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Martin v. Wm. Wrigley Jr. Co.

United States District Court, W.D. Missouri, Western Division

October 23, 2017

Sharon K. Martin, individually and on behalf of all others similarly situated in Missouri, Plaintiff,
v.
Wm. Wrigley Jr. Co., Defendant.

          ORDER

          NANETTE K. LAUGHREY UNITED STATES DISTRICT JUDGE.

         Defendant Wm. Wrigley Jr. Co. (“Wrigley”) moves to dismiss the petition by plaintiff Sharon K. Martin. For the reasons set forth below, the motion to dismiss is granted with prejudice for failure to state a plausible claim.

         I. FACTS ALLEGED

         Plaintiff filed this putative class action in the Circuit Court of Jackson County, alleging that Wrigley employed “deceptive, unfair, and false merchandising practices” in connection with the packaging of the ECLIPSE® Gum 18-piece 2-Pack. Ms. Martin purchased the gum package for $1.09 on March 4, 2017 for personal or familial use and “for evaluative purposes of this lawsuit.” Ms. Martin claims that the gum packaging is opaque and conceals the fact that the gum sheet includes nonfunctional empty tabs that, from without, give the appearance of being additional gum pieces. Ms. Martin claims that the empty tabs constitute slack-fill in violation of state law. She brought this action on behalf of both herself and a proposed class of all persons in Missouri who purchased an ECLIPSE® Gum Twin-Pack in the five years preceding the filing of the petition. Her first claim is for violation of Section 407.020 of the Missouri Merchandising Practices Act (the “MMPA”), which prohibits the “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.” She also alleges negligent misrepresentation and unjust enrichment. She seeks compensatory damages, disgorgement, or restitution, along with pre- and post-judgment interest, and reasonable attorneys' fees.

         Wrigley removed the action to this Court on the basis of the Class Action Fairness Act of 2005. Ms. Martin has not challenged the removal. Wrigley now moves to dismiss the case for failure to state a claim.

         II. STANDARD

         The Federal Rules of Civil Procedure require the dismissal of a complaint that fails to “state a claim to relief that is plausible on its face.” See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In determining whether a complaint alleges sufficient facts to state a plausible claim to relief, the Court accepts all factual allegations as true. See Great Plains Trust Co. v. Union Pac. R.R. Co., 492 F.3d 986, 995 (8th Cir. 2007). But “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678.

         “Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. “Where we can infer from th[e] factual allegations no more than a ‘mere possibility of misconduct, ' the complaint must be dismissed. Cole v. Homier Distrib. Co., Inc., 599 F.3d 856, 861 (8th Cir. 2010) (quoting Iqbal, 556 U.S. 662 at 679).

         III. DISCUSSION

         Wrigley argues that the action should be dismissed for three reasons: first, Plaintiff's claims fail to conform with federal law concerning slack-fill, which preempts state law on the subject, and therefore have no legal merit; second, Plaintiff fails to allege a causal connection between her loss and the allegedly deceptive packaging; and finally, plaintiff's unjust enrichment claim fails because it is derivative of her other claims, which fail, and because plaintiff fails to allege that she has no adequate remedy at law.

         a. Applicable Law and Regulations Concerning Slack-Fill

         Plaintiff's first claim is for violation of Section 407.020 of the MMPA, which prohibits the “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.” But the Court's interpretation of the MMPA is conscribed by federal law.

         The Nutrition Labeling and Education Act of 1990 (the “NLEA”) expressly preempts state law concerning misleading containers. See 21 U.S.C. § 343-1(a)(3) (“[N]o State . . . may directly or indirectly establish under any authority or continue in effect as to any food in interstate commerce . . . any requirement for the labeling of food of the type required by section . . . 343(d) . . . of this title that is not identical to the requirement of such section . . . .”);[1]Id., § 343(d) (providing that “food shall be deemed to be misbranded . . . [i]f its container is . . . filled as to be misleading”). Accordingly, the Court must construe the MMPA provisions governing Plaintiff's claims, which purport to concern misleading containers and slack-fill, as being no broader than corresponding federal law.[2] See Izquierdo v. Mondelez Int'l, Inc., No. 16-04697, 2016 WL 6459832, at *4 (S.D.N.Y. Oct. 26, 2016) (“Consistent with the NLEA's purpose of promoting uniform national labeling standards, the statute includes an express preemption provision that forbids the states from “directly or indirectly establish[ing] . . . any requirement . . . made in the labeling of food that is not identical to” the federal labeling requirements established by certain specifically enumerated sections . . . . ‘Where federal requirements address the subject matter that is being challenged through state law claims, such state law claims are preempted to the extent they do not impose identical requirements.'”) (quoting, inter alia, 21 U.S.C § 343-1(a)).

         The applicable portion of the NLEA provides that “[a] food shall be deemed to be misbranded . . . if its container is so made, formed, or filled as to be misleading.” 21 U.S.C. § 343(d). The statute provides no additional guidance concerning when a container's fill may be misleading.

         As the agency tasked with administration of the NLEA, the Food and Drug Administration (“FDA”) has substantial power to interpret the statute insofar as it is silent or ambiguous. See Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 843 (1984). Therefore, to determine whether a filling may be “misleading” in conformity with federal law, the Court may turn to FDA interpretations for guidance. Indeed, so long as it is not “arbitrary, capricious, or manifestly contrary to the statute, ” the Court must defer to the FDA's interpretation. Id. at 844.

         FDA regulations promulgated pursuant to Section 343 of the NLEA specify that a “misleading” container is one that, inter alia, “does not allow the consumer to fully view its contents.” 21 C.F.R. § 100.100. The FDA published the following explanation of this regulation:

With respect to transparent containers, FDA notes that section 403(d) of the act is intended to prohibit partially filled packages that give a false impression as to the quantity of food they contain. FDA is not aware of there ever having been any action against a product that was allegedly filled so as to be misleading that was packaged in a container that allowed consumers to fully view its contents. Nor can FDA conceive of any situation related to fill of container where consumers would be misled as to the quantity of contents in such a container. Therefore, FDA is modifying §100.100(a) to specify that a container that does not allow consumers to fully view its contents shall be considered to be filled as to be misleading if it contains nonfunctional slack-fill. This action acknowledges that misleading fill has not been an issue when consumers can clearly see the level of fill in a container.

         Misleading Containers; Nonfunctional Slack-Fill, 58 Fed. Reg. 64123-01, at 64128 (Dec. 6, 1993) (emphases added).[3] The FDA further stated that “the entire container does not need to be transparent to allow consumers to fully view its contents . . . .” Id. At the same, time, however, “devices, such as a window at the bottom of a package, that require consumers to manipulate the package, e.g., turning it upside down and shaking it to redistribute the contents, do not allow consumers to fully view the contents of a container.” Id. The FDA therefore has advised that “displaying a portion of the contents in such a way as to give consumers an erroneous impression of the quantity of contents in a package, whether through misleading packaging or through misleading filling practices, constitutes misbranding.” Id. (emphasis added). It follows, both from the ...


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