Daniel v. Mondelez Int'l, Inc.
287 F. Supp. 3d 177
E.D.N.Y2018Background
- Plaintiff Tamika Daniel, a New York consumer, sued Mondelez alleging the Swedish Fish "theater box" contains non-functional slack-fill that misrepresents quantity, violating N.Y. Gen. Bus. Law §§ 349 and 350 and common-law fraud.
- Plaintiff bought two boxes (one in 2016, one on Dec. 8, 2016 for $1.08), alleges she relied on box size and would not have paid that price had she known the box was largely empty.
- Packaging: a transparent plastic pouch inside a ~6-inch thin cardboard box; net weight, serving size (7 pieces) and servings (2) are printed on the label. Plaintiff attached photos and compared the box to other gummy candies (e.g., Trolli Sour Brite Crawlers minis, Dots).
- Plaintiff alleges the slack-fill is non-functional under FDA regulation 21 C.F.R. § 100.100(a) and parallel NY law; she seeks monetary and injunctive relief and attorneys’ fees.
- Mondelez moved to dismiss under Rules 12(b)(6) and 9(b). The court considered packaging photographs and label text submitted with the motion because they are integral and undisputed.
- The court dismissed all claims, granted leave to amend only the statutory claims, and held Plaintiff lacks Article III standing to seek injunctive relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing for injunctive relief | Daniel says future injury is likely and advances theories to avoid third-party standing limits | Mondelez: no intent to repurchase; no likely future injury | Court: No standing for injunctive relief—past purchases alone do not show imminent future injury; novel arguments rejected |
| Whether slack-fill as pleaded is non-functional under FDA/NY rules | Slack-fill is excessive; comparisons to other candy boxes show non-functional slack-fill | Mondelez: plaintiff pleads only conclusory allegations and fails to show comparators are materially similar | Court: Allegations about non-functional slack-fill are conclusory; comparisons insufficient in complaint; fails to plead non-functional slack-fill plausibly |
| Materiality under NY GBL §§ 349 & 350 (would a reasonable consumer be misled?) | Size of box (and enlarged candy image) misleads consumers despite accurate net weight/serving disclosures | Mondelez: accurate, visible net weight and count disclaim any deception; context matters | Court: Accurate, clear net weight/serving disclosures and context defeat per se materiality; plaintiff failed to plead that a reasonable consumer would be misled |
| Common‑law fraud (including reliance) | Implied misrepresentation of quantity from packaging; plaintiff relied on box size | Mondelez: label disclosures make reliance unreasonable; fraud claims require particularized facts under Rule 9(b) | Court: Fraud dismissed—plaintiff could have discovered true quantity from label or by simple inspection, so reasonable reliance is lacking; Rule 9(b) not satisfied |
Key Cases Cited
- Orlander v. Staples, Inc., 802 F.3d 289 (2d Cir. 2015) (elements of GBL § 349/350 claims and materiality/reasonable consumer standard)
- Fink v. Time Warner Cable, 714 F.3d 739 (2d Cir. 2013) (contextual reasonable consumer inquiry)
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (pleading standards; conclusory allegations insufficient)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (plausibility pleading standard)
- Small v. Lorillard Tobacco Co., 94 N.Y.2d 43 (N.Y. 1999) (limits on "deception as injury" under NY law)
- Stutman v. Chemical Bank, 95 N.Y.2d 24 (N.Y. 2000) (distinguishing deceptive practice and injury under GBL § 349)
- Ebner v. Fresh, Inc., 838 F.3d 958 (9th Cir. 2016) (net weight disclosure and slack-fill context)