FILED

NOT FOR PUBLICATION

JUL 10 2018

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JESSICA HUGHES, individually and on No. 16-55212 behalf all others similarly situated, D.C. No. CV 15-8007 CJC Plaintiff-Appellant,

v. MEMORANDUM*

BIG HEART PET BRANDS, a Delaware corporation; MEOW MIX, LLC, a Rhode Island corporation; THE J.M. SMUCKER

COMPANY,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Cormac J. Carney, District Judge, Presiding

Argued and Submitted December 7, 2017 Pasadena, California

Before: TASHIMA, W. FLETCHER, and BERZON, Circuit Judges.

Plaintiff-Appellant Jessica Hughes appeals the dismissal of her putative class

action lawsuit against Defendants-Appellees Big Heart Pet Brands; Meow Mix,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. LLC; and The J.M. Smucker Company (collectively, “Big Heart”).1 Big Heart is a

marketer and distributor of canned and packaged seafood that sources some of its

products from Thailand. The Bureau of International Labor Affairs of the United

States Department of Labor recognizes that fish and shrimp products exported

from Thailand may be the result of forced labor. Therefore, Big Heart’s supply

chain may include forced labor, but the company does not disclose this on its

labels.

Hughes argues that by not labeling its products, Big Heart misled purchasers

and thereby violated California’s consumer protection laws. Specifically, Hughes

brings suit under (1) California Civil Code §§ 1750, et seq., the Consumers Legal

Remedies Act (“CLRA”); (2) California’s Business & Professions Code §§ 17200,

et seq., the Unfair Competition Law (“UCL”); and (3) California’s Business &

Professions Code §§ 17500, et seq., the False Advertising Law (“FAL”).

The district court dismissed all of Hughes’s claims. We review de novo,

Hinojos v. Kohl’s Corp., 718 F.3d 1098, 1103 (9th Cir. 2013), and affirm.

1 This appeal is one of seven related cases that were consolidated for oral argument. For a more fulsome discussion of the issues in these appeals, please refer to the published opinion in Hodsdon v. Mars, Inc., __ F.3d __, No. 16-15444, 2018 WL 2473486 (9th Cir. Jun. 4, 2018) 2 1. Hughes argues that Big Heart had a duty to disclose, on its labels, the

existence of forced labor in its supply chain. Plaintiff failed to allege that the

existence of forced labor in the supply chain affects the seafood products’ central

function. See Hodsdon, 2018 WL 2473486 at *6. Therefore, Big Heartwas under

no duty to disclose. Id.2

2. “[A]lthough a claim may be stated under the CLRA in terms

constituting fraudulent omissions, to be actionable the omission must be contrary

to a representation actually made by the defendant, or an omission of a fact the

defendant was obliged to disclose.” Daugherty v. Am. Honda Motor Co., 51 Cal.

Rptr. 3d 118, 126 (Ct. App. 2006) (emphasis added). Therefore, Big Heart did not

violate the CLRA.

3. The UCL prohibits “any unlawful, unfair or fraudulent business act or

practice.” Cal. Bus. & Prof. Code § 17200. “Because Business & Professions

Code § 17200 is written in the disjunctive, it establishes three varieties of unfair

competition—acts or practices which are unlawful, or unfair, or fraudulent.” Cel-

Tech Commc’ns, Inc. v. L.A. Cellular Tel. Co., 973 P.2d 527, 540 (Cal. 1999)

2 We assume for the purposes of this appeal that the existence of forced labor in the supply chain is material to consumers. We do not reach whether Plaintiff alleged that Defendants had the requisite exclusivity of knowledge over the consumer. 3 (citations and internal quotation marks omitted). Plaintiff claims that Big Heart is

liable under all three varieties.

Big Heart is not liable under the unlawful prong because Hughes did not

state a claim under the CLRA. Likewise, Hughes cannot state a claim under the

fraudulent prong because Big Heart did not have a duty to disclose the forced

labor. See Berryman v. Merit Prop. Mgmt., Inc., 62 Cal. Rptr. 3d 177, 188 (Ct.

App. 2007). Finally, Hughes cannot state a claim under the unfair prong pursuant

to either of the California tests. See Hodsdon, 2018 WL 2473486 at *7–8.

Therefore, Hughes did not state a UCL claim.

4. For the purposes of the FAL, whether an advertisement is misleading

is determined by asking whether a reasonable consumer would likely be deceived.

See Davis v. HSBC Bank Nev., N.A., 691 F.3d 1152, 1161–62 (9th Cir. 2012).

Hughes’s FAL claims fail because “a failure to disclose a fact one has no

affirmative duty to disclose is [not] ‘likely to deceive’ anyone.” See Daugherty, 51

Cal. Rptr. 3d at 128.3

• ! •

3 The district court dismissed Hughes’s claims on the ground that the California Transparency in Supply Chains Act of 2010, Cal. Civ. Code § 1714.43, created a safe harbor that bars Hughes’s lawsuit. Because we affirm the district court on another ground, we do not reach this issue of whether the safe harbor doctrine applies. 4 The judgment of the district court is

AFFIRMED.4

4 Plaintiff has an outstanding motion to certify a question to the California Supreme Court; however, the question is not outcome determinative. See Cal. R. of Court 8.548(a)(1) (“The [California] Supreme Court may decide a question of California law if . . . [t]he decision could determine the outcome of a matter pending in the requesting court.”). We therefore deny the motion to certify. 5