SCOTT BISHOP v. ELEVEN INC (2016)

MEMORANDUM*

Scott Bishop, a consumer of 7-Eleven brand potato chips, appeals the dismissal of his second amended complaint (SAC) pursuant to Federal Rule of Civil Procedure 12(b)(6). We have jurisdiction under 28 U.S.C. § 1291, and we reverse.

The district court erred by concluding that the SAC failed to allege facts sufficient to establish statutory standing under California's unfair competition law, Cal. Bus. & Prof. Code § 17200, et seq., false advertising law, Cal. Bus. & Prof. Code § 17500, and Consumer Legal Remedies Act, Cal. Civ. Code § 1750, et seq. At this preliminary stage of the action, Bishop sufficiently alleged actual reliance, which he was required to do under each of his theories because his claims sound in fraud. See Kwikset Corp. v. Superior Court, 246 P.3d 877, 888 n.9 (Cal. 2011); In re Tobacco II Cases, 207 P.3d 20, 39 n.17 (Cal. 2009). Bishop adequately alleged that he relied on 7-Eleven's potato chips' front of package “0g trans fat” and “no cholesterol” representations, and that he would not have purchased the chips had 7-Eleven included on the front of the package the “See nutrition information for fat content” disclosure required by the U.S. Food and Drug Administration. See 21 C.F.R. §§ 101.13(h)(1), 101.62(d)(i)(ii)(D); see also Reid v. Johnson & Johnson, 780 F.3d 952, 958 (9th Cir. 2015) (“[T]he reasonable consumer standard, unlike the individual reliance requirement ․ , is not a standing requirement.”). California's consumer protection statutes render statements actionable which, although not technically false, have a tendency to mislead consumers because the statements fail to disclose or direct the consumer's attention to other relevant information. See Davis v. HSBC Bank Nevada, N.A., 691 F.3d 1152, 1162 (9th Cir. 2012); Day v. AT&T Corp., 74 Cal. Rptr. 2d 55, 60 (Ct. App. 1998).

REVERSED.