Mirko Carrea, on behalf of himself and those similarly situated v. Dreyer’s Grand Ice Cream, Inc.

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MIRKO CARREA, on behalf of himself
and those similarly situated,
Plaintiff - Appellant,
v.
DREYER’S GRAND ICE CREAM, INC.,
Defendant - Appellee.
No. 11-15263
D.C. No. 3:10-cv-01044-JSW
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding
Argued and Submitted January 18, 2012
Irvine, California
Before: KOZINSKI, Chief Judge, WARDLAW and PAEZ, Circuit Judges.
Mirko Carrea (“Carrea”) appeals the district court’s dismissal of his Second
Amended Class Action Complaint pursuant to Federal Rule of Civil Procedure
12(b)(6). The complaint alleges that Dreyer’s Grand Ice Cream, Inc. (“Dreyer’s”)
violated four state consumer protection laws: (1) Unfair Competition Law, Cal.
FILED
APR 05 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Bus. and Prof. Code § 17200 et seq.; (2) False Advertising Law, Cal. Bus. and
Prof. Code § 17500 et seq.; (3) California Consumers Legal Remedies Act, Cal.
Civ. Code § 1750, et seq.; and (4) New York General Business Law § 349. We
have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal under
Rule 12(b)(6), and we affirm.
Carrea’s claims regarding the “0g Trans Fat” statement, located on the front
of Drumstick’s packaging, are expressly preempted by the Federal Food, Drug and
Cosmetic Act (“FDCA”), as amended by the Nutrition Labeling and Education Act
(“NLEA”). 21 U.S.C. § 343-1(a)(5). The statement is an express nutrient content
claim that the Federal Food and Drug Administration (“FDA”) not only permits, 21
C.F.R. § 101.13(i)(3), but further instructs should mirror the Nutrition Facts panel,
see 58 Fed. Reg. 44020, 44024-25 (Aug. 18, 1993) (stating that any discrepancy
between a nutrient content claim and the Nutrition Facts panel would be
“confusing to consumers, and this consequence is unintended”). Here, because
Drumstick contains less than 0.5 grams of trans fat per serving, the Nutrition Facts
panel must express this amount as zero. 21 C.F.R. § 101.9(c)(2)(ii). Accordingly,
the same rule applies to the statement on the front of Drumstick’s packaging. In
essence, Carrea seeks to enjoin and declare unlawful the very statement that federal
law permits and defines. Such relief would impose a burden through state law that

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is not identical to the requirements under section 343(r). These claims are
therefore expressly preempted. See Degelmann v. Advanced Med. Optics, Inc., 659
F.3d 835, 840-42 (9th Cir. 2011).
Carrea’s claims regarding the other statements on the front of Drumstick’s
packaging fare no better. It is implausible that a reasonable consumer would
interpret “Original Sundae Cone,” “Original Vanilla,” and “Classic,” to imply that
Drumstick is more wholesome or nutritious than competing products. Notably,
none of these phrases modify “recipe,” “ingredients,” “1928,” or any other term
that might suggest that the modern Drumstick is identical in composition to its
prototype. Even were it so, the presence of “original” or “classic” ingredients
alone does not plausibly imply that a product is more nutritious than other desserts.
In addition, no reasonable consumer is likely to think that “Original Vanilla” refers
to a natural ingredient when that term is adjacent to the phrase, “Artificially
Flavored.” Finally, it strains credulity to claim that a reasonable consumer would
be misled to think that an ice cream dessert, with “chocolate coating topped with
nuts,” is healthier than its competitors simply by virtue of these “Original” and
“Classic” descriptors. In sum, we conclude that Carrea’s state law claims fail to
satisfy the “reasonable consumer” standard in Williams v. Gerber Prods. Co., 552

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F.3d 934, 938 (9th Cir. 2008). Dismissal of these claims with prejudice was
therefore proper.
The judgment of the district court is AFFIRMED.

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