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 alleged that the products contained residue from glyphosate, a synthetic chemical, and that Panera’s advertising and labeling failed to disclose that residue. The alleged advertisements appeared in television commercials, billboards, employee shirts, bags, signs, labels, and other materials.

Tabler asserted claims under California’s Consumers Legal Remedies Act, False Advertising Law, and Unfair Competition Law. She also sought to proceed as a putative class action. She alleged that she purchased Panera products, including a Whole Grain Bagel, from three California retail outlets and saw and believed in-store signs stating that Panera’s food was “100% clean.” The amended complaint did not identify the specific advertisements she saw or when she saw them. It stated only that she viewed the advertisements during the class period, which began in 2015.

The court had previously dismissed Tabler’s initial complaint with leave to amend. It had found that the complaint did not adequately identify the advertisements on which Tabler relied and had instructed her to provide specific information, including the challenged statement, its location and timing, the products covered, when she saw it, and which products she purchased because of it.

Arguments and analysis

Panera moved to dismiss the First Amended Complaint. It argued that Tabler still had not pleaded reliance on particular advertisements with the detail required by Federal Rule of Civil Procedure 9(b). Panera also argued that a reasonable consumer would not understand “100% clean” to mean that the products contained no glyphosate residue, that Tabler had not alleged future harm sufficient for injunctive relief, and that she lacked standing to challenge products she did not purchase.

The court ruled on the pleading issue and did not reach Panera’s other arguments. It held that Rule 9(b), which requires fraud-based claims to identify the who, what, when, where, and how of the alleged misconduct, applied to all three of Tabler’s California claims because they were based on allegedly fraudulent advertising and omissions.

The court concluded that the amended complaint still did not identify which specific “100% clean” advertisement Tabler saw, believed, and relied on when making a purchase. The complaint included several advertisements with different wording, but merely alleged that Tabler saw “100% clean” in-store signage. It also did not specify when she saw the advertisements. The court noted that the alleged advertising campaign began on January 13, 2017, while the complaint alleged purchases beginning in 2015, making the timing allegations inconsistent.

The court also rejected Tabler’s reliance on the exception recognized in In re Tobacco II Cases. That exception can allow a plaintiff exposed to an extensive, long-term advertising campaign to plead reliance without identifying each particular advertisement. The court held that Tabler had not adequately alleged a campaign of sufficient duration or pervasiveness and had not identified the advertisements on which she relied. The court stated that the alleged campaign lasted, at most, about two years and that the complaint did not provide enough information to evaluate its extent.

Disposition

The court granted Panera’s motion to dismiss the First Amended Complaint in its entirety. It granted Tabler leave to amend one final time because the claims might be able to proceed if she identified the specific advertisements she saw, believed, and relied upon. The court ordered her to file an amended complaint within 30 days. If she failed to file one or failed to cure the identified deficiencies, the deficient claims would be dismissed with prejudice. The court also stated that Tabler could not add new causes of action or parties without a stipulation or the court’s permission.