Judge Thomas D. Long, Case Number: 22STCV26729, Date: 2023-08-24 Tentative Ruling

On August 17, 2022, Plaintiff Sue Shin filed this action against Defendant Nissin Foods (USA) Co., Inc. On October 12, 2022, Defendant filed an answer.

The Complaint seeks injunctive relief for (1) unlawful business practices under the Unfair Competition Law (“UCL”), (2) unfair business practices under the UCL, (3) violation of the False and Misleading Advertising Law (“FAL”), and (4) violation of the Consumer Legal Remedies Act (“CLRA”).

On November 8, 2022, the Court granted Defendant’s motion for a stay pending the resolution of Henry v. Nissin Foods (U.S.A.) Co., Inc. (No. 1:22-cv-363), which was then pending in the United States District Court, Eastern District of New York. The Court lifted the stay on June 1, 2023.

Defendant’s request for judicial notice of true and correct copies of the product labels for Chicken Cup Noodles, Seafood Cup Noodles, Chicken Top Ramen, and Teriyaki Beef Chow Mein (Exhibits A-D) is granted. These are the labels that Plaintiff alleges are misleading, and they form the basis for the allegations in the Complaint. (E.g., Complaint ¶ 18.) Plaintiff has not opposed the requests and does not dispute their accuracy. (See Ingram v. Flippo (1999) 74 Cal.App.4th 1280, 1285, fn. 3.)

Plaintiff’s request for judicial notice of a March 28, 2023 order in Gatling-Lee v. Del Monte Foods, Inc., Case No. 4:22-cv-00892-JST (Exhibit 1) is denied as irrelevant. Additionally, Plaintiff improperly seeks judicial notice of the truth of the court’s statements and relies on it as authority.

Plaintiff’s request for judicial notice of a copy of “the product label and the ingredients listed in amazon.com as of June 1, 2023, for Nissin’s Chicken Cup Noodles” (Exhibit 2) is denied. Information on websites can be reasonably subject to dispute, and this information is not a proper subject for judicial notice. (LG Chem, Ltd. v. Superior Court of San Diego County (2022) 80 Cal.App.5th 348, 362, fn. 7.) Plaintiff also has not shown any relevance or that the information on a third-party website is in fact true and correct.

Plaintiff’s request for judicial notice of a March 22, 2023 order in Sue Shin vs. Sanyo Foods Corp. of America, Case No. 22STCV26723 (Exhibit 3) is denied as irrelevant.

A motion for judgment on the pleadings is the functional equivalent to a general demurrer. (Lance Camper Mfg. Corp. v. Republic Indemnity Co. of Am. (1996) 44 Cal.App.4th 194, 198.) Like demurrers, motions for judgment on the pleadings challenge the legal sufficiency of the allegations, not their veracity. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) The Court “must accept as true all material facts properly pleaded, but does not consider conclusions of law or fact, opinions, speculation, or allegations contrary to law or facts that are judicially noticed.” (Stevenson Real Estate Services, Inc. v. CB Richard Ellis Real Estate Services, Inc. (2006) 138 Cal.App.4th 1215, 1219-1220.)

Defendant argues that Plaintiff lacks standing. (Motion at p. 11.) “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 CLRA violation ‘that is the gravamen of [her] claim.’” (Shaeffer v. Califia Farms, LLC (2020) 44 Cal.App.5th 1125, 1137 (Shaeffer).)

Plaintiff alleges that she “purchased the defendants’ product substantially based upon the deceptive labeling of ‘NO ADDED MSG.’” (Complaint ¶ 24.) According to Plaintiff, this labeling is misleading and unlawful, and she therefore did not receive the sought after benefits from the product. (Complaint ¶¶ 23, 26.) This sufficiently pleads her standing for her claims.

Defendant argues that “Plaintiff does not and cannot truthfully allege that she believes that no naturally occurring glutamates were in the Products when the Product expressly told her otherwise,” and “an experienced label litigator like Plaintiff certainly cannot satisfy the ‘more demanding’ requirement that she relied on the actual Product label.” (Motion at p. 13.) These arguments require factual determinations outside the scope of this motion based on sufficiency of pleading.

B. Plaintiff Cannot Plausibly Allege That The Labels Will Mislead A Reasonable Consumer.

California’s UCL includes any unlawful, unfair, or fraudulent business act or practice and unfair, deceptive, untrue, or misleading advertising. (Bus. & Prof. Code, § 17200.) The FAL prohibits untrue or misleading advertising. (Bus. & Prof. Code, § 17500.) The CLRA prohibits “unfair methods of competition and unfair or deceptive acts or practices,” including representing goods that have characteristics that they do not have. (Civ. Code, § 1770.)

Each statute applies a “reasonable consumer” test. (Hill v. Roll Internat. Corp. (2011) 195 Cal.App.4th 1295, 1304 (Hill).) “[O]nly those statements on a label that are ‘likely to deceive’ a ‘reasonable consumer’ are actionable under the Unfair Competition Law, the false advertising law and the CLRA.” (Shaeffer, supra, 44 Cal.App.5th at p. 1137.) “[T]he standard is not a least sophisticated consumer [citations], unless the advertising is specifically targeted to such a consumer. . . . . [A] reasonable consumer ‘need not be “exceptionally acute and sophisticated”’ and might not ‘necessarily be wary or suspicious of advertising claims.’ [Citations.] ‘Rather, California courts consistently have looked to the ordinary consumer within the larger population.’ [Citations.]” (Hill, supra, 195 Cal.App.4th at p. 1304.) Whether a reasonable consumer would be misled can be decided at the pleading stage. (See id. at pp. 1301-1305 [affirming a trial court’s ruling sustaining a demurrer to UCL, FAL, and CLRA claims based on the reasonable consumer test].)

Defendant argues that Plaintiff cannot allege that a reasonable consumer would likely be misled by the labels. (Motion at pp. 14-18.)

The labels are truthful. Each of the labels at issue contain “NO ADDED MSG*” in a circle on the front of the packaging. (Defendant’s RJN, Exs. A-D.) Plaintiff does not contend, nor do the labels state, that the products contain added MSG. Directly below the circle is text stating “*CONTAINS SMALL AMOUNTS OF NATURALLY OCCURRING GLUTAMATES.” This is also truthful. Plaintiff alleges that the products contain MSG derived from autolyzed yeast extract, hydrolyzed corn protein, and hydrolyzed soy protein. (Complaint ¶ 21.) These ingredients are listed in the products’ ingredients.

In context and considering the totality of the label, no reasonable consumer would be misled by the labels, which truthfully disclose “SMALL AMOUNTS OF NATURALLY OCCURRING GLUTAMATES” and the ingredients that contain them.

Plaintiff also argues that the labels comply with FDA regulations. (See Motion at pp. 18-19.)

A protein hydrolysate used in food for its effects on flavor shall be declared by its specific common or usual name as provided in section 102.22. (21 C.F.R. § 101.22, subd. (h)(7).) “‘[H]ydrolyzed soy protein,’ and ‘autolyzed yeast extract’ are examples of acceptable names.” (21 C.F.R. § 102.22, subd. (a).) Hydrolyzed corn protein is similarly acceptable because it “include[s] the identity of the food source from which the protein was derived.” (21 C.F.R. § 102.22.)

Defendant’s labels identify autolyzed yeast extract, hydrolyzed corn protein, or hydrolyzed soy protein as ingredients. (Defendant’s RJN, Exs. A-D.) Thus, they comply with regulations. Although Plaintiff alleges that the Cup Noodles Soup Chicken Flavor contains monosodium glutamate as an ingredient (Complaint ¶ 22), that is contradicted by the unchallenged exhibit showing the actual label and its listed ingredients, which do not include monosodium glutamate as an ingredient (Defendant’s RJN, Ex. A).

Plaintiff argues that the labels do violate FDA regulations, relying on a 2012 FDA Q&A (https://www.fda.gov/food/food-additives-petitions/questions-and-answers-monosodium-glutamate-msg). (Opposition at pp. 14-16; Complaint ¶ 10.) That Q&A advises that “foods with any ingredient that naturally contains MSG cannot claim ‘No MSG’ or ‘No added MSG’ on their packaging.” Plaintiff cites two federal cases from 2013 and 2014 that found that the Q&A was entitled to deference under Auer v. Robbins (1997) 519 U.S. 452 (Auer). (Opposition at pp. 14-15.) However, the Supreme Court has since explained that “the possibility of deference can arise only if a regulation is genuinely ambiguous. And when we use that term, we mean it—genuinely ambiguous, even after a court has resorted to all the standard tools of interpretation.” (Kisor v. Wilkie (2019) 139 S.Ct. 2400, 2414.) There is no ambiguity in the codified regulations: a protein hydrolysate must be declared by its specific common or usual name as provided in section 102.22, and the names used in Defendant’s labels are acceptable under the statutory scheme. (21 C.F.R. § 101.22, subd. (h)(7); 21 C.F.R. § 102.22.) Accordingly, the nonbinding 2012 Q&A is not entitled to deference, and Defendant’s labels remain compliant with the codified law.

Plaintiff cannot plausibly or truthfully allege that the labels are untrue, misleading, or deceptive advertising under the FAL and CLRA (third and fourth causes of action).

For the same reasons, Plaintiff cannot allege unlawful or unfair business practices under the UCL (first and second causes of action). The UCL embraces “anything that can properly be called a business practice and that at the same time is forbidden by law.” (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 180.) “By proscribing any unlawful business practice, section 17200 borrows violations of other laws and treats them as unlawful practices that the unfair competition law makes independently actionable.” (Ibid.) Without an underlying unlawful or forbidden business practice, there is no basis for a violation of the UCL.

The motion for judgment on the pleadings is GRANTED. Defendant is ordered to submit a proposed form of judgment within five days.

A Non-Appearance Case Review re: Submission of Proposed Judgment is scheduled for 09/01/2023 at 9:00 AM.

The Case Management Conference scheduled for 08/29/2023 is advanced to this date and vacated.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

Hon. Thomas D. Long

Judge of the Superior Court