Testone v. Go Macro, LLC

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
LEAH TESTONE, on behalf of herself,
all others similar situated, and the general
public,
Plaintiffs,
v.
GO MACRO, LLC,
Defendant.
Case No.: 25-cv-1743-RSH-KSC
ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS
[ECF No. 10]
Pending before the Court is Defendant’s motion to dismiss Plaintiff’s Complaint.
ECF No. 10. For the reasons below, the Court grants the motion.
I. 	BACKGROUND
On July 8, 2025, Plaintiff filed this putative class action against Defendant, alleging
that Defendant’s labelling of its snack bars as healthy is false and misleading, in light of
the added sugar contained in the bars. The products at issue include over 20 varieties of
snack and protein bars made by Defendant. ECF No. 1 ¶ 1 n.1. Plaintiff alleges that the
following statements contained on the labelling for the products are deceptive: “Finally—
a bar that’s both delicious and good for you!”; “Live Long”; “Eat Positive”; “Be Well”;
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and “have a healthy body.” Id. ¶¶ 2, 17. Plaintiff also alleges that a small drawing of a heart
contained on the labelling is similarly deceptive. Id. Plaintiff contends that scientific
studies, reports by governmental and nongovernmental bodies, and the statements of the
U.S. Food and Drug Administration all establish that the amount of added sugar contained
in each of the products is in fact unhealthy. Id. ¶¶ 22-56.
Plaintiff alleges that she “regularly purchased the Products throughout the past four
years,” on average about 10-15 times per year. Id. ¶ 83. She made her purchases from
various retail stores, buying single protein bars in three varieties. Id. She also occasionally
purchased the products from online retailers like Amazon. Id. Plaintiff alleges, in general
terms, that “[i]n purchasing the Products, [she] was exposed to, read, and relied on Go
Macro’s health and wellness representations described herein.” Id. ¶ 84. She does not
contend that Defendant failed to disclose the amount of added sugar in the products, or that
it inaccurately disclosed the amount of added sugar. Instead, she contends that despite any
such disclosures, Plaintiff was misled by Defendant’s statements because she “was
unaware of the extent to which consuming the amounts of added sugar found in the
Products adversely affects health, or what amount of added sugar might have such an
effect.” Id. ¶ 86. Plaintiff does not contend that her health was harmed by consuming the
products, but rather that she was economically harmed, in that she would not have
purchased the products if she had known the statements at issue were false and misleading.
Id. ¶ 88.
Plaintiff seeks to represent a nationwide class and a California subclass of all persons
who purchased any of Defendant’s snack bars or protein bars for personal or household use
in the four years prior to the filing the Complaint. Id. ¶ 100.
The Complaint brings claims for: (1) violation of California’s Unfair Competition
Law, Cal. Bus. & Prof. Code § 17200 et seq. (“UCL”); (2) violation of California’s False
Advertising Law, Cal. Bus. & Prof. Code § 17200 et seq. (“FAL”); (3) violation of
California’s Consumer Legal Remedies Act, Cal. Civ. Code § 1750 et seq. (“CLRA”); (4)
breach of express warranty, pursuant to Cal. Com. Code § 2313(1); (5) breach of implied
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warranty 	of 	merchantability, 	pursuant 	to 	Cal. 	Com. 	Code 	§ 	2314; 	(6) 	negligent
misrepresentation; (7) intentional misrepresentation; and (8) unjust enrichment.
On September 9, 2025, Defendant filed its motion to dismiss. ECF No. 10. The
motion is fully briefed. ECF Nos. 11 (opposition), 12 (reply).
II. 	LEGAL STANDARD
A motion to dismiss under Rule 12(b)(6) “tests the legal sufficiency of a claim.”
Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A pleading must contain “a short and
plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). However, a plaintiff must also plead “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see Fed. R.
Civ. P. 12(b)(6). The plausibility standard demands more than a “formulaic recitation of
the elements of a cause of action,” or “‘naked assertions’ devoid of ‘further factual
enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S.
at 555, 557). Instead, a complaint “must contain sufficient allegations of underlying facts
to give fair notice and to enable the opposing party to defend itself effectively.” Starr v.
Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).
When reviewing a motion to dismiss under Rule 12(b)(6), courts assume the truth of
all factual allegations and construe them in the light most favorable to the nonmoving party.
Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996) (citing Nat’l Wildlife
Fed’n v. Espy, 45 F.3d 1337, 1340 (9th Cir. 1995)). But a court “disregard[s] ‘[t]hreadbare
recitals of the elements of a cause of action, supported by mere conclusory statements.’”
Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 2010) (quoting Iqbal, 556
U.S. at 678-79). Likewise, “conclusory allegations of law and unwarranted inferences are
not sufficient to defeat a motion to dismiss.” Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir.
1998) (citing In re Syntex Corp. Sec. Litig., 95 F.3d 922, 926 (9th Cir. 1996)). “After
eliminating such unsupported legal conclusions, [courts] identify ‘well-pleaded factual
allegations,’ which [are] assume[d] to be true, ‘and then [courts] determine whether they
plausibly give rise to an entitlement to relief.’” Telesaurus VPC, 623 F.3d at 1003.
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Dismissal under Rule 12(b)(6) is proper where there is no cognizable legal theory to
support the claim or when there is an absence of sufficient factual allegations to support a
facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d
1035, 1041 (9th Cir. 2010).
For claims alleging “fraud or mistake,” a heightened pleading standard applies.
Federal Rule of Civil Procedure 9(b) requires a party alleging fraud to “state with
particularity the circumstances constituting fraud,” including “an account of the ‘time,
place, and specific content of the false representations as well as the identities of the parties
to the misrepresentations.’” Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir. 2007)
(quoting Edwards v. Marin Park, Inc., 356 F.3d 1058, 1066 (9th Cir. 2004)). “Averments
of fraud must be accompanied by ‘the who, what, when, where, and how’ of the misconduct
charged.” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) (quoting
Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir. 1997)); see also Kearns v. Ford Motor Co.,
567 F.3d 1120, 1124 (9th Cir. 2009) (“Rule 9(b) demands that the circumstances
constituting the alleged fraud be specific enough to give defendants notice of the particular
misconduct . . . so that they can defend against the charge and not just deny that they have
done anything wrong.” (citation and internal quotation marks omitted)). A pleading must
also identify “what is false or misleading about the purportedly fraudulent statement, and
why it is false.” Moore v. Mars Petcare US, Inc., 966 F.3d 1007, 1019 (9th Cir. 2020)
(quoting Davidson v. Kimberly–Clark Corp., 889 F.3d 956, 964 (9th Cir. 2018)).
“A motion to dismiss a complaint or claim ‘grounded in fraud’ under Rule 9(b) for
failure to plead with particularity is the functional equivalent of a motion to dismiss
under Rule 12(b)(6) for failure to state a claim.” Vess, 317 F.3d at 1107. “When an entire
complaint, or an entire claim within a complaint, is grounded in fraud and its allegations
fail to satisfy the heightened pleading requirements of Rule 9(b), a district court may
dismiss the complaint or claim.” Id.
//
//
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III. 	ANALYSIS
A. 	Preemption
As a threshold matter, Defendant argues that Plaintiff’s claims are preempted by the
Nutrition Labeling and Education Act (the “NLEA”), specifically, 21 U.S.C. § 343-1(a)(2).
ECF No. 10 at 14. That provision states:
(a) 	Except 	as 	provided 	in 	subsection 	(b), 	no 	State 	or 	political
subdivision of a State may directly or indirectly establish under any
authority or continue in effect as to any food in interstate commerce—
. . . .
(2) any requirement for the labeling of food of the type required
by section 343(c), 343(e), 343(i)(2), 343(w), or 343(x) of this
title that is not identical to the requirement of such section ….
21 U.S.C. § 343-1(a)(2). Defendant does not, however, articulate how Plaintiff’s claims
invoke a state-law “requirement for the labeling of food of the type required by section
343(c), 343(e), 343(i)(2), 343(w), or 343(x)” that is “not identical to the requirement of
such section.” Indeed, Defendant’s motion does not discuss or mention these subsections
of the NLEA.1 These sections establish labelling requirements regarding imitation of
another food (§ 343(c)); package form (§ 343(e)); identification of ingredients (§
343(i)(2)); major food allergens (§ 343(w)); and nonmajor food allergens (§ 343(x)). None
of these provisions appears to apply to Plaintiff’s allegation that Defendant misrepresented
its products as healthy, and Defendant provides no further analysis of the statutory
language.2 The Court is not persuaded that Plaintiff’s claims are preempted by 21 U.S.C.
1 Defendant’s reply brief does not address preemption. ECF No. 12.
2 Defendant also argues, “to the extent Plaintiff is seeking to require Go Macro to
change the way it discloses the amount of sugar or add a disclosure about sugar that is not
required by FDA, her claims are preempted.” ECF No. 10 at 15. In response, Plaintiff
expressly disclaims such a theory, stating that she is “not seeking to change how Go Macro
discloses the amount of sugar in the Products,” but rather alleging that Defendant’s
statements about the healthfulness of the products are misleading in light of the products’
added sugar content. ECF No. 11 at 13.
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§ 343-1(a)(2). See LeGrand v. Abbott Labs., 655 F. Supp. 3d 871, 888 (N.D. Cal. 2023)
“(The burden is on the party arguing the federal law preempts the state law claim to show
preemption.”).
B. 	Failure to Plead With Particularity
Defendant argues that Plaintiff’s claims “sound in fraud” and are subject to the
heightened pleading requirements of Rule 9(b). ECF No. 10 at 7-9. Plaintiff does not
dispute this, but responds that her claims satisfy that heightened pleading requirement. ECF
No. 11 at 15-18. The Court agrees that Plaintiff’s claims, each of which is based on
Defendant’s alleged misrepresentations about the healthy nature of its products, sound in
fraud and are subject to the heightened pleading standard. See Kearns, 567 F.3d at 1125
(“[W]e have specifically ruled that Rule 9(b)’s heightened pleading standards apply to
claims for violations of the CLRA and UCL.”); Carter v. Rasier-CA, LLC, No. 17-CV-
00003-HSG, 2017 WL 4098858, at *4 (N.D. Cal. Sept. 15, 2017) (applying Rule 9(b) to
claims for intentional and negligent misrepresentation), aff’d, 724 F. App’x 586 (9th Cir.
2018); Arabian v. Organic Candy Factory, No. 2:17-cv-05410-ODW-PLA, 2018 WL
1406608, at *3 (C.D. Cal. Mar. 19, 2018) (applying Rule 9(b) standard to claims of breach
of express warranty, breach of implied warranty, breach of contract, and unjust enrichment
because the plaintiff’s claims “ar[o]se from the unified course of conduct: Defendant
fraudulently misrepresenting that its products contain Real Flavors”).
Applying that standard here, the Court cannot discern from the Complaint which
alleged 	misrepresentations 	Plaintiff 	reviewed 	prior 	to 	making 	her 	purchases. 	The
Complaint only specifically mentions her exposure to one statement: “Finally – a bar that’s
both delicious and good for you.” ECF No. 1 ¶¶ 17, 84. The Complaint does not allege
when or where she saw this statement, or how this statement was connected to or associated
with the product(s) she bought. Plaintiff alleges that the statement was contained on “the
labeling of the Products,” id. ¶ 84, but the Complaint’s example of this labelling features
the statement as part of a narrative contained on the bottom of a box of bars, id. ¶ 18, and
Plaintiff alleges that she “would purchase single Protein Bars,” and made unspecified
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purchases of products online, id. ¶ 83. Neither of these channels of purchase—single bars
at a retail store, or a purchase from a web page—would necessarily expose her prior to
purchase to a statement made on the bottom of a multi-pack carton. Additionally, Plaintiff
does not identify which statements, if any, she relied upon in making her purchases; and
what she interpreted them to mean. Finally, Plaintiff does not explain which specific
products she purchased in reliance upon such statements; or when and where these specific
purchases were made. Plaintiff’s blanket statements that “[i]n purchasing the Products, Ms.
Testone 	was 	exposed 	to, 	read, 	and 	relied 	on 	Go 	Macro’s 	health 	and 	wellness
representations described herein,” id. ¶ 84, and that she “acted reasonably in relying on the
challenged labeling claims,” id. ¶ 87, are conclusory and do not satisfy Rule 9(b).
In responding to Defendant’s Rule 9(b) arguments, Plaintiff offers that “[i]f
necessary, Plaintiff could make her allegations more direct on amendment.” ECF No. 11
at 17 n.9. The Court concludes that Plaintiff’s claims are subject to dismissal for failing to
satisfy Rule 9(b), but grants Plaintiff the opportunity to amend her pleading to satisfy Rule
9(b) 	and 	address 	the 	deficiencies 	identified 	in 	previous 	paragraph. 	For 	each
misrepresentation that Plaintiff identifies as being one she relied upon, she must also allege
what is false about the statement, and why it is false.3
In light of this disposition, the Court declines to address at this time Defendant’s
remaining arguments for Rule 12(b)(6) dismissal.
//
//
3 Separate from Rule 9(b), Defendant also argues that Plaintiff’s common-law claims
for intentional misrepresentation, negligent misrepresentation, and unjust enrichment
should be dismissed because the Complaint fails to specify under what state’s law those
claims are brought. ECF No. 10 at 23. Plaintiff responds that “[i]t can reasonably be
inferred that Plaintiff is alleging [these] claims under California law,” and requests leave
to amend “[t]o the extent the Court finds a more express allegation needed.” ECF No. 11
at 24. Plaintiff’s amended pleading should so indicate.
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C. 	Standing
Defendant’s motion also challenges Plaintiff’s standing to pursue certain class
claims “[i]f Plaintiff’s claims are permitted to proceed,” ECF No. 10 at 18-19, and argues
that Plaintiff does not have standing to seek the remedy of injunctive relief, id. at 17.
“Federal courts are courts of limited jurisdiction. They possess only that power
authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511
U.S. 375, 377 (1994). Article III, Section 2 of the U.S. Constitution requires that a plaintiff
have standing to bring a claim. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992). Article III standing requires that a plaintiff show that he or she has “suffered an
injury in fact—an invasion of a legally protected interest” (1) that is “concrete and
particularized” and “actual or imminent,” (2) “that is fairly traceable to the challenged
conduct of the defendant,” and (3) “that is likely to be redressed by a favorable judicial
decision.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338–39 (2016) (citing Lujan, 504 U.S. at
560). The plaintiff has the burden to establish standing, and at the pleading stage, “the
plaintiff must clearly allege facts demonstrating each element.” Id. (cleaned up).
Defendant does not contest that Plaintiff has standing to bring her own claims based
on any products she purchased in reliance on Defendant’s alleged misrepresentations. The
Court concludes that she does have standing, but—as set forth above—also concludes that
her Complaint is subject to dismissal for failure to plead with the required particularity. In
the event Plaintiff succeeds in stating a claim that makes available to her the remedy of
injunctive relief, the Court will determine whether she has standing to pursue such a
remedy in connection with that claim.
In a class action, “[p]laintiffs must show standing with respect to each form of relief
sought,” and “[s]tanding exists if at least one named plaintiff meets the requirements.” Ellis
v. Costco Wholesale Corp., 657 F.3d 970, 978 (9th Cir. 2011). The Court declines at this
stage to address, under the rubric of Article III standing, whether Plaintiff will be able to
serve as a class representative for class members who bought different products or who
reside in different states. See also Melendres v. Arpaio, 784 F.3d 1254, 1261-62 (9th Cir.
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2015) (adopting the “class certification approach,” which holds that “once the named
plaintiff demonstrates her individual standing to bring a claim, the standing inquiry is
concluded”). The Court also declines to address the manageability of the putative class at
this stage, particularly where Plaintiff has not yet pleaded a claim.
IV. 	CONCLUSION
For the foregoing reasons, Defendant’s motion to dismiss is GRANTED. The Court
DISMISSES the Complaint with leave to amend.
The Court GRANTS Plaintiff leave to file an amended complaint within fourteen
(14) days of the date of this order. The amended pleading shall comply with CivLR 15.1.
If Plaintiff fails to file an amended pleading within that timeframe, the action will be
dismissed.
IT SO ORDERED.
Dated: December 17, 2025 	____________________
Hon. Robert S. Huie
United States District Judge
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