FILED
NOT FOR PUBLICATION
MAY 08 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NOELLE MAJOR, individually and on No. 15-15880
behalf of all others similarly situated,
D.C. No. 5:12-cv-03067-EJD
Plaintiff-Appellant,
v. MEMORANDUM*
OCEAN SPRAY CRANBERRIES, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Edward J. Davila, District Judge, Presiding
Argued and Submitted April 19, 2017
San Francisco, California
Before: SCHROEDER and RAWLINSON, Circuit Judges, and STAFFORD,**
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable William H. Stafford, Jr., United States District Judge
for the Northern District of Florida, sitting by designation.
Plaintiff Noelle Major appeals the district court’s summary judgment in
favor of Ocean Spray, Inc. in her putative class action alleging misbranding of
juice drinks. We affirm.
1. Major first claims the drinks were improperly labeled as “No Sugar
Added.” The undisputed evidence established, however, that the drinks are made
from juice concentrates with water added. There is no more sugar in the drinks as
sold than there was in the original juices before they were concentrated. The
conclusory affidavit of Plaintiff’s expert was insufficient to call into question the
process of mixing the juice drinks. See United States v. Various Slot Machines on
Guam, 658 F.2d 697, 699–700 (9th Cir. 1981). Although Plaintiff suggests that the
blend of different juices may have served to make the cranberry and pomegranate
juice drink sweeter than cranberry and pomegranate juice alone would have been,
the label stated that the product was a blend of juices, and the labeling was
compliant with federal regulations, see 21 C.F.R. § 102.33(d). Accordingly, there
was no genuine issue of material fact as to the improper labeling claims with
respect to added sugar. Summary judgment was appropriate. See Fed. Rule Civ.
Proc. 56(a); Sateriale v. R. J. Reynolds Tobacco Co., 697 F.3d 777, 793 (9th Cir.
2012).
2. Summary judgment was also appropriate as to Plaintiff’s other
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mislabeling claim under California law. Plaintiff’s theory was that, because of the
“No Sugar Added” labeling, the labels also should have contained a disclaimer
informing customers that the juice was not low calorie and directing customers to
the label’s nutrition panel. See 21 C.F.R. § 101.60(c)(2)(v). The claim fails
because California law requires actual reliance. See Kwikset Corp. v. Superior
Court, 51 Cal. 4th 310, 326 (2011); In re Tobacco II Cases, 46 Cal. 4th 298, 306
(2009). There is no showing that Plaintiff relied on the absence of the disclaimer
in purchasing the drinks. Plaintiff’s own testimony established that she understood
that the juice was not low calorie and that it contained the same amount of sugar as
juice not made from concentrate.
AFFIRMED.
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