NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 20 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CYNTHIA CARDARELLI PAINTER, No. 17-55901 individually and on behalf of other members of the general public similarly situated, D.C. No. 2:17-cv-02235-SVW-AJW Plaintiff-Appellant,

v. MEMORANDUM*

BLUE DIAMOND GROWERS, a California corporation and DOES, 1-100, inclusive,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Stephen V. Wilson, District Judge, Presiding

Argued and Submitted December 3, 2018 Pasadena, California

Before: D.W. NELSON and WARDLAW, Circuit Judges, and PRATT,** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Robert W. Pratt, United States District Judge for the Southern District of Iowa, sitting by designation. Cynthia Painter appeals the district court’s order dismissing her complaint

with prejudice on grounds of preemption and failure to state a claim pursuant to

Federal Rule of Civil Procedure 12(b)(6). On behalf of a putative class, Painter

claims that Blue Diamond Growers (“Blue Diamond”) mislabeled its almond

beverages as “almond milk” when they should be labeled “imitation milk” because

they substitute for and resemble dairy milk but are nutritionally inferior to it. See

21 C.F.R. § 101.3(e)(1). We have jurisdiction under 28 U.S.C. § 1291 and review

the district court’s dismissal de novo. Durnford v. MusclePharm Corp., 907 F.3d

595, 601 (9th Cir. 2018). We affirm.

1. The district court correctly determined that the Federal Food, Drug, and

Cosmetic Act (FDCA), 21 U.S.C. § 301–399i, as amended by the Nutrition

Labeling and Education Act of 1990 § 6(a), 21 U.S.C. § 343-1, contains a broad

preemption provision, which prohibits a state from “directly or indirectly

establish[ing]” food labeling requirements “not identical to” federal requirements.

21 U.S.C. § 343-1(a). Accordingly, Painter’s “mislabeling” claims that seek to use

state law to impose labeling requirements “not identical to” those under 21 U.S.C.

§ 343(c) are preempted. See id. § 343-1(a)(2). The FDCA sets forth the bare

requirement that foods imitating other foods bear a label with “the word ‘imitation’

and, immediately thereafter, the name of the food imitated.” 21 U.S.C. § 343(c);

21 C.F.R. § 101.3(e). Therefore, Painter’s claim that Blue Diamond must

2 additionally include either a nutritional comparison of almond milk to dairy milk

or cease using the term “milk” on the label of its almond milk products conflicts

with the FDCA. See Durnford, 907 F.3d at 601 (stating the FDCA displaces food

labeling requirements that “[d]iffer from those specifically imposed by” the federal

statute (quoting 21 C.F.R. § 100.1(c)(4)(ii))).

2. The district court properly dismissed Painter’s deceptive marketing

claims under California’s Unfair Competition Law (UCL), False Advertising Law

(FAL), and Consumers Legal Remedies Act (CLRA) for failing “to state a claim to

relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007); see Cal. Bus. & Prof. Code §§ 17200–210 (UCL); Cal. Bus. & Prof. Code

§§ 17500–509 (FAL); Cal. Civ. Code §§ 1750–84 (CLRA). Under the “reasonable

consumer” standard that governs Painter’s UCL, FAL, and CLRA claims, Painter

“must show that members of the public are likely to be deceived” by Blue

Diamond’s labeling and advertising practices. Ebner v. Fresh, Inc., 838 F.3d 958,

965 (9th Cir. 2016) (internal quotation marks and citation omitted).

Painter’s complaint does not plausibly allege that a reasonable consumer

would be deceived into believing that Blue Diamond’s almond milk products are

nutritionally equivalent to dairy milk based on their package labels and advertising.

Unlike in Williams v. Gerber Products Co., 552 F.3d 934 (9th Cir. 2008), in which

we found that reasonable consumers could mistakenly interpret repeated references

3 to “fruit” and images of real fruit on packaging of a product called “fruit juice

snacks” as a representation that the product’s ingredients were all natural, see id. at

939, Painter concedes that Blue Diamond accurately labels and advertises its

almond milk products. The district court correctly concluded that “[n]o reasonable

consumer could be misled by [Blue Diamond’s] unambiguous labeling or factually

accurate nutritional statements.”

Nor can Painter plausibly allege that Blue Diamond’s almond milk

products are mislabeled in violation of federal law. Almond milk is not an

“imitation” of dairy milk within the meaning of 21 U.S.C. § 343(c) and 21 C.F.R. §

101.3(e). Notwithstanding any resemblance to dairy milk, almond milk is not a

“substitute” for dairy milk as contemplated by section 101.3(e)(1) because almond

milk does not involve literally substituting inferior ingredients for those in dairy

milk. See, e.g., 62 Cases of Jam v. United States, 340 U.S. 593, 595, 600 (1951)

(finding that a product that substituted fruit in fruit jam with pectin, a gelatinized,

water-based solution, was properly labeled “imitation jam”). In addition, a

reasonable jury could not conclude that almond milk is “nutritionally inferior” to

dairy milk within the meaning of 21 C.F.R. § 101.3(e)(4), as two distinct food

products necessarily have different nutritional profiles. As the district court

concluded, it is not plausible that a reasonable consumer would “assume that two

distinct products have the same nutritional content.”

4 3. The district court did not abuse its discretion in denying Painter leave to

amend her complaint. No amendment to omit existing claims could improve the

plausibility of the consumer confusion allegations Painter asserts. Thus, because

“amendment would be futile,” the district court properly dismissed Painter’s claims

with prejudice. Ventress v. Japan Airlines, 603 F.3d 676, 680 (9th Cir. 2010)

(internal quotation marks and citation omitted).

4. Painter is judicially estopped from requesting on appeal that we invoke

primary jurisdiction. See Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778,

782–83 (9th Cir. 2001). Painter successfully argued against the applicability of the

primary jurisdiction doctrine before the district court and asserts the opposite on

appeal only after an unfavorable ruling. Accordingly, judicial estoppel “precludes

[Painter] from gaining an advantage by asserting one position, and then later

seeking an advantage by taking a clearly inconsistent position.” Hamilton, 270

F.3d at 782.

AFFIRMED. 1

1 Appellant’s motions to take judicial notice (ECF Nos. 43, 47) are

GRANTED.

5