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1 FAEGRE BAKER DANIELS LLP TARIFA B. LADDON (SBN 240419) 2 [email protected] 11766 Wilshire Boulevard, Suite 750 3 Los Angeles, CA 90025 Telephone: +1.310.500.2090 4 Facsimile: +1.310.500.2091

5 SARAH L. BREW (admitted pro hac vice) [email protected] 6 AARON D. VAN OORT (admitted pro hac vice) [email protected] 7 NATHANIEL J. ZYLSTRA (admitted pro hac vice) [email protected] 8 NICHOLAS J. NELSON (admitted pro hac vice) [email protected] 9 EMILY R. ZAMBRANA (admitted pro hac vice) [email protected] 10 90 South Seventh Street, Suite 2200 Minneapolis, MN 55402-3901 11 Telephone: +1.612.766.7000 Facsimile: +1.612.766.1600 12 Attorneys for Defendant Post Foods, LLC 13

14 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 15 DEBBIE KROMMENHOCK and STEPHEN Case No. 3:16-CV-04958-WHO 16 HADLEY, on behalf of themselves, all others Hon. William H. Orrick similarly situated, and the general public, 17 Plaintiffs, Hearing Date: October 9, 2019 18 Time: 2:00 p.m. v. 19 POST FOODS, LLC, Action Filed: August 29, 2016

20 Defendant. Trial Date: None Set

22 POST FOODS, LLC’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT 23 24 25 26 27

POST FOODS, LLC’S MOTION FOR SUMMARY JUDGMENT Case No. 3:16-cv-04958-WHO

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1 TABLE OF CONTENTS

2 STATEMENT OF THE ISSUES TO BE DECIDED ...... 1 3 PRELIMINARY STATEMENT ...... 1 4 STATEMENT OF RELEVANT FACTS ...... 2 5 A. Post makes many breakfast cereals with varying nutrition and flavor profiles...... 2 6 B. Plaintiffs and their claims...... 3 7 C. It is undisputed that each of the challenged statements was actually 8 true...... 4

9 D. The mainstream scientific view is that consuming pre-sweetened, nutrient-dense breakfast cereals like Post’s challenged cereals 10 improves people’s diets...... 6 11 E. Plaintiffs’ experts concede that their view of sugar is a minority viewpoint ...... 8 12 ARGUMENT ...... 10 13 I. Plaintiffs Cannot Censor Or Punish Post’s Truthful, Non-misleading Speech 14 About The Ingredients and Attributes Of Its Cereals...... 10 15 A. Plaintiffs’ claims are subject to constitutional review, and they bear the burden of proving that Post’s speech is misleading under the 16 constitutional standard...... 11 17 B. Post’s challenged statements truthfully address its cereals’ characteristics without addressing the healthiness of added sugar; 18 this is valuable, protected speech...... 13 19 C. The state cannot censor an alleged message that Post’s cereals are “healthy” despite containing added sugar because mainstream 20 science supports that view...... 17 21 II. Several Of Plaintiffs’ Remaining Claims Are Preempted By Federal Law...... 19 22 III. Plaintiffs Lack Evidence Entitling Them To Any Remedy...... 22 23 A. Plaintiffs do not have standing to seek injunctive relief...... 22 24 B. Plaintiffs lack evidence to support money relief...... 23 25 IV. Post Is Entitled To Judgment Against Plaintiffs’ Claim For Punitive Damages...... 24 26 CONCLUSION ...... 25 27

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1 TABLE OF AUTHORITIES 2 Page(s) FEDERAL CASES 3 44 Liquormart, Inc. v. Rhode Island, 4 517 U.S. 484 (1996) ...... 13, 14

5 Alliance for Natural Health US v. Sebelius, 6 714 F. Supp. 2d 48 ...... 18 7 Alliance for Natural Health US v. Sebelius, 786 F. Supp. 2d 1 (D.D.C. 2011) ...... 18 8 Ass’n of Nat. Advertiers, Inc. v. Lungren, 9 44 F.3d 726 (9th Cir. 1994) ...... 11

10 Ass’n of Nat’l Advertisers v. Lungren, 809 F. Supp. 747 (N.D. Cal. 1992) ...... 12 11 12 Bates v. State Bar of Ariz., 433 U.S. 350 (1977) ...... 13 13 Bioganic Safety Brands v. Ament, 14 174 F. Supp. 2d 1168 (D. Colo. 2001) ...... 11

15 Caldera v. J.M. Smucker Co., 2014 WL 1477400 (C.D. Cal. Apr. 15, 2014) ...... 24 16 Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 17 447 U.S. 557 (1980) ...... 13 18 Clapper v. Amnesty Int’l USA, 19 568 U.S. 398 (2013) ...... 22

20 Cordes v. Boulder Brands USA, Inc., 2018 WL 6714323 (C.D. Cal. Oct. 17, 2018) ...... 23 21 Davidson v. Kimberly-Clark Corp., 22 889 F.3d 956 (9th Cir. 2018) ...... 22, 23 23 Duagin v. City of Oxford, 24 718 F.2d 738 (5th Cir. 1983) ...... 13, 14 25 Edenfield v. Fane, 507 U.S. 761 (1993) ...... 16, 17 26 Express Oil Change, L.L.C. v. Miss. Bd. of Licensure for Prof’l Eng’rs & 27 Surveyors, 28 916 F.3d 483 (5th Cir. 2019) ...... 12 ii POST’S MOTION FOR SUMMARY JUDGMENT Case No. 3:16-cv-04958-WHO

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Guido v. L’Oreal, USA, Inc., 1 2013 WL 3353857 (C.D. Cal. July 1, 2013) ...... 24 2 Hadley v. Kellogg Sales Co., 3 273 F. Supp. 3d 1052 (N.D. Cal. 2017) ...... 21 4 Ibanez v. Fla. Dep’t of Bus. & Prof’l Regulation, Bd. of Accountancy, 512 U.S. 136 (1994) ...... 12 5 In re ConAgra Foods, Inc., 6 302 F.R.D. 537 (C.D. Cal. 2014) ...... 23 7 In re Quaker Oats Labeling Litig., 8 2012 WL 1034532 (N.D. Cal. Mar. 28, 2012) ...... 21 9 In re R. M. J., 455 U.S. 191 (1982) ...... 11 10 In re Santa Fe Nat. Tobacco Co. Mktg. & Sales Pracs & Prod. Liab. Litig., 11 288 F. Supp. 3d 1087 (D.N.M. 2017) ...... 11

12 In re Yahoo! Inc. Customer Data Sec. Breach Litig., 13 313 F. Supp. 3d 1113 (N.D. Cal. 2018) ...... 24 14 International Dairy Foods Ass’n v. Boggs, 622 F.3d 628 (6th Cir. 2010) ...... 18 15 Khachatryan v. Toyota Motor Sales U.S.A. Inc., 16 2009 WL 9537648 (C.D. Cal. Oct. 28, 2009) ...... 24

17 Lindsey v. Costco Wholesale Corp., 18 2016 WL 8729926 (N.D. Cal. Aug. 12, 2016) (Orrick, J.) ...... 5 19 Miller v. Fuhu Inc., 2015 WL 7776794 (C.D. Cal. Dec. 1, 2015) ...... 24 20 N.Y. Times Co. v. Sullivan, 21 376 U.S. 254 (1964) ...... 11

22 Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058 (9th Cir. 2008) ...... 4 23 24 Pearson v. Shalala, 164 F.3d 650 (D.C. Cir. 1999) ...... 18 25 Peel v. Attorney Registration & Disciplinary Comm’n of Ill., 26 496 U.S. 91 (1990) ...... 12

27 Price v. L’Oreal USA, Inc., 2018 WL 3869896 (S.D.N.Y. Aug. 15, 2018) ...... 24 28 iii POST’S MOTION FOR SUMMARY JUDGMENT Case No. 3:16-cv-04958-WHO

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Sorrell v. IMS Health Inc., 1 564 U.S. 552 (2011) ...... 17 2 Thompson v. W. States Med. Ctr., 3 535 U.S. 357 (2002) ...... 12 4 TrafficSchool.com, Inc. v. Edriver Inc., 653 F.3d 820 (9th Cir. 2011) ...... 12 5 Victorino v. FCA US LLC, 6 326 F.R.D. 282 (S.D. Cal. 2018) ...... 24 7 Whitaker v. Thompson, 8 248 F. Supp. 2d 1 (D.D.C. 2002) ...... 18 9 STATE CASES 10 Am. Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton, 96 Cal. App. 4th 1017 (2002) ...... 25 11 Bronco Wine Co. v. Jolly, 12 29 Cal. Rptr. 3d 462 (Ct. App. 2005) ...... 18 13 Design Built Sys. v. Sorokine, 14 32 Cal. App. 5th 676 (2019) ...... 24 15 Gerawan Farming, Inc. v. Lyons, 12 P.3d 720 (Cal. 2000) ...... 18 16 Intel Corp. v. Hamidi, 17 71 P.3d 296 (Cal. 2003) ...... 11

18 Pac. Gas & Elec. Co. v. Sup. Ct., 19 24 Cal. App. 5th 1150 (2018) ...... 25 20 Post Foods, LLC v. Super. Ct., 25 Cal. App. 5th 278(Ct. App. 2018), as modified on denial of reh’g (Aug. 15, 21 2018), review denied and review denied and ordered not to be officially published (Oct. 31, 2018) ...... 6 22 FEDERAL STATUTES 23 24 21 U.S.C. § 343(r)(3)(B) ...... 7 25 21 U.S.C. § 343(r)(3)(C) ...... 20, 21 26 Nutrition Labeling and Education Act, 21 U.S.C. § 343-1(a)(4)-(5) ...... 19 27 28 iv POST’S MOTION FOR SUMMARY JUDGMENT Case No. 3:16-cv-04958-WHO

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STATE STATUTES 1 2 Cal. Bus. & Prof. Code §§ 17200, 17500 ...... 4 3 Cal. Civ. Code § 1750 ...... 4 4 Cal. Civ. Code § 3294(a) ...... 24, 25 5 Cal. Com. Code § 2313-14 ...... 4

6 Cal. Com. Code § 2714(2) ...... 23

7 REGULATIONS

8 21 C.F.R. 101.9(c)(8)(iv) ...... 7 9 21 C.F.R. pt. 101 ...... 9 10 21 C.F.R. § 101.14 ...... 21 11 21 C.F.R. § 101.14(d)(2) ...... 21 12 21 C.F.R. § 101.54(c)(1) ...... 19 13 21 C.F.R. § 101.65(c)(3) ...... 19, 20 14 21 C.F.R. § 101.65(d)(1) ...... 19 15 21 C.F.R. § 101.65(d)(2) ...... 7 16 17 21 C.F.R. § 101.75 ...... 7 18 81 Fed. Reg. 33742 (May 27, 2016) ...... 9 19 83 Fed. Reg. 19619 (May 4, 2018) ...... 23

20 CONSTITUTIONAL PROVISIONS

21 First Amendment ...... passim

22 California Constitution ...... 1, 11 23

26 27 28 v POST’S MOTION FOR SUMMARY JUDGMENT Case No. 3:16-cv-04958-WHO

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1 NOTICE OF MOTION 2 On October 9, 2019 at 2:00pm, Defendant Post Foods, LLC (“Post”) will move for summary 3 judgment in this matter. 4 The motion will request the dismissal of the named Plaintiffs’ individual claims with 5 prejudice, resulting in the dismissal of the case as a whole.

6 STATEMENT OF THE ISSUES TO BE DECIDED 7 1. Free Speech. Are Post’s truthful statements about the ingredients and attributes its cereals 8 contain—for example, that they contain whole grains—protected by the free speech guarantees of 9 the First Amendment and the California Constitution?

10 2. Preemption. Are the implied nutrient-content and specific heart health claims that Plaintiffs 11 still challenge preempted by federal food-labeling law?

12 3. Remedies. Have Plaintiffs failed to offer any admissible proof of damages, and do they lack 13 standing to seek injunctive relief?

14 4. Punitive Damages. Have Plaintiffs failed to identify any evidence showing that it was 15 “despicable” to sell cereals deemed healthy by the government and mainstream science?

16 PRELIMINARY STATEMENT 17 Before they met Plaintiffs’ counsel, named Plaintiffs Debbie Krommenhock and Stephen 18 Hadley were part of the 90% of U.S. consumers who buy cereal. But then they saw a Craigslist ad 19 dangling the possibility of making money by suing cereal companies, and through conversations 20 with Plaintiffs’ counsel, they changed their minds. They stopped buying cereal and now profess to 21 believe that added sugar is unhealthy—although they still eat other foods with it. 22 As it relates to Post, Plaintiffs are advancing an unusual theory that is unusually difficult to 23 prove. They challenge 45 label statements that were made in varying combinations for 31 varieties 24 of cereal. But they challenge not what the statements said, but what they allegedly implied. The 25 statements said things like “4 Wholesome Grains” or “No High Fructose Corn Syrup.” Plaintiffs 26 admit these statements were true. But Plaintiffs allege that the statements implied something 27 else—that the cereals as a whole were healthy, which Plaintiffs argue would be false because too 28 1 POST’S MOTION FOR SUMMARY JUDGMENT Case No. 3:16-cv-04958-WHO

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1 much added sugar in a diet is allegedly unhealthy, and the cereals allegedly contributed too much 2 added sugar toward consumers’ daily totals. 3 Based on this theory, Plaintiffs argue that it was misleading for Post to make truthful 4 statements about its cereals’ ingredients and attributes, absent a warning about added sugar. The 5 logic is that, if consumers see that the cereal contains some healthy ingredients, they may conclude 6 that the cereal is healthy as a whole, and this cannot be permitted, so they must be warned that the 7 cereal’s added sugar may make it unhealthy. There are several fatal problems with Plaintiffs’ 8 claims, foremost of which is the First Amendment’s protection for truthful speech like Post’s.

9 STATEMENT OF RELEVANT FACTS

10 A. Post makes many breakfast cereals with varying nutrition and flavor profiles. 11 Post has been making breakfast cereal for more than a century. Its founder, C.W. Post, started 12 making breakfast foods around 1900, with classics like Grape Nuts and Post Toasties.1 Over the 13 years, Post introduced new favorites like Honey Bunches of Oats. 14 Today, Post Consumer Brands makes a wide range of products, based on the varying tastes of 15 the 90% of U.S. consumers who buy cereal.2 People who want cereals that are both nutrient-dense 16 and contain some sweetness can buy Post’s many varieties of “Great Grains” or “Honey Bunches 17 of Oats” cereals. Post prominently discloses the sugar content of its cereals, beyond what is 18 required by federal law, in a “Facts Up Front/ Nutrition Key” callout on every box, either on the 19 front of the box or on the top flap.3 20 21 22

1 23 Ex. 46, Post Consumer Brands, Our History, available at https://www.postconsumerbrands.com/timeline/ (last visited June 23, 2019). All exhibit 24 references, “Ex. __,” are to the Declaration of Aaron Van Oort, unless otherwise specified. Post documents are referred to by shortening its production number prefix “Krom_POST” to “K_P” 25 and dropping leading zeros. Plaintiff documents are referred to by their production number prefix “PLTF” and dropping leading zeros. 2 26 Ex. 24, “Mintel Breakfast Cereals – US – August 2013,” K_P13745 at 13751, 13760. 3 See Pls’ Exs. 7, 9, 11, 13, 15, 17, 19, 21 (Dkt. 142-7, -9, -10, -11, -12, -15, -17, -19, -21, -23, - 27 25); Ex. 5-9, Post Label Exhibits. To avoid duplicative filings, Post cites to Plaintiffs’ label exhibits filed with their Class Certification Motion where possible, but has filed additional labels 28 used on the products at issue that Plaintiffs omitted from their label exhibits. See Ex. 5-9. 2 POST’S MOTION FOR SUMMARY JUDGMENT Case No. 3:16-cv-04958-WHO

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1 B. Plaintiffs and their claims. 2 Plaintiffs Debbie Krommenhock and Stephen Hadley started out as cereal buyers. 3 Krommenhock testified that she purchased cereals for herself and her children, including Honey 4 Bunches of Oats with Almonds, Honey Bunches of Oats Granola Honey Roasted, and Raisin 5 Bran.4 Hadley testified that he bought and ate an astonishing amount of cereal, including seven 6 varieties of Great Grains (Blueberry Morning, Cranberry Almond Crunch, Banana Nut Crunch, 7 Raisins Dates & Pecans, Blueberry Pomegranate, and Protein Blend Cinnamon Hazelnut), nine 8 varieties of Honey Bunches of Oats (Honey Roasted, Almond, Raisin Medley, Pecan Bunches, 9 Vanilla Bunches, Strawberries, Whole Grain Honey Crunch, Greek Honey Crunch, and Granola 10 Honey Roasted), Raisin Bran, Bran Flakes, Alpha-Bits, Honeycomb, and Waffle Crisp.5 11 Hadley and Krommenhock both testified that they found the truthful statements about 12 ingredients and attributes on Post cereal labels to be genuinely helpful and valuable. 13 Krommenhock consistently looked for corn ingredients on product labels because her son has a 14 corn allergy, so the phrase “No High Fructose Corn Syrup” was helpful to her.6 Hadley testified 15 that whole grains are important to him, so label statements calling them out are helpful.7 16 In 2016, however, Hadley and Krommenhock each saw a Craigslist ad dangling the possibility 17 of making money by suing food companies.8 They contacted Plaintiffs’ counsel, and through 18 conversations with him and information he provided, they became convinced that added sugar is 19 unhealthy.9 Hadley stopped buying cereal altogether and Krommenhock eats it only as a “treat.”10 20 4 Ex. 19, Krommenhock Dep. 175:5-14. 5 21 Ex. 18, Hadley Dep. 161:9-162:18, 164:25-165:5. 6 Ex. 19, Krommenhock Dep. 55:19-21, 146:10-13, 174:1-5, 197:1-12, 217:11-19, 218:11-14, 22 271:3-4, 289:17-22. 7 Ex. 18, Hadley Dep. 57:22-25, 207:4-208:14, 228:4-19 (“I definitely think it’s helpful on the 23 label. It’s helpful to have that.”). 8 See Ex. 19, Krommenhock Dep. 48:16-49:11; Ex. 35, Krommenhock Dep. Ex. 1 (Craig’s List 24 ad); Ex.18, Hadley Dep. 26:3-7, 45:14-46:2 (“Q. And that appealed to you, the $5,000? … A. Sure.”); Ex. 36, Hadley Dep. Ex. 17 (Craig’s List ad). 9 25 See Ex. 19, Krommenhock Dep. 48:11-15 (“Q. But how did you come to believe that what was on the labels is false? A. After I spoke to Jack Fitzgerald.”); id. at 57:11-20 (before the lawsuit, 26 Krommenhock “thought that, in moderation, everything is fine, pretty much. But it turns out that it really isn’t, and I didn’t realize that until after I got the research from Mr. Fitzgerald….That’s 27 basically where I got all of—where I made up mind that sugar is not good for you.”); id. at 325:3 (“The sugar is poison.”); Ex. 18, Hadley Dep. 28:12-22, 46:22-24, 50:14-51:9, 67:21-68:9 (“I 28 think through all of this I just realized I probably should eat less sugar.”). 3 POST’S MOTION FOR SUMMARY JUDGMENT Case No. 3:16-cv-04958-WHO

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1 They testified that under no conditions will they buy Post cereals again,11 and professed at their 2 depositions to believe that added sugar is unhealthy—although they still eat other foods with it.12 3 Now, Plaintiffs are challenging as misleading and deceptive the very same truthful statements 4 they found genuinely helpful on Post’s cereal labels. Their claims are brought under California’s 5 consumer-protection and warranty laws (FAL, UCL, and CLRA; Cal. Bus. & Prof. Code §§ 6 17200, 17500; Cal. Civ. Code § 1750; Cal. Com. Code § 2313-14). For some of the statements, 7 Plaintiffs seek only an injunction barring their future use. For other statements, Plaintiffs also seek 8 damages. A chart listing the label statements Plaintiffs challenge for each of the 31 cereal varieties 9 at issue is attached as Ex. 1. The most widespread challenged statements include a Whole Grains 10 Council Stamp13 and “No High Fructose Corn Syrup.”

11 C. It is undisputed that each of the challenged statements was actually true. 12 At this point in the litigation, it is undisputed that each of the challenged statements was 13 actually true.14 At their depositions, Plaintiffs forthrightly and broadly acknowledged that they are 14 10 See Ex. 18, Hadley Dep. 66:24 (“My cereal intake is down to zero.”), 106:1-7, 189:3-16; Ex. 19, 15 Krommenhock Dep. 127:25-128:3, 132:13-25. 11 See Ex. 19, Krommenhock Dep. 324:21-325:20; Ex. 18, Hadley Dep. 343:21-345:1. 12 16 See Ex. 19, Krommenhock Dep. 298:11-12 (“The sugar just makes it poison.”), 314:8 (“Refined, processed sugar is toxic.”); 137:14-139:2 (instead of cereal, now has strawberry 17 cheesecake yogurt or croissant for breakfast); 143:15-144:15 (has frozen dinners for work but does not look at the amount of sugar), 326:12-328:3 (testified Haagen-Dazs ice cream is more healthy 18 than Honey Bunches of Oats); Ex. 18, Hadley Dep. 72:12-15 (eats instant oatmeal with added sugar), 73:18-22 (eats trail mix with cranberries and chocolate chips), 118:19-119:2 (eats ice 19 cream, cake, and cookies). 13 The “Whole Grains Council Stamp” identifies the amount of whole grain in a serving, which the 20 USDA recognizes “may help people identify food choices that have a substantial amount of whole grains.” Ex. 37, U.S. Dep’t of Health & U.S. Dep’t of Agric., 2015-2020 Dietary Guidelines for 21 Americans (8th ed.) at 22 (2015). The Whole Grains Council is a non-profit organization that reviews products submitted by its members and evaluates whether they meet the nutritional 22 criteria to bear the Whole Grains Council stamp. See Ex. 44, Oldways Whole Grains Council, How to Use the Stamp, https://wholegrainscouncil.org/members/how-use-stamp. The Council 23 promulgates a specific method for measuring whole grains to make the number of grams stated consistent across various products. See Ex. 31, “Whole Grains Council Product Registration Form 24 Help,” K_P38676 at 38677; Ex. 30, Email re “July 2015 WGC News- Deals & Donations for Whole Grains Month,” K_P31466 at 31468. 14 25 See Ex. 19, Krommenhock Dep. 260:21-24, 290:12-1, 292:12-18, 302:13-303:3; Ex. 18, Hadley Dep. 246:20-23; see also id. at 211:5-11. Three months after their depositions, Plaintiffs’ counsel 26 informed Post that they think the “less processed” statements on Great Grains are literally false, because Great-Grains flakes and other Post flakes are cooked with similar processes. But they 27 have not pleaded this claim, see Dkt. 92, SAC & ¶¶ 258-263, and therefore cannot raise it at summary judgment. Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1080 (9th Cir. 2008) 28 (“[W]here … the complaint does not include the necessary factual allegations to state a claim, 4 POST’S MOTION FOR SUMMARY JUDGMENT Case No. 3:16-cv-04958-WHO

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1 not claiming that any of the challenged statements were false.15 In addition to Plaintiffs’ broad 2 concession, they and their nutrition science expert, Dr. Lustig, specifically agreed with the truth of 3 many of the particular statements, including the following:

4 • “Whole Grains Council Stamp”16 5 • “Nutritious blueberries,” “wholesome almonds,” “naturally nutritious raisins & dates”17 6 • “No High Fructose Corn Syrup”18 7 • “4 Wholesome Grains”19 8 • “WHOLE GRAINS—good for your family … good for you”20 9 • “Fiber is good for digestive health”21 10 • “ALPHA-BITS IS A GOOD SOURCE OF NUTRIENTS THAT ARE BUILDING 11 BLOCKS FOR YOUR CHILD’S DEVELOPING BRAIN,” followed by a description of 12 the functional benefits of iron, zinc, and B vitamins22 13 14 raising such claim in a summary judgment motion is insufficient”); Lindsey v. Costco Wholesale 15 Corp., 2016 WL 8729926, at *9 (N.D. Cal. Aug. 12, 2016) (Orrick, J.). The argument also conflicts with Plaintiffs’ testimony that “less processed nutrition you can see” was not literally 16 false but “vague.” Ex. 18, Hadley Dep. 268:12-269:11. Finally, “less processed” accurately compares Great Grains ingredients (whole wheat berries; no artificial sweeteners or fiber sources) 17 with Post’s competitors’ products. See Ex. 29, “Post Consumer Response Product Information Form: Great Grains Crunchy Pecans,” K_P31400 at 31404. 15 18 See Ex. 18, Hadley Dep. 246:20-23 (“Q. More generally, are you claiming that any statement on the label—any label of any Post cereal involved in this case was literally false? A. No.”); see also 19 Ex. 19, Krommenhock Dep. 290:12-17, 292:12-18, 302:13-303:3. 16 Ex. 19, Krommenhock Dep. 260:19-24; Ex. 18, Hadley Dep. 215:13-22, 243:13-17. 17 20 Ex. 21, Lustig Dep. 107:15-109:9, 110:7-15. 18 Ex. 21, Lustig Dep. 113:15-115:16; Ex. 18, Hadley Dep. 213:6-8, 241:25-242:1; Ex. 19, 21 Krommenhock Dep. 290:12-17 (no statement on Raisin Bran label was false), 292:12-18 (no statement on Honey Bunches of Oats Granola label was false). 19 22 Ex. 15, Fearnside Dep. 86:3-10 (wheat, rice, barley, and oats); Ex. 18, Hadley Dep. 240:16-19, 246:11-14. 20 23 Ex. 18, Hadley Dep. 246:20-23. Each of the Honey Bunches of Oats Whole Grain cereals on which this statement appeared contained at least 33 grams of whole grains per serving, more than 24 2/3 of the USDA’s recommended daily intake. See Ex. 37, 2015-2020 Dietary Guidelines for Americans at 22, 80 (recommending 3 ounce-equivalents of whole grains per day, with one ounce- 25 equivalent containing 16 grams); see also Ex. 2, Post Cereal: Nutritional Changes Chart at 25-26. 21 Ex. 19, Krommenhock Dep. 2290:12-17 (no statement on Raisin Bran label was false), 292:12- 26 18 (no statement on Honey Bunches of Oats Granola label was false); Ex. 21, Lustig Dep. 121:8- 9. This statement sometimes appeared on Raisin Bran, which contains 8 grams of fiber per 27 serving—32% of the daily value. Ex. 2 at 32. 22 Ex. 2 at 1-2; see also Pls’ Ex. 19, Dkt. 142-23 at 6. Page number citations to Plaintiffs’ label 28 exhibits refer to the ECF page number. 5 POST’S MOTION FOR SUMMARY JUDGMENT Case No. 3:16-cv-04958-WHO

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1 • Vitamin D is important to “promote[] healthy bones and teeth”23 2 • “Iron & Zinc for Growth”24 3 • “Less processed nutrition you can see,” “Why less processed? Quite simply, because it’s 4 good for you!,” and “It’s whole foods from the field to your bowl with whole grains, fiber, 5 and nutritious ingredients in every bite!”25

6 • “Helps Support a Healthy Metabolism” 26

7 D. The mainstream scientific view is that consuming pre-sweetened, nutrient-dense 8 breakfast cereals like Post’s challenged cereals improves people’s diets. 9 In both the private sector and in government, the mainstream scientific view is that the 10 consumption of pre-sweetened, nutrient-dense cereals can be a powerful tool to improve people’s 11 diets.27 For instance, the American Heart Association concluded that “when sugars are added to 12 otherwise nutrient-rich foods, such as ... sugar-sweetened cereals, the quality of children’s and 13 adolescents’ diets improves.”28 The American Academy of Pediatrics concluded that “[u]sed along 14 with nutrient-rich foods and beverages, sugar can be a powerful tool to increase the quality of a 15 child’s diet” and “care should be taken” when restricting sugar-containing products “to avoid 16 compromising overall nutrition.”29 The most recent Dietary Guidelines for Americans recognize 17 that “healthy eating patterns can accommodate … nutrient-dense foods with small amounts of 18 23 Ex. 21, Lustig Dep. 159:3-19. This statement appeared on Honeycomb, which contained 25% of 19 the recommended daily value for Vitamin D. Ex. 2 at 30-31; see also Pls’ Ex. 17, Dkt. 142-21 at 5. 24 Ex. 21, Lustig Dep. at 159:20-160:3. Waffle Crisp contained 15% of the daily recommended 20 value of each of these nutrients. Ex. 2 at 33; see also Pls’ Ex. 21, Dkt. 142-25 at 6. 25 Ex. 18, Hadley Dep. 262:10-267:6, 268:19-269:15. 26 21 Ex. 18, Hadley Dep. 261:18-25. This statement appeared on Great Grains: Protein Blends. It refers to the cereals’ high protein content (8g, or 10% of the daily recommended value) and the 22 fact that “the rate of digestion for protein is different and more complicated than digestion of carbohydrate and/or lipids.” Ex. 32, “Post Great Grains Protein Blend Advertising ‘My Best Me’ – 23 November 2012 Script,” K_P43330 at 43331. 27 See generally Post Foods, LLC v. Super. Ct., 25 Cal. App. 5th 278(Ct. App. 2018), as modified 24 on denial of reh’g (Aug. 15, 2018) (discussing federal agencies’ views), review denied and ordered not to be officially published (Oct. 31, 2018). 28 25 Ex. 43, R.K. Johnson, et al., on behalf of the American Heart Association Nutrition Committee of the Council on Nutrition, Physical Activity, and Metabolism and Council on Epidemiology and 26 Prevention, Dietary Sugars Intake and Cardiovascular Health: A Scientific Statement from the American Heart Association, Circulation, Vol. 120:1011-1020, 1012 (2009) (hereinafter “AHA 27 Scientific Statement”) (emphasis added). 29 Ex. 62, American Academy of Pediatrics, Snacks, Sweetened Beverages, Added Sugars, and 28 Schools Policy Statement, Pediatrics 135:3 575, 579 (2015). 6 POST’S MOTION FOR SUMMARY JUDGMENT Case No. 3:16-cv-04958-WHO

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1 added sugar, such as whole-grain breakfast cereals”30 and explicitly recommends cereals to help 2 address low intakes of vitamin D, calcium, dietary fiber, and iron.31 In sum, “[s]tudies have 3 consistently found that higher consumption of RTE [ready-to-eat] cereals is associated with 4 improved micronutrient intake….”32 5 This scientific consensus arises from the fact that ready-to-eat breakfast cereals are among the 6 most nutrient-dense foods in the average American’s diet. Compared to other foods with similar 7 levels of calories, breakfast cereals contribute substantially more whole grains, fiber, folate, iron, 8 calcium, zinc, and other nutrients.33 The Post cereals in this case are no exception. 9 Every cereal in this case satisfies the FDA’s nutritional criteria for labeling a food as 10 “healthy.” See 21 C.F.R. § 101.65(d)(2); Ex. 54, Use of the Term “Healthy” in the Labeling of 11 Human Food Products: Guidance for Industry at 3, 5 (Sept. 2016), available at 12 https://www.fda.gov/media/100520/download. Twenty-eight of the cereals also qualify as “Heart 13 Healthy” under 21 C.F.R. § 101.75, the FDA Modernization Act, or both. That means that “there 14 is significant scientific agreement” that consuming these cereals may help reduce the risk of heart 15 disease. See 21 U.S.C. § 343(r)(3)(B)(i). In addition, fifteen of the cereals meet the nutritional 16 criteria to qualify for the USDA’s School Lunch program, and twelve meet the criteria to qualify 17 for the USDA’s Special Supplemental Nutrition Program for Women, Infants, and Children 18 (WIC). A chart showing each cereal’s qualifications is attached. See Ex. 3, Qualifying Health and 19 “Healthy” Claims Chart. 20 Every cereal in this case also is a “good source” (10-19% of daily value) or “excellent source” 21 (more than 20%) of certain “essential” vitamins and minerals, see 21 C.F.R. 22 101.9(c)(8)(iv); 101.54(b)-(c)—including iron, Vitamin D, and folic acid, which the FDA has 23 24 30 Ex. 37, 2015-2020 Dietary Guidelines for Americans at 31. 31 25 Ex. 37, 2015-2020 Dietary Guidelines for Americans at 60-61 & Appx. 11, 12-13. 32 Ex. 42, Jennifer L. Harris, et al., Effects of Serving High-Sugar Cereals on Children’s 26 Breakfast-Eating Behavior, Pediatrics 127:1 71, 72 (2011); see also Ex. 10, Clemens Rep. at 17- 20 (citing studies). 33 27 See Ex. 2.; Ex. 63, Ann M. Albertson et al., Ready-to-Eat Cereal Intake Is Associated with an Improved Nutrient Intake Profile Among Food Insecure Children in the United States, 9 J. Hunger 28 & Env’t Nutrition 200, 201-202 (2013). 7 POST’S MOTION FOR SUMMARY JUDGMENT Case No. 3:16-cv-04958-WHO

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1 determined are “nutrients of public health significance.”34 81 Fed. Reg. 33742, 33884 (May 27, 2 2016). In addition, the Great Grains products, Honey Bunches of Oats Greek products, Honey 3 Bunches of Oats Whole Grain products, Honey Bunches of Oats granolas, Bran Flakes, and Raisin 4 Bran contribute between 12-32% of the recommended daily value of fiber,35 which the USDA has 5 categorized as a nutrient “of public health concern” based on “its important contribution to 6 health,” including its role in preventing coronary heart disease, type 2 diabetes, and obesity.36 7 Every cereal in this case but one (Waffle Crisp) contains a significant amount of whole grains. 8 The USDA recommends that adults eat 48 grams of whole grains per day, because whole-grain 9 consumption is associated with better nutrient intake and healthier body weight in children and 10 adults.37 The challenged cereals have per-serving whole-grain amounts between 8-43g.38 Many of 11 the products’ grains are more than 50% whole grain,39 and three of challenged products’ grains are 12 100% whole grain.40 Fifteen of the thirty-one cereals contribute more than half of the USDA’s 13 daily recommended whole-grain content in a single serving.41 These Post cereals are precisely the 14 ones that USDA recommends Americans eat more of.42

15 E. Plaintiffs’ experts concede that their view of sugar is a minority viewpoint 16 Turning to Plaintiffs’ evidence, four critical points are undisputed. First, it is undisputed that 17 neither Plaintiffs nor their experts have identified any study showing that any breakfast cereal— 18 much less Post’s cereals—causes any of the health effects they attribute to added sugar.43 19 34 The USDA similarly categorized Vitamin D and iron as nutrients of concern for under- 20 consumption. Ex. 59, U.S. Dep’t of Agric. & U.S. Dep’t of Health & Human Servs., Scientific Report of the 2015 Dietary Guidelines Advisory Committee, 55-57 (Feb. 2015). 35 21 Ex. 2 at 3-11, 17-18, 24-29. 36 See Ex. 59, Scientific Report of the 2015 Dietary Guidelines Advisory Committee at 57; Ex. 37, 22 2015-2020 Dietary Guidelines for Americans at 60. 37 See Ex. 37, 2015-2020 Dietary Guidelines for Americans at 15, 17-18, 22, 80; Ex. 40, Ann M. 23 Albertson, et al., Whole grain consumption trends and associations with body weight measures in the United States: results from the cross-sectional National Health and Nutrition Examination 24 Survey 2001-2002, Nutrition Journal (15:8) at 1 (2016). 38 See Ex. 2 at 4, 30-31. The sole exception is Waffle Crisp. 39 25 See Pls’ Ex. 7, Dkt. 142-7 at 21-24, 36, 45; Pls’ Ex. 13, Dkt. 142-17 at 17; Pls’ Ex. 15, Dkt. 142-19 at 8; Post Label Ex. 7 at 7, 9; Post Label Ex. 8 at 3, 6, 8-10 (showing 50%+ stamp). 40 26 Pls’ Ex. 11, Dkt. 142-15 (showing 100% stamp). 41 See Ex. 2 at 4, 6-11, 17-18, 24-29. 42 27 See Ex. 37, 2015-2020 Dietary Guidelines for Americans at 22. 43 Ex. 21, Lustig Dep. 216:15-18 (agreeing that his opinions “don’t rely on any specific studies 28 about breakfast cereal”). 8 POST’S MOTION FOR SUMMARY JUDGMENT Case No. 3:16-cv-04958-WHO

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1 Second, it is undisputed that Plaintiffs’ view that added sugar is toxic is a minority viewpoint 2 that is not generally accepted by the scientific community. Plaintiffs’ expert Dr. Lustig candidly 3 admitted that his view is “not generally accepted.”44 To the contrary, the FDA has concluded that 4 the science “do[es] not support a cause and effect relationship between added sugars consumption 5 and risk of obesity or heart disease,”45 and “[t]he current evidence on added sugars does not show 6 a linear relationship with chronic disease risk, and therefore, the evidence does not support 7 limiting added sugars to as little in the diet as possible.”46 The published literature reiterates the 8 lack of evidence. The very articles Plaintiffs’ experts cite recognize that “the quality of the 9 evidence” is “low,”47 “evidence is inconsistent,”48 “studies at this stage provide an incomplete, 10 sometimes discordant appraisal,”49 and “[w]idely discrepant conclusions have emerged.”50 11 Third, it is undisputed that nutritional guidelines are based on total diet, not the nutritional 12 composition of individual foods. Plaintiffs’ own expert acknowledged that there is “no standard” 13 that evaluates healthiness on a “per-food basis.” Ex. 21, Lustig Dep. 134:23-135:15. He explained 14 that a consumer cannot “hold any individual food stuff accountable for what other food stuffs were 15 purchased or consumed during the day.” Id. Rather, “you have to [assess diet] on a daily basis 16 because nothing else makes sense.” Id. Thus, the USDA recommends limiting added sugar to less 17 than 10% of total calories in one’s overall diet, not because of Plaintiffs’ experts’ speculative 18 linkage of added sugar to increased risk of disease, but to help limit total calorie consumption.51 19 Finally, it is undisputed that the record does not support Plaintiffs’ pejorative characterization 20 of the amount of added sugar in Post’s challenged cereals as “excessive.” The true amount per 21 44 Ex. 21, Lustig Dep. 31:1-4; see id. 38:19-39:14 (stating his view that we are “about ten years 22 into the 25 years” necessary for his opinions to become “accepted practice”); Ex. 17, Greger Dep. 263:22-25 (acknowledging no consensus on the recommended level of added sugar in the diet). 45 23 Food Labeling: Revision of the Nutrition and Supplement Facts Labels, 81 Fed. Reg. 33742, 33760 (May 27, 2016), codified 21 C.F.R. pt. 101. 46 24 Id. at 33,840. 47 Ex. 56, World Health Organization, Sugars intake for adults and children: Guideline, 3 (March 25 4, 2014) available at https://www.who.int/nutrition/publications/guidelines/sugars_intake/en/. 48 Ex. 43, AHA Scientific Statement, at 1014. 49 26 Ex. 47, Luc Tappy, et al., “Metabolic Effects of Fructose and the Worldwide Increase in Obesity,” Physiology Review, Vol. 90:23-46, 39 (2010). 50 27 Ex. 48, Lisa Te Morenga, et al., Dietary sugars and body weight: systematic review and meta- analyses of randomized controlled trials and cohort studies, BMJ 2012:345, 7 (2013). 51 28 Ex. 37, 2015-2020 Dietary Guidelines for America at xiii, n.2. 9 POST’S MOTION FOR SUMMARY JUDGMENT Case No. 3:16-cv-04958-WHO

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1 serving ranges from 4 to 13 grams. Ex. 66, Fearnside Decl. ¶¶ 6, 9; see Ex. 2. At the low end, this 2 is only one-twelfth of the FDA’s Daily Reference Value of 50 grams of added sugar52; at the high 3 end, it is barely more than one-fourth, and even then it is comparable to the sugar content of a 4 single piece of fruit.53 For most of the challenged cereals, the milk poured on the cereal has almost 5 as much sugar as the cereal itself.54 Moreover, for the entire class period, in 18 of the 31 6 challenged cereals, added sugar accounted for fewer than 20% of the calories, see Ex. 2 at 4, 8-12, 7 14-16, 19-21, 23-27, 32—which Plaintiffs’ expert Dr. Robert Lustig agrees allows adults to 8 regularly eat the cereal at the stated serving size without consuming “excessive” sugar.55 Another 9 five challenged cereals met that threshold for part of the class period. Ex. 2 at 1-3, 7, 13, 28.

10 ARGUMENT

11 I. Plaintiffs Cannot Censor Or Punish Post’s Truthful, Non-Misleading Speech About The Ingredients And Attributes Of Its Cereals. 12 13 Plaintiffs Debbie Krommenhock and Stephen Hadley are trying to use California’s consumer- 14 protection laws to suppress genuinely helpful, truthful speech about the ingredients and attributes 15 of Post’s cereals—speech that both Plaintiffs found valuable and that Hadley agreed should not be 16 suppressed, saying, “removing those labels, removing those excerpts, is not the best way to go.” 17 Ex. 18, Hadley Dep. 342:6-8. As justification, they argue that consuming too much added sugar in 18 a diet is bad for people, and from this premise they conclude that Post cannot be allowed to speak 19 truthfully about other aspects of its cereals, such as their whole-grain content or nutritious fruit. 20

52 21 Food Labeling, 81 Fed. Reg. at 33839-40. 53 See Ex. 49, USDA, National Nutrient Database, Basic Report: 09040, Bananas, raw, available at 22 https://ndb.nal.usda.gov/ndb/foods/show/09040 (showing 14g of sugar in medium-sized banana). 54 See Ex. 50, USDA, National Nutrient Database, Basic Report: 42290, Milk, fluid, nonfat, 23 calcium fortified (fat free or skim), available at https://ndb.nal.usda.gov/ndb/foods/show/8628 (showing 12g of sugar in one cup of 24 milk). Plaintiffs allege that naturally-occurring sugar is less nutritionally problematic, but the point here is that the amount of sugar in the challenged cereals is modest. 55 25 See Ex. 21, Lustig Dep. at 287:10-21, 294:3-15, 295:21-296:3. Plaintiffs contend without factual support that people eat more than one serving of cereal at a time, to argue that the total added 26 sugar intake from cereal is too high. But their proffered expert Michael Greger acknowledged that “[t]here’s nothing in [his] report that supports that” conclusion. Ex. 17, Greger Dep. 312:5-9. The 27 lone cereal study that Plaintiffs have identified addresses only the quantity of cereal children eat when offered a choice. The only Post cereal tested in that study, Cocoa Pebbles, is not at issue in 28 this action. See Ex. 42, Harris, et al, Effects of Serving High-Sugar Cereals at 72. 10 POST’S MOTION FOR SUMMARY JUDGMENT Case No. 3:16-cv-04958-WHO

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1 Quite simply, the Constitution prohibits Plaintiffs from using government force to suppress 2 Post’s truthful speech. Plaintiffs may advocate their own health views. They may attempt to 3 persuade the FDA, USDA, or other government entities to regulate added sugar. But they cannot 4 use government coercion to bar truthful speech about the ingredients and nutritional content of 5 cereal out of the misplaced concern that people cannot be trusted to act wisely on that information. 6 For two reasons, both of which are for this Court to decide, Post is entitled to summary 7 judgment under the First Amendment and the California constitution. First, the statements 8 Plaintiffs challenge are not even arguably misleading because they cannot be read to convey any 9 message about the healthiness of added sugar. Second, even if the statements could be found to 10 speak indirectly about the healthiness of added sugar by speaking indirectly about the healthiness 11 of Post’s cereals, they communicated a constitutionally protected viewpoint based on mainstream 12 science—namely, that nutrient-dense cereal containing some added sugar can be part of a healthy 13 diet. For both reasons, Post is entitled to summary judgment on all of Plaintiffs’ claims.

14 A. Plaintiffs’ claims are subject to constitutional review, and they bear the burden of proving that Post’s speech is misleading under the constitutional standard. 15 16 Plaintiffs’ claims are subject to First Amendment review because “the use of government 17 power ... by an award of damages or an injunction in a private lawsuit, is state action that must 18 comply with First Amendment limits.” Intel Corp. v. Hamidi, 71 P.3d 296, 311 (Cal. 2003) 19 (emphasis in original); see N.Y. Times Co. v. Sullivan, 376 U.S. 254, 265 (1964). Under settled 20 doctrine, “[t]ruthful advertising related to lawful activities is entitled to the protections of the First 21 Amendment,” but misleading advertising is not. In re R. M. J., 455 U.S. 191, 203 (1982). 22 In this case, Plaintiffs allege that Post’s speech was not protected by the First Amendment 23 because it was actually misleading.56 The burden of proving this allegation falls on them: “[T]he 24 56 We do not understand Plaintiffs to argue that Post’s truthful speech about its cereals’ ingredients 25 was “inherently” misleading (as opposed to “actually” misleading). Speech is inherently misleading only when it facially suggests something that is always false, without regard to any 26 “contingencies.” Ass’n of Nat. Advertiers, Inc. v. Lungren, 44 F.3d 726, 731 (9th Cir. 1994); see In re Santa Fe Nat. Tobacco Co. Mktg. & Sales Pracs & Prod. Liab. Litig., 288 F. Supp. 3d 1087, 27 1240 (D.N.M. 2017) (“[T]he proper inquiry is to consider whether there are any circumstances under which the speech could be truthful”); Bioganic Safety Brands v. Ament, 174 F. Supp. 2d 28 1168, 1181 (D. Colo. 2001). That standard is not even arguably met by Post’s truthful statements. 11 POST’S MOTION FOR SUMMARY JUDGMENT Case No. 3:16-cv-04958-WHO

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1 party seeking to uphold a restriction on commercial speech carries the burden of justifying 2 it.” Thompson v. W. States Med. Ctr., 535 U.S. 357, 373 (2002) (citation and editing marks 3 omitted). To show that a statement is “actually misleading,” a party “[i]s required to present 4 evidence of [actual] deception” of real-life consumers. E.g., Express Oil Change, L.L.C. v. Miss. 5 Bd. of Licensure for Prof’l Eng’rs & Surveyors, 916 F.3d 483, 491 (5th Cir. 2019). Speech cannot 6 be branded as actually misleading based on “the possibility of deception in hypothetical cases.” 7 Ibanez v. Fla. Dep't of Bus. & Prof’l Regulation, Bd. of Accountancy, 512 U.S. 136, 145 (1994) 8 (citations and quotation marks omitted). Instead, a party seeking to suppress speech must show 9 actual “evidence of deception.” Id. See, e.g., TrafficSchool.com, Inc. v. Edriver Inc., 653 F.3d 820, 10 828 (9th Cir. 2011) (finding actual deception based on a consumer survey plus evidence that 11 hundreds of consumers, “two California cities, a private law firm in Texas and a number of 12 newspapers” had believed that a private company’s DMV.org website was the California DMV’s). 13 Although determining whether a statement was misleading may be a fact question for purposes 14 of the merits, it is a legal question under the First Amendment. Deciding whether a statement falls 15 “beyond the protection of the First Amendment is a question of law” for the court. Peel v. Attorney 16 Registration & Disciplinary Comm’n of Ill., 496 U.S. 91, 108 (1990) (plurality). Earlier, this Court 17 noted that whether a statement is misleading could also be “‘a constitutional question of fact’ to be 18 reviewed de novo.” Dkt. 116 at 7 n.8. Either way, “[i]t is the role of this court to ... determine 19 whether the commercial messages in question warrant any First Amendment protection.” Ass’n of 20 Nat’l Advertisers v. Lungren, 809 F. Supp. 747, 756 (N.D. Cal. 1992). 21 At the motion-to-dismiss stage, the Court deferred decision, stating that “[w]hether or not 22 Post’s speech is misleading” for First Amendment purposes “has not been and cannot be 23 determined at this juncture,” but could “be resolved under a more stringent and evidentiary-based 24 review at summary judgment.” Dkt. 116 at 7-8 & n.7. The time has arrived for that review. 25 26 27

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B. Post’s challenged statements truthfully address its cereals’ characteristics without 1 addressing the healthiness of added sugar; this is valuable, protected speech. 2 On the full record, this Court should hold that Post’s challenged statements were not 3 misleading, and hence were protected by the First Amendment, because they conveyed important, 4 truthful information about specific ingredients and nutritional attributes that consumers had a 5 compelling interest in receiving and did not make a claim about the healthiness of the cereal as a 6 whole. This is an independent basis for summary judgment. 7 In a market economy, “the free flow of commercial information is indispensable.” 44 8 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 496-97 (1996). Because the “public relie[s] on 9 ‘commercial speech’ for vital information about the market,” id. at 495,“the law has developed to 10 ensure that advertising provides consumers with accurate information about the availability of 11 goods and services,” id. at 496. The First Amendment does not allow a state to make the 12 “paternalistic assumption that the public will use truthful, nonmisleading commercial information 13 unwisely [to] justify a decision to suppress it.” Id. at 497. Rather, the judgment of the Constitution 14 is that, “[e]ven when advertising communicates only an incomplete version of the relevant facts, 15 the First Amendment presumes that some accurate information is better than no information at 16 all,” Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 562 (1980) 17 (emphasis added). Thus, a state may not “deny the consumer, on the ground that the information is 18 incomplete, at least some of the relevant information needed to reach an informed decision.” Bates 19 v. State Bar of Ariz., 433 U.S. 350, 374 (1977). 20 Hence, the Courts of Appeals have rejected state attempts to limit speech on arguments like 21 Plaintiffs’ here. In Ocheesee Creamery LLC v. Putnam, the state of Florida, concerned that 22 removing the fat from milk also removes Vitamin A, argued that labeling the product “skim milk” 23 was inherently misleading unless the manufacturer had replaced the missing Vitamin A. 851 F.3d 24 1228, 1238 (11th Cir. 2017). The Eleventh Circuit disagreed, holding that “statements of objective 25 fact, such as the [skim milk] label, are not inherently misleading absent exceptional 26 circumstances.” Id. at 1239. Similarly, the state of Mississippi tried to ban liquor advertising that 27 failed to “disclos[e] the personal and social disasters [alcohol] threatens.” Duagin v. City of 28 13 POST’S MOTION FOR SUMMARY JUDGMENT Case No. 3:16-cv-04958-WHO

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1 Oxford, 718 F.2d 738, 743 (5th Cir. 1983). The Fifth Circuit rejected that effort, holding that “the 2 state will have little success in preventing the advertising merely because it fails to tell the whole 3 truth about its product.” Id. 4 Here, the challenged statements truthfully identified cereal attributes consumers care about, as 5 shown in the following table, which quotes the statements that are short enough to reprint without 6 swamping our brief (the full list is at Ex. 1, Products and Label Statements Chart): 7 “wholesome Almonds” “nutritious Blueberries” “wholesome Walnuts” 8 “nutritious Hazelnuts” “wholesome Pecans” “nutritious Cranberries” 9 “nutritious Pumpkin Seeds” “nutritious Raisins & Dates” “4 Wholesome Grains” 10 “NO HIGH FRUCTOSE “Fiber is good for digestive CORN SYRUP!” “Iron & Zinc for Growth” health” 11 Whole Grains Council Stamp “CONTAINS DIETARY “Whole grains provide fiber 12 (“WHOLE GRAIN; 8g or FIBER to Help Maintain and other important nutrients more per serving”) Digestive Health” to help keep you healthy.” 13 “A GOOD SOURCE OF NUTRIENTS THAT ARE 14 “FIBER TO HELP WITH BUILDING BLOCKS FOR “HELPS SUPPORT A WEIGHT MANAGEMENT” YOUR CHILD’S HEALTHY METABOLISM” 15 DEVELOPING BRAIN” 16 “It’s whole foods from the “Why less processed? Quite 17 field to your bowl, with whole “Less processed nutrition you simply, because it’s good for grains, fiber and nutritious can see” you!” 18 ingredients in every bite!” “THE IMPORTANCE OF “WHOLE GRAINS FOR 19 “less processed whole grain WHOLE GRAIN AND YOUR HEALTHY cereal” FIBER” LIFESTYLE” 20 “sweetened with a kiss of “Heart Healthy” with depiction 21 “Makes a Smart Snack!” honey” of heart 22 “A delicious, wholesome start “WHOLESOME “WHOLE GRAINS – good for to your day!” NUTRITION” your family ... good for you” 23 “Nutritious Sweetened Corn “Nutritious” & “Healthy” in a Heart design in “i” of “Whole 24 Oat Cereal” Word Search Grain” name 25 Each of these statements is truthful speech that the “public relie[s] on … for vital information 26 about the market.” 44 Liquormart, 517 U.S. at 495. Both Plaintiffs testified that nutrition 27 information on food labels, beyond what’s provided by law in the Nutrition Facts Panel, is 28 14 POST’S MOTION FOR SUMMARY JUDGMENT Case No. 3:16-cv-04958-WHO

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1 important to them and something they look for when buying foods.57 Many consumers—including 2 Plaintiffs—avoid certain ingredients like high fructose corn syrup, saturated fat, or preservatives.58 3 Krommenhock testified that her son cannot tolerate eating corn products, and she therefore 4 scrupulously checks food labels to ensure that they contain no high fructose corn syrup.59 And of 5 course, people prefer certain ingredients in their cereal—whether it be blueberries, almonds, 6 pecans, or raisins—and want to know whether the cereal has them.60 7 For these reasons, the challenged label statements serve core First-Amendment interests: they 8 provide consumers with accurate, valuable information about the contents of the cereals. Plaintiff 9 Hadley conceded that because this truthful information is important to consumers, “removing 10 those labels, removing those excerpts, is not the best way to go.” Ex. 18, Hadley Dep. 342:6-8. 11 So can any of the challenged statements reasonably be construed, consistent with the First 12 Amendment, to convey a claim that the cereal as a whole is healthy? No. For many of the 13 statements, the answer is surely no. Statements specifically about blueberries and whole grain and 14 fiber cannot reasonably be construed to address anything else. Even the statements that address 15 something more than a particular ingredient—such as, “WHOLESOME NUTRITION”—do not 16 make any implied claims beyond that, and certainly not any claim that is false. Plaintiffs have 17 previously referred generically to “context,” but they cannot identify anything in the context of the 18 cereal boxes that makes these statements claim anything beyond what they specifically say. 19 Here, the Court must guard against two analytical errors that Plaintiffs invite. First, it is 20 irrelevant whether the “context” itself—meaning the other, unchallenged statements—conveyed 21 the message that Plaintiffs challenge. If those other statements conveyed the message, Plaintiffs 22 are not challenging it. Context matters only insofar as it made the challenged statements convey 23 57 Ex. 19, Krommenhock Dep. 174:20-175:4, 191:1-18, 194:9-17, 265:22-25, 275:14-276:10; Ex. 24 18, Hadley Dep. 57:22-59:1, 207:13-208:19, 228:4-19; 298:10-17, 300:11-301:11, 303:2-15, 311:1-8. 58 25 Ex. 19, Krommenhock Dep. 63:20-64:1, 170:23-171:6; Ex. 18, Hadley Dep. 59:6-15. 59 Ex. 19, Krommenhock Dep. 55:19-21, 57:21-23, 95:14-17, 146:9-13, 174:1-13, 197:1-12. 60 26 Id. at 189:7-12, 190:8-191:8 (she wanted to know that almonds are in the product), 271:5-6, 275:2-276:10 (“raisins are good for you, so it’s got to be a healthful product” and she was “glad 27 that Post had that information on the label”); Ex. 18, Hadley Dep. 237:1-9 (“with Nutty Pecan Bunches” was important to him); 273:19-25 (“Nutritious Blueberries” is something “you want to 28 know when you look at the product”). 15 POST’S MOTION FOR SUMMARY JUDGMENT Case No. 3:16-cv-04958-WHO

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1 the challenged message. Second, it is not enough for Plaintiffs to prove that consumers understood 2 Post to say that the cereal contained a certain ingredient, such as blueberries, then drew their own 3 conclusion that the cereal was healthy because it contained blueberries. There, the consumers 4 would have concluded the cereal was healthy as a whole, but Post would not have made the 5 representation. What Plaintiffs must prove is that Post conveyed the message, through the specific 6 challenged statements, that the cereal was healthy as a whole. They have failed to do that. 7 What Plaintiffs are really arguing is that added sugar is so “toxic” that the government should 8 regulate food labels to bar them from truthfully describing other ingredients that consumers 9 consider “healthy,” at least in the absence of a warning about added sugar. But this is a health- 10 policy argument, not a misleading speech argument, which is why the First Amendment insists 11 that a party seeking to restrict speech actually prove that it is misleading. See Edenfield v. Fane, 12 507 U.S. 761, 770-71 (1993). Requiring proof that the statement itself is misleading prevents the 13 use of a “misleading” designation as a subterfuge to “restrict commercial speech in the service of 14 other objectives that could not themselves justify a burden on commercial expression.” Id. at 771. 15 Here, Plaintiffs have developed no proof that the statements they challenge actually conveyed 16 the “health” message to consumers that they argue is misleading. Their advertising expert testified 17 that he is “not offering an expert opinion on deception.”61 Instead he gives an ipse dixit opinion 18 that consumers take away a vague “healthy” message from the challenged packaging as a whole. 19 There are three problems with this. First, if a “healthy” message came from other aspects of the 20 packaging that Plaintiffs do not challenge, they cannot rest their claims on it. Plaintiffs’ expert 21 made no attempt to isolate the message conveyed just by the challenged statements, and Post’s 22 expert Dr. Van Liere conducted a survey finding “there is no evidence that the claimed statements 23 are causing more consumers to think these products are healthy when compared to the packaging 24 of these products without the allegedly misleading statements.”62 Second, if the only message that 25 was conveyed was that the particular ingredients were healthy—such as blueberries and whole 26 grain—Plaintiffs do not dispute that point. Their expert had to show that the statements claimed 27 61 Ex. 22, Silverman Dep. 231:24-236:17; 239:8-240:14. 62 28 Ex. 14, Van Liere Rep. ¶ 42. 16 POST’S MOTION FOR SUMMARY JUDGMENT Case No. 3:16-cv-04958-WHO

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1 the cereal was healthy as a whole, which he failed to do. Third, Plaintiffs’ expert has no factual 2 basis for any opinion, since he conducted no consumer research. Ex. 14, Van Liere Rep. ¶¶ 42. 3 The one focus group that Plaintiffs’ counsel did conduct showed that consumers understand 4 the limited context of the challenged statements. One consumer said “just because it says 5 wholesome doesn’t mean it’s healthy. That’s just a brand, you have to actually read the 6 ingredients.” Ex. 34, Nicholas Research Project 17-4390 Transcr PLTF3866 at 3873. Others 7 agreed: “to me the word wholesome doesn’t mean anything.” Id. at PLTF3874. Opinions on the 8 meaning of “No High Fructose Corn Syrup” were similar. As one consumer said, “I think you’re 9 better off with the no high fructose [corn] syrup but I don’t think that it will, doesn’t mean there 10 isn’t any sugar in it or natural sugars.” Id. Others agreed: “I think it’s part of health and wellness 11 but it obviously doesn’t encompass everything.” Id. 12 In sum, “[t]he commercial marketplace, like other spheres of our social and cultural life, 13 provides a forum where ideas and information flourish.” Sorrell v. IMS Health Inc., 564 U.S. 552, 14 579 (2011) (quoting Edenfield, 507 U.S. at 767. It ensures that “the speaker and the audience, not 15 the government, assess the value of the information presented.” Id. Here, Post’s challenged 16 statements truthfully tell consumers information they want to know about the ingredients and 17 attributes of its cereals. The statements are valuable and protected under the First Amendment. 18 The Court should therefore dismiss all of Plaintiffs’ claims.

19 C. The state cannot censor an alleged message that Post’s cereals are “healthy” despite containing added sugar because mainstream science supports that view. 20 Plaintiffs’ claims must be dismissed for another reason: When an issue is under scientific or 21 public debate, the First Amendment requires that the debate be settled by discussion and 22 persuasion—not by government declaring one side to be “false” and banning it. Here, mainstream 23 science agrees that nutrient-dense, sugar-sweetened cereals are like Post’s can be consumed 24 without adverse health effects. So even if the challenged statements implicitly made a claim that 25 the cereals were healthy overall, the statements would be protected as a matter of law. 26 Speech on debated issues lies at the heart of the First Amendment’s protections. If government 27 decisionmakers want to ban certain statements on food labels as scientifically false, they must 28 17 POST’S MOTION FOR SUMMARY JUDGMENT Case No. 3:16-cv-04958-WHO

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1 show that the scientific debate is over and the evidence is conclusive. “Where the evidence 2 supporting a [label] claim is inconclusive, the First Amendment permits the claim to be made.” 3 Alliance for Natural Health US v. Sebelius, 786 F. Supp. 2d 1, 24 (D.D.C. 2011) (discussing 4 Alliance for Natural Health US v. Sebelius, 714 F. Supp. 2d 48, 71 (citing Pearson v. Shalala, 164 5 F.3d 650 (D.C. Cir. 1999))); see Whitaker v. Thompson, 248 F. Supp. 2d 1, 10-11 (D.D.C. 2002) 6 (“complete ban of a [dietary-supplement label] claim” is permitted only “when there [is] almost no 7 qualitative evidence in support of the claim”). 8 Perhaps the best example of this principle is International Dairy Foods Ass’n v. Boggs, 622 9 F.3d 628 (6th Cir. 2010). Ohio tried to ban labels stating that milk from cows raised without 10 artificial hormones was “rbST free” or “artificial hormone free.” Id. at 637. The state considered 11 these statements misleading, but the Sixth Circuit noted that it was “still very much an open 12 question” whether “‘rbST free’ ... informs consumers of a meaningful distinction” between 13 different kinds of milk, or instead “misleads them into believing that” such a distinction exists. Id. 14 As a result, label statements on this debated issue were protected speech. Id. 15 California’s free-speech protections—including those for commercial speech—“are even 16 broader and greater” than the First Amendment’s. Gerawan Farming, Inc. v. Lyons, 12 P.3d 720, 17 735 (Cal. 2000) (citations and quotation marks omitted). California’s Article I reflects a separate 18 historic tradition under which the State regulated advertisements as misleading “only to the extent 19 that they were not immunized by the doctrine of caveat emptor.” 12 P.3d at 737, 738. Thus, 20 although no California courts have squarely addressed whether the federal and California state 21 constitutional tests are different in this context, see Bronco Wine Co. v. Jolly, 29 Cal. Rptr. 3d 462, 22 471 n.8 (Ct. App. 2005), giving broad protection to Post’s specific, truthful statements is 23 compelled by California’s constitutional tradition favoring “wide and unrestrained commercial 24 speech.” Gerawan Farming, 12 P.3d at 738. 25 As a result, Plaintiffs’ claims are barred by the U.S. and California Constitutions unless they 26 can persuade the Court that science has settled that the challenged cereals are “unhealthy.” Post 27 has explained above why they cannot possibly meet that standard. See supra at 6-10. Mainstream 28 18 POST’S MOTION FOR SUMMARY JUDGMENT Case No. 3:16-cv-04958-WHO

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1 science supports the view that nutrient-dense breakfast cereals sweetened with sugar provide a 2 wide range of health benefits and rejects Plaintiffs’ contrary view. Indeed, Plaintiffs’ own experts 3 candidly admit that their theory is a minority view struggling to find mainstream acceptance. Yet 4 Plaintiffs ask this Court to use government force to declare the mainstream scientific view to be 5 “false” or “deceptive” and to punish Post for speaking truthfully about its products. Plaintiffs have 6 not made the factual showing needed to allow that. If they can censor Post’s speech here, then any 7 State can ban commercial speech that it deems controversial by declaring one side of the 8 controversy to be “false.” That cannot be permitted. Plaintiffs’ claims must be dismissed.

9 II. Several Of Plaintiffs’ Remaining Claims Are Preempted By Federal Law. 10 Plaintiffs continue to challenge several FDA-approved nutrient content claims and health 11 claims. Under this Court’s previous rulings in this case, those parts of Plaintiffs’ claims must fail. 12 This Court addressed preemption under the Nutrition Labeling and Education Act (NLEA), 21 13 U.S.C. § 343-1(a)(4)-(5) in ruling on Post’s motions to dismiss. Dkt. 88 at 12-22 and Dkt. 116 at 14 10-16. There, the Court held that “Plaintiffs cannot rely on FDA-approved nutrient claims as part 15 of the basis for their … claim,” and dismissed several of Plaintiffs’ claims for this reason. Dkt. 88 16 at 19. As the Court held, FDA-authorized nutrient content claims include claims that “[s]uggest 17 that the food because of its nutrient content may help consumers maintain healthy dietary 18 practices” and “are made in connection with an explicit or implicit claim or statement about a 19 nutrient.” Dkt. 116 at 8 (citing 21 C.F.R. § 101.65(d)(1)). Implicit claims about nutrients include a 20 claim that a food is “a good source of,” “contains,” “provides,” or is an “excellent source of” a 21 nutrient. See Dkt. 88 at 20-21; Dkt. 116 at 12-13; 21 C.F.R. § 101.54(c)(1) (“‘good source,’ 22 ‘contains,’ or ‘provides,’ may be used … provided that the food contains 10 to 19 percent of the 23 RDI or the DRV”); id. § 101.54(b)(1) (“‘high,’ ‘rich in,’ or ‘excellent source of’ may be used … 24 provided that the food contains 20 percent or more of the RDI or the DRV”). They also include 25 claims that a food “is made with an ingredient that is known to contain a particular nutrient,” 21 26 C.F.R. § 101.65(c)(3), such as whole grains, see Dkt. 116 at 13-14. 27 28 19 POST’S MOTION FOR SUMMARY JUDGMENT Case No. 3:16-cv-04958-WHO

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1 Six statements that Plaintiffs continue to challenge are FDA-authorized implied nutrient 2 content claims, as shown in the following quotations:

3 • Bran Flakes: “CONTAINS DIETARY FIBER to Help Maintain Digestive Health.” 4 • Bran Flakes: “Whole grains provide fiber[63] and other important ingredients to help keep you healthy. Diets rich in whole grain foods and other plant foods, and low in total fat, 5 saturated fat and cholesterol, may help reduce the risk of heart disease and some cancers.64 Post Bran Flakes provides 21g whole grain per serving, that’s 44% of your day’s whole 6 grains!”65 7 • Raisin Bran: “Post Raisin Bran has 8g of natural fiber, making it an Excellent Source. Fiber is good for digestive health.”66 8 • Honey Bunches of Oats Greek67: “WHOLESOME NUTRITION: 5g of protein and 33g of 9 whole grain per serving, that’s over 2/3 of your day’s whole grain”68

10 • Honey Bunches of Oats Granola (Honey Roasted, Cinnamon, and Raspberry varieties): “With 3g of fiber and 34g of whole grain per serving, it’s the perfect combination of 11 wholesome goodness and honey-sweet crunch that everyone in your entire family will love.”69

12 • Alpha-Bits: “ALPHA-BITS IS A GOOD SOURCE OF NUTRIENTS THAT ARE BUILDING BLOCKS FOR YOUR CHILD’S DEVELOPING BRAIN: -IRON helps deliver 13 oxygen to the brain & body -ZINC helps brain & body cells grow and develop -B VITAMINS B1, B2, B6, & B12 help support a healthy nervous system”70 14 In their Complaint, Plaintiffs omitted the underlined portions of these label claims to prevent the 15 Court from seeing the context that shows them to be protected. As the Court ruled, however, 16 Plaintiffs “cannot excise” nutrient content claims that appear in the same sentence or paragraph as 17 the challenged phrases. Dkt. 116 at 12-14. These claims should thus be dismissed as preempted. 18 This Court previously found the quoted statements on Bran Flakes not protected by federal law 19 because “[t]here are no direct statements about the contents of the products at issue,” and it found 20 the quoted statement on Raisin Bran not federally authorized because it did not relate to the 21 22 63 This is a classic example of the ingredient-nutrient relationship statement authorized by 21 23 C.F.R. § 101.65(c)(3). 64 This is a FDA-authorized health claim under 21 U.S.C. § 343(r)(3)(C), which is why Plaintiffs 24 do not challenge it. See Ex. 64, U.S. Food & Drug Admin. Health Claim Notification for Whole Grain Foods with Moderate Fat Content, https://www.fda.gov/food/food-labeling- 25 nutrition/health-claim-notification-whole-grain-foods-moderate-fat-content. 65 See Pls’ Ex. 15, Dkt. 142-19 at 5-9. 66 26 See Pls’ Ex. 13, Dkt. 142-17 at 7. 67 Encompasses Greek Honey Crunch and Greek Mixed Berry. 68 27 See Pls’ Ex. 9, Dkt. 142-12 at 42-53. 69 See Pls’ Ex. 11, Dkt. 142-15 at 8, 12, 15. 70 28 See Pls’ Ex. 19, Dkt. 142-23 at 6. 20 POST’S MOTION FOR SUMMARY JUDGMENT Case No. 3:16-cv-04958-WHO

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1 product at issue. Id. 15-16. Post respectfully requests that Court reconsider those conclusions in 2 light of the immediately surrounding context of these statements, which clarifies that they do 3 relate to the products: “contains dietary fiber”; “Bran Flakes provides 21g of whole grain per 4 serving”; “Post Raisin Bran has 8g of natural fiber, making it an Excellent Source.” As noted 5 above, “contains,” “provides,” and “excellent source” are regulated terms that by law imply a 6 specific level of a nutrient in the labeled product. 7 Finally, Plaintiffs continue to challenge a statement that is a protected health claim. The 8 statement appears next to an image of a heart on several Honey Bunches of Oats products and 9 says: “Heart Healthy - Diets low in saturated fat and cholesterol, and as low as possible in trans 10 fat, may reduce the risk of heart disease.”71 This is an authorized health claim under the FDA 11 Modernization Act (FDAMA), 21 U.S.C. § 343(r)(3)(C). FDAMA authorizes certain health claims 12 if they are submitted to the FDA at least 120 days before use.72 This particular heart-health claim 13 was submitted to and approved by the FDA in 2006.73 14 Plaintiffs attempt to avoid preemption by challenging only the words “Heart Healthy” and the 15 heart image, not the immediately adjacent claim describing the nutrient-disease relationship. But 16 FDAMA authorizes any health claim that “is stated in a manner so that the claim is an accurate 17 representation of the authoritative statement … and so that the claim enables the public to 18 comprehend the information provided in the claim….” 21 U.S.C. § 343(r)(3)(C)(iv). Also, 19 FDAMA claims are subject to 21 C.F.R. § 101.14(d)(2)74—which allows accompanying 20 statements and graphic material like heart symbols. Courts therefore recognize that statements like 21 “heart healthy,” in conjunction with FDA health claim language, are authorized health claims. See 22

71 23 See Pls’ Ex. 9, Dkt. 142-9 at 28 (Honey Roasted); Dkt. 142-10 at 13 (Almond); Dkt. 142-11 at 41 (Cinnamon); Dkt. 142-12 at 27 (Banana Blueberry), 32 (Peach Raspberry). 72 24 See Ex. 52, Guidance for Industry: Notification of a Health Claim or Nutrient Content Claim Based on an Authoritative Statement of a Scientific Body (June 1998), 25 https://www.fda.gov/regulatory-information/search-fda-guidance-documents/guidance-industry- notification-health-claim-or-nutrient-content-claim-based-authoritative-statement 73 26 Ex. 53, FDA, Health Claim Notification for Saturated Fat, Cholesterol, and Trans Fat, and Reduced Risk of Heart Disease, https://www.fda.gov/food/food-labeling-nutrition/health-claim- 27 notification-saturated-fat-cholesterol-and-trans-fat-and-reduced-risk-heart-disease. 74 See Ex. 52, Guidance for Industry: Notification of a Health Claim at 5 (“Foods bearing health 28 claims based on authoritative statements should comply with … 21 C.F.R. § 101.14”). 21 POST’S MOTION FOR SUMMARY JUDGMENT Case No. 3:16-cv-04958-WHO

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1 In re Quaker Oats Labeling Litig., 2012 WL 1034532, at *3 (N.D. Cal. Mar. 28, 2012); Hadley v. 2 Kellogg Sales Co., 273 F. Supp. 3d 1052, 1075-76 (N.D. Cal. 2017) (challenges to “heart healthy” 3 statements would be preempted if they were used with an authorized health claim). 4 Plaintiffs’ challenge to these label statements are preempted and should be dismissed.

5 III. Plaintiffs Lack Evidence Entitling Them To Any Remedy. 6 For their future alleged injuries, Plaintiffs seek an injunction. For their past alleged injuries, 7 they seek damages. But they lack any admissible evidence of damages, and they lack standing to 8 see an injunction. For these reasons alone, all their claims fail as a matter of law.

9 A. Plaintiffs do not have standing to seek injunctive relief. 10 Under Article III of the Constitution, a plaintiff does not have standing to sue for injunctive 11 relief unless the plaintiff identifies a “certainly impending” harm. See Clapper v. Amnesty Int’l 12 USA, 568 U.S. 398, 401 (2013). Plaintiffs cannot make that showing. 13 Ordinarily, a consumer who has discovered an alleged deceptive practice cannot show a 14 certainly impending future harm because she will not be deceived again. The Ninth Circuit, 15 however, has identified two situations where “a previously deceived consumer may have standing 16 to seek an injunction against false advertising or labeling, even though the consumer now knows 17 or suspects that the advertising was false.” Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 969 18 (9th Cir. 2018). The first is where the consumer “would like to” buy the product again but “will 19 not” because “she will be unable to rely on the product’s advertising or labeling” without an 20 injunction. Id. at 970. The second is where the consumer “might purchase the product in the 21 future” because “she may reasonably, but incorrectly, assume the product was improved.” Id. 22 For two reasons, Plaintiffs do not fall within these exceptions. First, both exceptions require a 23 possibility of future purchase—but Plaintiffs testified that they will not buy the challenged cereals 24 again, period. Hadley testified that he hasn’t purchased breakfast cereal since August 2016 and 25 that he now eats “zero” cereal. Ex. 18, Hadley Dep. 66:24-25; 189:2-16. He agreed that “no matter 26 what Post did with its labels at this point, [he] would not buy the products again because they have 27 like 6 or 7 or 8 grams of sugar.” Id. at 344:21-345:1. Likewise, Krommenhock testified that she 28 22 POST’S MOTION FOR SUMMARY JUDGMENT Case No. 3:16-cv-04958-WHO

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1 thinks of sugar “as turpentine” because both are poison. Ex. 19, Krommenhock Dep. 285:25- 2 286:2; 298:5-13. She does not buy Post cereals, has not bought them since she filed this lawsuit, 3 and cannot think of anything that could change to make her want to buy them.75 Injunctive relief is 4 hence foreclosed because, even under Davidson, “a plaintiff lacks standing if he has not expressed 5 an intent to purchase the products in the future.” In re ConAgra Foods, Inc., 302 F.R.D. 537, 575 6 (C.D. Cal. 2014) (editing and quotation marks omitted). 7 Second, Plaintiffs will not be harmed again because Post’s labels already prominently and 8 accurately disclose the sugar content of its cereals, and Plaintiffs can use them to determine how 9 much sugar the cereals contain and whether the formulas have changed. 76 Plaintiffs’ claim is only 10 that they were previously misled about the health effects of cereals with added sugar. But they 11 now profess to understand those effects, so Post’s sugar disclosures tell them exactly what they 12 need to know. This case is thus very different from Davidson and other product-labeling 13 precedents “where the plaintiff could not easily discover whether a previous misrepresentation had 14 been cured without first buying the product at issue.” Cordes v. Boulder Brands USA, Inc., 2018 15 WL 6714323, at *4 (C.D. Cal. Oct. 17, 2018). Here, Plaintiffs “could easily determine” whether 16 the amount of sugar has changed, and they therefore lack standing to sue for injunctive relief. Id.

17 B. Plaintiffs lack evidence to support money relief. 18 As we explain in our Daubert and class-certification briefing, Plaintiffs’ classwide damages 19 evidence is inadmissible and does not match their theories of liability. And Plaintiffs have not 20 tried to adduce any separate evidence supporting individual money awards. That requires 21 dismissing all of Plaintiffs’ claims for monetary relief on all of their claims. 22 In addition, it requires dismissing Plaintiffs’ warranty claim in full. Plaintiffs seek only money 23 damages on that claim. Dkt. 92, SAC ¶ 403. By law, those damages would be the difference 24

75 25 Ex. 19, Krommenhock Dep. 130:7-11; 216:12-20; 325:15-20; Dkt. 160-1, Krommenhock Decl. ¶¶ 2, 4. 76 26 See Pls’ Ex. 7, 9, 11, 13, 15, 17, 19, 21 (Dkt. 142-7, -9, -10, -11, -12, -15, -17, -19, -21, -23, - 25); see also Ex. 5-9. Most of Post’s current boxes display the total sugar content on the front. See 27 Ex. 5 at 10, 20, 23; Ex. 6 at 11; Ex. 7 at 7, 9; Ex. 8 at 3, 6, 9-10; Ex. 9 at 8, 16; Pls’ Ex. 13, Dkt. 142-17 at 17; Pls’ Ex. 19, Dkt. 142-23 at 10. No later than Jan. 1, 2020, all of Post’s cereal boxes 28 will disclose added sugars in the Nutrition Facts Panel. See 83 Fed. Reg. 19619 (May 4, 2018). 23 POST’S MOTION FOR SUMMARY JUDGMENT Case No. 3:16-cv-04958-WHO

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1 between “the value of the goods accepted” and the value of goods “as warranted.” Cal. Com. Code 2 § 2714(2). Plaintiffs make only one attempt to measure this difference: they offer expert testimony 3 arguing that the challenged label claims resulted in a “price premium,” elevating the cereals’ value 4 above what it would have been without the challenged labels.77 The caselaw agrees that the 5 measure of damages for a warranty claim like this is the same as the measure of restitution for the 6 parallel consumer-protection claims. See Caldera v. J.M. Smucker Co., 2014 WL 1477400, at *4 7 & n.2 (C.D. Cal. Apr. 15, 2014); Price v. L’Oreal USA, Inc., 2018 WL 3869896, at *9 & n.5 8 (S.D.N.Y. Aug. 15, 2018); Victorino v. FCA US LLC, 326 F.R.D. 282, 304 (S.D. Cal. 2018); 9 Guido v. L’Oreal, USA, Inc., 2013 WL 3353857, at *14 (C.D. Cal. July 1, 2013); Miller v. Fuhu 10 Inc., 2015 WL 7776794, at *19-20 (C.D. Cal. Dec. 1, 2015). 11 If the Court excludes Plaintiffs’ price-premium evidence, they will have no remedial evidence 12 for their warranty claim. And if the Court finds that the price-premium measurements do not 13 match Plaintiffs’ theory of liability, they will have no proof that their alleged damages were 14 caused by any breach. In either case, the warranty claim fails. See Khachatryan v. Toyota Motor 15 Sales U.S.A. Inc., 2009 WL 9537648, at *2-3 (C.D. Cal. Oct. 28, 2009) (entering judgment for 16 defendant on implied-warranty claim because Plaintiff failed to prove damages); Design Built Sys. 17 v. Sorokine, 32 Cal. App. 5th 676, 683 (2019) (describing similar ruling).

18 IV. Post Is Entitled To Judgment Against Plaintiffs’ Claim For Punitive Damages. 19 Punitive damages are available only for Plaintiffs’ CLRA claim, so if the Court agrees that 20 Post is entitled to summary judgment on that claim for any of the reasons above, the punitive- 21 damages issue is moot. Regardless, the Court should grant summary judgment against punitive 22 damages because Plaintiffs’ claim for them is baseless. 23 California allows punitive damages only for wrongdoing that is intentional or “despicable.” 24 Cal. Civ. Code § 3294(a), (c). A plaintiff seeking punitive damages against a business entity must 25 show such misconduct by “an officer, director, or managing agent of [the] Defendants.” In re 26

77 27 Plaintiffs’ separate “demand model” purports to measure additional sales of the challenged cereals, not the value of individual boxes of cereal, and therefore is inapposite to their warranty 28 claim. 24 POST’S MOTION FOR SUMMARY JUDGMENT Case No. 3:16-cv-04958-WHO

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1 Yahoo! Inc. Customer Data Sec. Breach Litig., 313 F. Supp. 3d 1113, 1147-48 (N.D. Cal. 2018). 2 This must be “proven by clear and convincing evidence.” Cal. Civ. Code § 3294(a). 3 Plaintiffs cannot make that showing here. As demonstrated above, the mainstream scientific 4 view holds that nutrient-dense cereals like Post’s are indeed healthy. There was nothing 5 “despicable” about Post either selling healthy cereals or using packaging that highlighted some of 6 the cereals’ healthy ingredients or attributes, like whole grains, fiber, vitamins and minerals, and 7 so on. See supra at 4-10, 14-17. And this is true even if some Post personnel learned of the 8 minority view of some scientists that sugar is especially dangerous.78 Following the majority view 9 instead of that minority view is not “despicable.” 10 Plaintiffs’ claim for punitive damages, like their other claims, fails as a matter of law. See Pac. 11 Gas & Elec. Co. v. Sup. Ct., 24 Cal. App. 5th 1150, 1171-72 (2018) (granting summary judgment 12 on punitive damages where plaintiffs’ evidence amounted to mere criticisms of the defendant’s 13 risk management system); Am. Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton, 96 Cal. 14 App. 4th 1017 (2002) (granting summary judgment on punitive damages when the defendant “did 15 not willfully and deliberately fail to avoid” the harmful consequences of his conduct).

16 CONCLUSION 17 Plaintiffs’ claims should be dismissed with prejudice. 18 DATED: June 28, 2019 19

21 22 23 24 25

78 26 See Ex. 33, Email re “Sugar Study,” K_P58776 (passing on an article entitled “Glaring Flaws in Sugar Toxicity Study”); Ex. 41, Rebecca Goldin, Glaring Flaws in Sugar Toxicity Study, Sense 27 about Science USA (Oct. 27, 2015), https://senseaboutscienceusa.org/glaring-flaws-in-sugar- toxicity-study/ (describing flaws in study by Dr. Lustig, including the lack of a control group, the 28 fact that the children lost weight in the course of the study, and other errors). 25 POST’S MOTION FOR SUMMARY JUDGMENT Case No. 3:16-cv-04958-WHO

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/s/ Aaron Van Oort 1 FAEGRE BAKER DANIELS LLP SARAH L. BREW (pro hac vice) 2 AARON D. VAN OORT (pro hac vice) NATHANIEL J. ZYLSTRA (pro hac vice) 3 NICHOLAS J. NELSON (pro hac vice) EMILY R. ZAMBRANA (pro hac vice) 4 90 South 7th Street, Suite 2200 Minneapolis, Minnesota 55402 5 Telephone: +1.612.766.7000 Facsimile: +1.612.766.1600 6 [email protected] [email protected] 7 [email protected] [email protected] 8 [email protected]

9 FAEGRE BAKER DANIELS LLP TARIFA B. LADDON (SBN 240419) 10 11766 Wilshire Blvd., Suite 750 Los Angeles, CA 90025 11 Telephone: +1.310.500.2090 Facsimile: +1.310.500.2091 12 Email: [email protected]

13 Attorneys for Defendant Post Foods, LLC

14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 26 POST’S MOTION FOR SUMMARY JUDGMENT Case No. 3:16-cv-04958-WHO