Pitre v. Kevita, Inc.

Background

Yolanda Pitre sued KeVita, Inc. over the labeling of its “Sparkling Lemonade with Prebiotics.” The label included the phrases “prebiotics for gut health” and “Trust your gut and grab the deliciously refreshing taste of real lemons with prebiotics, your tummy and taste buds will thank you!” Pitre alleged that the product could not provide the advertised gut-health benefits because each can contained three grams of fiber from acacia, also called gum arabica, and four grams of added sugar. She alleged that consumers would need to drink more than three cans daily to reach a potentially effective fiber amount, while also consuming 12 grams of added sugar.

Pitre asserted claims under California’s Consumer Legal Remedies Act, False Advertising Law, and Unfair Competition Law. She filed the case on behalf of herself and a putative class of consumers who purchased the product. KeVita moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which permits dismissal when a complaint does not plausibly state a legal claim.

Requests for Judicial Notice

The court denied KeVita’s request to take judicial notice of complete product-label images because KeVita did not authenticate the images or confirm that products bearing those labels were sold during the relevant class period. The court considered two studies and one article under the incorporation-by-reference doctrine because the parties agreed that the court could consider them. It declined to take judicial notice of the other 11 studies referenced in the amended complaint because Pitre did not show that their contents were described in, or integral to, the complaint and did not provide them.

Misrepresentation Theory

Pitre’s central theory was that KeVita’s gut-health representations were misleading because the product contained too little fiber and too much added sugar to benefit the gut microbiome. Her allegations relied substantially on a study concerning gum arabica. The study described an optimal dose of approximately 5 to 10 grams for prebiotic efficacy, did not establish a minimum effective dose, and reported a measurable benefit at the lowest dose it tested, five grams per day.

The court held that the study did not support Pitre’s allegation that at least 10 grams of gum arabica were necessary to improve gut health. Because that allegation supplied the foundation for Pitre’s theory that the product’s fiber amount was inadequate, the court concluded that the remaining allegations did not plausibly support her claims. The court also noted an additional deficiency: the amended complaint did not define how much added sugar constitutes a diet high in added sugar.

Likelihood of Consumer Deception and Puffery

Under the California Unfair Competition Law, False Advertising Law, and Consumer Legal Remedies Act, an advertisement is misleading when it is likely to deceive a reasonable consumer. The court found this to be the rare case in which dismissal at the pleading stage was appropriate because Pitre had not plausibly alleged that the product’s fiber amount was insufficient to support gut health. The court therefore found no basis for concluding that KeVita’s conduct was deceptive or misleading.

The court rejected KeVita’s argument that “your tummy and taste buds will thank you” was nonactionable puffery. Although that phrase might be puffery when viewed alone, the court held that the label as a whole made representations about the effect of the product’s prebiotics on gut health.

Unfair Competition Law Claim

The court dismissed Pitre’s Unfair Competition Law claim. Pitre alleged violations under the statute’s unlawful, unfair, and fraudulent theories. The court concluded that the fraudulent theory failed for the reasons already stated. It also concluded that Pitre had not plausibly alleged that KeVita’s conduct was unlawful or unfair because those theories depended on the unsupported allegation that consumers needed to drink more than three cans to obtain a gut-health benefit. The court further stated that Pitre had not plausibly alleged a legal violation or consumer injury under those theories.

Non-Monetary Relief

The court rejected KeVita’s challenge to Pitre’s standing to seek injunctive relief. Applying Ninth Circuit precedent, the court held that a previously deceived consumer may have standing to seek an injunction against allegedly false advertising when she alleges that she cannot rely on the advertising in the future. The court found that Pitre had made that allegation and that the nutritional facts label could not by itself verify the challenged statements about gut-health benefits.

The court also declined to dismiss Pitre’s requests for restitution and disgorgement. At the pleading stage, the court held, a plaintiff may plead that legal remedies are inadequate or plead equitable claims in the alternative. The court found that Pitre had done so.

Disposition

Judge Tigar granted KeVita’s motion to dismiss. The court granted Pitre leave to file an amended complaint within 21 days, solely to correct the deficiencies identified in the order. The court stated that if no amended complaint was timely filed, the case would be dismissed with prejudice.