United States District Court, E.D. Missouri, Eastern Division
ERIKA THORNTON, individually and on behalf of all others similarly situated in Missouri, Plaintiff,
PINNACLE FOODS GROUP LLC, Defendant.
MEMORANDUM AND ORDER
A. ROSS UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant’s Motion to
Dismiss. (Doc. No. 6) The motion is fully briefed and ready
Erika Thornton brought this putative class action in St.
Louis City Circuit Court against Defendant Pinnacle Foods
Group LLC (“Pinnacle”), asserting claims for
violation of the Missouri Merchandising Practices Act (Count
I) and unjust enrichment (Count II). She alleges that on at
least one occasion in the five years preceding the filing of
this action (the “Class period”), including in
January 2016, she purchased a box of Duncan Hines Simple
Mornings Blueberry Streusel Premium Muffin Mix (the
“Mix”). (Complaint (“Compl.”), Doc.
No. 5 at ¶¶ 7, 25) Pinnacle has labeled the Mix as
containing “Nothing Artificial.” (Compl. at
¶¶ 2, 16) However, because the Mix contains
monocalcium phosphate and xanthan gum, both of which are
artificial, synthetic substances,  Plaintiff contends that
Pinnacle’s representation that the Mix contains
“Nothing Artificial” is false, deceptive, and
misleading. (Compl. at ¶¶ 4, 16) Pinnacle removed
the matter to this Court on February 5, 2016 (Doc. No. 1) and
has moved to dismiss the complaint pursuant to Rules 8, 9(b)
and 12(b)(6) of the Federal Rules of Civil Procedure.
requires a plaintiff to set forth “a short and plain
statement of the claim showing that the pleader is entitled
to relief.” Fed.R.Civ.P. 8(a)(2). Such a statement must
simply give the defendant fair notice of what the
plaintiff’s claim is and the grounds upon which it
rests. Erickson v. Pardus, 551 U.S. 89, 93 (2007)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007)). A motion to dismiss under Rule 12(b)(6) tests
the legal sufficiency of that statement.
determining whether a claim has been stated, the Court
accepts as true all factual allegations in the complaint and
views them in the light most favorable to the plaintiff.
Kohl v. Casson, 5 F.3d 1141, 1148 (8th Cir. 1993).
“To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Twombly, 550 U.S. at 570).
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Gomez v. Wells Fargo Bank,
N.A., 676 F.3d 655, 660 (8th Cir. 2012) (quoting
Iqbal, 556 U.S. at 678). While a court must accept
factual allegations as true, it is “not bound to accept
as true a legal conclusion couched as a factual
allegation.” Carton v. Gen. Motor Acceptance
Corp., 611 F.3d 451, 454 (8th Cir. 2010) (internal
citations omitted). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Iqbal, 556 U.S.
at 678 (internal citations omitted).
sounding in fraud is subject to a heightened pleading
standard wherein the plaintiff “must state with
particularity the circumstances constituting fraud or
mistake.” Fed.R.Civ.P. 9(b). To satisfy this
requirement, the pleader must generally set forth the
“who, what, when, where, and how of the misconduct
charged.” BJC Health Sys. v. Columbia Cas.
Co., 478 F.3d 908, 917 (8th Cir. 2007) (internal
quotation marks and quoted cases omitted).
“[C]onclusory allegations that a defendant’s
conduct was fraudulent and deceptive are not sufficient to
satisfy the rule.” Schaller Tel. Co. v. Golden Sky
Sys., Inc., 298 F.3d 736, 746 (8th Cir. 2002) (quoting
Commercial Prop. v. Quality Inns Int’l, Inc.,
61 F.3d 639, 644 (8th Cir. 1995)).
MMPA - Count I
state a claim under the Missouri Merchandising Practices Act
(“MMPA”), Mo. Rev. Stat. § 407.020 et seq.,
a plaintiff must show that (1) she purchased merchandise from
the defendant; (2) for personal, family, or household
purposes; and (3) suffered an ascertainable loss; (4) as a
result of an unlawful practice. Mo. Rev. Stat. §
407.025(1); Polk v. KV Pharm. Co., No. 4:09CV00588
SNLJ, 2011 WL 6257466, at *4 (E.D. Mo. Dec. 15, 2011). Under
the MMPA, “[t]he act, use or employment by any person
of any deception, fraud, false pretense, false promise,
misrepresentation, unfair practice or the concealment,
suppression, or omission of any material fact in connection
with the sale or advertisement of any merchandise in trade or
commerce...is declared to be an unlawful practice.” Mo.
Rev. Stat. § 407.020.1. The MMPA is interpreted broadly
to promote its purpose to protect consumers. Huch v.
Charter Commc’ns., Inc., 290 S.W.3d 721, 724 (Mo.
orders of dismissal in Kelly v. Cape Cod Potato Chip Co.
Inc., 81 F.Supp.3d 754, 762 (W.D. Mo. 2015) and
Murphy v. Stonewall Kitchen, LLC, No. 1522-CC00481
(22nd Judicial Circuit (St. Louis City) Jan. 26,
2016), Pinnacle argues that Plaintiff has failed to plausibly
allege that the label “Nothing Artificial” would
have deceived a “reasonable consumer, ” first
because Plaintiff has failed to offer any definition of
“artificial” that applies to monocalcium
phosphate and xanthan gum (Doc. No. 7 at 3-7), and second,
because monocalcium phosphate and xanthan gum are disclosed
in the ingredient list on the back of the Mix box
(id. at 7-8). In Kelly, a consumer brought a
putative class action against potato chip producers, alleging
the chips were falsely labeled and marketed as “all
natural.” The court held that in the absence of any
plausible definition for the term “natural, ” the
plaintiff had failed to state a claim that the use of the
term was deceptive or misleading under the MMPA. 81 F.Supp.3d
at 759-61. Murphy, another putative class action,
involved a claim that a cupcake mix was deceptively labeled
and marketed as “all natural” because it
contained sodium acid pyrophosphate (“SAPP”), an
artificial and/or synthetic substance. The court found as a
matter of law that defendants’ labeling of its cupcake
mix was not deceptive or misleading because SAPP was
specifically listed as an ingredient and dismissed
plaintiff’s MMPA claim.
Court finds Pinnacle’s arguments unpersuasive. Whether
a reasonable consumer would be deceived by a product label is
generally a question of fact that cannot be resolved on a
motion to dismiss. See Anderson v. The Hain Celestial
Group, Inc., 87 F.Supp.3d 1226, 1236 (N.D. Cal. 2015);
Musgrave v. ICC/Marie Callender’s Gourmet Products
Division, No. 14CV02006 JST, 2015 WL 510919, at *6 (N.D.
Cal. Feb. 5, 2015); Ham v. Hain Celestial Group,
Inc., 70 F.Supp.3d 1188, 1193 (N.D. Cal. 2014).
Plaintiff alleges facts that, if true, establish a deceptive
or false claim as to the Mix. Specifically, she alleges the
Mix contains monocalcium phosphate and xanthan gum, both of
which are artificial, synthetic substances. (Compl. at ¶
3) The Court finds no basis to disregard those allegations,
which identify the specific compounds that are purportedly
“artificial.” See Bohlke v. Shearer’s
Foods, LLC, No. 9:14CV80727, 2015 WL 249418, at *9 (S.D.
Fla. Jan. 20, 2015) (citing Dye v. Bodacious Food
Co., No. 9:14CV80627-WPD, DE 14, at 8-9 (S.D. Fla. Sept.
9, 2014)). Thus, Pinnacle’s argument as to the meaning
of “artificial” does not warrant a dismissal of
Pinnacle’s “ingredient list defense, ” the
Court finds it plausible that a consumer might rely on the
representation “Nothing Artificial” without
looking at the ingredients, or that a consumer might not know
that monocalcium phosphate and xanthan gum are
“artificial” ingredients. (See Doc. No.
9 at 8-10) This Court recently found that “the mere
presence of an ingredient statement on the back of a product
does not eliminate the possibility that reasonable consumers
may be misled, ” and that the effect that an ingredient
statement may have on a reasonable consumer’s
understanding of advertising and product labels involves a
factual inquiry. Blue Buffalo Co. v. Nestle Purina
Petcare Co., No. 4:15CV384 RWS, 2015 WL ...