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Vass v. Blue Diamond Growers

United States District Court, D. Massachusetts

April 22, 2015

CASLEY VASS, individually, and on behalf of all others similarly situated, Plaintiff,
v.
BLUE DIAMOND GROWERS, Defendant.

REPORT AND RECOMMENDATION ON DEFENDANT BLUE DIAMOND GROWERS' MOTION TO TRANSFER PURSUANT TO 28 U.S.C. § 1404(a) OR, IN THE ALTERNATIVE, STAY THE PROCEEDINGS (#15).

M. PAGE KELLEY, Magistrate Judge.

I. Introduction

On September 11, 2014, plaintiff Casley Vass, individually and on behalf of all others similarly situated, filed a complaint (#1) against defendant Blue Diamond Growers. Less than a month later on October 6, 2014, Vass filed an amended class action complaint (#7) alleging the following claims against Blue Diamond: Count I, violation of Mass. Gen. L. c. 93A; Count II, violation of Mass. Gen. L. c. 94 §§ 187 and 190 and 105 CMR 520.116; Count III, breach of implied warranty of merchantability; Count IV, breach of express warranty; Count V, negligent misrepresentation; Count VI, negligence; Count VII, unjust enrichment; Count VIII, money had and received; and Count IX, declaratory judgment that Defendant violated federal and state laws regarding mislabeled and misbranded food products.

In response, Blue Diamond filed a motion to transfer the case to the Northern District of California or, in the alternative, to stay on November 3, 2014. (#15.) This motion has been fully briefed (##16, 22, 41, 42, 44) and has been referred to the undersigned for the issuance of a report and recommendation as to disposition.

II. The Facts

According to the allegations of the amended complaint, Vass is a resident of Boston, Massachusetts who has purchased Blue Diamond Purchased Product[1] in the Commonwealth within the past four years. (#7 ¶ 14.) Plaintiff brings this action on behalf of himself and "[a]ll persons in Massachusetts who, from September 11, 2010, until the date of notice, purchased almond milk products manufactured, distributed and/or sold by Blue Diamond Growers containing the label statements evaporated cane juice'[2] and/or All Natural.'" (#7 ¶ 8.) Blue Diamond, a California corporation with a principal place of business in Sacramento, California, is a leading producer of retail food products, including the Purchased Product and Substantially Similar Products.[3] (#7 ¶¶ 15, 16.) Defendant sells its products to consumers in Massachusetts. (#7 ¶ 16.)

Plaintiff describes his case as having two prongs. (#7 ¶ 5.) The first involves Blue Diamond's alleged unlawful sale and misbranding of its products. (#7 ¶ 5.) Food manufacturers are required to comply with state and federal laws and regulations that govern the labeling of food products. (#7 ¶ 22.) Massachusetts has adopted the federal labeling requirements. (#7 ¶ 23.) The FDA has a policy about use of the term "natural, " to wit, it is to be used only if no unexpected artificial or synthetic ingredients have been included in that food. (#7 ¶ 31.) The FDA has repeatedly affirmed this policy, and has issued multiple warning letters about the issue. (#7 ¶¶ 30, 32.)

According to Vass, Defendant knew about the warning letters. (#7 ¶ 32.) Notwithstanding this policy and the numerous warnings, Blue Diamond is alleged to have unlawfully labeled food products, including the Purchased Product and the Substantially Similar Products, as "all natural" when they contain artificial ingredients and synthetic additives. (#7 ¶ 33.) This mislabeling is said to violate various provisions of the Massachusetts Food Code. (#7 ¶ 34.) Further, consumers are purportedly misled into buying Defendant's products labeled as "all natural" when they in fact contain synthetic additives and artificial ingredients. (#7 ¶¶ 37-39.)

The Purchased Product is labeled as containing "evaporated cane juice." (#7 ¶ 41.) In Plaintiff's view, this is a misbrand because "evaporated cane juice" is not juice, but sugar. (#7 ¶¶ 42, 43.) The label claim of the product containing evaporated cane juice rather than sugar is allegedly false and employed to increase sales by misleading customers into believing that they are purchasing a healthier product. (#7 ¶¶ 42, 43.) The "FDA has issued a number of warning letters and policy statements that expressly object to the use of the term evaporated cane juice' as being false and misleading and prohibited by labeling regulations." (#7 ¶ 47.) Despite being aware of the policy statements and warning letters, Defendant used the term evaporated cane juice to mislead customers into purchasing its products. (#7 ¶ 52.) In misbranding its products' ingredient lists, Blue Diamond is said to have violated federal and Massachusetts laws and regulations. (#7 ¶¶ 48-51.)

The second aspect of Plaintiff's case concerns Blue Diamond's alleged deceptive practices. (#7 ¶ 6.) According to Vass, "[t]he Purchased Product has a label that violates Massachusetts law and is therefore misbranded and may not be sold or purchased." (#7 ¶ 54.) The label includes the following allegedly unlawful and misleading language: "All Natural, " "Almond Breeze® Almondmilk is an all natural, great tasting NON-DAIRY BEVERAGE, " and "All Natural with added Vitamins and Minerals." (#7 ¶ 56.) In addition, purportedly unlawful and misleading language appears in the label's list of ingredients:

"INGREDIENTS": ALMONDMILK (FILTERED WATER, ALMONDS), EVAPORATED CANE JUICE, COCOA (DUTCH PROCESS), CALCIUM CARBONATE, SEA SALT, POTASSIUM CITRATE, CARRAGEENAN, NATURAL FLAVORS, SUNFLOWER LECITHIN, VITAMIN A PALMITATE, VITAMIN D-2 AND D-ALPHA-TOCOPHERAL (NATURAL VITAMIN E).

(#7 ¶ 57.)

The label is said to be misleading and deceptive because, although identified as being "all natural, " the Purchased Product contains artificial ingredients, i.e., cocoa (Dutch Process), potassium citrate, Vitamin A Palmitate, Vitamin D-2 and Vitamin D-Alpha-Tocopheral. (#7 ¶ 59.) The Purchased Product is also alleged to be misleading, deceptive and in violation of Massachusetts law because it lists "EVAPORATED CANE JUICE" as an ingredient which is really sugar, not juice. (#7 ¶ 60.) Vass asserts that he relied on the label misrepresentations in buying the Purchased Product. (#7 ¶ 58.)

Blue Diamond is alleged to have made the same false labeling claims on the Substantially Similar Products as were made on the Purchased Product. (#7 ¶ 74.) "All containers of Blue Diamond almond milk listed in this Class Action Complaint are misbranded and illegal." (#7 ¶ 79.) As a consequence of the mislabeling, Defendant allegedly has violated Massachusetts laws and regulations. (#7 ¶¶ 85-92.) Having been misled by Blue Diamond's allegedly unlawful misrepresentations, Plaintiff and others in Massachusetts and ...


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