HAWKINS v. ADVANCEPIERRE FOODS INC (2018)

MEMORANDUM **

Plaintiff-Appellant Shavonda Hawkins brought a putative class action suit against Defendant-Appellee AdvancePierre Foods, Inc., on behalf of a nationwide class of individuals who purchased “Fast Bites,” a line of microwavable sandwiches containing partially hydrogenated oil (PHO) manufactured or distributed by AdvancePierre. Hawkins alleged that the use of PHOs in human food violated California law. The district court dismissed Hawkins’s complaint, and Hawkins timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

1. We assume without deciding that Hawkins’s claims are not preempted by federal law. See California v. ARC Am. Corp., 490 U.S. 93, 101, 109 S.Ct. 1661, 104 L.Ed.2d 86 (1989). Nevertheless, she has failed to state a claim for a violation of California’s Unfair Competition Law (UCL) or for breach of the implied warranty of merchantability.

Hawkins has standing to assert a claim under the UCL because she has alleged an economic injury as a direct result of AdvancePierre’s inclusion of PHO in Fast Bites. See Kwikset Corp. v. Superior Court, 51 Cal.4th 310, 120 Cal.Rptr.3d 741, 246 P.3d 877, 885 (2011). However, her allegations do not establish the requisite “unlawful, unfair or fraudulent business act or practice.” Cal. Bus. & Prof. Code § 17200. A claim under the “unlawful” prong requires a predicate violation of another law, see Cel-Tech Commc’ns, Inc. v. L.A. Cellular Tel. Co., 20 Cal.4th 163, 83 Cal.Rptr.2d 548, 973 P.2d 527, 539–40 (1999), but federal law did not prohibit PHOs prior to June 18, 2018, see Consolidated Appropriations Act of 2016, Pub. L. No. 114–113, § 754, 129 Stat. 2242, 2284 (2015). Hawkins’s complaint also cited a provision of California’s Sherman Act that adopted federal law, Cal. Health & Safety Code § 110100, but AdvancePierre’s use of PHOs did not violate this provision because it did not violate federal law. Hawkins cannot satisfy the “unfair” prong of the UCL under either of the two tests used by California courts. See Hodsdon v. Mars, Inc., 891 F.3d 857, 865–67 (9th Cir. 2018); Davis v. HSBC Bank Nev., N.A., 691 F.3d 1152, 1169–70 (9th Cir. 2012).

2. Hawkins has also failed to state a claim under California law for breach of the implied warranty of merchantability. See Cal. Com. Code § 2314(1). Her allegation that she “is a busy person and cannot reasonably inspect” ingredients in the food she purchases does not excuse her failure to examine the labels on the Fast Bites she purchased. See id. § 2316(3)(b).

AFFIRMED.