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Boysen v. Walgreen Co.

Boysen v. Walgreen Co.

United States District Court for the Northern District of California

July 19, 2012, Decided; July 19, 2012, Filed

No. C 11-06262 SI

Opinion

ORDER GRANTING DEFENDANT WALGREEN CO.'S MOTION TO DISMISS

On May 7, 2012, defendant Walgreen Co. moved to dismiss plaintiff Randy Boysen's claims. Walgreen Co.'s motion is currently scheduled for hearing on July 20, 2012. Pursuant to Civil Local Rule 7-1(b), the Court finds this matter appropriate for resolution without oral argument and hereby VACATES the hearing. For the reasons set forth below, the Court GRANTS defendant's motion to dismiss.

BACKGROUND

On December 13, 2011, plaintiff Randy  [*2] Boysen filed this putative class action asserting four causes of action against Walgreen Co. Plaintiff's claims relate to defendant's alleged failure to disclose the presence of "material and significant" levels of arsenic and lead in its "100% Apple Juice" and "100% Grape Juice." Compl. ¶¶ 1-4. Plaintiff alleges that defendant's omissions as to the presence of these toxins are false and misleading, especially in light of the juice labels' affirmative representations that the products are healthy and safe. Id. ¶ 5. Plaintiff claims that he and other consumers would not have purchased the juices had they known the products contained lead and arsenic. Compl. ¶¶ 29, 50.

Plaintiff's claims are substantially similar to allegations brought by different plaintiffs in a series of unrelated actions against producers of juice and other fruit products. See In re Fruit Juice Products Mktg. and Sales Practices Litig., 831 F.Supp.2d 507 (D. Mass. 2011). Those actions were consolidated by the Multi District Litigation Panel and heard before Judge Ponsor in the District of Massachusetts. 1 On December 21, 2011, Judge Ponsor dismissed plaintiffs' claims, finding that they had not established any injury  [*3] in fact and therefore lacked standing. Id. at 510.

To support its claim that Walgreen's apple and grape juices contain significant levels of lead and arsenic, plaintiff cites the FDA's regulations regarding the maximum parts per billion ("ppb") of these toxins in bottled water. Compl. ¶ 17, 20. According to the FDA, bottled water can contain no more than 5 ppb of total lead, and 10 ppb of total inorganic arsenic. Id., citing 21 C.F.R. 165.110(b)(4)(iii)(A). Plaintiff alleges that by contrast, defendant's "100% Grape Juice" contains up to 20.48 ppb of inorganic  [*4] arsenic, and 15.9 ppb of total lead; and that its "100% Apple Juice" contains up to 6.94 ppb of total lead. Id. ¶ 27.

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2012 U.S. Dist. LEXIS 100528 *; 2012 WL 2953069

RANDY BOYSEN, an individual, on his own behalf and on behalf of all others similarly situated, Plaintiff, v. WALGREEN CO., Defendant.

Prior History: In re Fruit Juice Prods. Mktg. & Sales Practices Litig., 831 F. Supp. 2d 507, 2011 U.S. Dist. LEXIS 147588 (D. Mass., 2011)

CORE TERMS

products, juices, levels, arsenic, lipstick, allegations, ppb, apple juice, fruit, economic injury, grounds, toxins, fruit juice, injury in fact, grape juice, consumption, advertised, Consumed, safe, standing requirement, establish standing, motion to dismiss, plaintiff's claim, district court, bottled water, physical harm, regulations, guidelines, infection, healthy