NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CYNTHIA CARDARELLI PAINTER, individually and on behalf of other members of the general public similarly situated,

Plaintiff

- Appellant,

v. BLUE DIAMOND GROWERS, a California corporation and DOES, 1

- 100, inclusive, Defendants

- Appellees. No. 17

- 55901
D.C. No. 2:17

- cv - 02235

- SVW

- AJW

MEMORANDUM *

Appeal from the United States District Court for the Central District of California Stephen V. Wilson, District Judge, Presiding Argued and Submitted December 3, 2018

Pasadena, California Before: D.W. NELSON and WARDLAW, Circuit Judges, and PRATT, * * District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

* * The Honorable Robert W. Pratt, United States District Judge for the Southern District of Iowa, sitting by designation. 

# FILED

DEC 20 2018 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

Cynthia Painter a

ppeals the district court’s order dismissi ng her complaint with prejudice on grounds of preemption and failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) . On behalf of a putative class, Painter

c laims that Blue Diamond Growers (“Blue Diamond”) mislabeled its almond beve rages as “almond milk” when they should be labeled “imitation milk” because they substitute for and resemble dairy milk but are nutritionally inferior to it. See 21 C.F.R. § 101.3(e) (1)

. We have jurisdiction under 28 U.S.C. § 1291 and review the dis trict court’s dismissal de novo. Durnford v. MusclePharm Corp. , 907 F.3d 595, 601 (9th Ci r. 2018) . We affirm.
1. The district court correctly determined that the F ederal Food, Drug, and Cosmetic Act (FDCA) , 21 U.S.C. § 301

– 399i, as amended by the Nutrition Labeling and Education Act of 1990 § 6(a) , 21 U.S.C. § 343

- 1, contains a broad preemption provision, which prohibits a state from “directly or indirectly establish[ing]” food labeling requirements “not identical to” federal requirements. 21 U.S.C. § 343

- 1 (a). Accordingly, Painter’s “mislabeling” claims that seek to use state law to impose labeling requirements “not identical to” those under 21 U.S.C. § 343(c) are preempted

. See i d. § 343

- 1(a)(2). The FDCA sets forth the bare requirement that foods imita ting other foods bear a label with “the word ‘imitation’ and, immediately thereafter, the name of the food im itated. ” 21 U.S.C. § 343(c); 21 C.F.R. § 101.3(e). Therefore, Painter’s claim that Blue Diamond must3

additionally include either a nutritional co mparison of almond milk to dairy milk or cease using the term “milk” on the label of its almond milk products conflicts with the FDCA

. See Durnford , 907 F.3d at 601 ( stating the FDCA displaces fo od labeling requirements that “ [d]iffer fro m those specifica lly imposed by ” the federal statute ( quoting 21 C.F.R. § 100.1(c) (4)(ii)) )

. 2. The district court properly dismissed Painter’s deceptive marketing claims under California’s Unfair Competition Law (UCL), False Advertising Law (FAL), and Consumers Legal Remedies Act (CLRA) for failing “ to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007) ; see Cal. Bus. & Prof. Code §§ 17200

– 210 (UCL); Cal. Bus. & Prof. Code §§ 17500

– 509 (FAL); Cal. Civ. Code §§ 1750

– 84 (CLRA)

. Under the “reasonable
consumer” standard that governs Painter’s UCL, FAL, and CLRA claims, Painter “must show that members of the p ubli c are likely to be deceived” by Blue Diamond’s labeling and advertising practices. Ebner v. Fresh, Inc. , 838 F.3d 958, 965 (9th Cir. 2016) (inte rnal quotation marks and citation omitted). Painter ’s complaint does not plausibly allege that a reasonable co nsumer would be deceived into believing that Blue Diamond’s almond milk products are nutritio nally equivalent to dairy milk based on their package labels and advertising

. Unlike in Williams v. Gerber Product s Co. , 552 F.3d 934 (9th Cir. 2008), in which we found that reasonable consumers could mistakenly interpret repeated references4

to “fruit” and images of real fruit on packaging of a product called “fruit juice snacks” as a representation that the product’s ingredients were all natural, see i d. at 939, Painter concedes that Blue Diamond accurately labels and adve rtises its almond milk products . The district court correctly concluded that “[n]o reasonable

consumer could be misled by [Blue Diamond’s] unambiguous labeling or factually

acc urate n utritional statements.” Nor can Painter plausibly allege that Blue Diamond’s almond milk products are mislabeled in violation of federal law . A lmond milk is not an “imitation” of dairy milk within the meaning of 21 U.S.C. § 343(c) and 21 C.F.R. § 101.3( e). Notwithstanding any resemblance to dairy milk, almond milk is not a “substitute” for dairy milk as contemplated by section 101.3(e) (1) because almond milk does not involve literally substituting inferior ingredients for those in dairy
mil k

. See , e.g. , 62 Cases of Jam v. United States , 340 U.S. 593, 595, 600 (1951) (finding that a product that substituted fruit in fruit jam with pectin, a ge latinized,
water

- based solution, was properly labeled “imitation jam”)

. In addition, a reasonable jury could not conclude that almond milk is “nutritionally inferior” to dairy milk within the meaning of 21 C.F.R. § 101.3(e)(4), as two distinct food products necessarily have di fferent nutritional profiles. As the district court concluded, i t is not plausible that a reasonable consumer would “assume that two distinct products have the same nutritional content.”5

3 . The district court did not abuse its discretion in denying Painter leave to amend her complaint. No amendment to omit existing c laims c ould improve the plausibility of the consumer confusion allegations Painter asserts. Thus, because “amendment would be futile,” the district court properly dismissed Painter’s claims with prejudice. Ventress v. Japan Airlines , 603 F.3d 676, 680 (9 th Cir. 201 0) (internal quotation marks and citation omitted)

. 4 . Painter is judicially estopped from requesting on appeal that we invoke primary jurisdiction. See Hamilton v. State Farm Fire & Cas. Co. , 270 F.3d 778,
782

– 83 (9th Cir. 2001) . Painter suc cessfully argued against the applicability of the primary jurisdiction doctrine before the district court and asserts the opposite on appeal only after an unfavorable ruling. A ccordingly, judicial estoppel “precludes [Painter] from gaining an advantage by asserting one position, and then later seeking an advantage by taking a clearly inconsistent position.” Hamilton , 270 F.3d at 782

. AFFIRMED. 1

1 Appellant’s motions to take judicial notice (ECF Nos. 43, 47) are GRANTED.