JADE BURNETT v. WALMART INC (2025)

ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND

In summary, plaintiff Jade Burnett brings this putative class action alleging defendant Walmart, Inc. (“Walmart”) sells Great Value Milk Chocolate Flavor Hot Cocoa Mix (“the product”) which contains lead in sufficient amounts to present a danger to consumers' health. The complaint alleges violations of three state consumer protection laws: California's Unfair Competition Law (“UCL”), False Advertising Law (“FAL”), and Consumer Legal Remedies Act (“CLRA”). Having carefully considered the papers submitted and the pleadings in this action, and for the reasons set forth below, the Court hereby GRANTS the motion to dismiss with leave to amend.¹

I. BACKGROUND

The complaint alleges as follows:

Plaintiff has purchased the product previously and would like to continue to do so. (Dkt. No. 1, Class Action Complaint (“Comp.”), ¶¶ 62, 75.) Defendant “manufactures, labels, advertises, and sells” the product with a label stating: “Great Quality. Great Price. Guaranteed. Our guarantee is our promise that you'll be fully satisfied with the quality of every Great Value product.” (Id. ¶ 1, 7.)

Plaintiff conducted “independent scientific testing and analysis” that revealed 1.152 micrograms of lead per serving of the product, in contrast to other cocoa products free from detectible amounts of lead. (Id. ¶¶ 2, 9.)

Lead poses a number of significant health risks. Under California's Proposition 65, the Maximum Allowable Dose Level (“MADL”) for reproductive toxicity is 0.5 micrograms of lead per day. (Id. ¶ 3.) Additionally, the World Health Organization (“WHO”) cautions that “[t]here is no level of exposure to lead that is known to be without harmful effects.” (Id. ¶ 15.) Consumption of lead can have permanent, lasting impact on several organs in the body and poses a particular risk to young children and women of child-bearing age. (Id. ¶¶ 16-20.) The WHO also cites 3.5 mirograms as a blood lead concentration level “associated with decreased intelligence in children, behavioural difficulties and learning problems.” (Id. ¶ 21(internal cites omitted).) “Based on [plaintiff's] testing results ․, a child who consumes just three cups of hot cocoa per week made with [d]efendant's Products consumes 3.5 micrograms of lead.” (Id. ¶ 22.)

Despite having an independent duty to disclose the product's lead content, Walmart failed entirely to do so, while misleading consumers with the slogan on its labeling referenced above.

Plaintiff seeks to bring a class action on behalf of

All citizens of California who, within four years prior to the filing of the initial Complaint, purchased Defendant's Products in the State of California and who do not claim any personal injury from using the Products (the “Class”).

(Id. ¶ 79.)

II. LEGAL STANDARD

In evaluating a motion to dismiss, the Court accepts factual allegations in a complaint as true and construes them in the light most favorable to the plaintiff. Interpipe Contracting, Inc. v. Becerra, 898 F.3d 879, 886-87 (9th Cir. 2018.) “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Moreover, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. To prevail, defendant must show either the “lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” See Godecke v. Kinetic Concepts, Inc., 937 F.3d 1201, 1208 (9th Cir. 2019) (quoting Balistreri v. Pacifica Police Dep't., 901 F.2d 696, 699 (9th Cir. 1990).

Furthermore, Rule 9 establishes a heightened pleading standard for allegations of fraud. Fed. R. Civ. P. 9(b). (“In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally.”); Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir. 1997) (to be alleged with particularity under Rule 9(b), a plaintiff must allege “the who, what, when, where, and how” of the alleged fraudulent conduct) (internal citations and quotations omitted); see also Tatung Co. v. Shu Tze Hsu, 43 F. Supp. 3d 1036, 1060 (C.D. Cal. 2014) (applying Rule 9(b)'s heightened pleading standard to state law claims brought in federal court).

III. ANALYSIS

Defendant moves to dismiss all three causes of action. The UCL proscribes business practices under three separate prongs, namely those that are “unlawful, unfair or fraudulent.” Cal. Bus. & Prof. Code § 17200. The FAL prohibits the dissemination of any advertising “which is untrue or misleading.” Cal. Bus. & Prof. Code § 17500. The “CLRA declares specific acts and practices in the sale of goods or services to be unlawful, including making affirmative misrepresentations or omissions regarding the ‘standard, quality, or grade’ of a particular good or service, Cal. Civ. Code § 1770(a).” See In re Sony Gaming Networks & Customer Data Sec. Breach Litig., 996 F. Supp. 2d 942, 985 (S.D. Cal. 2014).

The Court notes at the outset that even though the complaint alleges 1.152 micrograms of lead per serving of the product per plaintiff's investigation, plaintiff must still sufficiently tie the amount to the alleged violation of the statutory provisions enumerated.

A. Unlawful Practices – First Prong

The unlawful prong of the UCL prohibits “anything that can properly be called a business practice and that at the same time is forbidden by law.” Cel-Tech Commc'ns., Inc. v. L.A. Cellular Tel. Co., 20 Cal.4th 163, 180 (1999) (quotation marks and citations omitted). “By proscribing ‘any unlawful’ business practice, the UCL permits injured consumers to ‘borrow’ violations of other laws and treat them as unlawful competition that is independently actionable.” In re Adobe Sys., Inc. Privacy Litig., 66 F. Supp. 3d 1197, 1225 (N.D. Cal. 2014) (quoting Cel-Tech Commc'ns., 20 Cal.4th at 180).

The complaint identifies several predicates which could form the basis of a claim under the unlawful prong. First, plaintiff references violations of several sections of California's Civil Code: Sections 1572-73 (fraud statutes); Sections 1709-10 (deceit statutes); and Section 1770 (the CLRA). (Comp. ¶ 100.) Second, plaintiff states that failure to comply with California's Proposition 65 (“Prop 65”) constitutes its own predicate for a violation of the unlawful prong. (Id. ¶¶ 103-04.)

With regard to the civil code violations, the Court finds analysis of these overlaps with the analysis of the fraudulent practice prong. The Court will therefore analyze those allegations along with the third prong referenced above.

Remaining, therefore, is the question of whether defendant has adequately alleged a predicate unlawful act stemming from a Prop 65 violation. California's Safe Drinking Water and Toxic Enforcement Act of 1986, commonly referred to as Prop 65, “establish[es] a limit for certain chemicals above which products containing those chemicals must include a warning label.” Hayden v. Bob's Red Mill Nat. Foods, Inc., 2024 WL 1643696 at *8 (N.D. Cal. 2024). Defendant offers several arguments why plaintiff has failed to adequately allege a Prop 65 violation.

First, defendant avers the legal thresholds triggering notice of lead content are determined by a Consent Judgment reached in a state-court case. (Dkt. No. 16, Motion to Dismiss (“Mtn.”) at 3 (citing Consent Judgment, As You Sow v. Trader Joe's Co., No. CGC-15-548791 (Feb. 15, 2018), 2018 WL 11602910).) According to defendant, even if the Court accepts plaintiff's allegation as to the lead content in the product established by plaintiff's independent testing, the lead content would still fall below appropriate levels established by the consent decree. Second, defendant claims that Prop 65 contains certain notice requirements with which plaintiff has yet to comply.

In opposition, plaintiff offers somewhat contradictory arguments. One, plaintiff foreswears any reliance on Prop 65 as a basis for her UCL claim.

Plaintiff's claims are brought pursuant to California's consumer protection laws based on Defendant's Representation and Omission, which are misleading to reasonable consumers. See e.g. Comp. ¶¶ 30-49. Plaintiff does not seek to enforce Proposition 65 and has not brought an unspoken or derivative Proposition 65 action. See Comp. ¶ 3, n 1 (expressly stating that the action is brought pursuant to consumer protection law and not Proposition 65)․ Plaintiff expressly disclaims any Proposition 65 violation in her Complaint and alleges only that Defendant misrepresented its Products in violation of consumer protection law. Plaintiff has not brought a derivative Proposition 65 claim.

(Dkt. No. 18, Opposition to Defendant's Motion to Dismiss (“Oppo.”) at 3-4.) At the same time, plaintiff explicitly states that she “recognizes, however that Proposition 65 provides a predicate basis for violation of the unfair competition law.” (Id. at 3 n.1; see also Comp. ¶ 29 (“Although Plaintiff does not bring claims pursuant to Proposition 65, Defendant's violation of Proposition 65 provides a predicate basis for violation of California's Unfair Competition Law, as set forth below.”).) Two, plaintiff argues the As You Sow consent decree is irrelevant to this action and does not control legal lead thresholds.

The Court fails to see how plaintiff's general statement that Prop 65 “provides a basis” for a UCL violation suffices. Rather than respond to the substance of defendant's notice arguments, plaintiff simply states she is not bringing a Prop 65 claim. The theoretical ability of Prop 65 to underly a UCL violation is therefore irrelevant. To the extent plaintiff's opposition argues that the complaint can survive based solely on a predicate Prop 65 violation, the Court disagrees. Thus, plaintiff's ability to bring a claim under the unlawful prong will rise or fall with the Court's analysis of the FAL and CLRA claims, as analyzed below.

B. Fraudulent Practices – Third Prong

Under the FAL, the CLRA, and the fraudulent prong of the UCL, conduct is considered deceptive or misleading if the conduct is “likely to deceive [a] reasonable consumer.” Williams v. Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir. 2008). Because the same standard for fraudulent activity governs all three statutes, courts often analyze the three statutes together. See, e.g., Sony Gaming Networks, 996 F.Supp.2d at 985. Here, the complaint raises theories of liability grounded in defendant's alleged omissions and misrepresentations.

1. Omissions

To plausibly allege a fraudulent omission, the omission must either (1) “be contrary to a representation actually made by the defendant,” or (2) “an omission of a fact the defendant was obliged to disclose.” Hodsdon v. Mars, Inc., 891 F.3d 857, 865 (9th Cir. 2018) (quoting Daugherty v. Am. Honda Motor Co., 144 Cal. App. 4th 824, 835 (2006)).

The Court must first determine whether defendant had a duty to disclose the risk of the presence of lead in the product. A “defendant only has a duty to disclose when either (1) the defect at issue relates to an unreasonable safety hazard or (2) the defect is material, ‘central to the product's function,’ and the plaintiff alleges one of the four LiMandri factors.” Hammerling v. Google LLC, 615 F. Supp. 3d 1069, 1085 (N.D. Cal. 2022) (quoting In re Toyota RAV4 Hybrid Fuel Tank Litig., 534 F. Supp. 3d 1067, 1102 (N.D. Cal. 2021); see also Hodsdon, 891 F.3d at 864. California courts have interpreted the LiMandri factors as follows, namely when the defendant (1) is the plaintiff's fiduciary; (2) has exclusive knowledge of material facts not known or reasonably accessible to the plaintiff; (3) actively conceals a material fact from the plaintiff; and (4) makes partial representations that are misleading because some other material fact has not been disclosed. Rasmussen v. Apple Inc., 27 F. Supp. 3d 1027, 1033 (N.D. Cal. 2014) (citing Collins v. eMachines, Inc., 202 Cal.App.4th 249, 255 (2011); see also Kavehrad v. Vizio, Inc., 2023 WL 2558535, at *5 (C.D. Cal. Jan. 26, 2023); LiMandri v. Judkins, 52 Cal. App. 4th 326, 336 (1997))

The Court first looks to the complaint's allegations as to lead being an unreasonable safety hazard. The complaint makes three types of claims to this effect: general statements about the dangers of lead consumption, allegations tethered to allowable dosages under Prop 65, and safety limits on blood lead concentration articulated by the World Health Organization (“WHO”). The Court evaluates each.

First, the complaint includes a litany of health risks associated with lead consumption. (See, e.g., Comp. ¶¶ 15-20.) Generalized statements will not suffice. For instance, the complaint states that the WHO “cautions that there is no known safe blood lead concentration ․” (Id. ¶ 21 (internal cites omitted).) As another court in this district recently found, though, “using the World Health Organization's declaration that there is no safe lead level as a reference is too conclusory and would render ․ literally any alleged level of lead actionable.” Krystofiak v. BellRing Brands, Inc., 737 F. Supp. 3d 782, 801 (N.D. Cal. 2024) (emphasis in original). Surely the California legislature did not mean to render liable purveyors of every food item containing trace amounts of lead under the UCL, FAL, and CLRA. Thus, statements that opine on the dangers of lead as a general matter –without tying the lead content found in the product at issue to specific health risks– cannot form the basis of a viable claim. See Grausz v. Hershey Co., 713 F. Supp. 3d 818, 828 (S.D. Cal. 2024) (“Plaintiff does not plead the amounts of the substances in Hershey's Products have created an unreasonable safety hazard. Plaintiff merely asserts that lead and cadmium are carcinogens, that [t]here may be no safe level of exposure to a carcinogen and that Hershey's products contain some amount of these substances.”) (emphasis in original) (internal cites omitted).

Second, plaintiff ties the lead concentration found in testing to limits established pursuant to Prop 65. Under Prop 65, the Maximum Allowable Dose Level (“MADL”) of lead for reproductive toxicity is 0.5 micrograms of lead per day.² As plaintiff's test found the product contains 1.152 micrograms of lead per serving, she argues she has sufficiently connected the product to an unreasonable health hazard. The Court disagrees. As defendant notes in opposition, MADLs are defined as levels that “will have no observable effect assuming exposure at one thousand (1,000) times the level in question.” Cal Health & Safety Code § 25249.10(c). Absent further explanation, the Court cannot credit the allegation that the MADL itself represents the proper threshold beyond which lead poses an unreasonable safety hazard. As the court found in Hayden:

Plaintiff seeks to rely on the Maximum Allowable Dose Levels (“MADLs”) from Proposition 65 for [the appropriate] standard․ But the complaint does not explain why the MADL is the right reference point if Plaintiff's concern is healthfulness, as opposed to Proposition 65 compliance. Why should the MADLs for labeling purposes be understood as equivalent with a [lead] cut-off for health purposes? Plaintiff's pleadings do not furnish an answer. While the Court cannot say as a matter of law that there is no connection between the MADLs and a threshold for unhealthy [lead] exposure, the Court also cannot assume that there is one absent factual allegations to that effect, especially where Plaintiff's own sources indicate that [e]xposure at a level 1,000 times greater than the MADL is expected to have no observable effect.

Hayden, 2024 WL 1643696 at *8 (emphasis in original) (internal cites omitted).

Third, plaintiff cites the WHO for the proposition that “even blood lead concentrations as low as 3.5 µg/dL may be associated with decreased intelligence in children, behavioural difficulties and learning problems.” (Comp. ¶ 21.) Plaintiff then appears to connect this threshold to her own findings: “Based on the testing results described herein, a child who consumes just three cups of hot cocoa per week made with Defendant's Products consumes 3.5 micrograms of lead.” (Id. ¶ 21.) These two observations, though, rely on different indexes to assert harm: the former relies on a measure of blood lead concentration, and the latter on consumption. The Court is therefore left to guess whether consumption of this amount automatically produces an identical blood lead concentration reading. As with the MADL analysis, the Court cannot assume this is true without plaintiff alleging as much. Therefore, the Court finds the complaint fails to adequately allege an unreasonable safety hazard.

Next, the Court must assess whether the alleged defect is central to the product's function. As several other courts in this district have found, allegations that a food item contains some unhealthy amount of a particular toxin are insufficient to plead such a defect, as they do not “render[ ] those products incapable of use by any consumer.” See Hayden, 2024 WL 1643696 at *10 (“Plaintiff has not plausibly pled that the Products have ceased to function as a food”); Lopez v. Mead Johnson Nutrition Co., 2025 WL 895213 at *9 (N.D. Cal. 2025 (“Here, too, Plaintiff has not plausibly pled that the level of Heavy Metals allegedly present in the Infant Formulas renders the formulas incapable of use by any consumer.”) (internal cites omitted); In re Theos Dark Chocolate Litig., 750 F. Supp. 3d 1069, 1090 (N.D. Cal. 2025) (“Plaintiffs have not plausibly pled that chocolate containing trace amounts of Heavy Metals ceases to function as food – or ceases to provide any nutritional value.”). Because the product continues to function as a food item, the Court finds plaintiff has not pled a defect central to its function.

Having failed to plead an unreasonable safety hazard or a central defect, the complaint cannot proceed on an omissions theory.

2. Misrepresentations

Plaintiff grounds her claims for affirmative misrepresentation in defendant's slogan: “Great Quality. Great Price. Guaranteed. Our guarantee is our promise that you'll be fully satisfied with the quality of every Great Value product.” (Comp. ¶ 46.) Defendant counters that this constitutes inactionable puffery.

“Generalized, vague, and unspecified assertions constitute ‘mere puffery’ upon which a reasonable consumer cannot rely, and hence are not actionable.” Anunziato v. eMachines, Inc., 402 F. Supp. 2d 1133, 1139 (C.D. Cal. 2005) (citing Glen Hollywood Entm't, Inc. v. Tektronix, Inc., 343 F.3d 1000, 1005 (9th Cir. 2003)). “Ultimately, the difference between a statement of fact and mere puffery rests in the specificity or generality of the claim․ Thus, a statement that is quantifiable, that makes a claim as to the specific or absolute characteristics of a product, may be an actionable statement of fact while a general, subjective claim about a product is non-actionable puffery.” Newcal Indus., Inc. v. Ikon Office Solution, 513 F.3d 1038, 1053 (9th Cir. 2008) (internal cites omitted).

By any reasonable measure, the referenced slogan constitutes inactionable puffery. As an initial matter, defendant properly notes that the claim about the product's price is irrelevant to claims about the lead content. The remaining statements are generalized and subjective, in addition to being non-quantifiable. The Court could not determine that references to a product's general greatness or value are actionable without subjecting every purveyor of goods to the risk of defending misrepresentation claims.

The Court also finds that plaintiff's cited cases are distinguishable. Defendant claims that “[c]ourts have repeatedly found that label statements of quality assurance on food or pet food products, in the face of undisclosed heavy metals, are actionable statements that are not puffery.” (Oppo. at 13.) Each of the cases she cites, however, involved quality assurances specific enough to measure truth or falsity. See, e.g., Zeiger v. WellPet LLC, 304 F.Supp.3d 837, 851 (N.D. Cal. 2018) (analyzing quality promises of “natural foods,” “stringent requirements,” and “tak[ing] extra precautions to make sure ingredients are stored properly [and that] temperatures are monitored and products are routinely tested”); Ham v. Hain Celestial Grp., Inc., 70 F.Supp.3d 1188, 1194 (N.D. Cal. 2014) (allegation that a particular ingredient rendered a promise of “all natural” ingredients misleading was plausible). Fundamentally, non-puffery is measurable, unlike Walmart's generic assurance of “great quality.” The Court finds the alleged misrepresentation to be nonactionable puffery.

C. Unfair Practices - Second Prong

“While California law is unclear on how exactly to define unfairness in the consumer fraud context, the Ninth Circuit has instructed that the court must ‘balanc[e] the harm to the consumer against the utility of the defendant's practice.’ ” Zeiger, 304 F.Supp.3d at 852 (quoting Lozano v. AT & T Wireless Servs., Inc., 504 F.3d 718, 735–36 (9th Cir. 2007)).

The analysis here largely overlaps with the Court's analysis above in the unreasonable safety hazard context. Given the foregoing analysis, plaintiff has not plausibly alleged harm to any consumer. The Court is therefore unable to state the alleged danger outweighs the utility of any of defendant's practices. As such, plaintiff may not proceed based on the unfair practice prong of the UCL.

***

The complaint fails to plausibly allege harmful lead content in defendant' product. As such, she may not proceed under any UCL prong or under the CLRA or FAL.

IV. CONCLUSION

For the reasons set forth above, the motion to dismiss plaintiff's class action complaint is GRANTED WITH LEAVE TO AMEND. Any amended complaint must be filed within fourteen days of this Order. Defendants shall file their response within 21 days thereafter. Defendants may not raise new objections not encompassed in this motion to dismiss. See Fed. R. Civ. P. 12(g), (h); Aetna Life Ins. Co. v. Alla Med. Servs., Inc., 855 F.2d 1470, 1475 n.2 (9th Cir. 1988) (generally successive Rule 12 motions on different grounds not permitted); Albany Ins. Co. v. Almacenadora Somex, S.A., 5 F.3d 907, 909 (5th Cir. 1993) (same).

This terminates Docket No. 16.

IT IS SO ORDERED.

Date: 4/8/2005

FOOTNOTES

1.   Pursuant to Federal Rule of Civil Procedure 78(b) and Civil Local Rule 7-1(b), the Court finds this motion appropriate for decision without oral argument. Accordingly, the Court VACATES the hearing set for April 22, 2025.

2.   As noted above, defendant contests that the MADL is the proper reference point to calculate safety limits under Prop 65, pointing instead to the As You Sow consent decree. Because the Court finds the complaint insufficient even under the more plaintiff-friendly MADL threshold, it takes no position on which reference point should control.

YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE