Seljak v. Pervine Foods, LLC

Background

Cade Seljak, Jacob Bernardi, and Nancy Taylor brought a proposed class action against Pervine Foods, LLC concerning FITCRUNCH whey-protein baked bars and FITBAR energy bars. The plaintiffs alleged that Pervine Foods’ use of the word “FIT” caused consumers to believe the products were “healthy,” even though the products contained between 8 and 18 grams of fat and therefore did not satisfy the federal regulatory definition of “healthy.” The word “healthy” did not appear on the packaging or in the advertisements identified in the complaint, and the plaintiffs did not allege that they relied on those advertisements.

The complaint asserted eight causes of action: claims under New York’s General Business Law sections 349 and 350; California’s Unfair Competition Law, Consumer Legal Remedies Act, and False Advertising Law; the Illinois Consumer Fraud and Deceptive Trade Practices Act; breach of express warranty; and unjust enrichment. The plaintiffs sought damages and other relief, including an injunction and relief for a national class and state subclasses.

Standing for Injunctive Relief

The court held that the plaintiffs lacked standing to seek injunctive relief. Standing is the legal requirement that a plaintiff show a concrete injury, a connection between the injury and the defendant’s conduct, and a remedy that would address the injury. The plaintiffs alleged only that they had bought FITCRUNCH products in the past and would not have bought them, or would have paid less, had they known the products did not meet the federal definition of “healthy.” They did not allege a real or immediate threat that they would be injured again. The court also reasoned that, once the plaintiffs knew the alleged truth about the products, they were unlikely to repurchase them and be misled in the same way. The claims for injunctive relief were dismissed.

Federal Preemption of the Implied Nutrient-Claim Theory

The plaintiffs characterized “FIT” as an implied nutrient-content claim under the Federal Food, Drug, and Cosmetic Act and related regulations. The court explained that the Nutrition Labeling and Education Act expressly preempts state-law requirements concerning certain food-label claims when those requirements are not identical to federal requirements. The court concluded that the plaintiffs had not plausibly alleged that the federal definition of “healthy” applies to “FIT” as a synonym. It also concluded that “FIT” did not appear alongside an explicit or implicit statement about a particular nutrient, such as fat or fiber, in the manner contemplated by the federal regulation.

The court therefore held that the plaintiffs’ claims based on the theory that “FIT” was an implied nutrient-content claim were expressly preempted and granted the motion to dismiss on that basis.

False-or-Misleading-Labeling Theory

The court separately held that the Nutrition Labeling and Education Act does not preempt the plaintiffs’ theory that the use of “FIT” made the product labeling false or misleading under the Federal Food, Drug, and Cosmetic Act’s general misbranding provision. The court denied the motion to dismiss on preemption grounds as to that theory and reached the merits of whether the labels were misleading.

Applying the reasonable-consumer standard, the court considered the packaging as a whole. It noted that FITCRUNCH packaging identified the product as a whey-protein bar with a soft cookie center, showed dessert images, and disclosed calorie and nutritional information. The court concluded that a reasonable consumer would not believe the products were healthy based merely on the word “FIT.” The court further held that, even if “FIT” were ambiguous, the nutrition panel on the back of the packaging disclosed the products’ fat content and could resolve that ambiguity. The state statutory consumer-protection claims were dismissed because the labels were not misleading as a matter of law.

Common-Law Claims and FITBAR Products

The court dismissed the breach-of-express-warranty and unjust-enrichment claims because they were based on the same alleged labeling deception and failed for the same reasons as the statutory claims. The court also stated that the unjust-enrichment claim independently failed because it duplicated the plaintiffs’ other conventional claims.

The court then held that the plaintiffs could not pursue claims concerning FITBAR products. They had alleged purchases of FITCRUNCH products, not FITBAR products, and the court had already found that they could not state a claim concerning FITCRUNCH. The court also found that the two product lines were not sufficiently similar: their packaging, flavors, ingredients, and advertising descriptions differed.

Leave to Amend and Disposition

The plaintiffs requested permission to amend in the last sentence of their opposition, without providing a justification or proposed amended complaint. The court noted that it had previously given the plaintiffs an opportunity to amend after receiving notice of the alleged deficiencies, but they did not do so. The court denied the request for leave to amend.

Judge Naomi Reice Buchwald granted Pervine Foods’ motion to dismiss in its entirety, denied leave to amend, instructed the clerk to enter judgment for Pervine Foods, and directed that the case be closed. The classification is procedural_order because the order disposed of the case through a Rule 12 motion to dismiss, even though the court also addressed the merits of the labeling theory.