                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JUL 10 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


MELANIE BARBER; ROBERT                           No.   16-55041
MALONE; ESTHER MALONE; R.
GRACE RODRIGUEZ, on behalf of                    D.C. No. CV 15-1364 CJC
themselves and all others similarly
situated,
                                                 MEMORANDUM*
              Plaintiffs-Appellants,

 v.

NESTLE USA, INC., a Delaware
Corporation; NESTLE PURINA
PETCARE CO., A Missouri Corporation,

              Defendants-Appellees.


                    Appeal from the United States District Court
                       for the Central District of California
                    Cormac J. Carney, District Judge, Presiding

                     Argued and Submitted December 7, 2017
                              Pasadena, California

Before:      TASHIMA, W. FLETCHER, and BERZON, Circuit Judges.

      Plaintiffs-Appellants Melanie Barber, Robert and Esther Malone, and R.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Grace Rodriguez (“Plaintiffs”) appeal the dismissal of their putative class action

lawsuit against Defendants-Appellees Nestlé USA, Inc. and Nestlé Purina

PetCare Co. (collectively, “Nestlé”).1 Nestlé is a marketer and distributor of

canned and packaged seafood that sources some of its products from Thailand.

The Bureau of International Labor Affairs of the United States Department of

Labor recognizes that fish and shrimp products exported from Thailand may be the

result of forced labor. Therefore, Nestlé’s supply chain may include forced labor,

but the company does not disclose this on its labels.

      Plaintiffs argue that by not labeling its products, Nestlé misled purchasers

and thereby violated California’s consumer protection laws. Specifically, Plaintiffs

bring suit under (1) California Civil Code §§ 1750, et seq., the Consumers Legal

Remedies Act (“CLRA”); (2) California’s Business & Professions Code §§ 17200,

et seq., the Unfair Competition Law (“UCL”); and (3) California’s Business &

Professions Code §§ 17500, et seq., the False Advertising Law (“FAL”).

      The district court dismissed all of Plaintiffs’ claims. We review de novo,

Hinojos v. Kohl’s Corp., 718 F.3d 1098, 1103 (9th Cir. 2013), and affirm.



      1
              This appeal is one of seven related cases that were consolidated for
oral argument. For a more fulsome discussion of the issues in these appeals, please
refer to the published opinion in Hodsdon v. Mars, Inc., __ F.3d __, No. 16-15444,
2018 WL 2473486 (9th Cir. Jun. 4, 2018)
                                          2
      1.     Plaintiffs argue that Nestlé had a duty to disclose, on its labels, the

existence of forced labor in its supply chain. Plaintiffs failed to allege that the

existence of forced labor in the supply chain affects the seafood products’ central

function. See Hodsdon, 2018 WL 2473486 at *6. Therefore, Nestle was under no

duty to disclose. Id.2

      2.     “[A]lthough a claim may be stated under the CLRA in terms

constituting fraudulent omissions, to be actionable the omission must be contrary

to a representation actually made by the defendant, or an omission of a fact the

defendant was obliged to disclose.” Daugherty v. Am. Honda Motor Co., 51 Cal.

Rptr. 3d 118, 126 (Ct. App. 2006) (emphasis added). Therefore, Nestlé did not

violate the CLRA.

      3.     The UCL prohibits “any unlawful, unfair or fraudulent business act or

practice.” Cal. Bus. & Prof. Code § 17200. “Because Business & Professions

Code § 17200 is written in the disjunctive, it establishes three varieties of unfair

competition—acts or practices which are unlawful, or unfair, or fraudulent.” Cel-

Tech Commc’ns, Inc. v. L.A. Cellular Tel. Co., 973 P.2d 527, 540 (Cal. 1999)



      2
               We assume for the purposes of this appeal that the existence of forced
labor in the supply chain is material to consumers. We do not reach whether
Plaintiffs alleged that Nestlé had the requisite exclusivity of knowledge over the
consumer.
                                            3
(citations and internal quotation marks omitted). Plaintiffs claim that Nestlé is

liable under all three of the varieties.

       Nestlé is not liable under the unlawful prong because Plaintiffs did not state

a claim under the CLRA. Likewise, Plaintiffs cannot state a claim under the

fraudulent prong because Nestlé did not have a duty to disclose the forced labor.

See Berryman v. Merit Prop. Mgmt., Inc., 62 Cal. Rptr. 3d 177, 188 (Ct. App.

2007). Finally, Plaintiffs cannot state a claim under the unfair prong pursuant to

either of the California tests. See Hodsdon, 2018 WL 2473486 at *7–8. Therefore,

Plaintiffs did not state a UCL claim.

       4.     For the purposes of the FAL, whether an advertisement is misleading

is determined by asking whether a reasonable consumer would likely be deceived.

See Davis v. HSBC Bank Nev., N.A., 691 F.3d 1152, 1161–62 (9th Cir. 2012).

Plaintiffs’ FAL claims fail because “a failure to disclose a fact one has no

affirmative duty to disclose is [not] ‘likely to deceive’ anyone.” See Daugherty, 51

Cal. Rptr. 3d at 128.3

                                        •   !   •


       3
             The district court dismissed Plaintiffs’ claims on the ground that the
California Transparency in Supply Chains Act of 2010, Cal. Civ. Code § 1714.43,
created a safe harbor that bars Plaintiffs’s lawsuit. Because we affirm the district
court on another ground, we do not reach this issue of whether the safe harbor
doctrine applies.
                                            4
      The judgment of the district court is

      AFFIRMED.4




      4
             Plaintiffs have an outstanding motion to certify a question to the
California Supreme Court; however, the question is not outcome determinative.
See Cal. R. of Court 8.548(a)(1) (“The [California] Supreme Court may decide a
question of California law if . . . [t]he decision could determine the outcome of a
matter pending in the requesting court.”). We therefore deny the motion to certify.
                                          5
