Lee v. Conagra Brands, Inc. ( 2020 )

United States Court of Appeals
For the First Circuit
No. 17-2131
MARGARET LEE, on behalf of herself and all others similarly
situated,
Plaintiff, Appellant,
v.
CONAGRA BRANDS, INC.,
Defendant, Appellee,
ROCHE BROS. INC.; ROCHE BROS. SUPERMARKETS, INC.; ROCHE BROS.
SUPERMARKETS, LLC; STOP & SHOP SUPERMARKET COMPANY LLC,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Howard, Chief Judge,
Kayatta, Circuit Judge,
and Torresen,* U.S. District Judge.
Patrick J. Vallely, with whom Edward F. Haber and Shapiro
Haber & Urmy LLP were on brief, for appellant.
Angela M. Spivey, with whom R. Trent Taylor and McGuire Woods
LLP were on brief, for appellee.
* Of the District of Maine, sitting by designation.
May 7, 2020
HOWARD, Chief Judge. Margaret Lee purchased Wesson
brand vegetable oil ("Wesson Oil") from grocery stores in Brookline
and Mashpee, Massachusetts. The Wesson Oil label advertised that
it was "100% Natural." After learning that Wesson Oil contained
genetically modified organisms ("GMOs"), which Lee regarded as
quite unnatural, she sued the manufacturer and distributer,
Conagra Brands, Inc. ("Conagra"), in Massachusetts Superior Court.
She sued on her own behalf and on behalf of others similarly
situated. Lee alleged that, by labeling Wesson Oil "100% Natural,"
Conagra violated Massachusetts's prohibition against unfair or
deceptive trade practices. See Mass. Gen. Laws ch. 93A ("Chapter
93A").1 Conagra removed the action to federal court, and the
district court dismissed Lee's complaint for failure to state a
claim. The district court determined that Wesson Oil's label was
neither unfair nor deceptive as a matter of law because it
conformed to the Food and Drug Administration's ("FDA") labeling
policy. We reverse.
I.
We review de novo an order dismissing a complaint for
failure to state a claim, and we reverse the dismissal if "the
combined allegations, taken as true . . . state a plausible, not
1
Lee originally named as co-defendants the supermarkets from
which she bought Wesson Oil, but she later voluntarily dismissed
them from the case.
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a merely conceivable, case for relief." Sepúlveda-Villarini v.
Dep't of Educ. of P.R., 628 F.3d 25, 29 (1st Cir. 2010) (citing
Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009); Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). "In undertaking this review,
'we accept as true all well-pleaded facts alleged in
the complaint and draw all reasonable inferences therefrom in the
pleader's favor.'" Lanza v. Fin. Indus. Regulatory Auth., 953
F.3d 159, 162 (1st Cir. 2020) (quoting Nystedt v. Nigro, 700 F.3d
25, 30 (1st Cir. 2012)). To the extent that Lee's Chapter 93A
complaint sounds in fraud, it must meet Federal Rule of Civil
Procedure 9(b)'s heightened pleading requirements. See Shaulis v.
Nordstrom, Inc., 865 F.3d 1, 13 n.6 (1st Cir. 2017). "The
circumstances to be stated with particularity under Rule 9(b)
generally consist of the who, what, where, and when of the
allegedly misleading representation." Kaufman v. CVS Caremark
Corp., 836 F.3d 88, 91 (1st Cir. 2016) (alteration and quotation
marks omitted).
Although Conagra moved to dismiss the complaint on four
grounds, the district court only addressed one; it agreed with
Conagra that Wesson Oil's label was not unfair or deceptive as a
matter of law because the label "conforms to FDA labeling policy."
That policy essentially permits labeling a product as "natural" so
long as it includes no added synthetic ingredients, like artificial
colors or flavors. The district court also noted that the FDA
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does not require the affirmative disclosure of GMOs' presence.
Conagra raises three other arguments that the district court did
not discuss. It submits: (1) that Lee fails to allege a cognizable
Chapter 93A injury; (2) that the FDA affirmatively permits the
"100% Natural" representation on Wesson Oil's label; and (3) that
federal statutes -- namely, the Nutrition Labeling and Education
Act, 21 U.S.C. § 343-1, and the National Bioengineered Food
Disclosure Standard, 7 U.S.C. § 1639 et seq. -- preempt Lee's
requested relief.
II.
We begin, as ever, with subject matter jurisdiction.
Conagra removed the case and justifies federal jurisdiction under
the Class Action Fairness Act ("CAFA"), 28 U.S.C. § 1332(d). CAFA
requires minimal diversity and that at least $5,000,000 be in
controversy. 28 U.S.C. § 1332(d)(2). Diversity is met because
Lee is a resident of Massachusetts and Conagra is a Delaware
corporation with its headquarters in Illinois. See id.
§ 1332(d)(2)(A). Conagra is the removing party, so it "bears the
burden to show with a 'reasonable probability' that the amount in
controversy requirement is satisfied." Cooper v. Charter Commc'ns
Entm'ts I, LLC, 760 F.3d 103, 106 (1st Cir. 2014). Lee does not
contest jurisdiction, and we are at ease finding federal
jurisdiction proper based upon the allegations in Lee's amended
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complaint and Conagra's unchallenged representations. See Liu v.
Amerco, 677 F.3d 489, 493 (1st Cir. 2012).
Briefly, the complaint defines the class as "[a]ll
persons who have purchased Wesson Oil products in Massachusetts
that were labeled '100% Natural,'" and it is not limited to a
specific period. The complaint seeks damages comprising "up to
three times the damages that [Lee] and the Class incurred, or at
the very least the statutory minimum award of $25 per purchase of
a Wesson Oil product . . . together with all related court costs,
attorneys' fees, and interest." In its Notice of Removal, Conagra
noted that these Chapter 93A damages could potentially be trebled,
and that, due to the large number of Wesson Oil purchases
potentially at stake, the claims "yield an amount in controversy
over and above the CAFA jurisdictional limit." Conagra has met
its burden to show with a "reasonable probability" that $5 million
is at stake. See id. ("It is not clear to a legal certainty that
the amount in controversy is less than $5 million. So we proceed
to the merits." (citation omitted)).
III.
We turn to the district court's rationale for dismissing
Lee's complaint. The district court analyzed whether Wesson Oil's
label was "unfair" within the meaning of Chapter 93A, but it did
not cite or discuss the standard for whether the label was
"deceptive." Chapter 93A bars "unfair or deceptive acts or
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practices." Mass. Gen. Laws ch. 93A, § 2(a) (emphasis added).
The proscription is disjunctive, so the district court should have
separately addressed whether the complaint alleged sufficiently
that Wesson Oil's label was deceptive. See 35 Mass. Prac. Consumer
Law § 4:16 (3d ed. 2017) (observing that an act or practice
violates Chapter 93A if it is "either unfair or deceptive" (citing
Commonwealth v. DeCotis, 316 N.E.2d 748 (Mass. 1974); Mass. Farm
Bureau Fed'n, Inc. v. Blue Cross of Mass., Inc., 532 N.E.2d 660,
664 (Mass. 1989); Cherick Distribs., Inc. v. Polar Corp., 669
N.E.2d 218, 221 (Mass. App. Ct. 1996))). For the reasons that
follow, we conclude that Lee's complaint plausibly alleges that
Wesson Oil's label violated Chapter 93A's prohibition against
deceptive acts or practices.2
When deciding whether conduct is deceptive under Chapter
93A, Massachusetts courts are "guided by interpretations of
["deceptive"] as found in the analogous Federal Trade Commission
Act . . . 15 U.S.C. § 45(a)(1)." Aspinall v. Philip Morris Cos.,
813 N.E.2d 476, 487 (Mass. 2004); see also Mass. Gen. Laws ch.
93A, § 2(b). Those interpretations instruct that a food product
label generally qualifies as deceptive in violation of Chapter 93A
"when it has the capacity to mislead consumers, acting reasonably
2
On appeal, Lee did not claim that the label was unfair, so
she waived that argument. See United States v. Zannino, 895 F.2d
1, 17 (1st Cir. 1990).
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under the circumstances, to act differently from the way they
otherwise would have acted (i.e., to entice a reasonable consumer
to purchase the product)." Aspinall, 813 N.E.2d at 487-88 (citing
Matter of Cliffdale Assocs., Inc., 103 F.T.C. 110, 165 (1984)).
The complaint alleges that the "100% Natural"
representation on the Wesson Oil label enticed Lee to buy the
product because it indicated to her that the oil was GMO-free.
"So, the question under Massachusetts law is whether the label had
the capacity to mislead consumers, acting reasonably under the
circumstances, to believe that [Wesson Oil] contained [no GMOs]."
Dumont v. Reily Foods Co., 934 F.3d 35, 40 (1st Cir. 2019).
Pursuant to an agreement between the agencies, the FTC
defers to the FDA's determinations as to whether food product
labeling is deceptive. See Bristol-Myers Co. v. FTC, 738 F.2d
554, 559 (2d Cir. 1984) (citing 36 Fed. Reg. 18,539 (Sept. 16,
1971)). Accordingly, the FDA's guidance will inform our analysis
as to whether these allegations survive dismissal. See Dumont,
934 F.3d at 41 ("[W]e see no unfair cost in recognizing a state-
law claim that . . . can only be lodged against manufacturers that
fail to adhere to the rules and safe harbors that have been created
by the FDA and that help form consumers' expectations in reading
labels.")
At this stage, our analysis begins and ends with the
allegations in the complaint. Lee claims that Wesson Oil's label
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could have misled a reasonable consumer into buying the product
under the (false) impression that it contained no GMOs. The
complaint asserts, for instance, that consumers consider whether
products are "natural" when they make their purchasing decisions,
and that they are willing to pay more for natural items. Lee
further alleges that surveys show that many scientists and
consumers do not consider GMO-containing products to be natural.
She submits that Conagra indicated that Wesson Oil was "100%
Natural" on its label even though it contained GMOs, that Lee
herself understood "100% Natural" to mean that Wesson Oil was
GMO-free, that she purchased it from specific grocery stores in
Massachusetts "five or six times per year" for years, and that she
bought a different product after she learned that Wesson Oil
contained GMOs. The complaint thus plausibly alleges that Wesson
Oil's label could have deceived a reasonable consumer.
Federal courts have permitted very similar complaints to
go forward under other states' unfair or deceptive trade practices
statutes. See, e.g., Garcia v. Kashi Co., 43 F. Supp. 3d 1359,
1384-86 (S.D. Fla. 2014) (collecting cases); Ault v. J.M. Smucker
Co., No. 13 CIV. 3409 PAC, 2014 WL 1998235, at *6 (S.D.N.Y. May
15, 2014); In re Frito-Lay N. Am., Inc. All Nat. Litig., No. 12-
MD-2413 RRM RLM, 2013 WL 4647512, at *15-16 (E.D.N.Y. Aug. 29,
2013). Conagra argues that Lee demands a disclosure as to whether
Wesson Oil contains GMOs, and that the complaints in the above-
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cited cases did not require any such disclosure. Conagra contends
that a GMO disclosure obligation would contradict the FDA's views
that: (1) GMO products may be advertised as natural; and (2) the
unannounced presence of GMOs in a product never causes the
product's label to mislead a reasonable consumer.
Conagra mischaracterizes Lee's complaint and the FDA's
views. This complaint, precisely like those in the cases cited
above, seeks damages resulting from Conagra's alleged
misrepresentation. Lee does not request a specific, court-ordered
label; in addition to damages, she seeks a limited injunction that
would bar Wesson Oil's allegedly "false and deceptive marketing,
branding, and labeling." If a court were to issue such an
injunction, Conagra would not be required to disclose
affirmatively whether Wesson Oil contains GMOs. Subject to the
injunction's particulars, Conagra could almost certainly comply by
excising the label's allegedly misleading claim that Wesson Oil is
"100% Natural." See Garcia, 43 F. Supp. 3d at 1374 (explaining
that the complaint did not seek an affirmative disclosure but
instead "allege[d] that the 'all natural' representation . . . on
the packaging would, and does, mislead reasonable consumers").
Moreover, granting Lee's requested relief would not
contradict the FDA's guidance. The FDA has not said that GMOs are
natural and may be advertised as such. Conagra does not cite any
binding FDA guidance defining "natural," nor could it -- that
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guidance does not exist. The FDA has merely noted its policy that
a product may not be labeled as "natural" if it contains anything
"artificial or synthetic (including all color additives regardless
of source)." See Food Labeling: Nutrient Content Claims, General
Principles, Petitions, Definitions of Terms; Definitions of
Nutrient Content Claims for the Fat, Fatty Acid, and Cholesterol
Content of Food, 58 Fed. Reg. 2,302, 2,407 (Jan. 6, 1993); see
also Food Labeling: Nutrient Content Claims, General Principles,
Petitions, Definition of Terms, 56 Fed. Reg. 60,421, 60,466 (Nov.
27, 1991) (noting that the "FDA has not attempted to restrict the
use of the term 'natural'" and that its informal policy has been
to interpret natural "to mean that nothing artificial or synthetic
. . . is included in, or has been added to, the product that would
not normally be expected to be there").
Conagra confuses the FDA's informal policy "not to
restrict the use of the term 'natural'" with a rule defining it.
See, e.g., 58 Fed. Reg. 2,407. Where, as here, an agency has
issued no binding rule defining a term, the agency's pronouncements
do not dictate whether a representation has the capacity to deceive
a reasonable shopper under Chapter 93A. See Abruzzi Foods, Inc.
v. Pasta & Cheese, Inc., 986 F.2d 605, 606 (1st Cir. 1993) (noting
that, although the FDA issued a relevant rule, it declined to
define "fresh" in the applicable context, so the plaintiff could
not "appeal to the FDA rules for support"); see also Holk v.
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Snapple Beverage Corp., 575 F.3d 329, 340-41 (3d Cir. 2009)
(finding that the above-referenced FDA guidance does not amount to
a formal definition of the term "natural").
Critically, the FDA's far more recent request for
comment as to whether GMOs are natural implicitly acknowledges
that the agency has not yet ruled that they are. See Use of the
Term "Natural" in the Labeling of Human Food Products; Request for
Information and Comments, 80 Fed. Reg. 69,905 (Nov. 12, 2015).3
In other words, the FDA has not yet forged the regulatory "safe
harbor" that Conagra imagines it inhabits here. See Dumont, 934
F.3d at 41. Because the FDA's statements to date concerning the
use of the word "natural" are both nonbinding and nonexclusive,
they would not foreclose a jury from finding that the use of "100%
Natural" on Wesson Oil labels could deceive consumers into
believing that the product was GMO-free.
As for Conagra's assertion that the FDA has blessed the
wholesale nondisclosure of GMO ingredients in food products, the
agency has not gone so far in this area. Conagra relies on the
FDA's nonbinding statements, and it misreads those statements.
See Abruzzi Foods, 986 F.2d at 606. We note that the FDA has
3 Although the comment period closed nearly four years ago,
the FDA still has not issued a binding definition. See Use of the
Term "Natural" in the Labeling of Human Food Products,
Regulations.Gov: https://www.regulations.gov/docket?D=FDA-2014-N-
1207 (revealing no new docket activity since the comment period
closing) (last accessed May 5, 2020).
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observed that food labelers have no general freestanding duty to
disclose on a product's label whether it contains GMOs. See
Statement of Policy: Foods Derived from New Plant Varieties, 57
Fed. Reg. 22,984, 22,991 (May 29, 1992) (noting the FDA's position
that the use of a GMO in a food product "would not usually be
required to be disclosed in labeling for the food" (emphasis
added)).
Conagra nonetheless asserts a much stronger proposition:
that labelers never need to disclose whether their products contain
GMOs, even when those labels might otherwise violate generally
applicable consumer protection laws. That is a step too far. In
support of its interpretation, Conagra relies only on draft FDA
guidance stating that "the use, or absence of use, of
bioengineering in the production of a food is not a fact that is
material either with respect to consequences resulting from the
use of the food or due to representations on the labeling." Draft
Guidance for Industry: Voluntary Labeling Indicating Whether Foods
Have or Have Not Been Developed Using Bioengineering;
Availability, 66 Fed. Reg. 4,839, 4,840 (Jan. 18, 2001). Even if
that guidance generally blesses silence regarding GMO ingredients,
it falls far short of blessing an affirmative misrepresentation
concerning the presence of such ingredidents.
Lee has alleged that Conagra's representation that the
product was "100% Natural" suggested to her that Wesson Oil was
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GMO-free, and that she was thereby deceived. In its reference to
the draft guidance mentioned above, Conagra skips relevant
context; the FDA also suggested that labels indicating GMOs'
absence might be misleading:
[T]he term "[GMO] free" may be difficult to
use without being false or misleading. If it
implies "zero," it may be very difficult to
substantiate. The adventitious presence of
bioengineered material may make a "zero" claim
inaccurate. Further, these terms would be
misleading if they imply that the food is
superior because the food is not
bioengineered.
Id. Lee contends that Conagra misled customers in an analogous
way, with a similar -- albeit somewhat vaguer -- representation,
and her complaint does not contradict any binding FDA rule blessing
Conagra's label.
We close this section by noting that Conagra's reliance
upon the National Bioengineered Food Disclosure Standard ("NBFDS")
misses the mark. In 2016, Congress enacted the NBFDS, which
charges the U.S. Department of Agriculture ("USDA") with crafting
a method for disclosing "bioengineered" ingredients in food
products. See 7 U.S.C. § 1639b(a). After this case was argued,
the USDA published its Final Rule on the National Bioengineered
Food Disclosure Standard ("Final Rule"), 83 Fed. Reg. 65,814 (Dec.
21, 2018). Conagra argues that the Final Rule supports dismissal
because it provides that products like Wesson Oil may not need to
disclose the fact that they contain GMOs. Indeed, the Final Rule
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establishes that, where "[a refined] food does not contain
detectable modified genetic material," bioengineered disclosure is
not required. Id. at 65,816. And, "some oil refining processes
may effectively eliminate all DNA" in the product, so "degummed
refined vegetable oils and various other refined ingredients are
unlikely to require [bioengineered] food disclosure . . . ." Id.
at 65,834.
The Final Rule is nevertheless no help to Conagra at
this stage. Even if we assume without deciding that the USDA
sought to free Conagra of any obligation to disclose the presence
of GMOs in Wesson Oil, it says nothing of representations
suggesting GMOs' absence. See id. at 65,859 ("With respect to
absence claims, NFBDS covers mandatory and voluntary bioengineered
. . . claims and 7 U.S.C. [§] 1639b does not provide authority for
[USDA] to establish an absence claims regime as part of the NFBDS.
[USDA] notes that FDA . . . retain[s] authority over absence
claims."). So, we return -- and not for the last time -- to this
well-trampled ground: Lee's complaint does not demand any
affirmative GMO labeling disclosure. The deceptive practice that
she alleges is the labeling of Wesson Oil as "100% Natural," which
she claims led her to believe that the oil was GMO-free.
We decline to wade into the debate over the best
definition of "natural." At this stage, we need only decide
whether Lee has plausibly alleged that a reasonable consumer might
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think that "100% Natural" means that a product contains no GMOs,
and then base her purchasing decision on that belief. See Dumont,
934 F.3d at 40. Lee has met that low threshold, so her claim may
proceed.
IV.
We next dispose of Conagra's three alternative arguments
in favor of dismissal.
First, Conagra insists that Wesson Oil's label cannot
give rise to Chapter 93A liability because the FDA currently
permits nondisclosure of GMOs on labels. See Mass. Gen. Laws ch.
93A, § 3 (exempting federally-blessed trade practices from Chapter
93A liability). That is not the issue before us. As we have
already observed, the FDA has not approved the affirmative labeling
of products containing GMOs as "100% Natural," so this alternative
argument does not support dismissal.
Second, Conagra contends that federal law preempts Lee's
claims. We have noted that "a Massachusetts law that imposed a
labeling requirement beyond that imposed by federal law would be
expressly preempted." Dumont, 934 F.3d at 41 (emphasis added).
Conagra posits that two statutes -- the Nutrition Labeling and
Education Act ("NLEA") and the NBFDS -- preempt the relief that
Lee seeks.
The NLEA is an express preemption statute that bars state
labeling requirements that are "not identical" to certain federal
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labeling requirements. See 21 U.S.C. § 343-1(a). Neither in its
brief nor when pressed at oral argument has Conagra pointed to any
of those requirements as being implicated by Lee's claim. Any
such argument is therefore waived. See United States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990).
The NBFDS forbids states from directly or indirectly
establishing "any requirement relating to the labeling of whether
a food . . . is genetically engineered . . . or was developed or
produced using genetic engineering." 7 U.S.C. § 1639i(b).4
According to Conagra, Lee's claim under Chapter 93A establishes an
indirect GMO disclosure obligation and is therefore explicitly
preempted by this statute.
Conagra again mischaracterizes Lee's claim.
Specifically, it argues that she "would require that Conagra
disclose on the label that Wesson Oil was made from genetically
modified or bioengineered plants to avoid being misleading." Not
so. Lee contends that Conagra misled customers as to the contents
of its vegetable oil. As discussed in Part III, the NBFDS does
not encompass absence claims. See 83 Fed. Reg. at 65,859.
4We observe that Congress's later passage of the NBFDS may
evidence its belief that the NLEA's preemption provisions did not
govern bioengineered and genetically modified food products. See
FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 143-44
(2000).
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It is true that Lee points to no FDA regulation or
guidance stating that a manufacturer may not describe as "100%
Natural" a product that contains GMOs. But if "100% Natural" is
reasonably read in light of the FDA's existing pronouncements to
mean, among other things, "no GMOs," then the absence of an FDA
pronouncement following Conagra's use of the term "100% Natural"
should cut against Conagra, not immunize it. To conclude otherwise
would be to say that food manufacturers can lie with impunity as
long as the FDA has yet to bar the particular lie they wish to
tell. The FDA likely does not have, for example, a rule
specifically prohibiting labeling frog eggs "caviar."
Of course, that leaves open the question as to whether
"100% Natural" is reasonably read to mean "no GMOs." But as we
have already explained, the FDA has not offered a comprehensive
definition of the term, nor has it said anything that would render
inconsistent a finding that the term is so reasonably read. Cf.
United States v. Piper, 35 F.3d 611, 617 (1st Cir. 1994) (holding
that "there is no inconsistency" where an application note "neither
excludes any [item] expressly enumerated in the [regulation], nor
calls for the inclusion of any [item] that the [regulation]
expressly excludes").
Third, Conagra asserts that Lee failed to allege a
cognizable injury under Chapter 93A. To survive a motion to
dismiss, a Chapter 93A complaint must allege that the "plaintiff
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suffered an injury . . . by showing either an economic or a
noneconomic injury." Bellermann v. Fitchburg Gas & Elec. Light
Co., 54 N.E.3d 1106, 1110 (Mass. 2016). Where a plaintiff alleges
deceptive conduct, she must allege more than "a 'per se'
injury -- that is, a claim resting only on a deceptive practice,
regulatory noncompliance, or the 'impairment of an abstract right
without economic loss.'" Shaulis, 865 F.3d at 10 (quoting Rule v.
Fort Dodge Animal Health, Inc., 607 F.3d 250, 253 (1st Cir. 2010)).
To state a claim under Chapter 93A in a case such as this, a
complaint must allege that "a defendant's unfair or deceptive
conduct cause[d] customers to receive a product or service worth
less than the one for which the customers paid." Bellermann v.
Fitchburg Gas & Elec. Light Co., 18 N.E.3d 1050, 1060 n.10 (Mass.
2014).
Lee's complaint clearly alleges a Chapter 93A injury for
pleading purposes. She claims that GMO-free vegetable oil is sold
at a premium price as compared to oils containing GMOs. She cites
several studies demonstrating that consumers are willing to pay
more for food products containing no GMOs, and she alleges that
Conagra's deceptive advertisement caused these consumers to pay
that higher price for a product that did contain GMOs. This is a
classic benefit-of-the-bargain injury, for which the measure of
damages is "the monetary difference between the actual value of
the product at the time of purchase and what its value would have
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been if the representations had been true." Aspinall, 813 N.E.2d
at 490. No more need be alleged at this stage of litigation.
V.
For the foregoing reasons, we reverse the district
court's dismissal of the complaint and remand for further
proceedings consistent with this opinion.
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