Krystofiak v. BellRing Brands, Inc.

Background

Patricia Krystofiak, Luis Carreno, and Jonathan Zimmerman filed a proposed class action against BellRing Brands, Inc. and Premier Nutrition Company, LLC. They alleged that Premier Protein shakes and Premier Protein Plant Powders contained high levels of lead and that labeling such as “High Protein,” “healthy snack,” “Immune Health Support,” “plant protein,” and “a powerful nutrition boost” was deceptive or misleading. The complaint asserted claims under California and New York consumer-protection laws, breach-of-warranty claims, negligent and intentional misrepresentation, and unjust enrichment.

The defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction, including lack of constitutional standing, and under Rule 12(b)(6) for failure to state a claim. They also raised the heightened fraud-pleading requirement in Rule 9(b), federal preemption, the FDA’s primary-jurisdiction doctrine, and other arguments.

Standing and Rule 9(b)

The court held that an overpayment theory—alleging that the plaintiffs paid more for products because of misleading representations or omissions—could constitute an injury for standing purposes. The court did not decide at the pleading stage what level of lead was safe or unsafe.

The court dismissed Krystofiak’s and Zimmerman’s claims for lack of standing because they alleged that they bought shakes in “various flavors” without identifying a specific flavor, container size, or package size. The court also found that the alleged testing did not establish the lead content of the other untested shake flavors. It found the two protein-powder flavors substantially similar because they allegedly used the same challenged representations. The motion was denied as to Carreno’s standing and as to standing concerning both powder flavors.

For future injunctive relief, the court denied the motion as to Carreno but granted it as to Krystofiak and Zimmerman because they needed to identify what they had purchased before they could establish that they were previously deceived consumers. The court also granted the motion as to the Rule 9(b) pleading requirement for Krystofiak and Zimmerman, whose allegations did not identify what products they purchased. The motion was denied as to Carreno under Rule 9(b).

Preemption, FDA Jurisdiction, and Proposition 65

The court granted the motion on express preemption for claims based on the “High Protein” label. It concluded that federal law governs that label and that the plaintiffs were effectively seeking an additional disclosure about lead that federal law does not require. The court denied the motion on express preemption for “healthy snack,” finding that the phrase was not connected to a particular nutrient and therefore was not an implied nutrient claim under the regulation discussed in the opinion.

The court denied the motion on implied preemption. It found no field preemption and concluded that the federal labeling law preserved state-law claims not expressly preempted. It also found that the FDA had not set regulated lead levels for the products at issue and that factual disputes about lead levels could not be resolved on a motion to dismiss. The court denied the defendants’ primary-jurisdiction argument because the claims concerned whether the labels were misleading and there was no indication that FDA involvement would improve efficiency or address the challenged representations.

The court ruled that Proposition 65 notice requirements and a Proposition 65 consent judgment did not apply because the plaintiffs’ claims were based on alleged misrepresentations and harms different from Proposition 65’s focus.

California and New York Consumer Claims

For the shakes, the court found that “immune health” and “healthy snack” could potentially mislead a reasonable consumer at the pleading stage. But the plaintiffs did not plausibly explain how the alleged lead levels made those representations deceptive. The complaint did not clearly connect the measured lead amounts to a relevant threshold or explain why those amounts made the labeling misleading. The court therefore found the shake misrepresentation claims insufficiently pleaded, along with UCL theories based on the same conduct.

For the powders, the court found no plausible connection between lead and representations about plant protein, the absence of dairy, soy, gluten, or lactose, or a “powerful nutrition boost.” It also found “powerful nutrition boost” to be vague promotional language, or puffery. The motion was granted as to the California consumer-protection claims for the powders, with leave to amend. The court granted the motion as to the plaintiffs’ claims under New York law for the same basic reasons concerning the alleged deception, with leave to amend.

The court granted the motion as to the omission theory, with leave to amend, because the plaintiffs had not adequately alleged either that the omissions contradicted an affirmative representation or that the defendants had a duty to disclose based on the alleged lead levels and health representations.

Warranty and Misrepresentation Claims

The court granted the motion as to the express-warranty claim, with leave to amend. It found that the alleged labeling did not plausibly promise that the products would contain no lead or that their lead content would meet an identified standard. It also found that Zimmerman’s general allegation of reliance did not identify which representation he relied on.

The court granted the motion as to the implied-warranty-of-merchantability claim, with leave to amend. Although the products were food and the plaintiffs did not necessarily need to plead direct contractual privity, their conclusory allegations that the products were unsafe or unfit for consumption did not provide enough facts to show that the products lacked the basic fitness for ordinary use.

The court granted the motion as to negligent misrepresentation under New York law, with leave to amend. The plaintiffs did not adequately allege that the defendants’ specialized statements were supplied for a purpose related to lead or that the plaintiffs relied on those statements when making their purchases. The court also granted the motion as to intentional misrepresentation, with leave to amend, based on the deficiencies already discussed and the failure to plead the claim with sufficient particularity.

Unjust Enrichment and Equitable Relief

The court declined to categorically reject a stand-alone unjust-enrichment or quasi-contract claim. Nevertheless, it granted the motion as to unjust enrichment, with leave to amend, because that claim depended on the same inadequately pleaded conduct as the California consumer-protection claims.

The court also granted the motion as to equitable relief, including injunctive relief, with leave to amend. It did not categorically rule that equitable relief was unavailable, but concluded that the existing claims did not adequately support it.

Judicial Notice and Disposition

The court granted the defendants’ request for judicial notice. It took notice of the existence of certain FDA and California government webpages, a Proposition 65 notice, and other public materials, but did not accept the factual assertions within those materials as true or rely on them to resolve the motion. It also took judicial notice of a related consent judgment and other proceedings as described in the order.

Overall, the court granted in part and denied in part the motion to dismiss, with leave to amend. It denied the motion regarding Carreno’s Article III standing and Rule 9(b) allegations; granted dismissal as to Krystofiak and Zimmerman for lack of Article III standing and failure to satisfy Rule 9(b); granted the motion as to express preemption based on “High Protein”; denied it as to express preemption based on “healthy snack,” implied preemption, and FDA primary jurisdiction; granted dismissal of the California and New York claims, warranty claims, negligent and intentional misrepresentation claims, unjust-enrichment claim, and equitable-relief claims; and granted judicial notice as described in the order. The amended complaint was due July 5, 2024.