348 F. Supp. 3d 120
E.D.N.Y2018Background
- Plaintiff Joseph Colella sued Atkins Nutritionals under N.Y. Gen. Bus. Law §§ 349 and 350 and for breach of express warranty, alleging Atkins misleadingly labeled products with "X g Net Carbs," excluded sugar alcohols from that count, used the phrase "Only Xg Net Carbs," and stated sugar alcohols "minimally impact blood sugar."
- Plaintiff purchased three Atkins products and relied on label representations; he included an exemplar label (not one he purchased) showing the Net Carbs calculation subtracting fiber and sugar alcohols.
- Defendant moved to dismiss under Fed. R. Civ. P. 12(b)(6) raising federal preemption (FDCA/NLEA), primary jurisdiction, pleading defects, failure to allege injury, lack of warranty notice, and lack of standing for injunctive relief.
- The FDA has long-regulated carbohydrate and sugar-alcohol disclosure, has reviewed "net carbs" issues, declined to adopt a single formula, issued warning letters to some companies, and indicated it does not generally object to quantitative net carb statements when adequately explained.
- The court dismissed with prejudice claims challenging the quantitative "Xg Net Carbs" statements and the Net Carbs calculation method as preempted and/or subject to primary jurisdiction; dismissed breach of warranty for failure to plead notice; dismissed injunctive-relief claim for lack of standing; left claims about "Only Xg Net Carbs" and the statement that sugar alcohols "minimally impact blood sugar" viable but dismissed without prejudice to repleading.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Preemption of quantitative "Xg Net Carbs" and calculation method | Colella: Net Carbs statements are not nutrient-content claims and are not preempted; state consumer-protection claims can proceed, especially if statements are false/misleading | Atkins: NLEA/FDCA and implementing regs preempt non-identical state rules about nutrient-content claims; FDA permits quantitative net-carb claims when truthful and explained | Quantitative "Xg Net Carbs" and the calculation method are nutrient-content claims and state-law challenges to those quantitative statements/calculations are preempted; those claims dismissed |
| Preemption of "Only Xg Net Carbs" and "sugar alcohols minimally impact blood sugar" statements | Colella: These statements are misleading and false; not preempted because they are non-nutrient content or contest factual accuracy | Atkins: Same preemption argument; also FDA is primary regulator | Court: "Only Xg Net Carbs" (implied claim) and the statement about sugar alcohols are not preempted; those aspects may proceed (dismissed without prejudice to replead) |
| Primary jurisdiction over Net Carbs calculation and quantitative claims | Colella: Misleadingness is a judicial question; no need to defer to FDA | Atkins: FDA has technical expertise and has considered net-carb issues; primary jurisdiction applies | Primary jurisdiction applies to the quantitative Net Carbs figures and calculation method (court stayed/dismissed those claims to defer to FDA); it does not apply to falsity of the sugar-alcohol-impact statement |
| Sufficiency of NY GBL §§ 349/350 and injury pleading | Colella: Alleged reliance and payment for products; paid a premium due to labeling | Atkins: Facts are conclusory; no specifics on purchase price, dates, or premium; exemplar not shown to be the purchased product | Court: Plaintiff failed to plead material misleadingness and concrete injury with specificity; NYGBL claims (as to preempted matters also dismissed) are insufficient as pleaded |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (standards for pleading plausibility)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (plausibility and Rule 8 pleading)
- POM Wonderful LLC v. Coca-Cola Co., 573 U.S. 102 (FDA authority over food labeling matters)
- Riegel v. Medtronic, Inc., 552 U.S. 312 (preemption of state-law duties by federal requirements)
- Bates v. Dow Agrosciences LLC, 544 U.S. 431 (preemption analysis when federal law addresses same subject)
- Cipollone v. Liggett Group, Inc., 505 U.S. 504 (presumption against preemption context)
- United States v. W. Pac. R.R. Co., 352 U.S. 59 (doctrine of primary jurisdiction)