Before there was reality television, there was a show about nothing.  In one memorable episode of that show, the characters become enamored with purportedly non-fat frozen yogurt from a shop in which one character has invested.

When the characters notice that they have gained weight after regularly
consuming the frozen yogurt, the character who has invested takes some of the frozen yogurt to be tested for the presence of fat.  After madcap hijinks ensue, the yogurt is determined to contain fat and the Mayor of New York, who also favored the frozen yogurt and believes he has developed high cholesterol, vows to clamp down on false advertising. That was “Seinfeld” and the investor, Kramer, lost his money as millions laughed.

In Burke v. Weight Watchers Int’l, Inc., No. 2:12-06742 (WJM), 2013 U.S. Dist. LEXIS 149249 (D.N.J. Oct. 17, 2013), the plaintiff used to like defendant’s diet ice cream bars—at least some of them—until she learned that each one might have 28 to 50 more calories than was listed on the package.  So, she sued as a putative class representative for all consumers of all of defendant’s diet ice cream ban under the New Jersey Consumer Fraud Act, express warranty, implied warranty, and unjust enrichment.  She will get at least one more chance to plead non-preempted claims, perhaps by shifting her focus to allegations based on how diet ice cream bars taste compared to real ice cream.  The Häagen Dazs dulce split Dazzler surely trounces the defendant’s Dark Chocolate Dulcé de Leché Ice Cream Bar (one of the ones plaintiff sued over but did not buy)–no matter how many hundreds of additional calories the former actually has, it is worth it for those not vulnerable to a diabetic coma.

Burke regularly bought (and presumably ate) two of the varieties of defendant’s diet ice cream bars.  Her complaint alleged that the label for one
said each bar had 140 calories, but unspecified “independent laboratory tests
indicated that [its] calorie content is 20%-36% greater than the calorie content listed on the box.”  Id. at *3.  The complaint also referred to a Today Show report from two months before plaintiff sued that the same bar tested as having 16% more calories than on its label, omitting that the report said the labeling was legal.  Id. at *4.  Faced with such a thin complaint, the defendant sought partial dismissal based on standing, complete dismissal based on failure to plead a non-preempted claim, and to strike the parts of the complaint inaccurately presenting the Today Show report.  It is the second motion that is most interesting to us.  The first was denied because the court elected to follow one line of cases from a split within the district, which allows class action plaintiffs to have standing—at least at the motion to dismiss stage–for claims based on products they did not allegedly purchase where the basis of the claims as to purchased and non-purchased products is the same, the products are in the same product line, and the defendants are the same.  Id. at **9-11.  An individual plaintiff would not have standing for consumer fraud claims based on products she did not buy, so we do not see how her claims could be “typical” of the claims of purchasers of different products.  Maybe that just gets sorted out on class certification if the case gets that far.  The third motion was denied as moot, although the court gave some clear dicta that the challenged portions of the complaint would have been stricken under Rule 12(f). Id. at **14-15.

That brings us to issues that come up fairly often on this blog, pleading and preemption.  As we have said before, courts sometimes have trouble evaluating pleading and preemption together, missing that the question can be whether the plaintiff has alleged a non-preempted state law claim.  The Burke court got it.  Preemption for food nutritional labeling
claims is express under 21 U.S.C. § 343-1(a)(4), meaning the analysis is fairly straightforward—plaintiff needed to allege that the labeled calories for the product(s) at issue did not comply with the applicable requirements.  The
regulations on labeling calories, however, are less than straightforward. Calories can be calculated by any one of five ways.  Our preferred way would be the bomb calorimetry method, which we assume you can do with a frozen diet ice cream bar, as long as you remove the stick first. The regs also provide a safe harbor for the labeled calorie total as long as one of the five methods (presumably the lowest) yields a total no more than 20% above the labeled amount.  Id. at *12.  With this background, and a clear example from the court, it is not hard to see how plaintiff’s complaint fell short. She did not plead testing of any of defendant’s products using all five of the approved methods for determining calories.  She also did not plead that each method yielded a calorie total in excess of 120% of the labeled calories—168 for the 140 labeled calories for the bar variety whose testing was discussed in the current complaint. So, all of her claims were expressly preempted as pleaded.  Id. at **13-14.  Of course, the dismissal of her complaint was without prejudice and she will have a chance to see if she can follow the roadmap for a non-preempted claim without violating Rule 11.

Three of the claims asserted by the plaintiff in Burke are fairly common in drug and device cases, consumer fraud (here, the New Jersey Act), express warranty, and implied warranty.  Like many of the claims in drug and device
cases, the Burke claims were predicated on the alleged inaccuracy of a single entry on the product’s label.  While there may not be many 20% safe harbors
for drug and device labels—maybe confidence intervals for hazard ratios and
standard deviations for pharmacokinetic data serve the same function
sometimes—it is refreshing to see a court lay out why a complaint failed to
plead a non-preempted claim.  Not as refreshing as a cold ice cream on a hot day.

Real ice cream, not the diet stuff.