Mirko Carrea v. Dreyer's Grand Ice Cream, Inc.

MEMORANDUM

Mirko Carrea (“Carrea”) appeals the district court’s dismissal of his Second Amended Class Action Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The complaint alleges that Dreyer’s Grand Ice Cream, Inc. (“Dreyer’s”) violated four state consumer protection laws: (1) Unfair Competition Law, Cal. Bus. and Prof.Code § 17200 et seq.; (2) False Advertising Law, Cal. Bus. and Prof. Code § 17500 et seq.; (3) California Consumers Legal Remedies Act, Cal. Civ. Code § 1750 , et seq.; and (4) New York General Business Law § 349. We have jurisdiction under 28 U.S.C. § 1291 . We review de novo a dismissal under Rule 12(b)(6), and we affirm.

Carrea’s claims regarding the “Og Trans Fat” statement, located on the front of Drumstick’s packaging, are expressly preempted by the Federal Food, Drug and Cosmetic Act (“FDCA”), as amended by the Nutrition Labeling and Education Act (“NLEA”). 21 U.S.C. § 343 — 1(a)(5). The statement is an express nutrient content claim that the Federal Food and Drug Administration (“FDA”) not only permits, 21 C.F.R. § 101.13 (i)(3), but further instructs should mirror the Nutrition Facts panel, see 58 Fed.Reg. 44020, 44024-25 (Aug. 18,1993)…