Hadley v. Kellogg Sales Co. (273 F. Supp. 3d 1052, 2017)

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS

Re: Dkt. No. 63

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 Second Amended Complaint. ECF No. 63 (“Mot.”). Having considered the parties’ briefing, the relevant law, and the record in this case, the Court GRANTS in part and DENIES in part Defendant’s Motion to Dismiss.

I. BACKGROUND

A. 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, Second Amended Complaint (“SAC”) ¶ 108. Defendant is allegedly “the world’s leading producer of cereal.” Id. Defendant allegedly has “positioned itself in the market as a purportedly ‘healthy1 brand of processed food, by using various labeling statements to suggest its foods, especially its cereals and bars, are healthy choices.” Id. ¶ 112.

Plaintiff “has been a frequent cereal eater for many years.” Id. ¶ 249... Over the past several years, Plaintiff has purchased Defendant’s breakfast cereals and cereal bars. Id. ¶ 250-51. 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. ¶ 249.

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 added sugar allegedly causes those products to be unhealthy. Plaintiff alleges that eight of Defendant’s product lines are sold with misleading packaging. See SAC ¶¶ 120-23. Those product lines are (1) Kellogg’s Raisin Bran, (2) Kellogg’s Frosted Mini-Wheats, (3) Kellogg’s Smart Start—Original Antioxidants, (4) Kellogg’s Crunchy Nut, (5) Nutri-Grain Cereal Bars, (6) Nutri-grain Soft-Baked Breakfast Bars, (7) Nutri-Grain Oat & Harvest Bars, and (8) Nutri-Grain Harvest Hearty Breakfast Bars. Id. Some of these product lines have multiple variants such that there are 29 products total that Plaintiff alleges are being sold with packaging that is misleading. Id.

In .general, Defendant’s products are alleged to contain 9 to 16 grams of total sugar per serving and are. 18% to 40% added sugar by calorie. See id. App. 1. The SAC alleges that the consumption of added sugar can have significant health impacts on individuals. Specifically, the SAC 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. SAC ¶¶ 9-107. 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, ¶26. 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 aré unhealthy because they contain a higher percentage of added sugar (18%-40% of total calories per serving) than the daily “safe” percentage of added sugar recommended by the AHA or the DRV recommended by 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 that are misleading. First, Plaintiff challenges Defendant’s use of statements that use the terms “healthy,” “nutritious,” or “wholesome.” SAC ¶ 186-89. Plaintiff alleges that these statements assert that Defendant’s products are healthy when they are in fact not healthy because of the presence of added sugar. 7⅛¶ 189.

Second, Plaintiff alleges that the use of phrases that describe the benefits of “whole grain,” and “fiber” content of Defendant’s products imply that the products are healthy when the amount of added sugar in Defendant’s products cause them to be unhealthy. Id. ¶ 208-09.

Third, Plaintiff alleges that Defendant’s use of the statement “No High Fructose Corn Syrup” is misleading because the added sugar, and the particular mix of fructose and glucose in Defendant’s products, have the same detrimental health effects as high fructose’ corn syrup. Id. ¶ 210-14.

Fourth, Plaintiff alleges that a number of statements such as “lightly sweetened” imply that Defendant’s products are lower in sugar, when they actually are composed of 18% to 40% added sugar. Id. ¶ 215-19.

Finally, Plaintiff alleges that a number of statements imply that Defendant’s products provide benefits, but are misleading because Defendant fails to indicate the health effects of the added sugar in Defendant’s products. For example, Defendant’s products contain statements like “help[s] keep you full and focused all morning”; “Keeps ‘em full. Keeps 'em focused”; “A balanced breakfast not only kick-starts the metabolism, it sets us up to do our best”; and “BREAKFAST BRAINPOWER.” Id. ¶ 196-206.

As an example of a product with many of these statements, Plaintiff alleges that Raisin Bran contains the following “health and wellness” statements:

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

i. BREAKFAST BRAINPOWER

Id. ¶ 128. In contrast, some products only have a single challenged statement. For example, on the packaging for Nutri-Grain Cereal Bars—Strawberry Greek Yogurt, Plaintiff only challenges the statement “Wholesome Fiber.” Id.

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 (“FAC”). ECF No. 27.

On December 8, 2016, Defendant filed a motion to dismiss the FAC. ECF No. 44. On January 5, 2017, Plaintiff filed an opposition, ECF No. 49, and on January 19, 2017, Defendant filed a reply, ECF No. 50. On March 21, 2017, the Court granted Defendant’s motion to dismiss. ECF No. 56 (“Prior Order”).

On April 5, 2017, Plaintiff filed the SAC. See SAC. The SAC 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 April 19, 2017, Defendant filed the instant motion to dismiss the SAC. See Mot. On May 3, 2017, Plaintiff filed an opposition, EOF No. 65 (“Opp’n”), and on May 10, 2017, Defendant filed a reply, EOF No. 66 (“Reply”).

C. Judicial Notice

Defendant has requested judicial notice of 14 documents. EOF No. 64. The first nine of these are the exact same federal regulations and rulemaking documents and Congressional House reports for which the Court previously granted Defendant’s request for judicial notice. See Prior Order at 7-9. Accordingly, as to those documents, Defendant’s request is DENIED as moot.

Defendant also requests judicial notice of the following documents: (1) Rachel K. Johnson et al., Dietary Sugars Intake and Cardiovascular Health: A Scientific Statement From the American Heart Association (Sept. 15, 2009); (2) World Health Organization, Guideline: Sugars intake for adults and children (2015); (3) World Health Organization, WHO calls on countries to reduce sugars intake among adults and children (March 4, 2015); (4) Alice H. Lichtenstein et al., Diet and Lifestyle Recommendations Revision 2006:' A Scientific Statement From the American Heart Association Nutrition Committee (July 4, 2006); and (5) Samuel S. Gidding et al., Dietary Recommendations for Children and Adolescents: A Guide for Practitioners, Consensus Statement from the American Heart Association (Sept. 27, 2005).

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). “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). Plaintiffs SAC explicitly relies oh the first two documents discussed above, the Johnson article on Dietary Sugars and the World Health Organization guidelines. Accordingly, the Court GRANTS judicial notice as to those two documents.

Defendant argues that the Court should take judicial notice of the final three documents because they clarify that the World Health Organization’s guidelines on sugar intake are a “draft,” and because the documents are “relevant to Plaintiffs assertion that ‘the AHA recommends restricting added sugar to 5% of calories.’ ” EOF No. 64 at 4 n.1. However, the contents of these documents were not alleged in the SAC, and Defendant’s arguments indicate that Defendant is requesting the Court to take judicial notice of the truth of the contents of these documents, not merely of their existence. Such a request is not allowed under Federal Rule of Evidence 201. See Ang v. Bimbo Bakeries USA Inc., 2013 WL 5407039, at *6 (N.D. Cal. Sept. 25, 2013) (declining to take judicial notice of American Heart Association website pages because the defendant requested judicial notice of the truth of the contents of those pages). Accordingly, the Court DENIES Defendant’s request for judicial notice as to these three documents.

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 Woman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)).

III. DISCUSSION

Defendant argues that 'all of Plaintiffs causes of action should be dismissed. Defendant addresses Plaintiffs causes of action in the following groupings: (1) violation of the FAL, the CLRA,. and- the fraudulent prong of the UCL, (2) breach of express warranty, (3) breach of the implied warranty of merchantability, (4) violation of the unlawful prong of the UCL, and (5) violation of the unfair prong of the UCL. The Court addresses Plaintiffs causes of actions in the same groupings and order.

A. The FAL, CLRA, and Fraudulent Prong 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 “[r]epresenting 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 of the UCL.

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). 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, in this section, the Court addresses the FAL, the CLRA, and the fraudulent prong of the UCL together. In subsequent sections, the Court addresses the unlawful prong and unfair prong of the UCL.

Defendant argues that Plaintiffs FAL, CLRA, and fraudulent prong UCL claims fail for the following reasons: (1) Plaintiff has failed to adequately allege that Defendant’s products contain an “excessive” amount of sugar that is unhealthy, (2) some of Plaintiffs claims are preempted, and (3) Plaintiffs claims are not misleading because they are either truthful statements, or are puffery. The Court addresses each argument in turn.

1. Allegations of Excessive Amounts of Added Sugar That Are Unhealthy

Plaintiffs complaint is premised on the idea that Defendant represents its products to be healthy while Defendant’s products contain an excessive amount of added sugar thát is unhealthy. First, Defendant argues that Plaintiff has not adequately alleged that Defendant’s breakfast cereals contain an excessive amount of added sugar that is unhealthy. Second, Defendant argues that Federal Drug Administration (“FDA”) rulemaking has created a safe harbor for the amount of added sugar in Defendant’s cereal and cereal bars. The Court addresses each argument in turn,

a. Adequacy of Added Sugar and Healthiness Allegations

The Court first addresses whether Plaintiff has adequately alleged an excessive amount of added sugar that is unhealthy in Defendant’s products. In this Court’s prior order dismissing Plaintiffs FAC, the Court held that “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.” Prior MTD Order at 13-14. Thus, because Plaintiffs theory of relief relied entirely on the amount of added sugar (as opposed to total sugar) in Defendant’s products, the Court dismissed the FAC for failing to satisfy the particularity requirements of Rule 9(b).

The SAC now contains specific allegations as to the amount of added sugar in each product, and Defendant no longer argues that Plaintiff has not adequately alleged the amount of added sugar in Defendant’s products. See SAC ¶ 189-95 (alleging the amount of added sugar in each of Defendant’s products); Id. App. 1 (same). Instead, Defendant argues that Plaintiff has not adequately alleged that the amount of added sugar in Defendant’s products is excessive because the amount is unhealthy.

The Court first summarizes the parties’ theories for why Defendant’s products are healthy or unhealthy, and then discusses whether Plaintiffs allegations are sufficient.

i. The Parties’ Arguments

Plaintiffs SAC alleges that the amount of sugar in Defendant’s products (18%-40% by calorie, or 9-16 grams per serving) is unhealthy based on scientific studies that show the detrimental health impacts of added sugar. For example, Plaintiffs cite to a scientific study that found that “those who consumed between 10%-24,9% of their calories from added sugars had a 30% greater risk of cardiovascular disease (CVD) mortality than those who consumed 5% or less of their calories from added sugar,” while “those who consumed 25% or more... had an average 275% greater risk of CVD mortality.” SAC ¶ 63. The risk of cardiovascular disease “mortality increased exponentially with increasing [the] usual percentage of calories from added sugar.” ⅞¶64.

Plaintiff also alleges that the liver is the major organ that processes added sugar in the body. Id. ¶ 24-25. Allegedly, if the liver is “overloaded” with added sugar, the fructose in added sugar is “turned into liver fat, causing insulin resistance.” Id. ¶-28. Plaintiffs allege that this process can eventually lead to “metabolic syndrome,” which can.then lead to type 2 diabetes. Id.% 27. Plaintiffs allege, however, that scientific studies show that the liver can handle a “safe” amount of added sugar without “overload[ing] the liver.” Id. ¶26. Plaintiffs cite to numerous other scientific studies that establish that consuming 35 to, 75 grams of added sugar in a single day contributes to health, problems such as metabolic syndrome and diabetes. Id.. ¶¶ 47, 57-60.

Plaintiffs allege that the American Heart Association (“AHA”) has adopted a 5% recommendation for daily added sugar consumption based on the above-described liver-overload science. ld.\ 26. Under a 5% benchmark, the SAC alleges that it is safe for men, women, and children to consume up to the following amounts of added sugar in a particular day: 38 grams of added sugar per day for men (150 calories, assuming a 3000 calorie diet); 25 grams of added sugar- per day for women (100 calories, assuming a 2000 calorie diet); and 12-15 grams of added sugar per day for children (50 to 60 calories, assuming a 1000 to 1200 calorie diet), id Plaintiff also alleges that the World Health Organization has, based on these- scientific studies, recommended that “no more than 10%” of an adult’s calories (and “ideally less than 5%”) should come from added sugar or “natural sugar” (i.e.,- sugar from sources such as fruit). Id. ¶ 106.

With respect to Defendant’s products, Plaintiff alleges that Defendant’s cereals contain excessive added sugar because Defendant’s products are composed of between 18% and 40% added sugar by calorie and contain 9 to 16 grams of added sugar per serving. Plaintiff argues that this percentage of added sugar is greater than the amounts of added sugar that scientific studies have shown increases the risk of cardiovascular disease, metabolic syndrome, and diabetes.

Plaintiff alleges that many people eat more than a single serving. “The term serving or serving size means an amount of food customarily consumed per eating occasion by persons 4 years of age or older which is expressed in a common household measure that is appropriate to the food.” 21 C.F.R. § 101.9. Plaintiff cites to a 2014 National Health and Nutrition Examination Survey that found that “at least 10% of Americans eat at one sitting 2 to 2.6 times the amount of cereal as the labeled serving size.” SAC ¶243. Similarly, “[a] study conducted by General Mills found that children and adolescents 6 to 18 years old typically eat about twice as much cereal [as the serving size] in a single meal.” Id. ¶ 244. For adult men and women, consuming 2 to 4 servings of Defendant’s products would cause that person to consume over 5% of that person’s daily calories in added sugar (36.grams for men, 25 grams for women). For children, consuming 1 or 2 servings of Defendant’s products would cause the child to consume over 5% of the child’s daily calories (12-15 grams). See id. ¶ 106.

In response, Defendant cites to FDA regulations that set the DRV for added sugars at 10% of daily calorie consumption and require food manufacturers to-list in the product’s nutrition fact panel the amount of added sugar and percentage of the DRV a. single serving of the product contains. 81 Fed. Reg. 33742, 33849 (May 27, 2016). The requirement that added sugars be listed does not go into effect until 2018. Id. Under this 10% DRV, a person eating a 2000 calorie diet can consume 50 grams of added sugar per day without exceeding the 10% DRV. Defendant argues that the FDA’s creation of the 10% added sugar DRV shows that “the FDA has made clear that daily consumption of 50 grams of added sugar is consistent with a healthy diet.” Mot. at 11.

Defendant argues that Defendant’s products cannot be considered unhealthy because to exceed that 10% DRV threshold, consumers would have to engage in overeating of. Defendant’s products. Defendant argues that the Court should find, based on “common sense,” that people generally eat more sugary foods for breakfast, and thus the fact that Defendant’s products contain a higher percentage of sugar per serving than the 10% DRV will generally not result in people exceeding the 10% DRV.

Moreover, Defendant argues that the AHA and WHO 5% daily added sugar recommendations are merely aspirational recommendations. In fact, Defendant notes that the AHA study publishing the 5% recommendation also stated that “[t]he form in which added sugars are consumed” is relevant to whether a food is healthy, and that “when sugars are added to otherwise nutrient-rich foods, such as... sugar-sweetened cereals, the quality of children’s and adolescents’ diets improves.’* ECF No. 64-10 at 1012-16. Moreover, Defendant notes that the WHO recommendation that a person consume less than 5% of one’s daily calories in sugar was only a “conditional recommendation.” ECF No. 64-11 at 16.

ii. Sufficiency of Plaintiffs Allegations

The Court finds that Plaintiff has adequately alleged that Defendant’s products are unhealthy due to excess added sugar for the purposes of the instant motion to dismiss. On a motion to dismiss, the Court must accept the “factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party.” Manzarek, 519 F.3d at 1031. Here, as discussed above, Plaintiff provides scientific studies that link added sugar to cardiovascular disease,'metabolic syndrome, and diabetes. At least one cardiovascular study states that “mortality increased exponentially with increasing [the] usual percentage of calories from added sugar.” Id. ¶ 64; see also id. ¶ 63 (indicating a 30% increased risk in cardiovascular disease when consuming between 10% to 24.9% of daily calories as added sugar over consuming less than 5% of daily calories as added sugar). Moreover; Plaintiff alleges that Defendant’s products are composed of 18% to 40% added sugar by calorie or 9 to 16 grams of added sugar per serving. Thus, at the very least, Plaintiff has alleged that eating Defendant’s products would require the individual to eat lower sugar foods throughout the rest of the day to maintain a daily percentage of added sugar intake that is below the two thresholds for added sugar mentioned in the instant suit, the 5% AHA recommendation and the FDA’s 10% DRV. See In re Ferrero Litigation, 794 F.Supp.2d 1107 (S.D. Cal. 2011) (holding, that the plaintiff adequately .alleged that Nutella was unhealthy because the plaintiff alleged that even though a single serving constituted only 30% to 50% of the DRV for fat it “creat[ed] the high probability that the child w[ould] therefore exceed his or her recommended daily allowance” of fat (quoting S.D; Cal. Case No. 11-CV-00205, ECF No. 14, First Amended Complaint ¶ 39)). This is especially true if, as Plaintiff alleges, a non-negligible number of people typically consume, in a single meal, double the amount of cereal in a single serving. SAC ¶¶ 243-44.

Another court in this district, in Krommenhock v. Post Foods, LLC, 255 F.Supp.3d 938, 2017 WL 2378029 (N.D. Cal. June 1, 2017), addressed essentially identical- allegations of excess sugar to those in the instant case. Id. at 944-51, 2017 WL 2378029 at *2-7. The plaintiffs in Krommenhock, one of whom, is Plaintiff in the instant case, alleged that, Post Food’s breakfast products, which contain between 6 grams and 16 grams of sugar per serving, contained excessive and unhealthy amounts of added sugar. Id. The Krom-menhock plaintiffs relied on the same scientific studies and standards for added sugar that are- alleged in the SAC in the instant case. Id. On a motion to dismiss, Post Foods argued that the plaintiffs’ claims were implausible because they did not adequately allege that the amount .-of added sugar was “dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it.” Id. at 968, 2017 WL 2378029 at *20. The Krommenhock court rejected Defendant’s argument and held that “relevant studies supporting plaintiffs’ theory (at least in part) have been alleged, and determining the full extent of that support is not appropriate on a motion to dismiss.” Id. at 968, 2017 WL, 2378029 at *19. The Krommenhockcoxcct noted that a motion to dismiss was “not the appropriate time to weigh the competing harms and benefits from Post’s products or [the time to address] address whether Post knows (as alleged by plaintiffs) that its products are typically overconsumed.” Id. As a result, the Krommenhock court held that “plaintiffs have plausibly alleged that added sugar created health risks such that Post’s ‘health’ claims were misleading.” id. at 963, 2017 WL 2378029 at *19 n.31.

The Court agrees with the Krommen-hock court. Given the scientific studies supporting the negative health - consequences of added sugar and the factual dispute over the typical consumption of Defendant’s products, the Court cannot conclude on the instant motion to dismiss that a reasonable consumer would not find Defendant’s products to be unhealthy based on the amount of added sugar in those products.

Defendant argues that Plaintiff seeks to enforce the AHA’s 5% recommendation for daily added sugar consumption.and give it the “force of law” in place of the FDA’s 10% DRV. A,non-government entity like the AHA cannot establish standards that carry the force of law. See Int’l Ass’n of Plumbing & Mechanical Officials v. Cal. Bldg. Stds. Comm’n, 55 Cal.App.4th 245, 253, 64 Cal.Rptr.2d 129 (1997) (holding that the, legislature is not allowed to delegate the power to establish-building codes in California to a private organization). However, on the instant motion to dismiss, the Court need not adopt a 5% “standard” for added sugar to find Plaintiffs allegations to be adequate. As Plaintiff notes in its opposition, “[wjhile AHA and FDA recommendations may be relevant to the issues in this case, the case is not about whether 5% or 10% of calories from added sugar is a more reasonable threshold for a daily sugar consumption limit, but whether it is misleading for Kellogg to label foods with the challenged health and wellness claims when 20%-40% of their calories come from added sugar,” Opp’n at 7. The AHA recommendation is based on a number of scientific studies, and thus, the AHA recommendation is relevant to, the extent that it reflects what amount of added sugar consumption may be considered healthy or unhealthy. The AHA recommendation is thus relevant evidence, but does not carry the force of law. Indeed, what exactly the AHA recommendation means in the. instant suit is subject to dispute. Defendant points out that the study proposing the 5% AHA recommendation also states that “sugar-sweetened- cereals [can improve] the quality of children’s and adolescents’ diets.” EOF No. 64-10 at 1012-16. The Court need not resolve the parties’ factual dispute because such resolution is not appropriate on a motion to dismiss. See Man-zarek, 519 F.3d at 1031 (holding that on a motion to dismiss courts must take the “factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party.”).

The Court also need not adopt the FDA’s 10% DRV as the appropriate “safe” threshold for added sugar. The Krommen-hock court addressed a similar issue: “There is no evidence that the FDA in its final rule set out to proscribe or prohibit statements regarding health or wellness in connection with an analysis of added sugars. Nor is there evidence that the FDA concluded that consumption of added sugar in the amounts in the challenged products was healthy. Instead, the evidence is that the FDA adopted the 10 percent added-sugar DRV to be used in the FDA mandated Nutrition Facts Panel based on the evidence before it and as ‘realistic’ based on current consumption pattern[s].” Krommenhock, 255 F.Supp.3d at 954, 2017 WL 2378029 at *10.

The Court finds the Krommenhock court’s logic to be persuasive. The FDA’s rulemaking on the 10% DRV did not establish that added sugar in the amounts in Defendant’s products was healthy. In its rulemaking, the FDA stated that “[w]e disagree that the DRV for added sugars should be lower than 10 percent of calories or that there is adequate evidence at this time to set a DRV for added sugars of less than 5 percent of calories.” 81 Fed. Reg. at 33849. This decision was not necessarily based on the healthiness of consuming less than 10% of one’s daily calories as added sugar. Instead, the FDA stated: “A DRV of 10 percent of total calories provides a value that is more realistic considering current consumption of added sugars in the United States as well added sugars in the food supply.” Id. (emphasis added). Thus, the FDA’s decision to create a 10% DRV was not necessarily based on healthiness, but was based on realistic goals for American consumer consumption of added sugar. Accordingly, the FDA’s 10% DRV need not be adopted as the definitive threshold for what amount of added sugar in a product is or is not healthy.

Thus, taking the “factual allegations in the complaint as true and constru[ing] the pleadings in the light most favorable to the nonmoving party,” the Court finds that Plaintiff has adequately alleged for the purposes of the instant motion to dismiss that Defendant’s products are unhealthy. Manzarek, 519 F.3d at 1031.

b. Safe Harbor Doctrine

Defendant also argues that, as a matter of law, the FDA’s creation of the 10% DRV “prevents Plaintiff from imposing liability on [Defendant] because it has followed FDA’s recommended [DRV] for added sugar.” Mot. at 11. “If the Legislature has permitted certain conduct or considered a situation and concluded no action should lie, courts may not override that determination. When specific legislation provides a “safe harbor,” plaintiffs may not use the general unfair competition law to assault that harbor.” Cel-Tech Commc’ns, Inc. v. L.A. Cellular Tel. Co., 20 Cal.4th 163, 182, 83 Cal.Rptr.2d 548, 973 P.2d 527 (1999); see also Alvarez v. Chevron Corp., 656 F.3d 925, 933 (9th Cir. 2011) (finding safe harbor where “California law unequivocally permits Defendants’ conduct”).

Based on this safe harbor precedent, Defendant argues that (1) Defendant has not exceeded the 10% DRV created by the FDA and thus liability cannot be imposed on Defendant for describing its products as healthy, and (2) to the extent that Plaintiffs claims are based on an omission of information about the health effects of added sugar, Defendant was allowed to omit information about the health effects of added sugar. The Court addresses each contention in turn.

First, Defendant’s argument that the 10%' DRV value creates a safe harbor regarding the amount of added sugar in its products fails. Defendant relies on Alaei v. Rockstar, 224 F.Supp.3d 992 (S.D. Cal. 2016), in support of Defendant’s safe harbor argument. However, Alaei is distinguishable. In that case, a district court in the Southern District of California found a safe harbor for labeling a product “Made in the USA” even though it contained “small amounts of foreign-sourced ingredients” because California- law explicitly allowed the use of domestic origin labels if less than 5% of the wholesale value of the product consisted of foreign-source ingredients. Id. at 997,1001.

However, in this case, Defendant cites to no statute, regulation, or FDA statement that explicitly states that liability cannot be imposed for characterizing a product as healthy just because a single serving of the product contains less added sugar than the FDA-established DRV. The FDA’s establishment of a 10% DRV requires food manufacturers to disclose the amount of added sugar in its products and the amount of added sugar as a percentage of the DRV in the Nutrition Fact Panél for its products. However, that rulemaking did not specify whether products at certain amounts of added sugar can be characterized as healthy or not. See Krommenhock, 255 F.Supp.3d at 953-54, 2017 WL 2378029 at *10 (“Nor is there evidence that the FDA. concluded that consumption of added sugar in the amounts in.the challenged products was healthy. Instead, the evidence is that the FDA adopted the 10 percent added-sugar DRV to be used in the FDA mandated Nutrition Facts Panel based on the evidence before it and as ‘realistic’ based on current consumption pattern[s].”). Thus, Defendant fails to point to FDA rulemaking that shows that the FDA has considered this particular “situation and concluded no action should lie.” Cel-Tech, 20 Cal.4th at 182, 83 Cal.Rptr.2d 548, 973 P.2d 527. Accordingly, ■ on the record before the Court, the FDA’s establishment of the 10% DRV does not establish that no liability can be imposed for characterizing a product as healthy just because a single serving of the product does not exceed the 10% DRV. ■

Second, Defendant argues that to the extent Plaintiffs claims are based on Defendant’s omission of the health effects of added sugar on Defendant’s products, Defendant’s compliance with the FDA regulations creates a safe harbor. Defendant relies on Barber v. Nestle USA, Inc., 154 F.Supp.3d 954 (C.D. Cal. 2015). However, Barber does not stand for the broad proposition that compliance with statutes or regulations precludes a cause of action based on an omission. In Barber, the Central District of California discussed whether a safe harbor existed where a cat food manufacturer did not disclose on its label that part of the manufacturing process for the cat food allegedly utilized “forced labor.” Id. at 959-60. California had previously passed the Supply Chain Act, which required disclosure that forced labor was used under certain circumstances, but not in the circumstances at issue in Barber. Id. The legislative history of the Supply Chain Act at issue in Barber indicated that “companies are ‘still completely free to do anything they want about their efforts to fight human trafficking and slavery,’ including nothing at all, so long as they make the required disclosures.” Id. at 962, Relying on this legislative history that expressly allowed the omission of forced labor disclosures other than those in the statute, the Barber court held that “California has spoken directly to the issue of what disclosures companies must make to customers about potential forced labor in their supply chains,” and held that a safe harbor existed as a result. Id.

In contrast, in Ebner v. Fresh, Inc., 838 F.3d 958 (9th Cir. 2016), the Ninth Circuit held that compliance with FDA labeling requirements does not create a safe harbor for all omissions. Id. at 964. In Ebner, the product at issue complied with labeling requirements because the label accurately stated that the packaging contained 4.3 grams of product even though because of the design of the packaging, only 3.3 grams were usable by a consumer. Id. at 965-66. The Ninth Circuit held that compliance with the disclosure requirement of the weight of the product did not preclude a cause of action based on the omission of the actually available weight because “there is no law expressly permitting the omission” of statements that would clarify the amount of product that was actually available to consumers. Id.

The allegations in this case are more like Ebner than Barber. Plaintiff alleges that Defendant’s products are labeled with statements indicating that the products are healthy, and omits the fact that the products are unhealthy because the products contain excessive added sugar. As in Eb-ner, and unlike Barber, Defendant points to no regulation that “expressly permit[s] the omission of supplemental statements” that a product is unhealthy if other statements on the box represent that the prod-uctos healthy. Id.

Defendant solely argues that Defendant “has accurately disclosed the ingredients of its products (including added sugar) and has complied with the FDA’s labeling guidelines.” Mot. at 12. Defendant purports to rely on the FDA’s establishment of the 10% DRV for added sugar, but does not cite to any portion of the FDA’s rule-making that, like in Barber, might establish that the FDA considered disclosure of information of the kind at issue here and decided that such disclosures did not need to be made. Indeed, the Krommenhock court has noted that “the FDA’s focus was updating the ‘Nutrition Facts Panel to disclose added sugars and include a DRV,” ¿nd did not address circumstances where a food manufacturer allegedly “affirmatively misrepresented that the cereals are healthy through labeling statements outside -the Nutrition Facts Panel.” Krommenhock, 255 F.Supp.3d at 955, 2017 WL 2378029 at *12 (citing 81 Fed. Reg. at 33829). Therefore, on the record before the Court, the Court finds that the FDA’s 10% DRV, and the FDA’s regulations in general, do not preclude Plaintiffs omission claims under the safe harbor doctrine.

Accordingly, the Court finds that Defendant’s safe harbor argument fails.

2. Preemption of Certain Statements

Defendant argues that express preemption prevents Plaintiff from basing Plaintiffs causes of action on “nutrient content claims” or “health claims” .on Defendant’s product packaging. Pursuant to the Supremacy Clause of the United States Constitution, “Congress has the power to preempt state law.” Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372, 120 S.Ct. 2288, 147 L.Ed.2d 352 (2000) (citing U.S. CONST, art. VI, cl. 2). “Federal preemption occurs when: (1) Congress enacts a statute that explicitly pre-empts state law; (2) state law actually conflicts with federal law; or (3) federal law occupies a legislative field to such an extent that it is reasonable to conclude that Congress left no room for state regulation in that field.” Chae v. SLM Corp., 593 F.3d 936, 941 (9th Cir. 2010) (internal quotation marks omitted).

When analyzing the scope of a preemption statute, a court’s analysis must “start with the assumption that the historic police powers of the States [are] not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996) (internal quotation marks omitted). This approach is “consistent with both federalism concerns and the historic primacy of state regulation of matters of health and safety.” Id. Therefore, “Ep]arties seeking to invalidate a state law based on preemption bear the considerable burden of overcoming the starting presumption that Congress does not intend to supplant state law.” Stengel v. Medtronic Inc., 704 F.3d 1224, 1227 (9th Cir. 2013) (en banc) (internal quotation marks omitted).

Turning to the statutory scheme in the instant case, the FDCA, codified at 21 U.S.C. §§ 301 et seq., “gives the FDA the responsibility to protect the public health by ensuring that'‘foods' are safe, wholesome, sanitary, and properly labeled.’” Lockwood v. Conagra Foods, Inc., 597 F.Supp.2d 1028, 1030 (N.D. Cal. 2009) (quoting 21 U.S.C. § 393(b)(2)(A)). Section 331 expressly prohibits the misbranding of food in interstate commerce, 21 U.S.C. § 331(a)-(c), (k), while Section 343 sets forth conditions under which food is considered “misbranded,*’ 21 U.S.C. § 343. In general, a food -is “misbranded” if its labeling is “false or misleading in any particular.” 21 U.S.C. § 343(a)(1).

In 1990, Congress amended the FDCA with the Nutrition Labeling and Education Act of 1990 (“NLEA”) to include additional food labeling requirements. Nutritional Labeling and Education Act of 1990, Pub. L. No. 101-535, 104 Stat. 2353 (1990); see also H.R. Rep. No. 101-538 (1990), reprinted in 1990 U.S.G.C.A.N. 3336, 3337 (stating that the purpose behind the NLEA was “to clarify and to strengthen the Food.and Drug Administration’s legal authority to require nutrition labeling on foods, and to establish the circumstances under which claims may be made about nutrients in. foods”). Part of the NLEA’s purpose was also to “create uniform national standards regarding the labeling of food.” In re Farm Raised Salmon Cases, 42 Cal.4th 1077, 1086, 72 Cal.Rptr.3d 112, 175 P.3d 1170 (2008) (citing 136 CONG. REC. 5840 (daily ed. July 30, 1990) (Remarks of Rep. Waxman)).

In furtherance of the NLEA’s aim of promoting uniform national labeling standards, the NLEA includes an explicit preemption provision, codified at 21 U.S.C. § 343-l(a), which states that “no State...may directly or indirectly establish. . .any requirement.. .made in the labeling of food that is not identical to “ certain specified. FDA labeling requirements. 21 U.S.C § 343-l(a). As relevant in the instant case, section 343-l(a) expressly preempts “any requirement respecting any claim of the type described in section 343(r)(l),” which encompasses “nutrient content claims” and “health claims” about the,labeled food. 21 U.S.C § 343-l(a)(5). “ ‘Not identical to’.. .means that the State requirement directly or indirectly imposes obligations or contains provisions concerning the composition or labeling of food, or concerning a food container, that: (i) Are not imposed by or contained in the applicable provision... or (ii) Differ from those specifically imposed by or contained in the applicable provision.... ” 21 C.F.R. § 100.1(c)(4); see also Bowling v. Johnson & Johnson, 65 F.Supp.3d 371, 375 (S.D.N.Y. 2014) (“Under this standard, preemption is certainly, appropriate when a state law prohibits labeling that is permitted under federal law. But it is also appropriate when a state law prohibits, labeling that is not prohibited under federal law. The standard, in other words, is not whether a state law actively undermines federal law. It is whether state law diverges from federal law at all.”).

The NLEA’s preemption provision does not, however, prohibit states from enacting food labeling requirements that are identical to the FDA requirements. In fact, the NLEA explicitly states that “[t]he [NLEA] shall not be construed to preempt any provision of State law, unless such provision is expressly preempted under [21 U.S.C § 343-l(a) ].” See § 6(c)(1), 104 Stat. at 2364.

Through the Sherman Law, California has expressly adopted the federal labeling requirements as its own. 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.”). California has also enacted a number of laws and regulations that adopt and incorporate specific enumerated federal food laws and regulations. See, e.g., Cal. Health & Safety Code § 110670 (“Any food is misbranded if its labeling does not conform with the requirements for nutrient content or health claims as set forth in... [21 U.S.C. §-343(r) ]....”).

In this case, Defendant contends that Plaintiffs suit is preempted to the extent Plaintiff alleges that “nutrient content claims” and “health claims,” as defined in 21 U.S.C. § 343(r), are false or misleading because the claims create requirements more stringent than those in § 343(r). In response, Plaintiff argues that Defendant has failed to satisfy Defendant’s burden of showing that the claims at issue are nutrient content claims or health claims within the meaning of § 343(r). The Court first addresses Defendant’s theory of preemption, and then discusses whether Defendant has satisfied its burden of showing that Plaintiffs claims are nutrient content claims or health claims that are subject to preemption.

a. The Theory of Preemption in This Case

As noted in the prior section, the preemption provision of the NLEA states that “no State.. .may directly or indirectly establish... any requirement of the type described in section 343(r)(l) of this title, made in the label or labeling of food that is not identical to the requirement of section 343(r) of this title.” 21 U.S.C. § 343-1(a)(5). Section 343(r), alongside FDA regulations, outlines requirements for when a party may or may not use “nutrient content claims” or “health claims” on food labels.

Specifically, 21 C.F.R. §§ 101.14 and 101.65 regulate when nutrient content claims or health claims can be made in the presence of other harmful nutrients. If fats, saturated fats, sodium, or cholesterol reach “disqualifying levels” specified in the FDA regulations, “a food purveyor is prohibited from making an unqualified claim touting the health benefits of another nutrient in the food.” Chacanaca v. Quaker Oats Co., 752 F.Supp.2d 1111, 1122 (N.D. Cal. 2010). Specifically, § 101.14 prohibits any health claims from being made if any of the four nutrients are above a certain level. See 21 C.F.R. § 101.14 (a)(4). Similarly, § 101.65 prohibits any nutrient content claim using the term “healthy” if fats, saturated fats, or cholesterol (but not sodium) are above a certain level. See 21 C.F.R. § 101.65(d)(2).

In Ackerman v. Coca-Cola Co., 2010 WL 2925955 (E.D.N.Y. July 21, 2010), a district court in the Eastern District of New York addressed whether California causes of action based on nutrient content and health claims on the label for “vitamin-water” were preempted. Id. at *8. With respect to health claims governed by § 101.14, the Ackerman court noted that the disqualifying levels of certain nutrients were created through formal rulemaking. In response to comments that requested that the FDA set a disqualifying level for added sugar, the FDA decided that it “ ‘would not be appropriate to limit health claims on foods on the basis of added sugars’ because there was ‘no sound basis’ for doing so.” Id. (citing 58 Fed. Reg. 2478, 2491 (Jan. 6, 1993)). With respect to implied nutrient content claims governed by § 101.65, the Ackerman court noted that the FDA had made a similar decision with respect to the use of the term “healthy” in implied nutrient content claims. Id. (citing 59 Fed. Reg. 24232, 24244 (May 10, 1994)). Specifically, the FDA found that:

The agency has not been persuaded by the comments that it is necessary to include a “low calorie” or “low sugar” criterion in the definition of “healthy” for the claim to be useful and not misleading to consumers. The information provided in the comments did not show that consumers expect “healthy” to be á claim about the caloric content of the food. Furthermore, the purpose of defining the term would be defeated if the term were defined so narrowly that it is appropriate only for people on weight-loss diets. Thus, the agency is not requiring that a food be “low calorie” or “low” in sugar to bear the term “healthy.”

Id. (quoting 59 Fed. Reg. at 24244). Based on these FDA statements, the Ackerman court held that “[a]s a matter of federal law, therefore, the presence of sugar is not a disqualifying nutrient which would prohibit the defendants from ‘touting the purported benefits’... of the other ingredients in their beverage, whether through health claims or express or implied claims of nutrient content.” Ackerman, 2010 WL 2925955 at *8. As a result, the Ackerman court concluded that “any claim under state law solely premised on the notion that vitaminwater’s high sugar content made its health or implied nutrient content claims misleading is preempted by the FDA’s express decision to not recognize sugar as a disqualifying nutrient.” Id.

In Chacanaca, a district court in this district followed Ackerman for nutrient content claims and health claims related to trans fat. Chacanaca, 752 F.Supp.2d at 1122. There, the Chacanaca court held that because the FDA had expressly decided not to set a disqualifying level of trans fat in food produets, the plaintiffs state law causes of action should be dismissed to the extent they “depend[ed] on the presence of trans fats to render the content claims misleading.” Id. The Chacanaca court held that “[essentially, plaintiffs’ claim asks this Court to ascribe disqualifying status to trans fats where the [FDA] has at least so far declined to do so.” Id.

Recently, in Krommenhock, 255 F.Supp.3d 938, 2017 WL 2378029, a district court in this district adopted Ackerman’s and Chacanaca’s reasoning with respect to claims for added sugar in cereals. See Krommenhock, 255 F.Supp.3d at 956, 2017 WL 2378029 at *12 (“The FDA has identified disqualifying nutrients, including total fat, saturated fat, cholesterol, and sodium. Sugar is not one of them.”).

The Court finds Ackerman, Chacanaca, and Krommenhock to be persuasive. The FDA has set disqualifying levels of certain nutrients for- making health claims and implied nutrient content claims. In formal rulemaking, the FDA has expressly decided to not set such disqualifying levels for sugar or added sugar. Therefore, Plaintiff s theory that health claims or implied nutrient content claims are misleading because of a certain amount of added sugar in a product would essentially “ascribe disqualifying status” to added sugar. This would create a state law requirement that is different from federal law. Therefore, any such claims are preempted,

b. Nutrient Content Claims and Health Claims

As discussed above, Plaintiffs causes of action are preempted to the extent they are based - on implied nutrient content claims or health claims that are allegedly misleading because of the presence of added sugar. The FDA has expressly decided not to set a disqualifying level of added sugar in food products. Therefore, .the Court must determine which of the statements challenged by Plaintiff are implied nutrient content claims or health claims.

A nutrient content claim “expressly or implicitly characterizes the level of a nutrient of the type required to be in nutrition labeling.” ' 21 C.F.R. § 101.13(b). Such nutrient content claims can either be “expressed” or “implicit.” 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). In contrast, an implied nutrient content claim is a claim that either (1) ’’[describes 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 (2) “[suggests that the food, because of its nutrient content, may be useful in maintaining healthy dietary practices and is made in association with an explicit claim or statement about a nutrient (eig., ‘healthy, contains 3 grams .(g) of fat’).” Id. § 101.13(b)(2).

A health claim is “any ciato... .that expressly or by implication... characterizes the relationship of any substance to a disease or health-related condition.” 21 C.F.R. § Í01,14(a)(l); see also FDA, Guidance for Industry: A Food Labeling Guide, at 81 (Jan, 2013), available at https://www.fda.gov/downloads/Food/ GuidanceRegulation/UCM265446.pdf (“Both elements of 1) a substance and 2) a disease are present in a health claim.”). An implied health claim includes “those statements, symbols, vignettes, or other forms of communication that suggest, within the context in which they are presented, that a relationship exists between the presence or level of a substance in the food and a disease or health-related condition.” Id.

In the instant motion, Defendant argues that “to the extent the ‘health and wellness claims’ constitute nutrient content or health claims.,., Plaintiffs claims are ‘preempted by the FDA’s express decision to not recognize sugar as a disqualifying nutrient.’” Ackerman, 2010 WL 2925955 at *8. In response, Plaintiff argues that Defendant’s brief does not provide any analysis as to whether certain statements are nutrient content claims or health claims, and thus Defendant has failed to satisfy its burden of demonstrating preemption.

However, Plaintiff expressly argues that the statement “No High Fructose Corn Syrup” is not a nutrient content claim or health claim in its opposition to Defendant’s motion to dismiss. Moreover, in Defendant’s reply brief, Defendant argues that the statements “heart healthy” and “[fjiber.. .plays a very important part in your digestive health and overall well-being” are health claims. The Court addresses these three statements in turn, and in the analysis of these three claims addresses , any statements that are closely related to the expressly argued, statements,

i. No High Fructose Corn Syrup

' Although Plaintiff previously argued that the statement “No High Fructose Corn Syrup” is an implied nutrient content claim because it implies an absence of sugar in a product, Plaintiff now argues that the statement is not preempted because it is neither a health claim nor an implied nutrient content claim. Plaintiff attributes his change in position to the fact that the Court, in dicta, stated that it doubted that the statement “No High Fructose Corn Syrup” implied that a product contained no sugar at all.

Defendant has also altered its position. Although Defendant previously argued that high fructose corn syrup is merely an ingredient, not a nutrient, Defendant now asserts that “No High Fructose Corn Syrup” is a preempted nutrient content claim or health claim. Defendant provides no justification for this position besides an “x” in a chart listing label statements attached as an appendix to the instant motion.

The Court need not reach whether “No High Fructose Corn Syrup” is a health claim or nutrient content claim. As discussed above, Plaintiffs claims based on the statement -“No High Fructose Corn Syrup” is only preempted if it is allegedly misleading because of. the presence of a high amount of added sugar in Defendant’s products. However, Plaintiffs theory as to why the statement “No High Fructose Com Syrup” is misleading is not based on the presence of a high amount of added sugar in Defendant’s products. Instead, Plaintiff alleges that Defendant “has capitalized on consum