Lopez v. Mead Johnson Nutrition Co., 2026 WL 788492, No.
24-cv-03573-HSG (N.D. Cal. Mar. 20, 2026)
Lopez alleged that Mead infant formulas’ packaging contains
deceptive statements that imply that they are generally nutritious and have “no
detrimental, harmful, or genetically engineered ingredients.” For example, the
challenged labels state that the formulas are “brain building” or “support[ ]
brain… development,” and are “recommended” or “trusted” by experts and
pediatricians. Others contain statements that the formulas promote immune
health, bone health; eye health; were inspired by breast milk; and do not
contain artificial colors, flavors, sweeteners, or growth hormones. But independent
testing allegedly revealed a presence of arsenic, cadmium, or lead in each of
the formulas, and that other infant formulas may be manufactured without
detectable levels of heavy metals. She also alleged that consumer surveys
revealed that people would expect a company to test for those substances and
disclose whether “detectable levels” were found, and that consumers would
understand the formulas’ packaging to imply there were no heavy metals.
The court disagreed, although it rejected Mead’s primary
jurisdiction argument and arguments that Lopez couldn’t sue over products with
different ingredients from those she purchased (there are milk-based, soy-based
or amino-based options), because they were substantially similar in the
relevant characteristics to the products she did purchase.
Lopez did fail to plead that damages would insufficiently
compensate her for the alleged overpayment, so her restitution and disgorgement
claims failed.
More importantly, her UCL,
FAL, and CLRA claims failed. She didn’t allege that any of Mead’s claims
were literally false, but rather that “each challenged statement speaks
directly to the quality and nutritional benefits of the Products” without
mentioning the potential presence of heavy metals. “[T]his argument is based on
implausible assertions about what a reasonable consumer would understand the
challenged representation to say about the Products…. There is nothing that
logically connects an expert’s recommendation or the presence of certain
substances in an infant formula with the absence of some other substance.” [Would
an expert really recommend feeding a baby cadmium and lead?]
The survey didn’t help. Over 91 percent of a subset of
parents answered “yes” to the questions “Do you expect a company to test for
arsenic, cadmium, lead, and/or mercury in infant formula that will be fed to
infants?” and “Would you expect a company to disclose if there were detectible
levels, or risk, of arsenic, cadmium, lead, and/or mercury in an infant
formula?” And 77 percent of consumers would not “expect arsenic, cadmium, lead,
and/or mercury in the infant formula” after seeing the label. “But these
generalized questions to an undisclosed number of people, detached from any
legal standard, fail to support the plausibility of Plaintiff’s reasonable
consumer allegation.”
Nor did Lopez plead that Mead has a “duty to disclose”
because the suppressed facts are “contrary to a representation actually made by
the defendant.” The challenged statements read together didn’t represent that
the products didn’t contain any detectable levels of heavy metals. “It is not
enough for the disclosure to only provide more information about the product.”
This defeated all the claims.
Meanwhile: The Court directed defense counsel to show cause why
they should not be sanctioned for including a non-existent quotation from
Becerra v. Dr Pepper/Seven Up, Inc., 945 F.3d 1225 (9th Cir. 2019). The
required response indicated that the quote was actually from a district court case
that cited Becerra whose citation was inadvertently deleted. The filing included
a screenshot purporting to show that counsel had previously accessed that district
court case on Westlaw and specifically disavowed any generative AI use, which
was clearly part of the court’s suspicions. “Counsel for Mead Johnson
apologizes for the mistake and has informed Mead Johnson of both this error and
the Court’s Order.”
Pellegrino v. Procter & Gamble Co., 2026 WL 880573, No.
23-CV-10631 (KMK) (S.D.N.Y. Mar. 31, 2026)
Plaintiffs brought claims under New York General Business
Law §§ 349 and 350, New York Agriculture and Markets Law § 199-a, and
negligence per se based on P&G’s marketing of Metamucil, a psyllium fiber
supplement.
Plaintiffs alleged that “[t]he labels on the Products
suggest … that [they] are generally healthy and safe for consumption and
provide specific health benefits ….” and that they “have been inspected and
sealed to ensure each is safe for human consumption” and free from tampering.
P&G’s website has a dedicated “Product Safety” section, which discusses the
“rigorous safety process” it uses “to analyze every ingredient” used in its
products and claims to “go beyond regulatory compliance to ensure every
ingredient’s safety through a four-step, science-based process” used by various
regulatory agencies, including “US FDA, [the] EPA, the EU, the WHO, and
others.” P&G “reassures consumers it ‘define[s] the safe range of every
ingredient’ by ‘apply[ing] the same science-based approach as regulatory
agencies around the world.’ ” The website specifically states that it does not
use “[h]eavy metals” such as “[a]rsenic, [l]ead, [and] [c]hromium” as
ingredients in its products.
But the products allegedly “contain dangerous amounts of the
heavy metal lead[,]” supported by the results of “[i]ndependent laboratory
testing completed in July 2023 by an ISO-accredited laboratory.” P&G
allegedly knew this since 2021, when “Consumer Lab published a report
concerning the lead content of various psyllium fiber supplements, showing up
to 14.6 μg of lead per serving in Metamucil Sugar Free Orange Flavored.”
P&G argued that plaintiffs didn’t allege facts
sufficient to show that the products they purchased actually contained
dangerous amounts of lead. The court agreed in part; it didn’t think there was
enough detail in most of the independent testing allegations.
“To validly assert an injury under a price-premium theory, a
plaintiff must ‘allege[ ] facts demonstrating it is at least plausible that a
plaintiff purchased a misbranded product.’ ” Plaintiffs can test the products
they personally purchased, but “[c]aselaw in this Circuit recognizes … that
it may not always be possible to test the actual product purchased by a
plaintiff.”
John v. Whole Foods Mktg. Grp., 858 F.3d 732 (2d Cir. 2017),
accepted the results of a third-party investigation, which found the
defendant’s pre-packaged foods were mislabeled 89% of the time. “[T]he samples
in the independent investigation included the particular type of products that
the plaintiff bought from the two store locations where he bought the products
during the same time period in which the plaintiff made his purchases.” John
requires plaintiffs to “meaningfully link the results of their independent
testing to the product actually purchased.” This can be done, for example, “by
showing that the mislabeling was systematic and routine.” Relevant factors include temporal proximity, geographic
proximity of the testing to the plaintiff’s purchases, the number of samples
tested, and the name and testing methodology of the tester. “The pleading also
should disclose the number of samples tested, and the testing should involve
more than a small number.”
Only one plaintiff’s claims survived this inquiry. The court
declined to dismiss those claims on the grounds that plaintiffs didn’t show
that the amount of lead was dangerous: what constitutes too much lead is a fact
question, and plaintiffs alleged that “[t]here is no level of exposure to lead
that is known to be without harmful effects” and “[t]here is no known safe
blood lead concentration.”
P&G argued that “[s]everal of the representations
Plaintiffs challenge are structure/function claims that are authorized by the
[Federal Food, Drug, and Cosmetics Act (the “FDCA”),]” which “expressly
preempts Plaintiffs’ attempt to attack these structure/function claims as
deceptive under state law.” The Second Circuit hasn’t weighed in on the
relevant preemption provision, but the court here applied the rule that “there
are two ways plaintiffs may escape preemption under that provision: (1) if
their claims seek to impose requirements that are identical to those imposed by
the FDCA; or (2) if the requirements plaintiffs seek to impose are not with
respect to the sort described in [that part of the statute].”
Plaintiffs do not assert that
Defendant failed to adhere to the labeling requirements posed by the FDCA, nor
do they quarrel with the effectiveness of the Products or the primary
ingredients that are in the Products. Instead, Plaintiffs claim that the representations
Defendant made about the Products are false and misleading because the Products
contain undisclosed amounts of lead…. Because “Plaintiffs’ argument is that the
representations Defendant has made about its Products are false and misleading,
… Plaintiffs do not attempt to impose any additional requirements on
Defendant other than those already imposed by the [FDCA].”
The issue wasn’t whether the structure/function claims were
false in the abstract, but whether these products were contaminated with lead.
Stating a claim under GBL §§ 349 and 350: Plaintiffs alleged
that various statements on the Products’ packaging “suggest to reasonable
consumers that the Products are generally healthy and safe for consumption[ ]
and provide specific health benefits,” but these “statements and suggestions
… are false and misleading because the Products’ high lead content means the
Products are, in fact, neither healthy nor safe for regular consumption.”
P&G argued that the challenged statements didn’t explicitly
say the Products are healthy and safe for consumption and “courts have rejected
efforts like Plaintiffs’ to ‘allege[ ] that a consumer will read a true
statement on a package and will then … assume things about the products other
than what the statement actually says.’ ”
But the reasonable consumer test is usually a question of
fact unless a plaintiff’s proposed reading is “patently implausible and
unrealistic.” So the court proceeded to evaluate specific package statements.
“#1 Doctor Recommended Brand”: Bates v. Abbott Lab’ys, 727
F. Supp. 3d 194 (N.D.N.Y. 2024), aff’d, No. 24-CV-919, 2025 WL 65668 (2d Cir.
Jan. 10, 2025) (summary order), rejected an argument “#1 Doctor Recommended
Brand” was actionable under the GBL because the product—a nutrition drink—had added
sugar. But “[a] consumer who agrees that any added sugar in a nutrition drink
undermines its health benefits can obtain that information from the label,”
which listed sugar as an ingredient, so “#1 Doctor Recommended Brand” was not
misleading. But “the deception alleged here is different in kind than that
alleged in Bates, both in terms of the scope of the omission (some
disclosure about the sugar versus none about the lead) and the danger presented
by the ingredient at issue (lead versus sugar). And, this difference is
dispositive because the complete failure to mention the presence of a harmful
substance such as lead makes any claim about the Products’ brand being doctor
recommended plausibly misleading since it suggests that ‘the Products have been
evaluated and approved by doctors as healthy and safe when taken as directed.’”
However, it was not plausible that claims that the packaging
was tamper-evident misled reasonable consumers by “reassur[ing] [them] that a
product is free from toxic adulterants like lead.” This wasn’t a case about
tampering.
So too with the “Better Choices for Life” statement that
appears as part of the American Diabetes Association seal on the packaging. When
viewed in context of the logo in which it appears, no reasonable consumer could
read “Better Choices for Life” as anything other than an endorsement by the
American Diabetes Association.
“Helps Support: Appetite Control* … [and] Digestive
Health*”: Even though the challenged statement refers to “the specific effects
of consuming fiber” and not the overall ingredients, deceptiveness was a fact
question.
Omission: P&G argued that, because a March 2021 Consumer
Lab report revealed that lead was found in various Metamucil products, plaintiffs
couldn’t allege that its presence was “material information” that was
exclusively within P&G’s control. Some courts interpreting NY law have gone
so far as to require plaintiffs to plausibly allege they “could not ‘reasonably
have obtained the [omitted] information[,]’ ” with “[o]ne example—though not
the only example—of how to meet that standard is if the defendant ‘alone
possesses [the omitted] information.’ ” Figuring out whether the information
was discoverable by a reasonable consumer would require factual development.
from Blogger https://tushnet.blogspot.com/2026/04/two-cases-reach-opposite-results-over.html
Rebecca Tushnet 