Mauricio Chavez v. Nestle USA, Inc.

dissenting:

I respectfully dissent and would affirm dismissal of all claims.

Despite three iterations of the complaint, appellants have not pleaded any false statement. They plead that the advertisements suggesting that the additives in Juicy Juice are good for children are “likely to deceive” the public. Under Twombly and Iqbal, particularly since Federal Rule of Civil Procedure 9(b) applies, more than that conclusory claim is necessary. 1 The complaint does not suggest that anything in Juicy Juice is bad for children’s brain development, just that “the scientific evidence is mixed” as to whether DHA (an omega-3 fatty acid, and one of the nutrients in fish oil capsules) is beneficial to children. They also allege that Nestle has not substantiated the benefit by scientific proof, and that a child would have to drink more than a quart a day of Juicy Juice to get the recommended daily allowance of DHA.

Under National Council Against Health Fraud, Inc. v. King Bio Pharmeceuticals, Inc., “[pjrivate plaintiffs are not authorized to demand substantiation for advertising claims.” 2 There is nothing in Nestle’s ads that says all a child needs is a few ounces of Juicy Juice a day for…

MEMORANDUM *

Appellants challenge the district court’s dismissal of their claims under California’s Unfair Competition Law (“UCL”) and False Advertising Law (“FAL”). We affirm in part, reverse in part, and remand.

The district court correctly dismissed Appellants’ claims regarding Juicy Juice Immunity. Appellants must show that members of the public are likely to be deceived by the labels and advertising at issue, and there is simply nothing false, deceptive, or misleading about the challenged Juicy Juice Immunity materials. See Williams v. Gerber Prods. Co., 552 F.3d 984, 938-39 (9th Cir.2008).

On the other hand, Appellants’ allegations regarding Juicy Juice Brain Development will support viable FAL and UCL fraudulent business practices claims. 1 Construing the averments of fact in Appellants’ favor, see id. at 937, they have ade *607 quately pled that “members of the public are likely to be deceived” by the Juicy Juice Brain Development labeling and advertisements. Id. at 938 (internal quotation marks and citations omitted). Appellants’ complaint, which must be taken as true, id. at 937, includes: the product name; the product labels and advertisements that, induced…

FILED

NOT FOR PUBLICATION MAR 08 2013

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

MAURICIO CHAVEZ, individually and No. 11-56066 on behalf of all others similarly situated; ZANETTA TADDESSE-BONSIGNORE, D.C. No. 2:09-cv-09192-GW-CW individually and on behalf of all others similarly situated; VINCENT BONSIGNORE, individually and on MEMORANDUM * behalf of all others similarly situated,

Plaintiffs - Appellants,

v.

NESTLE USA, INC., a Delaware Corporation,

Defendant - Appellee.

Appeal from the United States District Court for the Central District of California George H. Wu, District Judge, Presiding

Argued and Submitted February 12, 2013 Pasadena, California

Before: GOODWIN, KLEINFELD, and SILVERMAN, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Appellants challenge the district court’s dismissal of their claims under

California’s Unfair Competition Law (“UCL”) and False Advertising Law

(“FAL”). We affirm in part, reverse in…