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DEF. FERRARA’S MOTION TO DISMISS

Case No. 4:17-CV-00849-VC

HOGAN LOVELLS US LLP

Robert B. Hawk (Bar No. 118054)

Stacy R. Hovan (Bar No. 271485)

4085 Campbell Avenue, Suite 100

Menlo Park, California 94025

Telephone: (650) 463-4000

Facsimile: (650) 463-4199

robert.hawk@hoganlovells.com

stacy.hovan@hoganlovells.com

Attorneys for Defendant

FERRARA CANDY CO.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

THOMAS IGLESIAS, individually and on

behalf of all others similarly situated,

Plaintiff,

v.

FERRARA CANDY CO. and

DOES 1 through 10, inclusive,

Defendants.

Case No. 17-cv-849-VC

DEFENDANT FERRARA CANDY CO.’S

NOTICE OF MOTION AND MOTION TO

DISMISS PLAINTIFF’S FIRST AMENDED

COMPLAINT

The Honorable Vince Chhabria

Date: July 27, 2017

Time: 10:00 a.m.

Courtroom: 4, 17th Floor

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DEF. FERRARA’S MOTION TO DISMISS

Case No. 4:17-CV-00849-VC

TO THE COURT AND ALL PARTIES OF RECORD:

PLEASE TAKE NOTICE THAT on July 27, 2017, at 10:00 a.m., or as soon thereafter

as this matter may be heard, before the Honorable Vince Chhabria in Courtroom 4 of this Court,

located on the 17th Floor of the Philip Burton Federal Building, 450 Golden Gate, San Francisco,

California 94102, Defendant Ferrara Candy Co. will, and hereby does, move the Court for an

order granting its Motion to Dismiss. This Motion is made based on Federal Rules of Civil

Procedure 8 and 12(b)(6) on the grounds that Plaintiffs have failed to state a claim and that the

Court should decline to adjudicate the case under the Primary Jurisdiction Doctrine. This Motion

also will be based upon this Notice; the accompanying Memorandum of Points and Authorities;

the complete files and records of this action; and such other matters and arguments as may come

before the Court, including those raised in connection with reply briefing and oral argument

relating to this Motion.

Dated: May 24, 2017 HOGAN LOVELLS US LLP

By: /s/ Robert B. Hawk

Robert B. Hawk

Attorneys for Defendant

Ferrara Candy Co.

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Case No. 4:17-CV-00849-VC

TABLE OF CONTENTS

Page

I. INTRODUCTION ................................................................................................................1

II. BACKGROUND ..................................................................................................................3

A. The Food and Drug Administration Regulates Slack-Fill.........................................3

B. The Complaint Lacks Factual Allegations to Support Claims

Concerning Deceptive or Unlawful Conduct............................................................4

III. ARGUMENT ........................................................................................................................6

A. Plaintiff’s Claims Should Be Dismissed Under the Primary

Jurisdiction Doctrine. ................................................................................................6

B. The Complaint Does Not Comply With Twombly and Iqbal Pleading

Standards...................................................................................................................8

1. Plaintiff Fails to Adequately Allege That Ferrara Packaging Contained

Nonfunctional Slack-Fill...............................................................................9

2. Plaintiff Fails to Satisfy the “Reasonable Consumer” Standard for

Consumer Protection Claims.......................................................................15

IV. CONCLUSION...................................................................................................................20

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Case No. 4:17-CV-00849-VC

TABLE OF AUTHORITIES

Page

Cases

Ashcroft v. Iqbal,

556 U.S. 662 (2009)....................................................................................................................2

Astiana v. Hain Celestial Grp., Inc.,

783 F.3d 753 (9th Cir. 2015).......................................................................................................6

Bautista v. Cytosport, Inc.,

No. 15-CV-9081 (CS), 2016 WL 7192109 (S.D.N.Y. Dec. 12, 2016).....................................14

Bell Atlantic Corp. v. Twombly,

550 U.S. 544 (2007)....................................................................................................................2

Bobo v. Optimum Nutrition, Inc.,

No. 14CV2408 BEN (KSC), 2015 WL 13102417 (S.D. Cal. Sept. 11, 2015) .........................18

Bratton v. Hershey Co.,

No. 2:16-CV-4322-C-NKL, 2017 WL 2126864 (W.D. Mo. May 16, 2017)............................15

Bush v. Mondelez Int’l, Inc.,

No. 16-cv-2460-RS, 2016 WL 5886886 (N.D. Cal. Oct. 7, 2016) .........................14, 16, 17, 18

Bush v. Mondelez Int’l, Inc.,

No. 16-cv-02460-RS, 2016 WL 7324990 (N.D. Cal. Dec. 16, 2016) ..................................3, 11

Carrea v. Dreyer’s Grand Ice Cream, Inc.,

No. C 10-01044 JSW, 2011 WL 159380 (N.D. Cal. Jan. 10, 2011).........................................18

Clark v. Time Warner Cable,

523 F.3d 1110 (9th Cir. 2008).....................................................................................................6

Cullen v. Netflix, Inc.,

No. 5:11-CV-01199-EJD, 2013 WL 140103 (N.D. Cal. Jan. 10, 2013)...................................19

Cutler v. Hayes,

818 F.2d 879 (D.C. Cir. 1987) ....................................................................................................8

Dvora v. Gen. Mills, Inc.,

2011 F. Supp. 2d 1897349 (C.D. Cal. May 16, 2011) ..............................................................18

Ebner v. Fresh, Inc.,

No. SACV 13-00477 JVS (RNBX),

2013 WL 9760035 (C.D. Cal. Sept. 11, 2013)..........................................................................16

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DEF. FERRARA’S MOTION TO DISMISS

Case No. 4:17-CV-00849-VC

Ebner v. Fresh, Inc.,

838 F.3d 958 (9th Cir. 2016).....................................................................................3, 16, 17, 18

Far East Conf. v. United States,

342 U.S. 570 (1952)....................................................................................................................5

Fermin v. Pfizer Inc.,

No. 15 CV 2133 (SJ) (ST), 2016 WL 6208291 (E.D.N.Y. Oct. 18, 2016).........................14, 18

Freeman v. Time, Inc.,

68 F.3d 285 (9th Cir. 1995)...........................................................................................15, 16, 18

In re Gilead Scis. Sec. Litig.,

536 F.3d 1049 (9th Cir. 2008).....................................................................................................9

Heckler v. Chaney,

470 U.S. 821 (1985)....................................................................................................................8

Heller v. Coca-Cola Co.,

230 A.D.2d 768 (N.Y. 1996).......................................................................................................7

Hemy v. Perdue Farms, Inc.,

No. 11-888 (FLW), 2011 WL 6002463 (D.N.J. Nov. 30, 2011) ..............................................19

Kane v. Chobani, LLC,

645 F. App’x 593 (9th Cir. 2016) ...............................................................................................6

Lavie v. Procter & Gamble Co.,

105 Cal. App. 4th 496 (2003)....................................................................................................15

Lever Bros. Co. v. Mauer,

712 F. Supp. 645 (S.D. Ohio 1989) ............................................................................................6

Manchouck v. Mondelez Int’l Inc.,

No. C 13-02148 WHA, 2013 WL 5400285 (N.D. Cal. Sept. 26, 2013)...................................18

Manchouck v. Mondelez Int’l Inc.,

603 F. App’x 632 (9th Cir. 2015) .............................................................................................18

McKinnis v. Kellogg USA,

No. CV 07-2611 ABC, 2007 WL 4766060 (C.D. Cal. Sept. 19, 2007)..............................15, 18

McKinniss v. Gen. Mills, Inc.,

No. CV 07-2521 GAF, 2007 WL 4762172 (C.D. Cal. Sept. 18, 2007)....................................18

Moss v. U.S. Secret Serv.,

572 F.3d 962 (9th Cir. 2009).......................................................................................................8

Nader v. Allegheny Airlines,

426 U.S. 290 (1976)....................................................................................................................7

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DEF. FERRARA’S MOTION TO DISMISS

Case No. 4:17-CV-00849-VC

Oklevueha Native Am. Church of Haw., Inc. v. Holder,

676 F.3d 829 (9th Cir. 2012).......................................................................................................8

Rael v. Dooney & Bourke, Inc.,

No. 16CV0371 JM(DHB), 2016 WL 3952219 (S.D. Cal. July 22, 2016)................................12

Red v. Kraft Foods, Inc.,

No. CV 10-1028-GW AGRX, 2012 WL 5504011 (C.D. Cal. Oct. 25, 2012)..........................18

Rooney v. Cumberland Packing Corp.,

No. 12-cv-0033-H (DHB), 2012 WL 1512106 (S.D. Cal. Apr. 16, 2012) ...............................19

Ross v. Sioux Honey Ass’n Coop.,

No. C-12-1645 EMC, 2013 WL 146367 (N.D. Cal. Jan. 14, 2013) .........................................19

Skilstaf, Inc. v. CVS Caremark Corp.,

669 F.3d 1005 (9th Cir. 2012)...................................................................................................13

Sugawara v. Pepsico, Inc.,

2009 WL 1439115 (E.D. Cal. May 21, 2009)...........................................................................18

Syntek Semiconductor Co. v. Microchip Tech., Inc.,

307 F.3d 775 (9th Cir. 2002).......................................................................................................6

Taradejna v. Gen. Mills, Inc.,

909 F. Supp. 2d 1128 (D. Minn. 2012) .......................................................................................6

United States v. Sullivan,

332 U.S. 689 (1948)....................................................................................................................8

Viggiano v. Hansen Nat. Corp.,

944 F. Supp. 2d 877 (C.D. Cal. 2013).......................................................................................18

Statutes

21 U.S.C. § 343-1(a)(3).....................................................................................................................8

21 U.S.C. § 343(d)(3)........................................................................................................................8

Other Authorities

21 C.F.R.

§ 100.100(a) ................................................................................................................2, 3, 4, 7, 9

§ 100.100(a)(1)........................................................................................................................3, 7

§ 100.100(a)(2)......................................................................................................................3, 11

§ 100.100(a)(3)......................................................................................................................3, 10

§ 100.100(a)(4)..............................................................................................................4, 7, 9, 10

§ 100.100(a)(6)........................................................................................................................4, 7

§ 101.105...................................................................................................................................18

§ 101.9.......................................................................................................................................18

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DEF. FERRARA’S MOTION TO DISMISS

Case No. 4:17-CV-00849-VC

FDA Investigations Operations Manual

Section 5.4.6.6.1..........................................................................................................................7

Misleading Containers; Nonfunctional Slack-Fill,

58 FR 2957-01 (Jan. 6, 1993)..................................................................................................3, 7

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- 1 - DEF. FERRARA’S MOTION TO DISMISS

Case No. 4:17-CV-00849-VC

I. INTRODUCTION

The weight of recent, relevant authority supports dismissal of this action—one of a recent

outpouring of lawsuits asserting that food products violate the FDA’s regulation on nonfunctional

“slack-fill.” A number of courts, including this court in a decision by Judge Seeborg, have

dismissed at the pleadings stage slack-fill claims like the ones asserted here. Those courts have

found that plaintiffs’ essential slack-fill allegations—that empty space in various products was

“nonfunctional” under the FDA’s detailed regulation and therefore impermissible—were based

on legal conclusions rather than fact allegations that logically and plausibly support those

conclusions. Those essential allegations are absent in this case, too; it should be dismissed.

Plaintiff Thomas Iglesias attempts now for a second time to plead class claims based on

his surmise that Defendant Ferrara’s products violate the Food and Drug Administration’s slackfill regulation. Plaintiff alleges that in 2016 he “made a one-time purchase” of a box of Ferrara’s

Jujyfruits candy for approximately $4.00 from a California movie theater. According to Plaintiff,

upon opening the box, he discovered it was not as full as he had expected—that it had empty

space or slack-fill in the box. Plaintiff nonetheless does not dispute that the product packaging

accurately states the net weight and quantity of its candy contents on both the front and back.

Rather, he asserts—without the benefit of proper or plausible supporting factual allegations—that

“nearly all” of the empty space in the box was “nonfunctional” as defined by the FDA’s slack-fill

regulation.

On these grounds, he claims the product packaging violates slack-fill laws and is

deceptive, giving rise to claims under the California Consumers Legal Remedies Act, False

Advertising Law, and Unfair Competition Law. Notably, however, Plaintiff never explains what

specific amount of slack-fill is allegedly excessive, why that particular amount is nonfunctional,

or whether that amount of slack-fill is excessive only for Jujyfruits, for all candies made by

Ferrara, or for all candies on the market. Instead, he would have this Court become the final

arbiter of all of these issues and decide exactly how much slack-fill should be permitted in candy

boxes across the U.S.

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DEF. FERRARA’S MOTION TO DISMISS

Case No. 4:17-CV-00849-VC

As a preliminary matter, Plaintiff’s claims should be dismissed under the doctrine of

primary jurisdiction, pursuant to which courts defer to federal agencies on matters calling for the

agencies’ unique experience, expertise and resources. Plaintiff’s claims are all premised on an

FDA regulation that preempts any conflicting state law slack-fill standard. That FDA regulation

prohibits slack-fill in product packaging if—and only if—it is nonfunctional as defined by the

regulation, 21 C.F.R. § 100.100(a). In determining whether slack-fill is functional or

nonfunctional, the FDA has prescribed multiple factors that justify slack-fill in a given product—

such as to accommodate the machines used to fill the products, to allow for functional features of

the packaging, and to facilitate handling, among other reasons. Critically, it is the FDA that is in

the best position to construe and apply the slack-fill regulation, including determining whether

slack-fill in a particular food product is properly deemed functional. The primary jurisdiction

doctrine allows this Court to refer to the FDA such specialized regulatory issues and to dismiss

this case.

But even if the Court were inclined to consider Plaintiff’s claims further, the Court should

still dismiss Plaintiff’s First Amended Complaint. First, Plaintiff’s allegation that the slack-fill in

Ferrara’s products is “nonfunctional” is nothing more than a legal conclusion, supported only by

speculative and facially unfounded allegations. For that reason, Plaintiff’s Complaint fails to

satisfy the basic pleading standard set forth in Bell Atlantic Corp. v. Twombly, 550 U.S. 544

(2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). As noted, other federal district courts recently

presented with complaints lacking factual support for conclusory slack-fill allegations have

dismissed them for precisely that reason.

Second, Plaintiff fails the “reasonable consumer” standard that governs the consumer

deception claims he asserts. Specifically, Plaintiff fails plausibly to allege that a “significant

portion” of the public would be deceived by Ferrara’s packaging. Plaintiff does not (and cannot)

point to anything on Ferrara labels, on Ferrara packaging, or otherwise, which suggests the boxes

at issue are filled to the top. To the contrary, reasonable consumers understand based on life

experience that many food products, including snack food and candy, contain some empty space.

If consumers seek specifics about the actual quantity of candy in Ferrara’s candy boxes, they need

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DEF. FERRARA’S MOTION TO DISMISS

Case No. 4:17-CV-00849-VC

look no further than the front or back of the package itself, where standard, legally required

disclosures state the product’s net weight and servings per container. Truly concerned

consumers, obviously, can also—with little investment of their time—pick up the box, handle it,

and feel its weight. A recent decision in the Ninth Circuit, Ebner v. Fresh, Inc., 838 F.3d 958

(9th Cir. 2016), and one in this District, Bush v. Mondelez International, Inc., No. 16-cv-02460-

RS, 2016 WL 7324990 (N.D. Cal. Dec. 16, 2016), confirm that reasonable consumers would

likely not be deceived by the products as alleged in this case. Plaintiff’s First Amended

Complaint should thus be dismissed for failure to state a claim.

II. BACKGROUND

A. The Food and Drug Administration Regulates Slack-Fill.

The FDA permits justified amounts of slack-fill in packaged foods. “Slack-fill” is “the

difference between the actual capacity of a container and the volume of product contained

therein.” 21 C.F.R. § 100.100(a). According to the FDA, it is only the presence of

nonfunctional1slack-fill in food packaging that is prohibited and may be deemed “misleading.”

Id. Citing data obtained from a study conducted by the National Academy of Sciences, the FDA

has recognized that that many consumer commodities may have “large levels” of justified slackfill. See Misleading Containers; Nonfunctional Slack-Fill, 58 FR 2957-01, at *2957-59 (Jan. 6,

1993). FDA regulations permit slack-fill if it serves legitimate purposes, including one or more

of any of the following reasons:

 “Protection of the contents of the package.” 21 C.F.R. § 100.100(a)(1).

 “The requirements of the machines used for enclosing the contents in such package.” 21

C.F.R. § 100.100(a)(2).

 “Unavoidable product settling during shipping and handling.” 21 C.F.R. § 100.100(a)(3).

The FDA has acknowledged that “settling” of contents—especially those products that are

shaped in unique ways such that they take varying amounts of space depending on how

1

The regulation’s definition of “functional” also includes slack-fill that does not serve a function

per se, such as slack-fill due to unavoidable product settling. See 21 C.F.R. § 100.100(a)(3).

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DEF. FERRARA’S MOTION TO DISMISS

Case No. 4:17-CV-00849-VC

they “settle”—“is a normal, unavoidable process” for varieties of food. 58 Fed. Reg. at

2961.

 “The need for the package to perform a specific function.” 21 C.F.R. § 100.100(a)(4).

The FDA has recognized that “consumer demand for convenience has led to the

development of food products that may be cooked in, or eaten out of, the containers in

which they are purchased,” and that such packaging may contain functional slack-fill

related to the method of consumption. 58 Fed. Reg. at 2961.

 Inability to increase level of fill or to further reduce the size of the package (e.g., where

some minimum package size is necessary to accommodate required food labeling,

discourage pilfering, or facilitate handling). 21 C.F.R. § 100.100(a)(6).

B. The Complaint Lacks Factual Allegations to Support Claims Concerning

Deceptive or Unlawful Conduct.

Plaintiff’s claims are all premised on the FDA regulation addressed to nonfunctional

slack-fill in product packaging under 21 C.F.R. § 100.100(a). See First Amended Complaint

(“Compl.”) at ¶ 82. Plaintiff Thomas Iglesias alleges he is a California citizen who made a onetime purchase of Ferrara’s Jujyfruits candy at a San Francisco movie theater in 2016. See id. at

¶¶ 4, 23. He purportedly “made [his] purchase decisions based upon a visual observation of the

Product’s packaging through the showcase window of a movie theater concession stand . . . .” Id.

at ¶ 20. He alleges that he discovered “nonfunctional slack-fill” in the packaging of the product

at issue, id. at ¶ 32, and that had he known “the Product contained slack-fill which serves no

functional or lawful purpose,” he would not have purchased it. Id. at ¶ 37. Notably, Plaintiff

does not allege how much candy he thought he was purchasing or why he believed that the box

would be completely full. Although the Complaint acknowledges that the Jujyfruits package

labeling states the candy’s net weight (on the front of the package), serving size, and number of

pieces in the package (id. at ¶ 35), Plaintiff does not allege whether he saw or cared about any of

this information before purchasing the product. And Plaintiff never alleges the source of his

disappointment over his purchase—why he presumably concluded that the space in the box he

observed upon opening was “nonfunctional” slack-fill. He likewise fails to explain whether he

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DEF. FERRARA’S MOTION TO DISMISS

Case No. 4:17-CV-00849-VC

ever sought to view the product labeling, handle the product, or inspect it more closely before he

purchased it, whether he made any inquiries to the retailer to determine the quantity of product, or

whether the actual quantity of candy in the box was or was not relevant to his purchasing decision

at the time of purchase.

Plaintiff’s essential claim, that the product contains “nonfunctional slack-fill,” rests on his

allegations that “Defendant uniformly and substantially under-fills the opaque boxes by 41%,”

and that the resulting empty space “serves no legitimate or lawful function.” Id. at ¶ 3. The

Complaint, however, contains no plausible allegation of fact reasonably supporting the essential

conclusion that all or any of the slack-fill in Ferrara’s products is nonfunctional, or unjustified,

under the FDA’s controlling slack-fill regulation.

Instead, the Plaintiff alleges, in conclusory fashion, only that certain of the FDA’s

justifications for slack-fill, supra at Part II.A, do not apply to Jujyfruits boxes. He asserts, with

no plausible supporting facts or explanation, that (i) Ferrara’s sealing equipment does not “require

slack-fill,” id. at ¶ 47, (ii) no “additional product settling occurs during subsequent shipping and

handling,” id. at ¶ 48, and (iii) a “reasonable consumer does not actually use” the perforated tab

on the product box to dispense the candy product, id. at ¶¶ 50-55. Though he says he has

consulted an “expert” and states his intention to proffer expert testimony at a later stage in the

case, Plaintiff nowhere alleges facts—based on expert testimony or otherwise—supporting the

bare conclusion that Jujyfruits or Ferrara’s packaging equipment for Jujyfruits (or the other

challenged products) do not require some degree of slack-fill. Specifically, there is no allegation

to suggest that any test results exist to support his assertions or any statement in Plaintiff’s

pleadings as applied to the actual products, packaging, and plant equipment at issue here. Indeed,

Plaintiff makes no allegation even to support an inference that he would have knowledge of the

type of packaging/filling equipment Ferrara uses, how the filling process works at Ferrara, or the

extent to which Jujyfruits settle after they are packaged. And—aside from a less than precise

reference to “nearly all”—Plaintiff does not allege how much of the alleged 41% slack-fill in

Jujyfruits is not justified under the FDA rules. Nor does he allege any basis to support an

inference that his personally-observed degree of fill is “uniform.” Id. at ¶ 3.

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DEF. FERRARA’S MOTION TO DISMISS

Case No. 4:17-CV-00849-VC

III. ARGUMENT

A. Plaintiff’s Claims Should Be Dismissed Under the Primary Jurisdiction

Doctrine.

This Court should dismiss the complaint under the primary jurisdiction doctrine, leaving

enforcement of FDA’s slack-fill standard to the agency which created it and which has unique

expertise and resources suited to enforcing the standard. Under the primary jurisdiction doctrine,

when a case raises issues of fact outside the “conventional experience” of judges, or a case

requires the exercise of administrative discretion, it may be referred to “agencies created by

Congress for regulating [that] subject matter.” Far East Conf. v. United States, 342 U.S. 570, 574

(1952); accord Clark v. Time Warner Cable, 523 F.3d 1110, 1114 (9th Cir. 2008) (primary

jurisdiction “allows courts to stay proceedings or to dismiss a complaint without prejudice

pending the resolution of an issue within the special competence of an administrative agency”).

The doctrine is based, among other things, on concern for promoting and maintaining the proper

relationship between courts and administrative agencies:

[D]eference to an agency is appropriate where there is “(1) a need to resolve an

issue that (2) has been placed by Congress within the jurisdiction of an

administrative body having regulatory authority (3) pursuant to a statute that

subjects an industry or activity to a comprehensive regulatory authority that

(4) requires expertise or uniformity in administration.”

Clark, 523 F.3d at 1115 (internal quotation marks omitted); accord Syntek Semiconductor Co. v.

Microchip Tech., Inc., 307 F.3d 775, 780-81 (9th Cir. 2002).

In the area of food labeling in particular, the Ninth Circuit recently recognized both the

importance of the FDA’s enforcement discretion and the compelling reasons for leaving it intact.

See, e.g., Astiana v. Hain Celestial Grp., Inc., 783 F.3d 753, 761 (9th Cir. 2015) (“Obtaining

expert advice from [the FDA] would help ensure uniformity in administration of the

comprehensive regulatory regime established by the FDCA.”). Multiple courts have found issues

of food labeling and packaging sufficiently complex that they “are best left to the FDA for

consideration prior to judicial review.” Lever Bros. Co. v. Mauer, 712 F. Supp. 645, 651 (S.D.

Ohio 1989); see also Kane v. Chobani, LLC, 645 F. App’x 593, 594 (9th Cir. 2016) (vacating and

remanding because “judicial resources will be conserved” by awaiting FDA guidance); Taradejna

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DEF. FERRARA’S MOTION TO DISMISS

Case No. 4:17-CV-00849-VC

v. Gen. Mills, Inc., 909 F. Supp. 2d 1128, 1135 (D. Minn. 2012); Heller v. Coca-Cola Co., 230

A.D.2d 768, 769-70 (N.Y. 1996).

A strong basis exists here to apply the primary jurisdiction doctrine. As noted above, the

FDA has promulgated detailed, technical regulations regarding slack-fill, based on its extensive

knowledge and long experience with different food manufacturers and their respective food

packaging and filling techniques and capabilities. The FDA, moreover, enforces its slack-fill

regulations during food manufacturing facility inspections. See “FDA Investigations Operations

Manual” Section 5.4.6.6.1 - QUANTITY OF CONTENTS (“If slack fill is suspected, weigh a

representative number of finished packages.”)

http://www.fda.gov/downloads/iceci/inspections/iom/ucm150576.pdf (last visited May 24, 2017).

Key to determining whether the alleged empty space in Ferrara’s products is nonfunctional are

factors such as (1) the requirements of the specific machines used for filling the container;

(2) protecting the contents of the package; (3) product settling after packing; (4) the function of

the package; and (5) other factors going to an inability to increase the level of fill or facilitate

handling. See 21 C.F.R. § 100.100(a)(1)-(4), (6). FDA has the administrative mandate and the

experience to analyze and apply these factors, which the Agency conceived of and articulated in

promulgating the regulation. FDA is in an inherently superior position to a jury or court to

resolve technical questions of fact and to apply the regulations as intended with consistency. See,

e.g., Nader v. Allegheny Airlines, 426 U.S. 290, 303 (1976).

Indeed, the FDA previously concluded “it is possible to distinguish between functional

and nonfunctional slack-fill on a plant-by-plant basis for specific products in given container

sizes.” Misleading Containers; Nonfunctional Slack-Fill, 58 FR 2957-01, at *2959 (emphasis

added). According to FDA, “differences in the physical characteristics of a given product,

including the need to protect the product from breakage, and precision of filling equipment result

in a high degree of variability in the level of functional slack-fill within commodity classes.” Id.

(emphasis added). With its experience and expertise in authoring and enforcing the regulations,

the FDA is best situated to make determinations regarding the requirements of packaging and

filling machinery, and to understand trade-offs between factors that may affect the amount of

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DEF. FERRARA’S MOTION TO DISMISS

Case No. 4:17-CV-00849-VC

slack-fill in a product, including product characteristics, packing line speed, and packaging

dimensions and features.

The Supreme Court has noted the importance of FDA’s enforcement discretion with

respect to deciding whether and how to enforce its regulations, given differing degrees of possible

FDCA violations: “[T]he Administrator of the Act is given rather broad discretion—broad

enough undoubtedly to enable him to perform his duties fairly without wasting his efforts on what

may be no more than technical infractions of law. . . . The provisions of [section] 405 with regard

to food apparently are broad enough to permit the relaxation of some of the labeling requirements

which might otherwise impose a burden on retailers out of proportion to their value to the

consumer.” United States v. Sullivan, 332 U.S. 689, 694-95 (1948); accord Heckler v. Chaney,

470 U.S. 821, 835 (1985) (discussing FDA’s “complete discretion” with respect to enforcement);

Cutler v. Hayes, 818 F.2d 879, 893 (D.C. Cir. 1987) (“Congress has not given FDA an inflexible

mandate to bring enforcement actions against all violators of the Act.”). The FDA’s broad

authority to prosecute and, no less importantly, to decline enforcement in particular

circumstances, is instrumental to the nationwide regulatory regime.2

Accordingly, this Court should defer to FDA’s primary jurisdiction to resolve technical

fact issues and enforce the slack-fill regulation consistently.

B. The Complaint Does Not Comply With Twombly and Iqbal Pleading

Standards.

Independent of the FDA’s primary jurisdiction, Plaintiff’s Complaint suffers from fatal

pleading defects requiring its dismissal. A plaintiff must allege “sufficient factual matter . . . to

state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (internal quotation

marks omitted); accord Twombly, 550 U.S. at 570. A court is free to ignore allegations that “do

nothing more than state a legal conclusion—even if that conclusion is cast in the form of a factual

allegation.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009); accord Oklevueha

2

Plaintiff’s claims necessarily depend, in their entirety, on whether the products at issue comply

with FDA’s slack-fill regulation. To the extent that Plaintiff’s claims are premised on a

nonfunctional slack-fill standard different from that set forth by federal law, his claims are

preempted. See 21 U.S.C. § 343-1(a)(3), 343(d)(3).

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DEF. FERRARA’S MOTION TO DISMISS

Case No. 4:17-CV-00849-VC

Native Am. Church of Haw., Inc. v. Holder, 676 F.3d 829, 834 (9th Cir. 2012) (“[C]onclusory

allegations and unwarranted inferences are insufficient to defeat a motion to dismiss.”); In re

Gilead Scis. Sec. Litig., 536 F.3d 1049, 1056-57 (9th Cir. 2008). In ruling on a motion to dismiss

and determining whether Plaintiff has plausibly stated a claim, a court must “draw on its judicial

experience and common sense.” Iqbal, 556 U.S. at 679. This Plaintiff’s claims fail any common

sense test and fall far short of controlling pleading standards.

1. Plaintiff Fails to Adequately Allege That Ferrara Packaging Contained

Nonfunctional Slack-Fill.

Plaintiff’s claims are all premised on the assertion that the Jujyfruits product he purchased

(and multiple other Ferrara products) contain nonfunctional slack-fill as defined by federal law

(and as adopted by the parallel California law). See, e.g., Compl. at ¶¶ 100-108, 127-137. As

noted, under federal law, a container is not misleading merely because it contains slack-fill or

empty space. Rather, in order for a product to be considered misleading and misbranded due to

slack-fill, the slack-fill must be “nonfunctional” (i.e., the slack-fill must exist for a reason other

than one of the six reasons set forth in the regulation). 21 C.F.R. § 100.100(a). In this case,

Plaintiff’s allegations that Jujyfruits slack-fill does not serve a functional purpose are premised on

nothing more than Plaintiff’s legal conclusions.

Although the Complaint asserts that certain of FDA’s specified reasons justifying the

presence of slack-fill do not apply to Jujyfruits, those allegations are insufficient on their face.

First, the FDA recognizes that slack-fill may serve a “specific function,” such as allowing

consumption on-the-go and preventing spillage when someone reaches into a container filled with

snacks to the brim. See 21 C.F.R. § 100.100(a)(4). As the FDA has explained, “consumer

demand for convenience has led to the development of food products that may be . . . eaten out of

[] the containers in which they are purchased,” and that such packaging may accordingly contain

slack-fill. 58 Fed. Reg. at 2961. Apparently recognizing that the alleged slack-fill in Jujyfruits

may be permitted under federal law based on this “function,” Plaintiff makes various assertions

over five paragraphs of his Amended Complaint apparently intended to lend support to his raw

conclusion that “a reasonable consumer” would not use the perforated tab opening on the side of

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DEF. FERRARA’S MOTION TO DISMISS

Case No. 4:17-CV-00849-VC

the Jujyfruits box to dispense the candy. See Compl. at ¶¶ 50-55. But Plaintiff’s extended

discussion is little more than a series of non sequitur assertions, none of which logically support

the inference that the perforated dispenser on the box is not intended to be used (and actually is

used) by consumers. For example, Plaintiff’s assertions that a consumer “could” dispense candy

by tearing open the ends of the packaging (id. at ¶¶ 50, 54), that the tab “is not completely

perforated” (whatever that means) (id. at ¶¶ 53, 55), or that “a reasonable consumer will opt

against using the Product’s partially perforated tab while watching a movie in a dark theater” (id.

at ¶ 53), do not logically support Plaintiff’s broad conclusion that Ferrara “does not genuinely

intend for the side tab to be used, and that the reasonable consumer does not actually use it.” Id.

at ¶ 55.

In sum, the Complaint’s assertions concerning and arguments against applicability of 21

C.F.R. § 100.100(a)(4) make no sense on their face. It is not enough under controlling federal

pleading standards simply to recite assorted factual assertions related to Ferrara packaging and

then state an ultimate conclusion. There must be some conceivable, plausible basis for making

those assertions, and they must lend logical support to Plaintiff’s ultimate conclusion about

Ferrara’s packaging of (and intent in packaging) its candy. Here Plaintiff’s allegations are rank

speculation, providing no support for his broad conclusions. In this Amended Complaint,

therefore, Plaintiff pleads no fact that would render the referenced slack-fill functional

justification inapplicable to Jujyfruits.

Second, the FDA has also held that a container may contain empty space because of the

way that the individual pieces of the product may “settle” in it, which could affect how much of

the container the product occupies. See 21 C.F.R. § 100.100(a)(3). “Settling” occurs when the

shape of the food items may lead to varying amounts of container space taken, depending on how

the items stack and settle on top of each other. Lacking factual support for his conclusions

concerning the function of slack-fill in Ferrara products, Plaintiff blithely asserts that “[n]o

additional product settling occurs during subsequent shipping and handling” of Jujyfruits. Id. at

¶ 48. But again, his conclusion—that Jujyfruits, chewy candies of various shapes and sizes, do

not settle—is speculation and defies common experience and reality. Similar conclusory

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DEF. FERRARA’S MOTION TO DISMISS

Case No. 4:17-CV-00849-VC

assertions were recently found “illogical and implausible” by this court faced with in a similar

context. Bush v. Mondelez Int’l, Inc., 2016 WL 7324990, at *4 (N.D. Cal. Dec. 16, 2016)

(finding “illogical and implausible” plaintiff’s allegation that any slack-fill present in Nabisco

Go-Paks “is not a result of the cookies settling during shipping and handling”). In addressing a

point that is so obviously susceptible of empirical support, Plaintiff should not be permitted to

evade the commands of Twombly and Iqbal by simply declaring something to be true—

particularly when the declared fact is counter to apparent reality, unsupported by specific cited

facts, and thus implausible.

Third, the FDA may deem slack-fill functional based on the “requirements of the

machines used for enclosing the contents in such package.” 21 C.F.R. § 100.100(a)(2). In that

connection, the FDA has noted that enforcement of slack-fill regulations is “based on the

capabilities of individual processing and packaging facilities and on the specific physical

properties (e.g., bulk density, uniformity, tendency to settle, and need for protection) of individual

products.” 58 Fed. Reg. at 2960. In attempting to plead around this justification, Plaintiff asserts

that “[e]ven if there were no slack-fill present in the Product’s boxes, the machines used for

enclosing the contents in the package would work without disrupting the packaging process.”

Compl. at ¶ 47. Plaintiff, however, fails to explain how he or his attorneys have (or could have)

any knowledge about Ferrara’s manufacturing, packaging, or filling processes, or the specific

equipment used in those processes. Plaintiff’s sweeping, speculative contentions fly in the face of

the FDA’s guidance on plant-by-plant, product-specific enforcement of the slack-fill regulation—

and ultimately of Twombly/Iqbal pleading standards.3

3 Contrary to Plaintiff’s assertions, his comparisons to another Ferrara product, Boston Baked

Beans (“Boston Beans”), are not evidence that the Jujyfruits slack-fill is nonfunctional. See

Compl. at ¶¶ 61-70. Plaintiff’s claim that “Boston Beans are coated candies of nearly identical

size, shape, and density of that of the Product,” id. at ¶ 64, is demonstrably inaccurate. Boston

Beans are candy coated peanuts, id. at ¶ 61, while Jujyfruits are “chewy” candy, id. at ¶ 1. The

shape of the Boston Beans peanuts are far more uniform, see id. at ¶ 65, than the various fruitshaped Jujyfruits, id. at ¶ 35. And Plaintiff does not allege that Boston Beans are filled with the

same or different equipment, line speeds, and other packaging considerations as Jujyfruits.

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DEF. FERRARA’S MOTION TO DISMISS

Case No. 4:17-CV-00849-VC

Plaintiff’s counsel’s allegations in this case and in other slack-fill complaints confirm

that these claims should be dismissed. Ferrara made the foregoing arguments in its prior

Motion to Dismiss Plaintiff’s original complaint, pointing out how Plaintiff had no conceivable

factual basis to allege that Ferrara candy products contain nonfunctional slack-fill and how the

few assertions of fact in the complaint provided no logical support for Plaintiff’s key conclusions

about the function of slack-fill. See ECF No. 14 at 8-9. Rather than oppose that motion,

however, Plaintiff amended his complaint, focusing in large part on supplementing the allegations

discussed immediately above. Ultimately, however, Plaintiff’s amendments add nothing of

substance.

Specifically, Plaintiff’s changes to his complaint consist of alleging that he had conducted

“an investigation,” had “consult[ed] an expert in packaging design”, and had “survey[ed] []

comparator boxed candy products available in the marketplace.” Compl. ¶ 3. He then simply

added references to the “survey,” the “expert,” or the “investigation” immediately before

repeating the same broad, factually unsupported conclusions he made in his original complaint.

See id. at ¶ 38 (“During Plaintiff’s investigation, Plaintiff confirmed . . . .”), ¶ 47 (“As confirmed

during Plaintiff’s survey . . . .”), ¶ 48 (“As confirmed by Plaintiff’s expert in packaging

design . . . .”).

Nowhere, however, does Plaintiff provide even the most basic description of his

“investigation” or his “survey.” As such, the allegations are meaningless and provide no factual

basis for Plaintiff’s conclusions about the existence of non-functional slack-fill. E.g., Rael v.

Dooney & Bourke, Inc., No. 16CV0371 JM(DHB), 2016 WL 3952219, at *3 (S.D. Cal. July 22,

2016) (“[T]his declaration [describing counsel’s investigation] simply reiterates the conclusions

set forth in Plaintiff’s complaint as his own, which cannot serve as the factual basis for Plaintiff’s

claims.” (emphasis added)). Ferrara has little doubt that in furtherance of his “survey” and

“investigation,” Plaintiff’s counsel may have walked the aisle of retailers selling candy products,

purchased some undisclosed number of different products, and then recruited a named plaintiff or

plaintiffs to bring this suit. But allusions to an unspecified investigation and survey provide no

logical or factual support for Plaintiff’s assertions about the packaging equipment used in

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DEF. FERRARA’S MOTION TO DISMISS

Case No. 4:17-CV-00849-VC

Ferrara’s plant, consumers’ use or nonuse of a perforated opening on Jujyfruits, or how Jujyfruits

settle or do not settle after packaging.

Nor does the Complaint’s reference to an “expert”—who purportedly “shall offer expert

testimony . . . once the case reaches the merits”—save the day for Plaintiff. The merits are

precisely what the Plaintiff must plead, factually, in his Complaint. The Amended Complaint,

however, recites no relevant facts—provided by this supposed expert or anyone else—supporting

Plaintiff’s key conclusory assertions. Most critically, Plaintiff never suggests that he or his expert

knows the characteristics of particular Ferrara candies or of the packaging and filling machinery

used by Ferrara. Plaintiff’s amendments of his Complaint only confirm that he has no support,

consistent with Rule 11, for his conclusory allegations that Ferrara candy products contain

nonfunctional slack-fill.

Notably, Plaintiff’s counsel has filed multiple other slack-fill lawsuits in California,

asserting the same basic legal and factual theories asserted in this case.4 Apparently facing or

anticipating the same kind of arguments Ferrara makes on this Motion, counsel has, in these other

complaints, made similar or identical, supposedly fact-based assertions concerning how slack-fill

in other products cannot be justified under the FDA regulation and about counsel’s

“investigations” and reliance on a packaging “expert.” E.g., Escobar Compl. at ¶¶ 34 (“During

Plaintiff’s investigation, Plaintiff confirmed that Defendant uniformly under-fills the Products’

boxes, rendering a whopping 46% of each box slack-fill, nearly all of which serves no functional

or lawful purpose.”), 36-51 (alleging the slack-fill is not due to settling or other functional

reasons); Gordon Compl. at ¶¶ 3 (“Defendant uniformly under-fills the opaque boxes of Products

by 45%. . . . [which] ‘slack-fill’ . . . serves no legitimate or lawful function. During Plaintiff’s

investigation into the reason for Defendant’s under-filling of the boxes, which included

consultation with an expert in packaging design and a survey of comparator boxed candy

4

See Escobar v. Just Born, Inc., No. 2:17-cv-1826, ECF No. 1-1 (C.D. Cal.; originally filed in

Los Angeles Superior Court); Gordon v. Tootsie Roll Industries, Inc., No. 17-cv-2664,

ECF No. 17 (C.D. Cal.; originally filed in Los Angeles Superior Court); see also Bush v.

Mondelez Int’l, Inc., No. 16-cv-2460-RS, ECF No. 37 (N.D. Cal.). On a motion to dismiss, this

Court may properly take judicial notice of filings in other litigation. Skilstaf, Inc. v. CVS

Caremark Corp., 669 F.3d 1005, 1016 n.9 (9th Cir. 2012).

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DEF. FERRARA’S MOTION TO DISMISS

Case No. 4:17-CV-00849-VC

products available in the marketplace, Plaintiff discovered that nearly all of the 45% balance of

empty space, or ‘slack-fill,’ serves no legitimate or lawful function”), 40 (“During Plaintiff’s

investigation, Plaintiff confirmed that Defendant uniformly under-fills the Products’ boxes,

rendering a whopping 45% of each box slack-fill, none of which serves a functional or lawful

purpose.”), 43 (“As confirmed during Plaintiff’s investigation, including consultation with an

expert in packaging design, the slack-fill contained in the Product does not protect the contents of

the packages. Plaintiff shall proffer expert testimony to establish this fact once this case reaches

the merits.”), 44-54 (asserting slack-fill is not due to settling or other functional reasons); see also

Bush Compl. at ¶ 2, 9-33, 60. These rote allegations—virtually identical though they pertain to

different candies (Mike & Ike, Hot Tamales, Junior Mints, Sugar Babies), with different

consistencies and different shapes, produced in different plants, packaged on different equipment

lines, by different manufacturers—add nothing of substance to the complaint here.

The weight of authority supports dismissal. Other courts have dismissed similar

complaints where a plaintiff has asserted factually unsupported conclusions that slack-fill in a

product was nonfunctional. In Bautista v. Cytosport, Inc., No. 15-CV-9081 (CS), 2016 WL

7192109, at *4-5 (S.D.N.Y. Dec. 12, 2016), the court granted the defendant’s motion to dismiss

where the plaintiff asserted in conclusory fashion that slack-fill in the products at issue did not

exist for any of the permissible reasons set forth in the federal regulation—e.g., that “the empty

space was not used to protect the product, necessary for enclosing the product, or because of

settling.” Id. at *4. The court found that “[s]uch wholly conclusory allegations are insufficient to

state a nonfunctional slack fill claim.” Id. at *4 (citing cases where conclusory allegations that

the defendant violated federal regulations were insufficient to state a claim). Similarly, in Bush v.

Mondelez, No. 16-cv-2460-RS, 2016 WL 5886886, at *4 (N.D. Cal. Oct. 7, 2016), the court

dismissed a complaint that recited the six circumstances in which slack-fill is functional and

asserted that none of the circumstances applied. The court found that such allegations were

supported only “by mere conclusory statements.” Id. (quoting Iqbal, 556 U.S. at 678); see also

Fermin v. Pfizer Inc., 215 F. Supp. 3d 209, 211 (E.D.N.Y. 2016) (“‘Plausibility . . . depends on a

host of considerations: the full factual picture presented by the complaint, the particular cause of

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DEF. FERRARA’S MOTION TO DISMISS

Case No. 4:17-CV-00849-VC

action and its elements, and the existence of alternative explanations so obvious that they render

plaintiff’s inferences unreasonable.’ The Court is not required to credit conclusory allegations or

legal conclusions couched as factual allegations.”).5 Here, given the absence of non-conclusory,

non-speculative factual allegations, it is just as possible—and much more plausible—that slackfill in Ferrara products has a functional purpose or purposes instead of one that violates the FDA

standard. Because Plaintiff does not articulate any non-conclusory, fact-based reasons why the

alleged slack-fill is not permissible under one or more of the FDA’s articulated functions, he has

failed to “nudge” his claim “across the line from conceivable to plausible.” Iqbal, 556 U.S. at

683. Courts should not open the costly doors of discovery where, as here, a plaintiff pleads

conclusions rather than plausible evidentiary facts.

2. Plaintiff Fails to Satisfy the “Reasonable Consumer” Standard for

Consumer Protection Claims.

A plaintiff asserting the CLRA, UCL and FAL claims set forth in this Complaint must

plead facts supporting the inference that a reasonable consumer is likely to be deceived by the

challenged statement or conduct. Freeman v. Time, Inc., 68 F.3d 285, 289 (9th Cir. 1995). This

standard has real teeth. Under it, courts look beyond a plaintiff’s own alleged experiences to the

beliefs and behaviors of the public at large. Deception must more likely than not be the result,

which raises the standard to one of probability, not mere possibility. McKinnis v. Kellogg USA,

No. CV 07-2611 ABC (RCx), 2007 WL 4766060, at *3 (C.D. Cal. Sept. 19, 2007). The

challenged statement or conduct must be “such that it is probable that a significant portion of the

general consuming public” would be misled. Lavie v. Procter & Gamble Co., 105 Cal. App. 4th

5 During the May 23, 2017 Case Management Conference in this case (ECF No. 27), Plaintiff’s

counsel referenced a slack-fill case filed in Missouri that recently survived a motion to dismiss.

Bratton v. Hershey Co., No. 2:16-CV-4322-C-NKL, 2017 WL 2126864, at *3 (W.D. Mo. May

16, 2017). With respect, the decision from that court is not persuasive in light of the contrary

decisions from courts in this District and Circuit cited in text, and is distinguishable in all events.

There, the court observed that Missouri law is “at odds” with cases from other jurisdictions, like

Ebner and Bush. See id. at *6. Indeed, under Missouri’s consumer protection statute, “A plaintiff

need not even allege or prove reliance on an unlawful practice to state a claim under the act,” and

Missouri courts view reasonable consumer determinations as requiring a factual inquiry. Id. at

*4. Here, of course, California substantive law applies to Plaintiff’s claims, as it did to the claims

in Ebner and Bush.

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DEF. FERRARA’S MOTION TO DISMISS

Case No. 4:17-CV-00849-VC

496, 508 (2003) (emphasis added). And there must be a probability of deception with respect to

“consumers acting reasonably in the circumstances, not just any consumers.” Freeman, 68 F.3d

at 289. Only by alleging facts sufficient to meet this requirement can a plaintiff plausibly state a

claim for relief under controlling pleading standards.

The Ninth Circuit has held that the bar for making out a case of consumer deception based

on container size or shape is very high indeed. Ebner, 838 F.3d at 967. In granting the

defendant’s motion to dismiss in Ebner, the district court held that “in light of [the lip balm’s]

label, which accurately states the net quantity of product in the tube, it is not reasonable to infer

that the oversized packaging and metallic weight would mislead reasonable consumers as to the

quantity they are receiving.” Ebner v. Fresh, Inc., No. SACV 13-00477 JVS(RNBx), 2013 WL

9760035, at *7 (C.D. Cal. Sept. 11, 2013). The Ninth Circuit affirmed, finding that “[b]ecause

Plaintiff cannot plausibly allege that [the lip balm’s] design and packaging is deceptive, the

district court did not err in dismissing the packaging-based claims.” Ebner, 838 F.3d at 967.

Citing Ebner, a court in this District applied the same reasoning and reached the same

result with respect to snack foods:

Bush alleges that Go-Pak containers are misleading because consumers expect

more cookies or crackers than are actually included.

* * *

The Ninth Circuit recently affirmed the dismissal of a slack-fill lawsuit on the

ground that the plaintiff failed to state a plausible claim for consumer deception.

See Ebner . . . .

* * *

Here, as in Ebner, it is undisputed that the Go-Pak product labels disclose the net

weight of included product, as well as the number of cookies or crackers per

container. Opaque containers with slack-fill at the top are common in the snack

market. “Targeted consumers” thus expect some slack-fill. No reasonable

consumer expects the overall size of the packaging to reflect precisely the quantity

of product contained therein.

Bush, 2016 WL 5886886, at *2-3 (granting motion to dismiss).

Bush is on all fours with this case. There, the court found it implausible that “‘a

significant portion of the general consuming public or of targeted consumers, acting reasonably in

the circumstances, could be misled’ into thinking the container would be packed to the brim with

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DEF. FERRARA’S MOTION TO DISMISS

Case No. 4:17-CV-00849-VC

snack.” 2016 WL 5886886, at *3. Here, too, Plaintiff’s expectation that the package would be

devoid of empty space does not square with consumers’ common experience that candy and other

food packaging have slack-fill.

Because Plaintiff’s claimed expectations about the level of fill—deduced solely from the

packaging size (Compl. at ¶¶ 16-17, 27)—are not shared by reasonable consumers, his deception

claims are not plausible. As the Ninth Circuit explained: “Apart from the accurate weight label,

there are no other words, pictures, or diagrams adorning the packaging . . . from which any

inference could be drawn or on which any reasonable belief could be based . . . .” Ebner, 838

F.3d at 966. The Ninth Circuit concluded: “In the absence of any statement or other depiction

anywhere on the package . . . , we conclude that it is not plausible that ‘a significant portion of the

general consuming public or of targeted consumers, acting reasonably in the circumstances, could

be misled . . . .’” Id.

Plaintiff’s efforts to plead around the reasonable consumer standard are to no avail. In an

effort to justify his asserted expectation of a full candy package, Plaintiff alleges that “the

Product’s packaging does not allow for a visual or audial confirmation of the contents of the

Product. The Product’s opaque packaging prevents a consumer from observing the contents

before opening.” Compl. at ¶ 33. Of course, that is why the statements of net weight and

servings per container are set forth on the exterior packaging. Though he complains that the

product was located in a glass display case behind the counter at the movie theater, these facts do

not support an inference that it was somehow impractical for him to make any effort, beyond

viewing the box “from a distance through the showcase window,” to inform his expectations

about the amount of candy in the package. Id. at ¶ 28.6

6

Plaintiff appears to suggest that the movie theater’s sales practices excuse him from acting

reasonably under the circumstances (e.g. by asking to view or handle the package before

purchase, or to open the package immediately after purchase and request a refund if not filled to

his expectation). The alleged facts support no such inference. Plaintiff’s allegation that

“consumers rarely read details beyond the final price of the product, and often, not even that”

likewise does not support an inference that a reasonable consumer would not consider statements

of quantity of product purchased, let alone not consider the price. See Compl. ¶ 14.

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DEF. FERRARA’S MOTION TO DISMISS

Case No. 4:17-CV-00849-VC

Even if Plaintiff understood the container size to be a precise indication of quantity,

Plaintiff fails to demonstrate that reasonable consumers would not consider the product label. “A

plaintiff cannot pursue a claim based on a statement that can only be misleading when the

information surrounding it is ignored.” Bobo v. Optimum Nutrition, Inc., No. 14CV2408 BEN

(KSC), 2015 WL 13102417, at *4 (S.D. Cal. Sept. 11, 2015); see also Freeman, 68 F.3d at 290;

Fermin v. Pfizer Inc., No. 15 CV 2133 (SJ) (ST), 2016 WL 6208291, at *2 (E.D.N.Y. Oct. 18,

2016) (“Plaintiffs seek to be protected under packaging laws but to dispense with reading the

package. The suggestion that such laws should cover their failure to read an unambiguous tabletcount does not pass the proverbial laugh test.”); Bush, 2016 WL 5886886, at *3.

As mandated by federal law (see, e.g., 21 C.F.R. §§ 101.9, 101.105), food product labels,

like those of Jujyfruits, provide a specific, objective information about the net quantity of each

product package’s contents. Courts therefore, not surprisingly, have made clear their expectations

that a typical consumer would consider information on the label in forming expectations about the

product being sold.7 Here, there are two prominent, straightforward label statements that

affirmatively disclose the amount of product in the box:

 “NET WT 5 OZ (142g)”

 “Serving Size 15 pieces (40g); Servings Per Container About 3.5”

7

See, e.g., Bush, 2016 WL 5886886, at *3 (“No reasonable consumer expects the overall size of

the packaging to reflect precisely the quantity of product contained therein.”); McKinniss v. Gen.

Mills, Inc., No. CV 07-2521 GAF (FMOx), 2007 WL 4762172, at *3 (C.D. Cal. Sept. 18, 2007)

(“A reasonable consumer would then be expected to peruse the product’s contents simply by

reading the side of the box . . . . All of these actions . . . would insure that the consumer was not

deceived.”); see also Ebner, 838 F.3d at 967 (“Because of the widespread nature of this practice,

no reasonable consumer expects the weight or overall size of the packaging to reflect directly the

quantity of product contained therein.”); Manchouck v. Mondelez Int’l Inc., No. C 13-02148

WHA, 2013 WL 5400285, at *3 (N.D. Cal. Sept. 26, 2013), aff’d sub nom. Manchouck v.

Mondelez Int’l, Inc., 603 F. App’x 632 (9th Cir. 2015); Viggiano v. Hansen Nat. Corp., 944 F.

Supp. 2d 877, 892 (C.D. Cal. 2013); Red v. Kraft Foods, Inc., No. CV 10-1028-GW AGRX, 2012

WL 5504011, at *4 (C.D. Cal. Oct. 25, 2012); Dvora v. Gen. Mills, Inc., 2011 F. Supp. 2d

1897349, at *6-7 (C.D. Cal. May 16, 2011); Carrea v. Dreyer’s Grand Ice Cream, Inc., No. C 10-

01044 JSW, 2011 WL 159380, at *5-6 (N.D. Cal. Jan. 10, 2011); Sugawara v. Pepsico, Inc.,

2009 WL 1439115, at *3-4 (E.D. Cal. May 21, 2009); McKinnis, 2007 WL 4766060, at *3-4.

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Case No. 4:17-CV-00849-VC

Compl. at ¶ 35. Plaintiff does not allege that either of these representations was false or

misleading. He does not assert either that the Jujyfruits box he bought contained less than five

ounces of the product or had fewer than an expected number of candy pieces. He alleges, “The

size of the box in and of itself is a representation by Defendant as to the amount of candy

contained in the box” (id. at ¶ 19), but he does not explain how the box’s overall size meant that

the volume of candy versus empty space was above or below any particular threshold.

Ultimately, Plaintiff pleads no facts showing that his idiosyncratic alleged beliefs or

expectations about the quantity of Jujyfruits in a box are shared by reasonable (or any other)

consumers. He presumes that consumers disregard (or cannot understand) express statements of

weight and quantity printed on the packaging, and he simply assumes that reasonable consumers

would opt not to inspect the package (id. at ¶ 33) to inform themselves, if faced with uncertainty.

That is not enough for an inference that reasonable consumers would likely be deceived.

In a case like this one, where a plaintiff fails to plead facts supporting an inference that his

professed beliefs or expectations are shared by reasonable consumers, courts routinely dismiss

consumer protection claims. E.g., Ross v. Sioux Honey Ass’n Coop., No. C-12-1645 EMC, 2013

WL 146367, at *15-18 (N.D. Cal. Jan. 14, 2013) (dismissing claims where plaintiff alleged she

understood “honey” on product label to mean that no pollen had been removed, but alleged no

facts showing that reasonable consumers understand the term in the same way); Hemy v. Perdue

Farms, Inc., No. 11-888 (FLW), 2011 WL 6002463, at *15-17 (D.N.J. Nov. 30, 2011)

(dismissing claims where plaintiffs alleged they understood “humanely raised” on label of

chicken products to include humane methods of slaughter, but alleged no facts showing

reasonable consumers have same understanding); Rooney v. Cumberland Packing Corp., No. 12-

cv-0033-H (DHB), 2012 WL 1512106, at *4-5 (S.D. Cal. Apr. 16, 2012) (dismissing claims

where plaintiff pleaded no facts supporting inference that product name would cause reasonable

consumers to believe product contains unprocessed sugar); see also Cullen v. Netflix, Inc.,

No. 5:11-CV-01199-EJD, 2013 WL 140103, at *7 (N.D. Cal. Jan. 10, 2013), aff’d, 600 F. App’x

508 (9th Cir. 2015)). Because this Plaintiff pleads no facts showing that a reasonable consumer

would be likely deceived or harmed by the fill of Jujyfruits, he has failed to state a claim.

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DEF. FERRARA’S MOTION TO DISMISS

Case No. 4:17-CV-00849-VC

IV. CONCLUSION

For the foregoing reasons, Plaintiff’s Complaint should be dismissed in its entirety.

Respectfully submitted,

Dated: May 24, 2017 HOGAN LOVELLS US LLP

By: /s/ Robert B. Hawk

Robert B. Hawk

Attorneys for Defendant

Ferrara Candy Co.

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