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Fitzhenry-Russell v. Dr. Pepper Snapple Grp.

United States District Court for the Northern District of California

September 22, 2017, Decided; September 22, 2017, Filed

Case No. 17-cv-00564 NC

Opinion

ORDER DENYING DR. PEPPER'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION; ORDER DENYING DR. PEPPER'S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

Re: Dkt. No. 74

Not too long ago Jackie Fitzhenry-Russell [*2]  and Robin Dale were Canada Dry Ginger Ale devotees. For instance, over the last several years, Fitzhenry-Russell bought Canada Dry cases at a time. What was so special about Canada Dry that made Fitzhenry-Russell buy it in bulk? According to her, it was her belief—based on Canada Dry's extensive advertising campaign—that the cans of ginger ale she was consuming contained actual ginger root. "Contained" is the key word. According to plaintiffs' complaint, "contained" does not mean that the alleged chemical substance that gave Canada Dry its gingery flavor was inspired by ginger root, or that someone engineered the substance while observing a piece of ginger root from across a large auditorium.

The belief that Canada Dry contained ginger root was significant because, according to both plaintiffs, a reason they bought Canada Dry was the well-known health benefits of consuming ginger root. In particular, Fitzhenry-Russell's belief that Canada Case No. 17-cv-00564 NC Dry contained ginger was based on this phrase on each can: "Made From Real Ginger." What does that elusive "from" mean? Does Canada Dry Ginger Ale contain ginger root? The Court does not know, and fortunately, that is not the [*3]  question it is being asked to answer here.

The questions the Court is being asked to answer in this motion are (1) does the court have personal jurisdiction over Dr. Pepper; (2) whether the plaintiffs have stated a claim against the defendants as to the advertising of Canada Dry Ginger Ale; and (3) whether the plaintiffs' claims are preempted by the Federal Food, Drug, and Cosmetics Act (FDCA). First, the Court finds that it has personal jurisdiction over Dr. Pepper as to all of the claims against it by the alleged nationwide class. Second, the Court finds that the plaintiffs may bring claims against Dr. Pepper based on its advertising campaign. Third, the Court finds that for purposes of this motion, the claims in the complaint are not preempted.

I. BACKGROUND

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2017 U.S. Dist. LEXIS 155654 *; 2017 WL 4224723

JACKIE FITZHENRY-RUSSELL, et al., Plaintiffs, v. DR. PEPPER SNAPPLE GROUP, INC., et al., Defendants.

Subsequent History: Related proceeding at Fitzhenry-Russell v. Coca-Cola Co., 2017 U.S. Dist. LEXIS 172716 (N.D. Cal., Oct. 18, 2017)

Motion denied by Fitzhenry-Russell v. Pepper Snapple Grp., Inc., 2017 U.S. Dist. LEXIS 227975 (N.D. Cal., Dec. 19, 2017)

Motion denied by, Without prejudice, Request denied by Fitzhenry-Russell v. Dr. Pepper Snapple Group, 2018 U.S. Dist. LEXIS 234912 (N.D. Cal., Apr. 23, 2018)

Related proceeding at Webb v. Dr Pepper Snapple Grp., Inc., 2018 U.S. Dist. LEXIS 71270 (W.D. Mo., Apr. 25, 2018)

Class certification granted by, Motion denied by, Motion granted by, in part, Motion denied by, in part Fitzhenry-Russell v. Pepper Snapple Grp. Inc., 326 F.R.D. 592, 2018 U.S. Dist. LEXIS 106918 (N.D. Cal., June 26, 2018)

Motion granted by, in part, Motion denied by, in part Fitzhenry-Russell v. Keurig Dr. Pepper Inc., 2018 U.S. Dist. LEXIS 234908 (N.D. Cal., Sept. 25, 2018)

Motion granted by, in part, Motion denied by, in part Fitzhenry-Russell v. Keurig Dr. Pepper Inc., 2018 U.S. Dist. LEXIS 188339 (N.D. Cal., Nov. 2, 2018)

Summary judgment granted, in part, summary judgment denied, in part by, Motion granted by, in part, Motion denied by, in part Fitzhenry-Russell v. Keurig Dr. Pepper Inc., 345 F. Supp. 3d 1111, 2018 U.S. Dist. LEXIS 192739 (N.D. Cal., Nov. 2, 2018)

Objection overruled by, Settled by, Motion granted by, Costs and fees proceeding at, Claim dismissed by, Judgment entered by Fitzhenry-Russell v. Keurig Dr Pepper Inc., 2019 U.S. Dist. LEXIS 232301 (N.D. Cal., Apr. 10, 2019)

CORE TERMS

personal jurisdiction, root, ginger ale, allegations, motion to dismiss, labeling, advertisements, flavor, plaintiffs', preempted, federal court, class action, nonresident, food, puffery, named plaintiff, website, advertising campaign, nationwide class, misrepresentation, regulations, consumer, argues, courts, plants, preemption, relaxation, voice-over, campaign, contacts