The other decision in which a court judicially noticed product labeling does not articulate why the court did so, and it is therefore unpersuasive. See Stephenson v. Neutrogena Corporation, No. C 12–0426 PJH, 2012 WL 8527784, *2 (N.D.Cal. July 27, 2012) (“Defendant also requests that the court take judicial notice of the product labeling and/or packaging for the Neutrogena Naturals products at issue.... As to the purifying cleanser, the court grants defendant's request to take judicial notice of the product's label”). The incorporation by reference doctrine “permits a district court to consider documents ‘whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the [plaintiff's] pleadings.’ ” In re Silicon Graphics Inc. Securities Litigation, 183 F.3d 970, 986 (9th Cir.1999) (citing Branch, 14 F.3d at 454).
Other courts have adopted a “middle-ground” position, holding that sufficient or substantial similarity between the purchased and non-purchased products satisfies the standing requirement for the non-purchased products. See Astiana v. Dreyer's Grand Ice Cream, Inc., No. 11–cv–2910 EMC, 2012 WL 2990766, at *11 (N.D.Cal. July 20, 2012); see also Anderson v. Jamba Juice Co., 888 F.Supp.2d 1000, 1006 (N.D.Cal.2012); cf. Stephenson v. Neutrogena, No. 12–cv–00426 PJH, 2012 WL 8527784, at *1 (N.D.Cal. July 27, 2012) (assessing whether “an individualized factual inquiry [would be] needed for each product” that the named plaintiff did not purchase). Finally, some courts have concluded that so long as a named plaintiff has individual standing to sue for the products they did purchase, any inquiry into products they did not purchase is best left for the class certification stage.
The court evaluated sufficient similarity with regard to each type of alleged mislabeling at issue and concluded that where the "determination of claims depend on [] context- specific analysis, requiring information about the food composition or actual labels" that had not been presented to the court, those claims could not be pursued on behalf of unpurchased products. Id. at *44-45; see also Stephenson v. Neutrogena Corp., No. C 12-0426 PJH, 2012 U.S. Dist. LEXIS 105099, *3 (N.D. Cal. July 27, 2012) (characterizing the question as whether "the purchased product(s) were similar enough to the unpurchased products such that an individualized factual inquiry was not needed for each product"). Recognizing the varying analyses in this District regarding substantially similar products in class actions at the pleading stage, I conclude that the best approach is one which focuses on whether the type of claim and consumer injury is substantially similar as between the purchased and unpurchased products.
Astiana v. Dreyer's Grand Ice Cream, Inc., 11-cv-2910-EMC, 2012 WL 2990766, at *11 (N.D. Cal. July 20, 2012); Anderson v. Jamba Juice Co., 888 F.Supp.2d 1000, 1006 (N.D. Cal. 2012). If the products are similar enough that " an individualized factual inquiry [is] not needed for each product," then there should be no dismissal for lack of standing. Stephenson v. Neutrogena, No. 12-cv-00426 PJH, at *3 (N.D. Cal. July 27, 2012). But if there is insufficient similarity, this line of cases holds that dismissal for lack of standing is appropriate.
However, "[t]he majority of the courts that have carefully analyzed the question hold that a plaintiff may have standing to assert claims for unnamed class members based on products he or she did not purchase so long as the products and alleged misrepresentations are substantially similar." Miller v. Ghirardelli Chocolate Co., --- F. Supp. 2d ---, 2012 WL 6096593, *6 (N.D. Cal. Dec. 7, 2012) (citing, Stephenson v. Neutrogena, 2012 U.S. Dist. LEXIS 1005099 (N.D. Cal. July 27, 2012) (dismissing claims based on products not purchased because the purchased products were not "similar enough to the unpurchased products such that an individualized factual inquiry was not needed for each product"); Astiana v. Dreyer's Grand Ice Cream, Inc., 2012 WL 2990766, *11 (N.D.Cal. July 20, 2012) (noting that in most reasoned opinions, "the critical inquiry seems to be whether there is sufficient similarity between the products purchased and not purchased"); Anderson v. Jamba Juice, 888 F. Supp. 2d 1000, 1005-06 (N.D. Cal. 2012) (relying on Astiana for the same proposition)).
And in Stephenson v. Neutrogena, the court dismissed claims based on products not purchased where plaintiff brought suit over six Neutrogena Naturals products but had only purchased the purifying facial cleanser. Stephenson v. Neutrogena, No. C-12-0426 PJH, 2012 U.S. Dist. LEXIS 1005099, at *1 (N.D. Cal. Jul. 27, 2012).
The majority of the courts that have carefully analyzed the question hold that a plaintiff may have standing to assert claims for unnamed class members based on products he or she did not purchase so long as the products and alleged misrepresentations are substantially similar. See, e.g., Stephenson v. Neutrogena, No. 12–cv–00426 PJH, 2012 U.S. Dist. LEXIS 1005099 (N.D.Cal. July 27, 2012) (dismissing claims based on products not purchased because the purchased products were not “similar enough to the unpurchased products such that an individualized factual inquiry was not needed for each product”); see Astiana v. Dreyer's Grand Ice Cream, Inc., No. C–11–2910 EMC, 2012 WL 2990766, at *11 (N.D.Cal. July 20, 2012) (noting that in most reasoned opinions, “the critical inquiry seems to be whether there is sufficient similarity between the products purchased and not purchased”); see also Anderson v. Jamba Juice, 888 F.Supp.2d 1000, 1005–06 (N.D.Cal.2012) (relying on Dreyer's for the same proposition). For example, in Dreyer's, the plaintiffs found sufficient similarity where the plaintiffs challenged:
The majority of the courts that have carefully analyzed the question hold that a plaintiff may have standing to assert claims for unnamed class members based on products he or she did not purchase so long as the products and alleged misrepresentations are substantially similar. See, e.g., Stephenson v. Neutrogena, No. 12–cv–00426 PJH, 2012 U.S. Dist. LEXIS 1005099 (N.D.Cal. July 27, 2012) (dismissing claims based on products not purchased because the purchased products were not “similar enough to the unpurchased products such that an individualized factual inquiry was not needed for each product”); see Astiana v. Dreyer's Grand Ice Cream, Inc., No. C–11–2910 EMC, 2012 WL 2990766, at *11 (N.D.Cal. July 20, 2012) (noting that in most reasoned opinions, “the critical inquiry seems to be whether there is sufficient similarity between the products purchased and not purchased”); see also Anderson v. Jamba Juice, 888 F.Supp.2d 1000, 1005–06 (N.D.Cal.2012) (relying on Astiana for the same proposition). For example, in Astiana, the plaintiffs found sufficient similarity where the plaintiffs challenged:
The majority of the courts that have carefully analyzed the question hold that a plaintiff may have standing to assert claims for unnamed class members based on products he or she did not purchase so long as the products and alleged misrepresentations are substantially similar. See, e.g., Stephenson v. Neutrogena, No. 12-cv-00426 PJH, 2012 U.S. Dist. LEXIS 1005099 (N.D. Cal. July 27, 2012) (dismissing claims based on products not purchased because the purchased products were not "similar enough to the unpurchased products such that an individualized factual inquiry was not needed for each product"); see Astiana v. Dreyer's Grand Ice Cream, Inc., No. C-11-2910 EMC, 2012 WL 2990766, at *11 (N.D. Cal. July 20, 2012) (noting that in most reasoned opinions, "the critical inquiry seems to be whether there is sufficient similarity between the products purchased and not purchased"); see also Anderson v. Jamba Juice, No. 12-cv-01213 YGR, 2012 U.S. Dist. LEXIS 120723, at *13-14 (N.D. Cal. Aug. 25, 2012) (relying on Astiana for the same proposition). For example, in Astiana, the plaintiffs found sufficient similarity where the plaintiffs challenged: