NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 10 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SHAVONDA HAWKINS, on behalf of No. 16-56697 herself and all others similarly situated, D.C. No. Plaintiff-Appellant, 3:15-cv-02309-JAH-BLM

v.

MEMORANDUM*

ADVANCEPIERRE FOODS, INC.,

Defendant-Appellee.

Appeal from the United States District Court for the Southern District of California John A. Houston, District Judge, Presiding

Argued and Submitted April 12, 2018 Pasadena, California

Before: SCHROEDER and M. SMITH, Circuit Judges, and CHEN,** District Judge.

Plaintiff-Appellant Shavonda Hawkins brought a putative class action suit

against Defendant-Appellee AdvancePierre Foods, Inc., on behalf of a nationwide

class of individuals who purchased “Fast Bites,” a line of microwavable

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Edward M. Chen, United States District Judge for the Northern District of California, sitting by designation. sandwiches containing partially hydrogenated oil (PHO) manufactured or

distributed by AdvancePierre. Hawkins alleged that the use of PHOs in human

food violated California law. The district court dismissed Hawkins’s complaint,

and Hawkins timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291,

and we affirm.

1. We assume without deciding that Hawkins’s claims are not preempted by

federal law. See California v. ARC Am. Corp., 490 U.S. 93, 101 (1989).

Nevertheless, she has failed to state a claim for a violation of California’s Unfair

Competition Law (UCL) or for breach of the implied warranty of merchantability.

Hawkins has standing to assert a claim under the UCL because she has

alleged an economic injury as a direct result of AdvancePierre’s inclusion of PHO

in Fast Bites. See Kwikset Corp. v. Superior Court, 246 P.3d 877, 885 (Cal. 2011).

However, her allegations do not establish the requisite “unlawful, unfair or

fraudulent business act or practice.” Cal. Bus. & Prof. Code § 17200. A claim

under the “unlawful” prong requires a predicate violation of another law, see Cel-

Tech Commc’ns, Inc. v. L.A. Cellular Tel. Co., 973 P.2d 527, 539–40 (Cal. 1999),

but federal law did not prohibit PHOs prior to June 18, 2018, see Consolidated

Appropriations Act of 2016, Pub. L. No. 114–113, § 754, 129 Stat. 2242, 2284

(2015). Hawkins’s complaint also cited a provision of California’s Sherman Act

that adopted federal law, Cal. Health & Safety Code § 110100, but

2 AdvancePierre’s use of PHOs did not violate this provision because it did not

violate federal law. Hawkins cannot satisfy the “unfair” prong of the UCL under

either of the two tests used by California courts. See Hodsdon v. Mars, Inc., 891

F.3d 857, 865–67 (9th Cir. 2018); Davis v. HSBC Bank Nev., N.A., 691 F.3d 1152,

1169–70 (9th Cir. 2012).

2. Hawkins has also failed to state a claim under California law for breach of

the implied warranty of merchantability. See Cal. Com. Code § 2314(1). Her

allegation that she “is a busy person and cannot reasonably inspect” ingredients in

the food she purchases does not excuse her failure to examine the labels on the Fast

Bites she purchased. See id. § 2316(3)(b).

AFFIRMED.

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