Filed 2/6/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

MICHELLE SHAEFFER,

Plaintiff and Appellant,

v.

CALIFIA FARMS, LLC,

Defendant and 

Respondent.

 B291085

 (Los Angeles County

 Super. Ct. No. BC654207)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Ann I. Jones, Judge. Affirmed.

Capstone Law, Ryan H. Wu, and Robert K. Friedl for 

Plaintiff and Appellant.

Sheppard Mullin Richter & Hampton, and Sascha Henry 

for Defendant and Respondent. 

* * * * * *
2

California’s Unfair Competition Law (Bus. & Prof. Code, 

§ 17200 et seq.), false advertising law (id., § 17500 et seq.), and 

Consumer Legal Remedies Act (CLRA) (Civ. Code, § 1770 et seq.), 

among other things, prohibit advertisements—including product 

labels—with statements that are “‘“likely to . . . deceive”’” 

“‘“members of the public.”’” (Kasky v. Nike, Inc. (2002) 27 Cal.4th 

939, 951 (Kasky); Consumer Advocates v. Echostar Satellite Corp.

(2003) 113 Cal.App.4th 1351, 1360 (Consumer Advocates).) This 

case presents the question: Where a product label accurately 

states that the product has “no sugar added,” is a reasonable 

consumer likely to view that statement as a representation that 

competing products do have sugar added, which, if untrue, 

renders the product label at issue deceptive? We conclude that 

the answer is “no,” and do so as a matter of law. Because the 

allegations underlying plaintiff’s remaining claims are also 

deficient, we affirm the trial court’s order sustaining a demurrer 

without leave to amend.

FACTS AND PROCEDURAL BACKGROUND

I. Facts1

Califia Farms, LLC (Califia) manufactures and distributes 

a “100% Tangerine Juice” known as “Cuties Juice.” The front 

label of the juice’s bottle depicts a smiling tangerine coming out 

of its peel. Above the tangerine, the label prominently displays 

the word “Cuties”; below the tangerine and on three lines of 

1 We draw the facts set forth below from the allegations in 

the operative, second amended complaint, which we assume to be 

true for purposes of evaluating the demurrer on appeal before us 

now. (Coker v. JPMorgan Chase Bank, N.A. (2016) 62 Cal.4th 

667, 671.)
3

increasing smaller text, the label reads “100% Tangerine Juice,” 

“No Sugar Added,” and “Never From Concentrate.” 

Michelle Shaeffer (plaintiff) bought a bottle of Cuties Juice 

in a supermarket in Merced, California. She selected Cuties 

Juice because “her children enjoy eating fresh tangerines,” and 

she did so over “other, similar tangerine juices” because its label 

“stated ‘No Sugar Added’” and because “she is diabetic.” 

II. Procedural Background

A. The operative complaint

Plaintiff brought suit in March 2017. 

In the operative, second amended complaint,2 plaintiff

alleges that the label on the Cuties Juice violates the Unfair 

Competition Law (Bus. & Prof., § 17200 et seq.), the false 

advertising law (id., § 17500 et seq.), and the CLRA (Civ. Code, 

§ 1770 et seq.). She seeks to certify a class of “all persons in the

United States who purchased one or more containers of Cuties 

100% Tangerine Juice with the phrase ‘No Sugar Added’ on its 

label or outer packaging.” 

Plaintiff alleges that the Cuties Juice label is fraudulent. 

Despite the “literal[] tru[th]” of the label’s statement that Cuties 

Juice has “No Sugar Added,” plaintiff alleges it is nevertheless 

fraudulent because it is “likely to deceive reasonable consumers 

in its implications.” (Italics added.) In particular, plaintiff 

alleges that the “No Sugar Added” statement on the Cuties Juice 

2 The trial court sustained a demurrer to plaintiff’s original 

complaint, and the parties stipulated that she could file a second 

amended complaint to supersede the first amended complaint. 

The original complaint did not name Califia as a defendant; 

plaintiff substituted Califia for a fictitiously named defendant, 

and then dismissed the originally named defendants.
4

label implies that (1) “competing brands” do “contain added 

sugar[],” such that Cuties Juice “contain[s] less sugar than 

competing brands that did not have sugar-content claims on their 

front labels,” and (2) Cuties Juice is therefore “different and 

healthier than . . . competing brands of tangerine juice.” Because 

the competing brands do not contain added sugar, plaintiff goes 

on to allege, the Cuties Juice label constitutes (1) a “fraudulent” 

business practice under the Unfair Competition Law, (2) an 

“untrue or misleading” advertisement under the false advertising 

law, and (3) an “unfair method[] of competition” under the CLRA 

because the label misrepresents the “characteristics” of Cuties 

Juice (under subdivision (a)(5) of Civil Code section 1770), 

misrepresents its “particular standard” or “quality” (under 

subdivision (a)(7)), and “advertise[s]” the Juice “with the intent 

not to sell it as advertised” (under subdivision (a)(9)). 

Plaintiff alleges that the Cuties Juice label is also 

“unlawful” under the Unfair Competition Law because it does not 

comply with two of the five prerequisites that must be satisfied 

before a label may state “no sugar added” under a federal 

labeling regulation (21 C.F.R. § 101.60(c)(2)). In particular, 

plaintiff alleges that the Cuties Juice label did not comply with 

the federal regulation because (1) “the [product] that [Cuties 

Juice] resembles and for which it substitutes”—that is, “100% 

tangerine juice”—does not “normally contain added sugars,” and 

(2) the label does not also “bear[] a statement that it is not ‘low 

calorie’ or ‘calorie reduced’” and does not “direct[] consumers’ 

attention to the [product’s] nutrition panel.” 

B. Califia’s demurrer

Califia demurred to the second amended complaint on the 

ground that (1) the Cuties Juice label was not “fraudulent” 
5

because no reasonable consumer was likely to be deceived by the 

“No Sugar Added” language, (2) plaintiff did not adequately 

allege a violation of the CLRA, and (3) plaintiff lacked standing. 

After briefing and a hearing, the trial court issued a fivepage ruling sustaining the demurrer without leave to amend. 

The court ruled that the inclusion of “No Sugar Added” on the 

Cuties Juice label was not “fraudulent” or a misrepresentation. 

Analogizing this case to Rubenstein v. The Gap, Inc. (2017) 14 

Cal.App.5th 870 (Rubenstein), the court reasoned that “[t]he ‘No 

Sugar Added’ statement on the Cuties Juice makes no 

representation other than the truthful fact that Cuties juice has 

no sugar added” and that the representations plaintiff alleges are 

implied by the “No Sugar Added” statement are “nowhere to be 

found on the label” and “unreasonabl[e].” The court further ruled 

that the Cuties Juice label did not violate the federal regulation 

because (1) the product Cuties Juice “resembles” and “substitutes 

for” is “all fruit juices,” some of which “normally contain added 

sugars,” and (2) plaintiff “cannot show that she relied on” the 

label’s failure to “include . . . ‘low calorie’ or ‘calorie reduced’” 

because her purchase decision had nothing to do with calorie 

content. The court finally ruled that plaintiff lacked standing to 

pursue any of her claims because she “cannot allege detrimental 

reliance” on the “No Sugar Added” verbiage on the label because 

her decision to buy Cuties Juice rested instead on her “own 

unreasonable inference from the ‘No Sugar Added’ statement that 

. . . Cuties [J]uice was healthier than competing brands of 

tangerine juice.” 

Following the entry of judgment dismissing the case, 

plaintiff filed this timely appeal.
6

DISCUSSION

Plaintiff argues that the trial court erred in sustaining 

Califia’s demurrer without leave to amend. In reviewing this 

argument, we ask two questions: (1) Was the demurrer properly 

sustained; and (2) Was leave to amend properly denied? “The 

first question requires us to independently ‘““determine whether 

the [operative] complaint states facts sufficient to constitute a 

cause of action.’”’”’ (Schep v. Capital One, N.A. (2017) 12 

Cal.App.5th 1331, 1335 (Schep), quoting Centinela Freeman 

Emergency Medical Associates v. Health Net of California, Inc.

(2016) 1 Cal.5th 994, 1010; Lee v. Hanley (2015) 61 Cal.4th 1225, 

1230.) To properly state a cause of action, and as pertinent here, 

the operative complaint must sufficiently allege (1) “every 

element of [that] cause of action” and (2) the plaintiff’s standing 

to sue. (Rossberg v. Bank of America, N.A. (2013) 219 

Cal.App.4th 1481, 1490-1491; Peterson v. Cellco Partnership

(2008) 164 Cal.App.4th 1583, 1589.) In undertaking this review, 

“[w]e must take [the operative complaint’s] allegations . . . as 

true” (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 

1185, 1191 (Aryeh)), but may “not assume the truth of [any 

alleged] contentions, deductions or conclusions of law” because 

“appellate courts must independently decide questions of law” 

(City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865; 

Gutierrez v. Carmax Auto Superstores California (2018) 19 

Cal.App.5th 1234, 1242 (Gutierrez)). “The second question 

‘requires us to decide whether “‘there is a reasonable possibility 

that the defect [in the operative complaint] can be cured by 

amendment.’”’” (Schep, at p. 1335, quoting McClain v. Sav-On 

Drugs (2017) 9 Cal.App.5th 684, 695, affirmed, 6 Cal.5th 951 

(2019).)
7

I. Was the Demurrer Properly Sustained?

A. Applicable law

1. Causes of action and their elements

a. Unfair Competition Law

As its name suggests, California’s Unfair Competition Law 

bars “unfair competition” and defines the term as a “business act 

or practice” that is (1) “fraudulent,” (2) “unlawful,” or (3) “unfair.” 

(Bus. & Prof. Code, § 17200; Cel-Tech Communications, Inc. v. 

Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 180 

(Cel-Tech).) Each is its own independent ground for liability 

under the Unfair Competition Law (Aryeh, supra, 55 Cal.4th at p. 

1196 [noting independent “prong[s]”), but their unifying and 

underlying purpose “is to protect both consumers and competitors 

by promoting fair competition in commercial markets for goods 

and services” (Kasky, supra, 27 Cal.4th at p. 949).

(i) “Fraudulent” business act or 

practice

To prevail on a claim under the fraudulent prong of the 

Unfair Competition Law “based on false advertising or 

promotional practices,” the plaintiff must “‘show that “members 

of the public are likely to be deceived.”’” (Kasky, supra, 27 

Cal.4th at p. 951, quoting Committee on Children’s Television, 

Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 211 (Committee 

on Children’s Television), superseded by statute on other grounds 

as stated in Branick v. Downey Savings & Loan Assn. (2006) 39 

Cal.4th 235, 242; In re Tobacco II Cases (2009) 46 Cal.4th 298, 

312 (Tobacco II).) An advertisement or promotional practice is

likely to deceive if it includes assertions that are (1) untrue, or (2) 

“‘true[, but] are either actually misleading or which [have] the 

capacity, likelihood or tendency to deceive or confuse the public.’ 

[Citation].” (Kasky, at p. 951; Leoni v. State Bar (1985) 39 Cal.3d 
8

609, 626 (Leoni).) By focusing on whether “members of the 

public” are likely to be deceived, the Unfair Competition Law 

views the challenged ad or promotional practice through the eyes 

of the “reasonable consumer”—that is, the “ordinary consumer 

acting reasonably under the circumstances”—unless the 

advertisement or practice is “aimed at a particularly susceptible 

audience.” (Lavie v. Proctor & Gamble Co. (2003) 105 

Cal.App.4th 496, 506-507, 512 (Lavie); Freeman v. Time, Inc. (9th 

Cir. 1995) 68 F.3d 285, 289; see also Lavie, at p. 504 [rejecting a 

“‘least sophisticated consumer standard’”].) This focus on the 

“reasonable consumer”—rather than any particular consumer—

means that an ad or practice may be “fraudulent” even without 

any “‘individualized proof of deception, reliance and injury.’ 

[Citation].” (Tobacco II, at p. 326; see also id. at p. 320.)

(ii) “Unlawful” business act or practice

To prevail on a claim under the unlawful prong of the 

Unfair Competition Law, the plaintiff must show that a 

challenged advertisement or practice violates any federal or 

California “statute or regulation.” (Gutierrez, supra, 19 

Cal.App.5th at p. 1265; Ayreh, supra, 55 Cal.4th at p. 1196; Rose 

v. Bank of America, N.A. (2013) 57 Cal.4th 390, 394.)

b. False advertising law

Also as its name suggests, California’s false advertising law 

bars “any advertising device . . . which is untrue or misleading.” 

(Bus. & Prof. Code, § 17500.) Because this law and the 

fraudulent prong of the Unfair Competition Law substantively 

overlap (Kasky, supra, 27 Cal.4th at p. 950; Committee on 

Children’s Television, supra, 35 Cal.3d at p. 210; Tobacco II,

supra, 46 Cal.4th at p. 312, fn. 8), the plaintiff’s burden under 

these provisions is the same: To prevail on a claim under the 
9

false advertising law, she must show that “‘“members of the 

public are likely to be deceived.’” [Citation]” (Kasky, at p. 951) 

and must do so as adjudged through the eyes of “the reasonable 

consumer” (Consumer Advocates, supra, 113 Cal.App.4th at p.

1360). 

c. CLRA

The CLRA defines 27 “unfair methods of competition and 

unfair or deceptive acts or practices.” (Civ. Code, § 1770.) As 

pertinent here, they include (1) “[r]epresenting that goods 

. . . have . . . characteristics [or] . . . benefits . . . that they do not 

have” (id., subd. (a)(5)), (2) “[r]epresenting that goods . . . are of a 

particular standard, quality, or grade . . . if they are of another” 

(id., subd. (a)(7)), and (3) “[a]dvertising goods . . . with intent not 

to sell them as advertised” (id., subd. (a)(9)). The CLRA also 

views representations through the eyes of “the reasonable 

consumer.” (Consumer Advocates, supra, 113 Cal.App.4th at p. 

1360; Hill v. Roll Internat. Corp. (2011) 195 Cal.App.4th 1295, 

1304 (Hill).) An actionable “representation” may be (1) an 

affirmative representation, or (2) an omission “if the omitted fact 

is ([a]) ‘contrary to a [material] representation actually made by 

the defendant’ or ([b]) is ‘a fact the defendant was obliged to 

disclose.’” (Gutierrez, supra, 19 Cal.App.5th at p. 1258, quoting 

Daugherty v. American Honda Motor Co., Inc. (2006) 144 

Cal.App.4th 824, 835.)

2. Standing

A person has standing to bring a claim under the Unfair 

Competition Law, the false advertising law, or the CLRA only if 

she establishes that (1) she “has suffered” “economic injury” or 

“damage,” and (2) this injury or damage “was the result of, i.e., 

caused by,” the unfair business practice, false advertising or the 
10

CLRA violation “that is the gravamen of [her] claim.” (Kwikset

Corp. v. Superior Court (2011) 51 Cal.4th 310, 322, 326 (Kwikset); 

Veera v. Banana Republic, LLC (2016) 6 Cal.App.5th 907, 916 

[“the standing requirements of the CLRA are essentially identical 

to those of the [Unfair Competition Law] and the [false 

advertising law]”]; Hinojos v. Kohl’s Corp. (9th Cir. 2013) 718 

F.3d 1098, 1108 [same].) To prove the second element of 

causation, the plaintiff must show that she “actual[ly] reli[ed]” on 

the “allegedly deceptive or misleading statement” and that it 

“was an immediate cause” of her injury. (Kwikset, at pp. 326-

327.) Because, as noted above, a particular statement may be 

“fraudulent” to a “reasonable consumer” without “‘individualized 

proof of deception, reliance, and injury,’” the showing of actual 

reliance necessary to establish a plaintiff’s standing is different 

and, more to the point, more demanding. (Tobacco II, supra, 46 

Cal.4th at p. 326; see also id. at p. 306 [“standing requirements 

are applicable only to the [plaintiff-]class representatives”].)

B. Analysis

Due to the substantial overlap among plaintiff’s claims 

under the Unfair Competition Law, the false advertising law and 

the CLRA, the propriety of the trial court’s order sustaining the 

demurrer in this case ends up turning on three questions: (1) Is 

the “No Sugar Added” language on the Cuties Juice label likely to 

deceive the reasonable consumer?; (2) Is Califia’s use of the “No 

Sugar Added” language unlawful?; and (3) Does plaintiff allege 

facts sufficient to grant her standing to bring these claims? 

1. Is the “No Sugar Added” language on the Cuties 

Juice label likely to deceive the reasonable consumer?

As our Supreme Court has observed, “labels matter.” 

(Kwikset, supra, 51 Cal.4th at p. 328.) However, and as noted 

above, only those statements on a label that are “likely to 
11

deceive” a “reasonable consumer” are actionable under the Unfair 

Competition Law, the false advertising law and the CLRA. 

(Kasky, supra, 27 Cal.4th at p. 951; Consumer Advocates, supra, 

113 Cal.App.4th at p. 1360.)

At one end of the spectrum are statements a business 

affirmatively makes about its product on its label that are 

untrue. (Leoni, supra, 39 Cal.3d at 626.) Such affirmative 

misrepresentations are, by definition, “fraudulent” and “false.” 

Thus, a label stating that a lock was “Made in [the] U.S.A.” when 

it was not is actionable. (E.g., Kwikset, supra, 51 Cal.4th at pp. 

327-330.)

Next along the spectrum are statements a business

affirmatively makes about its product on its product’s label that 

are “literally true, [but] nevertheless deceptive and misleading in 

[their] implications.” (People v. Wahl (1940) 39 Cal.App.2d Supp. 

771, 773 (Wahl), italics added; Abbott Laboratories v. Mead 

Johnson & Co. (7th Cir. 1992) 971 F.2d 6, 13 (Abbott 

Laboratories) [“statements which, while literally true or 

ambiguous, convey a false impression or are misleading in 

context, as demonstrated by actual consumer confusion” are 

actionable].) However, an implied representation is actionable 

only if a reasonable consumer is likely to infer that 

representation from the label’s affirmative content. Thus, a label 

on a “Fruit Juice Snacks” package depicting “images of fruits 

such as oranges, peaches, strawberries, and cherries” but actually 

containing only “white grape juice from concentrate,” while 

technically true because the snacks do contain the juice of a fruit, 

is nonetheless actionable because a reasonable consumer would 

be likely to infer from the label that the snacks contain the fruits 

prominently depicted on the label. (Williams v. Gerber Prod. Co.
12

(9th Cir. 2008) 552 F.3d 934, 936, 939; see also Gutierrez, supra, 

19 Cal.App.5th at pp. 1240, 1258-1260 [statement that a used car 

had “passed a rigorous 125-Point Quality Inspection” and listing 

all 125 points but omitting an outstanding recall for one of the 

car’s components; actionable].) Conversely, a brand label for “The 

Gap” and “Banana Republic” affixed to clothing sold by these 

clothiers in their discount stores does not imply that these 

clothing items had at one time been available for sale in the 

clothiers’ full-price, retail stores, and hence does not imply that 

these clothes are of the same quality, because a reasonable 

consumer is not likely to draw that inference. (Rubenstein,

supra, 14 Cal.App.5th at pp. 874, 876-877.)

Further down the spectrum are statements a business 

affirmatively makes—not about its product—but about 

comparable, competing products that are false and that imply 

that the product at issue is superior to its competition. This 

would apply, for example, if the Cuties Juice label had stated 

“The Only One with No Sugar Added” because it would have 

affirmatively and effectively stated that all other tangerine juices 

added sugar and that the Cuties Juice was the superior, healthier 

choice. (Hartford Casualty Ins. Co. v. Swift Distribution, Inc. 

(2014) 59 Cal.4th 277, 294 (Hartford) [discussing this example].) 

Such statements, if disparaging, can be actionable by a 

competitor in a claim for trade disparagement (id., at pp. 284, 

291, 294) and, if untrue, by consumers under the Unfair 

Competition Law, false advertising law and the CLRA.

And at the far end of the spectrum are statements a 

business affirmatively and truthfully makes about its product 

and which do not on their face mention or otherwise reference its 

competing products at all. Because, as noted above, a statement 
13

may be “fraudulent” (and hence actionable) if it is “deceptive and 

misleading in its implications” (Wahl, supra, 39 Cal.App.2d Supp. 

at p. 773; Abbott Laboratories, supra, 971 F.2d at p. 13), whether 

a truthful statement about one’s own product is actionable turns 

on whether a reasonable consumer is (1) likely to infer from such 

a statement that the very same statement is untrue as to 

comparable, competing products, (2) likely to infer that the 

product at issue is consequently superior to its competition, and 

(3) likely to be deceived if the statement is true as to the 

comparable, competing products? 

We hold that such statements are not actionable as a 

matter of law, and do so for three reasons. First, a reasonable 

consumer is unlikely to make the series of inferential leaps 

outlined above. Second, we are hesitant to adopt a theory upon 

which “almost any advertisement [truthfully] extolling” a 

product’s attributes “would be fodder for litigation.” (Hartford,

supra, 59 Cal.4th at p. 299.) Third, the weight of other authority 

has come to the same conclusion. A water bottle label with a 

green waterdrop may suggest “‘something to do with the 

environment,’” but does not imply that it is “environmentally 

superior to that of the competition” and thus does not constitute a 

“fraudulent” statement under the Unfair Competition Law, the 

false advertising law, or the CLRA. (Hill, supra, 195 Cal.App.4th 

at pp. 1298, 1300-1301, 1307.) An example vividly makes our 

point: Assume that a new airline runs an ad with a tagline, “No 

Hijackers Allowed.” Is a reasonable consumer likely to infer that 

other airlines do allow hijackers and that the new airline is 

consequently the safer choice? We think the answer to this 

question is “no.” 
14

The allegations in this case fall on this far end of the 

spectrum and, for that reason, are not actionable as a matter of 

law. That is because plaintiff alleges that Califia’s inclusion of 

“No Sugar Added” on the Cuties Juice label implies that 

“competing brands” “do contain added sugar,” that Cuties Juice is 

“different and healthier than [these] competing brands of 

tangerine juice” and that consumers are likely to be deceived 

because not all of those competing brands contain added sugar. 

Because, as noted above, a reasonable consumer is not likely to 

engage in these inferential leaps, we conclude that the “No Sugar 

Added” label on Cuties Juice is not actionable as a matter of law. 

(Accord, Major v. Ocean Spray Cranberries, Inc. (N.D. Cal. 2015) 

2015 U.S. Dist. LEXIS 23542, at *10-*11 (Major) [reaching same 

conclusion]; but see, Gina Park v. Knudsen & Sons, Inc. (C.D. 

Cal. 2015) 2015 U.S. Dist. LEXIS 189227, *24 -*25 (Park)

[coming to opposite conclusion].)

Plaintiff offers three arguments against this conclusion.

First, she argues that whether a label’s content is likely to 

deceive is a factual question that cannot be decided on demurrer. 

Although “whether consumers are likely to be deceived is” 

typically “a question of fact” (Chapman v. Skype Inc. (2013) 220 

Cal.App.4th 217, 226 (Chapman); Gregory v. Albertson’s Inc.

(2002) 104 Cal.App.4th 845, 857), that issue may be resolved on 

demurrer if “the facts alleged fail as a matter of law to show” that 

a “reasonable consumer would be misled” (Hill, supra, 195 

Cal.App.4th at p. 1301; Rubenstein, supra, 14 Cal.App.5th at p. 

877; Chapman, at pp. 226-227). Here, they do.

Second, she asserts that we must accept as true her 

allegation that the “No Sugar Added” statement “is likely to 

deceive reasonable consumers . . .” However, this is a legal 
15

conclusion, not a factual allegation; as such, it is neither binding 

nor “controlling.” (Gutierrez, supra, 19 Cal.App.5th at p. 1242).

Third, she urges that a conclusion in her favor is dictated 

by Brady v. Bayer Corp. (2018) 26 Cal.App.5th 1156 (Brady). 

Brady held that a complaint alleging that the label on a vitamin 

bottle entitled “One A Day” was likely to deceive a reasonable 

consumer because the recommended dosage was two vitamins a 

day was sufficient to withstand a demurrer. (Id. at pp. 1165-

1173.) Because the label in Brady involved a deceptive statement 

about the product itself, Brady falls squarely on the actionable 

part of the spectrum described above.

2. Is the “No Sugar Added” language unlawful?

Federal regulations specify that the “term ‘no sugar added’ 

may be used” on a label only if the product meets five

prerequisites. (21 C.F.R. § 101.60(c)(2).) Plaintiff alleges that 

the Cuties Juice label violates these regulations because Cuties 

Juice does not meet two of the five prerequisites. Because 

noncompliance with this regulation would render the Cuties 

Juice label unlawful under both federal and California law 

(Health & Saf. Code, §§ 110760, 110100, subd. (a)), we must 

examine whether plaintiff has sufficiently alleged noncompliance 

with these two prerequisites. 

a. Comparability to food Cuties Juice 

“resembles”

Under the federal regulation, the words “no sugar added” 

“may be used [on a food label] only if,” among other things, “[t]he 

food it resembles and for which it substitutes normally contains 

added sugars.” (21 C.F.R. § 101.60(c)(2)(iv).) Plaintiff alleges 

that Cuties Juice does not satisfy this prerequisite because “[t]he 

food that Cuties Juices resembles and substitutes for is 100% 

tangerine juice,” which “does not normally contain added sugars.” 
16

The trial court came to a contrary conclusion, ruling that Cuties 

Juice resembles and substitutes for “all fruit juices,” many of 

which “normally contain added sugars.” We are therefore 

confronted with the following question: Is it appropriate under 

this regulation to define the food a product “resembles and for 

which it substitutes” solely as food that is identical to the 

product? This is a legal question subject to our independent 

review (Spanish Speaking Citizens’ Foundation, Inc. v. Low

(2000) 85 Cal.App.4th 1179, 1214 [“Interpretation of a statute or 

regulation is . . . an issue of law for the court.”]), and plaintiff’s 

allegation on this legal question is entitled to no weight 

(Gutierrez, supra, 19 Cal.App.5th at p. 1242).

We conclude that a “food” that a product “resembles and for 

which it substitutes” may not be defined solely as the food 

identical to the product itself. We reach this conclusion for two 

reasons. 

First and foremost, the plain language of the pertinent 

regulations so dictate. (Wards Cove Packing Corp. v. Nat’l 

Marine Fisheries Serv. (9th Cir. 2002) 307 F.3d 1214, 1219 [“the 

plain meaning of a regulation governs . . .”].) The regulation

itself refers to foods that “substitute” for the product, and a 

product generally does not substitute only for itself. This reading 

is confirmed by the pertinent introductory regulation that defines 

a “‘substitute food’” as “one that may be used interchangeably 

with another food that it resembles” because “it is 

organoleptically, physically, and functionally (including shelf life) 

similar to” that food. (21 C.F.R. § 101.13(d), italics added; see id.

§ 101.60(a)(2) [requiring that labels accord “with the general 

requirements for nutrient content” in section 101.13].) The 
17

regulation’s focus on foods “similar” to the product—rather than 

“identical” to it—further supports our construction. 

Second, defining the “food” that a product “resembles and 

for which it substitutes” as solely the identical foodstuff also 

renders the remaining prerequisites superfluous. That is 

because, for any product that meets the threshold requirement of 

having no sugar added, the identical foodstuff will also have no 

sugar added and hence will not “normally contain[] added 

sugars.” (21 C.F.R. § 101.60(c)(2)(iv).) As a result, this 

prerequisite will never be met and will by itself preclude use of 

the term “No Sugar Added,” effectively rendering the remaining 

prerequisites superfluous. We decline to rewrite the regulation to 

excise four of its five requirements. (E.g., Vogel v. County of Los 

Angeles (1967) 68 Cal.2d 18, 26 [a “court cannot rewrite 

. . . regulations”].)

We recognize that several federal district courts have taken 

different approaches to this question. Some cases have reached 

the same conclusion we do, but via a different rationale by 

reasoning that the “No Sugar Added” regulation is ambiguous 

and that an agency letter has resolved that ambiguity by 

declaring that the “substitute” food for “juices with no added 

sugar” are “juices with added sugar, fruit-flavored soft drinks 

sweetened with sugar, or other sugar-sweetened beverages.” 

(Wilson v. Odwalla, Inc. (C.D. Cal. 2018) 2018 U.S. Dist. LEXIS 

137456, *7-*12; Perez v. Kroger Co. (C.D. Cal. 2018) 336 F. Supp. 

3d 1137, 1139-1145.)3 Other cases have reached a contrary 

3 Because we reject the rationale of these cases, we have no 

occasion to consider the agency letter in this case, and deny 

Califia’s request that we take judicial notice of that letter.
18

conclusion, ruling that “the food” that a product “resembles and 

for which it substitutes” is the identical food. (Park, supra, 2015

U.S. Dist. LEXIS 189227, *21-*22; Rahman v. Mott’s LLP (N.D. 

Cal. 2014) 2014 U.S. Dist. LEXIS 11767, *17 & fn. 5; Saghian v. 

Sun-Maid Growers of Cal. (C.D. Cal. 2017) 2017 U.S. Dist. LEXIS 

221951, *10.) All of these decisions are merely persuasive 

authority (Rohr Aircraft Corp. v. County of San Diego (1959) 51 

Cal.2d 759, 764 [“[T]he decisions of the lower federal courts on 

federal questions are merely persuasive.”], reversed on other 

grounds in Rohr Aircraft Corp. v. County of San Diego (1960) 362 

U.S. 628), and we do not find them persuasive because they do 

not confront—let alone refute—the rationale we have set forth 

above. 

We are also not persuaded by the passage from the federal 

regulation’s legislative history set forth in the operative 

complaint. That passage explains that the purpose of the “No 

Sugar Added” regulation was to “present consumers with 

information that allows them to differentiate between similar 

foods that would normally be expected to contain added sugars.” 

(58 Fed.Reg. 2302, 2327 (Jan. 6, 1993).) This does not require 

comparison to identical foods, particularly given its reference to 

“similar foods.”

Because the sole food that plaintiff alleges substitutes for 

Cuties Juice is “100% tangerine juice,” and because we conclude 

that the “food” that the product “resembles and for which it 

substitutes” may not solely be the identical food, plaintiff has 

failed to allege that Cuties Juice does not satisfy this 

prerequisite. At this point, we need not decide whether the 

relevant “food” for comparison is all tangerine juices or instead, 

as the trial court cited, “all fruit juices.” What matters is that 
19

there is no allegation that either of these broader universes of 

foods does not “normally contain added sugars.” 

b. Failure to state that Cuties Juice is not a 

“low calorie” or “calorie reduced” food

Under the federal regulation, the words “no sugar added” 

“may be used [on a food label] only if,” among other things, “[t]he 

product bears a statement [(1)] that the food is not ‘low calorie’ or 

‘calorie reduced’ (unless the food meets the requirements for a

‘low’ or ‘reduced calorie’ food) and [(2)] that directs consumers’ 

attention to the nutrition panel for further information on sugar 

and calorie content.” (21 C.F.R. § 101.60(c)(2)(v).) 

Plaintiff alleges that the Cuties Juice label does not contain 

either of these additional statements and that this violates the 

regulation because “Cuties Juice does not meet the requirements 

for a ‘low’ or ‘reduced’ calorie food.” However, this allegation is 

insufficient to state a claim that the Cuties Juice label is 

unlawful under the Unfair Competition Law for two reasons. 

First, we harbor some doubt that plaintiff’s “‘[t]hreadbare 

recital[] of th[is] element[] of [her] cause of action’” is sufficient. 

(Trazo v. Nestlé USA, Inc. (N.D. Cal. 2013) 2013 U.S. Dist. LEXIS 

113534, *28-*29 [sustaining demurrer, in part, based on language 

identical to that used by plaintiff].) Second, even if we deem 

plaintiff’s allegation to be sufficient, plaintiff does not have 

standing to bring a claim based on the omission of this language 

because, as discussed next, she has not alleged that her decision 

to purchase the Cuties Juice had anything to do with its calorie 

content.

3. Does plaintiff allege facts sufficient to grant her 

standing?

As noted above, a plaintiff has standing to sue under the 

Unfair Competition Law, the false advertising law and the CLRA 
20

only if she “actual[ly] reli[ed]” on whatever defect in a product 

label allegedly makes it actionable when making her decision to 

buy the product. (Kwikset, supra, 51 Cal.4th at pp. 317, 326-327.) 

To satisfy this requirement, she must “truthfully allege” that “she 

would not have bought the product but for the” allegedly 

actionable misrepresentation or omission. (Id. at pp. 317, 330.) 

Because we have rejected plaintiff’s claims to the extent 

they rely on any deceptiveness in the Cuties Juice label, her sole 

viable theory for recovery is the alleged unlawfulness of that 

label—which, as described above, turns solely on the label’s 

failure to state that it is “not ‘low calorie’ or ‘calorie reduced.’” 

However, plaintiff has not alleged that her decision to buy Cuties 

Juice had anything to do with its calorie content. Instead, she 

alleges that her decision was based upon her children’s 

enjoyment of “eating fresh tangerines” and her concern about 

sugar content due to her diabetes. Indeed, in light of plaintiff’s 

further allegation that all “tangerine juice brands[] ha[ve] high 

[natural] sugar content,” plaintiff’s decision to buy Cuties Juice 

over other tangerine juices seems to have had nothing to do with 

calorie content at all. Because plaintiff has not “truthfully 

allege[d]” that “she would not have bought the product but for” 

the omission of a statement about its calorie content, she lacks 

standing to pursue a claim based on the omission of that 

statement. (See Major, supra, 2015 U.S. Dist. LEXIS, at *13 

[reaching same conclusion].)

Plaintiff offers three arguments to the contrary. 

First, she asserts that “‘a presumption, or at least, an 

inference of reliance arises whenever there is a showing that a 

misrepresentation [or omission] is material’” (Tobacco II, supra, 

46 Cal.4th at p. 327, quoting Engalla v. Permanente Medical 
21

Group, Inc. (1997) 15 Cal.4th 951, 976-977), and that the 

omission of the “not ‘low calorie’ or ‘calorie reduced’” statement 

from the Cuties Juice label is material as a matter of law because 

its inclusion is (sometimes) mandated by the federal regulation. 

We reject this assertion. Even if we accept that this presumption 

regarding materiality of misrepresentations or omissions (which 

bear more on deceptiveness) is relevant to a claim based on 

unlawfulness and even if we assume that it applies to a plaintiff 

as well as class members, the presumption has been rebutted by 

plaintiff’s affirmative allegations that she actually relied on other

reasons in deciding whether to buy Cuties Juice. 

Second, plaintiff contends that she can show reliance upon 

a particular omission as long as it was “a substantial factor[] in 

influencing [her] decision” to buy a product, and that she need 

not show it was “the sole or even the decisive” reason for the 

purchase. (Tobacco II, supra, 46 Cal.4th at pp. 326, 328.) While 

we accept this statement of the law, we reject its relevance to this 

case because plaintiff has not alleged that low calorie content is 

one of many reasons for her purchase; rather, she has alleged 

that her purchase was motivated only by two completely different 

reasons. 

Lastly, plaintiff argues that we should infer that a 

statement regarding Cuties Juice’s calorie content would be 

material to her due to her diabetes. We reject this argument. 

Although a person diagnosed with diabetes would most certainly 

be concerned with a product’s sugar content, such a diagnosis 

does not imply a person’s concern with calorie content. 

* * *

In light of this analysis, we have no occasion to address 

plaintiff’s further attacks on the reasoning set forth in the trial 
22

court’s order sustaining the demurrer. (See Bains v. Moores

(2009) 172 Cal.App.4th 445, 478 [in reviewing a demurrer, we 

examine the trial court’s “‘result for error, and not its legal 

reasoning’ [Citation]”].)

II. Was Leave to Amend Properly Denied?

A plaintiff against whom a demurrer is sustained is 

entitled to leave to amend the defective complaint if she can 

“prov[e] a reasonable possibility that the defect can be cured by 

amendment.” (Silva v. Block (1996) 49 Cal.App.4th 345, 349; 

T.H. v. Novartis Pharmaceuticals Corp. (2017) 4 Cal.5th 145, 

162.) The onus is on the plaintiff to articulate the “specifi[c] 

ways” to cure the identified defect, and absent such an 

articulation, a trial or appellate court may grant leave to amend 

“only if a potentially effective amendment [is] both apparent and 

consistent with the plaintiff’s theory of the case.” (CAMSI IV v. 

Hunter Technology Corp. (1991) 230 Cal.App.3d 1525, 1542 

(CAMSI).)

The trial court did not abuse its discretion in denying 

plaintiff leave to amend her complaint. Plaintiff proffered no 

specific amendments to the trial court. She proffers none to this 

court beyond her blithe remark that “there could well be ways 

that any defect in the present pleading could be corrected.” This 

is plainly insufficient to carry her burden. Nor do we perceive on 

our own an “apparent” “potentially effective amendment” that is 

“consistent with plaintiff’s theory of the case.” (CAMSI, supra, 

230 Cal.App.3d at p. 1542.) Plaintiff’s deception-based 

allegations are deficient as a matter of law. And her

unlawfulness allegations are deficient either as a matter of law or 

because she does not have standing based on the reasons she has 

affirmatively alleged for buying Cuties Juice. She has elected not 
23

to amend her complaint to cure the latter defect twice before, and 

we view that decision, as well as her current decision not to 

articulate any possible amendment, as precluding a finding that 

further possible amendments are apparent and consistent with 

her theory of the case. (Accord, Otworth v. Southern Pac.

Transportation Co. (1985) 166 Cal.App.3d 452, 457 [“When a 

plaintiff elects not to amend the complaint, it is presumed that 

the complaint states as strong a case as is possible.”].)
24

DISPOSITION

The judgment of dismissal is affirmed. Califia is entitled to 

its costs on appeal.

CERTIFIED FOR PUBLICATION.

______________________, J.

HOFFSTADT

We concur:

_________________________, P.J.

LUI

_________________________, J.

CHAVEZ