Marino

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

JENNIFER MARINO, Case No. 22-cv-02739-VC

Plaintiff,

ORDER DENYING MOTION TO

v. DISMISS

YUMMYEARTH, INC., Re: Dkt. No. 18 Defendant.

The motion to dismiss is denied. This ruling assumes that the reader is familiar with the record and the arguments made by the parties. 1. Judicial Notice. YummyEarth asks the Court to take judicial notice of a version of the label of its Organic Fruit Snacks, and Marino does not object. While the request for judicial notice is granted, this order relies primarily on the label included in the complaint because that is the version Marino allegedly relied on. Hawyuan Yu v. Dr Pepper Snapple Group., Inc., No. 18- CV-06664, 2020 WL 5910071, at *3 (N.D. Cal. Oct. 6, 2020).1 2. Preemption. YummyEarth argues that Marino’s claims are expressly preempted by the FDCA because its labels comply with the FDA’s regulations. See, e.g., Dvora v. General Mills, Inc., No. CV 11-1074, 2011 WL 1897349, at *4 (C.D. Cal. May 16, 2011). But Marino has plausibly alleged facts to support a conclusion that the labels are out of compliance. “[I]f the name…