Tabler v. Panera LLC

Background

Brianna Tabler alleged that Panera LLC marketed its Whole Grain Bagel, Whole Grain Bread, and other prepared foods as “100% clean.” She claimed that consumers could understand those statements to mean that the products contained no residue from synthetic chemicals used during production, including glyphosate. Tabler alleged that Panera did not disclose glyphosate residue on its website, packaging, signs, or responsibility reports.

Tabler alleged that she bought Panera products, including Whole Grain Bagels, from three California retail outlets during the class period. She said that she saw and believed in-store signs stating that Panera’s food was “100% clean.” Her amended complaint asserted claims under California’s Consumers Legal Remedies Act, False Advertising Law, and Unfair Competition Law.

Panera moved to dismiss the amended complaint. Panera argued that Tabler had not pleaded reliance on specific advertisements with enough detail, that a reasonable consumer would not understand the advertisements to mean that the products were free of glyphosate residue, that Tabler had not alleged future harm sufficient for an injunction, and that she lacked standing to challenge products she did not purchase.

Court’s Analysis

The court focused on whether Tabler pleaded reliance with the particularity required by Federal Rule of Civil Procedure 9(b). That rule requires fraud-based claims to identify the who, what, when, where, and how of the alleged misconduct. The court held that the amended complaint still did not identify which particular “100% clean” advertisement Tabler saw, believed, and relied on when making a purchase. It also did not state when she viewed the advertisement.

The court found this omission important because the amended complaint included materially different examples. Some advertisements stated “All 100% Clean” or “100% of our food is 100% clean.” Other examples stated “100% Clean Food” and added that the food contained no artificial flavors, sweeteners, preservatives, or colors from artificial sources. The court explained that if Tabler relied on the latter advertisements, her reliance would be unreasonable as a matter of law because she did not allege that glyphosate was an artificial flavor, sweetener, preservative, or coloring. By contrast, the court stated that a reasonable consumer could interpret an unqualified “100% clean” statement to mean that the product contained no glyphosate, making that issue potentially factual.

The court also rejected Tabler’s reliance on the exception recognized in In re Tobacco II. That exception can allow a plaintiff alleging a fraudulent advertising campaign to plead reliance without identifying every specific advertisement when the campaign is sufficiently long-lasting and widespread. The court held that Tabler had not provided enough information about the duration, extent, or pervasiveness of the relevant advertisements. The complaint also did not distinguish adequately between the different advertisements or specify when Tabler encountered them. The court noted that the alleged campaign began on January 13, 2017, while Tabler alleged purchases beginning in 2015, before the campaign allegedly started.

Because the court found that the amended complaint failed to satisfy Rule 9(b) and did not qualify for the In re Tobacco II exception, it did not reach Panera’s other arguments concerning injunctive relief, unpurchased products, or whether a reasonable consumer would understand the statements to address glyphosate residue.

Ruling

Judge Lucy H. Koh granted Panera’s motion to dismiss the First Amended Complaint with leave to amend. The court granted Tabler one final opportunity to amend because her claims might be able to proceed depending on which advertisements she allegedly saw, believed, and relied upon. The court ordered that any amended complaint identify the challenged statements, their location and timing, the products covered, when Tabler saw them, and which products she purchased because of them. Tabler had 30 days to amend. The court stated that failure to amend or failure to cure the identified deficiencies would result in dismissal of the deficient claims with prejudice.