                                                                           FILED
                            NOT FOR PUBLICATION                             APR 05 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



MIRKO CARREA, on behalf of himself               No. 11-15263
and those similarly situated,
                                                 D.C. No. 3:10-cv-01044-JSW
              Plaintiff - Appellant,

  v.                                             MEMORANDUM *

DREYER’S GRAND ICE CREAM, INC.,

              Defendant - Appellee.



                    Appeal from the United States District Court
                       for the Northern District of California
                     Jeffrey S. White, District Judge, Presiding

                      Argued and Submitted January 18, 2012
                                Irvine, California

Before: KOZINSKI, Chief Judge, WARDLAW and PAEZ, Circuit Judges.

       Mirko Carrea (“Carrea”) appeals the district court’s dismissal of his Second

Amended Class Action Complaint pursuant to Federal Rule of Civil Procedure

12(b)(6). The complaint alleges that Dreyer’s Grand Ice Cream, Inc. (“Dreyer’s”)

violated four state consumer protection laws: (1) Unfair Competition Law, Cal.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Bus. and Prof. Code § 17200 et seq.; (2) False Advertising Law, Cal. Bus. and

Prof. Code § 17500 et seq.; (3) California Consumers Legal Remedies Act, Cal.

Civ. Code § 1750, et seq.; and (4) New York General Business Law § 349. We

have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal under

Rule 12(b)(6), and we affirm.

      Carrea’s claims regarding the “0g Trans Fat” statement, located on the front

of Drumstick’s packaging, are expressly preempted by the Federal Food, Drug and

Cosmetic Act (“FDCA”), as amended by the Nutrition Labeling and Education Act

(“NLEA”). 21 U.S.C. § 343-1(a)(5). The statement is an express nutrient content

claim that the Federal Food and Drug Administration (“FDA”) not only permits, 21

C.F.R. § 101.13(i)(3), but further instructs should mirror the Nutrition Facts panel,

see 58 Fed. Reg. 44020, 44024-25 (Aug. 18, 1993) (stating that any discrepancy

between a nutrient content claim and the Nutrition Facts panel would be

“confusing to consumers, and this consequence is unintended”). Here, because

Drumstick contains less than 0.5 grams of trans fat per serving, the Nutrition Facts

panel must express this amount as zero. 21 C.F.R. § 101.9(c)(2)(ii). Accordingly,

the same rule applies to the statement on the front of Drumstick’s packaging. In

essence, Carrea seeks to enjoin and declare unlawful the very statement that federal

law permits and defines. Such relief would impose a burden through state law that


                                          2
is not identical to the requirements under section 343(r). These claims are

therefore expressly preempted. See Degelmann v. Advanced Med. Optics, Inc., 659

F.3d 835, 840-42 (9th Cir. 2011).

      Carrea’s claims regarding the other statements on the front of Drumstick’s

packaging fare no better. It is implausible that a reasonable consumer would

interpret “Original Sundae Cone,” “Original Vanilla,” and “Classic,” to imply that

Drumstick is more wholesome or nutritious than competing products. Notably,

none of these phrases modify “recipe,” “ingredients,” “1928,” or any other term

that might suggest that the modern Drumstick is identical in composition to its

prototype. Even were it so, the presence of “original” or “classic” ingredients

alone does not plausibly imply that a product is more nutritious than other desserts.

In addition, no reasonable consumer is likely to think that “Original Vanilla” refers

to a natural ingredient when that term is adjacent to the phrase, “Artificially

Flavored.” Finally, it strains credulity to claim that a reasonable consumer would

be misled to think that an ice cream dessert, with “chocolate coating topped with

nuts,” is healthier than its competitors simply by virtue of these “Original” and

“Classic” descriptors. In sum, we conclude that Carrea’s state law claims fail to

satisfy the “reasonable consumer” standard in Williams v. Gerber Prods. Co., 552




                                           3
F.3d 934, 938 (9th Cir. 2008). Dismissal of these claims with prejudice was

therefore proper.

      The judgment of the district court is AFFIRMED.




                                        4
