Defendant’s products are misbranded because (1) Defendant’s products make forbidden health claims that improperly link fiber and cardiovascular disease; (2) Defendant improperly places intervening material between health claims and required information; (3) Defendant’s nutrient content claims are in a larger font than allowed by FDA regulations; (4) Defendant makes misleading nutrient content claims about the protein content of the products; (5) Defendant makes a misleading nutrient content claim by stating that some products contain “No High Fructose Corn Syrup”; and (6) Defendant omits relevant information from the labels that are required under 21 C.F.R. § 1.21. In response, Defendant argues that it has not violated any of the FDA regulatory provisions and that, even if the regulatory provisions have technically been violated, these “bare technical violations” of the FDA regulations do not mislead reasonable consumers or harm Plaintiff. The Court addresses each of the alleged violations in turn. .

a. Health Claims Linking Fiber to Cardiovascular Disease

The FAC alleges that' Defendant’s products contain forbidden health claims that link fiber and cardiovascular' disease under 21 U.S.C. § 101.14 and 21 C.F.R. § 101.71(a). Section 101.14 forbids a product’s packaging from making health claims that are not explicitly, authorized under “Subpart E” of the section of "the Code of Federal Regulations concerning food labeling. Subpart E encompasses 21 C.F.R. §§ 101.70-83. There are two relevant provisions under Subpart E that apply to the link between fiber and cardiovascular disease. First, under 21 C.F.R. § 101.71(a), “[h]ealth claims [are] not authorized” that link “[d]ietary fíber and cardiovascular disease.” 21 C.F.R. § 101.71(a). Second, under 21 C.F.R. § 101.77, despite § 101.71(a), a food manufacturer may make health claims that “diets low in saturated fat and cholesterol and high in fruits, vegetables, and grain products that contain fiber ‘may’ or ‘might’ reduce the risk of heart disease.” 21 C.F.R. § 101.77; see In re Quaker Oats Labeling Litig., 2012 WL 1034532, at *3 (N.D. Cal. Mar. 28, 2012) (finding “heart healthy” claims to be explicitly allowed under FDA regulations where the requirements of § 101.77 were satisfied).

The FAC alleges that one of Defendant’s products, Raisin Bran Cinnamon Almond, contains health claims that im-permissibly link fiber to cardiovascular disease by stating that fiber helps with ‘“weight loss,’ ‘bad’ cholesterol’ levels, ‘blood pressure,’ and ‘blood sugar levels.’ ” See FAC ¶ 299 (“[Fjiber pan help promote weight lo s and healthier eating patterns”; “Fiber-rich diets can help lower ‘bad’ cholesterol, lower blood pressure, and help control blood, sugar levels.”). Moreover, the FAC alleges that other products contain forbidden health claims such as “HEART ■ HEALTHY/Whole grains can help support a healthy lifestyle” because “whole grains implM the presence of fiber. M ¶ 302,

The Court first addresses whether Plaintiff has alleged a violation of §§ 101.14 and 101.71(a). The Court then turns to whether Plaintiff has alleged “bare technical violations” that do not mislead reasonable consumers,

i. Violation of Federal Regulations

The sole argument Defendant raises in its motion to dismiss with respect to the fiber-related health claims is that the Raisin Bran Cinnamon Almond health claims do not violate 21 C.F.R. § 101.71(a) because those claims do not actually link fiber to heart disease, but solely refer' to risk factors for heart disease. Mot. at 22. The FDA has provided a compliance guide that describes when a claim made on packaging refers to a specific disease. See FDA, Guidance for Industry: Structure/Function Claims, Small Entity Compliance Guide, Jan. 9, 2002, available at https://www.fda.gov/Food/Guidance Regulation/GuidanceDocumentsRegulatory Information/ucml03340.htm. In that FDA compliance guide, the FDA states that: “You can look to medical texts and other objective sources of information about disease to determine if a label statement implies treatment or prevention of a disease.” Id. Moreover, the FDA compliance guide states that claims that a food product “ ‘inhibits platelet aggregation’ or ‘reduces cholesterol’ are such characteristic signs or symptoms associated with stroke and cardiovascular disease and interventions to treat those diseases that any claim about them would be an implied disease claim.” Id. This guidance clearly indicates that a link between fiber and cholesterol is essentially a link to heart' disease. Moreover, given that sources such as “medical texts and other objective sources” are required to determine if a claim implies treatment of disease, it is a factual question whether claims concerning risk factors such as weight loss, blood pressure, and blood sugar also “impl[y] treatment or prevention of [heart] disease.” Id. Accordingly, the Court finds that Plaintiffs allegations that Defendant’s products state that fiber is linked to weight loss, cholesterol levels, blood pressure, and blood sugar is sufficient at the pleading stage to allege that Defendant’s products link fiber and cardiovascular disease.

In Defendant’s reply brief, Defendant argues for the first time that these health claims actually comply with 21 C.F.R. § 101.77, and therefore are permitted health claims. The Court need not reach arguments that are raised for the first time in a reply brief. See Ellison Framing, Inc. v. Zurich American Ins. Co., 805 F.Supp.2d 1006, 1011 n.1 (E.D. Cal. 2011) (noting that “[t]he court typically cannot consider arguments first raised in reply”). Accordingly, the Court need not address whether 21 C.F.R. § 101.77 precludes Plaintiffs unlawful prong UCL cause of action,

ii. Bare Technical Violation

Defendant argues that Plaintiffs cause of action involves allegations of “a bare violation of a statute or regulation [that] does not entitle a plaintiff to relief absent a showing that a reasonable consumer would be misled or injured as a result.” Mot. at 25. Thus, the Court construes Defendant’s “bare technical violation” argument as an argument that Plaintiff has failed to satisfy the “reasonable consumer test.” Under the reasonable consumer test, “a plaintiff must ‘show that members of the public are likely to be deceived.’ ” Reid v. Johnson & Johnson, 780 F.3d 952, 958 (9th Cir. 2015). Defendant contends that the “reasonable consumer” test applies to the unlawful prong of the UCL. Moreover, this Court has previously held that a Plaintiff must meet the “reasonable consumer test” for unlawful prong UCL causes of action where the cause of action at issue is grounded in fraud. See Bruton v. Gerber Prod. Co., 2014 WL 7206633, at *8 (N.D. Cal. Dec. 18, 2014) (applying reasonable consumer test to unlawful prong UCL claims grounded in fraud).

The Court looks to the “gravamen” of Plaintiffs causes of action to determine if the causes of action are grounded in fraud. See Wilson v. Prito-Lay N. Am., Inc., 961 F.Supp.2d 1134, 1144 (N.D. Cal. 2013) (“It is clear from Plaintiffs’ SAC that the behavior that Plaintiffs allege violated FDA regulations and the Sherman Law is misrepresentation or deception, because Plaintiffs are asserting that Defendant used deceptive labeling practices to hide the truth of the Products’ ingredients.”). Usually, violations of the Sherman law and FDA labeling regulations constitute misleading actions that are grounded in fraud. See Kane v. Chobani, Inc., 2013 WL 5289253, at *6 (N.D. Cal. Sept. 19, 2013) (finding unlawful UCL claim grounded in fraud where the plaintiff alleged a violation of “the UCL’s unlawful prong based on Defendant’s violations of the advertising and misbranding provisions of the Sherman Law”).

Here, as currently alleged in the FAC, Plaintiffs challenge to Defendant’s use of health claims linking fiber and cardiovascular disease is grounded in fraud. As discussed above, the gravamen of Plaintiffs complaint is that Defendant has made deceptive health claims on its product packaging that are false due to the presence of added sugar. Moreover, the particular FDA regulation that prohibits health claims linking fiber and cardiovascular disease are intended to prevent misleading statements about soluble fiber. 58 Fed. Reg. 2552, 2571, 2573 (1993) (“[T]he attribution of [beneficial cardiovascular] effects to soluble fiber per se, when foods contain a wide range of vitamins, minerals, and other substances, is misleading”; “[I]t would be misleading to place undue emphasis on soluble fiber standing alone.”). Plaintiff even concedes that the FDA regulations at issue are intended to prevent the consuming public from being misled. See Opp’n at 19 (“[Plaintiff] alleges Kellogg uses some of the most highly-regulated aspects of food labeling—nutrient content and health claims—in violation of regulations enacted expressly to ensure consumers are not misled.”). Accordingly, Plaintiffs unlawful prong UCL cause of action based on Defendant’s statements linking fiber and cardiovascular disease is grounded in fraud.

The question then is whether a reasonable consumer would be confused by Defendant’s statements concerning soluble fiber. “Generally, the question of whether a business practice is deceptive [under the reasonable consumer standard] presents a question of fact not suited for resolution on a motion to dismiss.” Robert McCrary v. The Elations Co., LLC, 2014 WL 12591473, at *3 (C.D. Cal. Mar. 24, 2014) (citing Williams, 552 F.3d at 938). However, the court may in certain circumstances consider the viability of the alleged consumer law causes of action based on its review of the product packaging. See Jones, 912 F.Supp.2d at 899. “Thus, where a court can conclude as a matter of law that members of the public are not likely to be deceived by the product packaging, dismissal is appropriate.” Id. (quotation and citation omitted).

Here, as with the rest of the FAC, the claim could be misleading because the claim linking fiber and cardiovascular disease implies that Raisin Bran Cinnamon Almond is healthy when it is not because of excessive added sugar. However, that cannot be the basis for finding the claims misleading here because, as discussed above, Plaintiff has inadequately alleged the amount of added sugar under Rule 9(b).

Plaintiff has made no other allegation about how the claims linking fiber and heart disease are misleading. Rule 9(b) requires a Plaintiff to “set forth what is false or misleading about a statement, and why it is false.” In re Glenfed, 42 F.3d at 1548. Although Plaintiffs FAC alleges that the statements linking fiber and heart disease violate § 101.71(a), Plaintiff does not “set forth what is false or misleading” about the particular claims such that a reasonable consumer would be misled. That is, even if the claim violates the regulation, under Rule 9(b), “Plaintiff!] must connect the dots showing how the alleged misbranding misled plaintiffs in a way that a reasonable consumer would be deceived.” Trazo v. Nestle USA, Inc., 2013 WL 4083218, at *10 (N.D. Cal. Aug. 9, 2013). Thus, Plaintiff must do more than simply state that the claim at issue violated § 101.71(a).

Thus, because Plaintiff has failed to adequately allege a violation of the reasonable consumer test, the Court GRANTS Defendant’s motion to dismiss the unlawful prong UCL cause of action as to the health claims linking fiber and cardiovascular disease on the packaging for Raisin Bran Cinnamon Almond. The Court provides leave to amend because Plaintiff may be able to allege facts that will satisfy the reasonable consumer test.

b. Intervening Material Between Health Claims and Required Information

Plaintiff alleges that Plaintiff has improperly placed intervening material between Plaintiffs health claims and information that is required to accompany such health claims. See 21 C.F.R. § 101.14(d)(2)(iv) (requiring that “[a]ll information required to be included in [a health] claim appears in one place without other intervening material.”). Defendant argues that it has not violated this provision, and that, even if it has, that violation is a “bare technical violation” that does not give rise to a cause of action under the unlawful prong of the UCL.

A district court may find a cause of action waived where a plaintiff fails to defend the cause of action in opposition to a motion .to dismiss. See Conservation Force v. Salazar, 677 F.Supp.2d 1203, 1211 (N.D. Cal. 2009), aff'd, 646 F.3d 1240 (9th Cir. 2011) (“Where plaintiffs fail to provide a defense for a claim in opposition, the claim is deemed waived-.”). Here, Plaintiff has failed to respond to Defendant’s argument concerning the intervening material between Defendant’s health claims and required statements. Therefore, the Court finds that Plaintiff has waived the issue.

Accordingly, the Court GRANTS Defendant’s motion to dismiss -as to Plaintiffs unlawful prong UCL cause of action based on intervening material between health claims and statements required to accompany those health claims. The dismissal is with prejudice because Plaintiff has waived the issue. Moreover, Defendant’s motion to dismiss the original complaint identified the same deficiency with Plaintiffs “intervening material” claim. ECF No. 22 at 21 n.4. The Court warned Plaintiff that failure to correct the deficiencies identified in Defendant’s motion to dismiss would result in Plaintiffs claims being dismissed with prejudice. ECF No. 31, Plaintiffs FAC fails to cure the deficiencies with Plaintiffs “intervening material” claim. Accordingly, the Court finds that amendment would be futile. Carvalho, 629 F.3d at 892 (holding that futility is a ground for not providing leave to amend). Therefore, the dismissal is with prejudice.

c. Size of Nutrient Content Claims

Under 21 C.F.R. § 101.13(f), a nutrient content claim “shall be in a type size no larger than two times the statement of identity and shall not be unduly prominent in type style compared to the statement of identity.” Defendant argues that Plaintiff has failed to adequately allege a violation of 21 C.F.R. § 101.13(f) because Plaintiff has failed to identify any statements in the FAC that-violate this provision, and because Plaintiff has only alleged a “bare technical violation” with no allegation as-to why a reasonable consumer would be misled.

A statement of identity is a statement on the product that