                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAY 08 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


NOELLE MAJOR, individually and on                No.   15-15880
behalf of all others similarly situated,
                                                 D.C. No. 5:12-cv-03067-EJD
              Plaintiff-Appellant,

 v.                                              MEMORANDUM*

OCEAN SPRAY CRANBERRIES, INC.,

              Defendant-Appellee.


                    Appeal from the United States District Court
                      for the Northern District of California
                    Edward J. Davila, District Judge, Presiding

                       Argued and Submitted April 19, 2017
                            San Francisco, California

Before: SCHROEDER and RAWLINSON, Circuit Judges, and STAFFORD,**
District Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable William H. Stafford, Jr., United States District Judge
for the Northern District of Florida, sitting by designation.
      Plaintiff Noelle Major appeals the district court’s summary judgment in

favor of Ocean Spray, Inc. in her putative class action alleging misbranding of

juice drinks. We affirm.

      1. Major first claims the drinks were improperly labeled as “No Sugar

Added.” The undisputed evidence established, however, that the drinks are made

from juice concentrates with water added. There is no more sugar in the drinks as

sold than there was in the original juices before they were concentrated. The

conclusory affidavit of Plaintiff’s expert was insufficient to call into question the

process of mixing the juice drinks. See United States v. Various Slot Machines on

Guam, 658 F.2d 697, 699–700 (9th Cir. 1981). Although Plaintiff suggests that the

blend of different juices may have served to make the cranberry and pomegranate

juice drink sweeter than cranberry and pomegranate juice alone would have been,

the label stated that the product was a blend of juices, and the labeling was

compliant with federal regulations, see 21 C.F.R. § 102.33(d). Accordingly, there

was no genuine issue of material fact as to the improper labeling claims with

respect to added sugar. Summary judgment was appropriate. See Fed. Rule Civ.

Proc. 56(a); Sateriale v. R. J. Reynolds Tobacco Co., 697 F.3d 777, 793 (9th Cir.

2012).

      2. Summary judgment was also appropriate as to Plaintiff’s other


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mislabeling claim under California law. Plaintiff’s theory was that, because of the

“No Sugar Added” labeling, the labels also should have contained a disclaimer

informing customers that the juice was not low calorie and directing customers to

the label’s nutrition panel. See 21 C.F.R. § 101.60(c)(2)(v). The claim fails

because California law requires actual reliance. See Kwikset Corp. v. Superior

Court, 51 Cal. 4th 310, 326 (2011); In re Tobacco II Cases, 46 Cal. 4th 298, 306

(2009). There is no showing that Plaintiff relied on the absence of the disclaimer

in purchasing the drinks. Plaintiff’s own testimony established that she understood

that the juice was not low calorie and that it contained the same amount of sugar as

juice not made from concentrate.


      AFFIRMED.




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