DUVAL CLEMMONS, individuаlly and on behalf of all others similarly situated v. UPFIELD US INC.
Case 1:22-cv-00355-PKC
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
March 31, 2023
CASTEL, U.S.D.J.
Document 19
CASTEL, U.S.D.J.:
Plaintiff Duval Clemmons brings a putative class action against defendant Upfield US Inc., alleging that the labeling on one of the company‘s “plant butter” products misrepresents that the plant butter is made predominantly with olive oil. Contrary to his expectations based on the product packaging, the product was composed mostly of palm and canola oils, and olive oil—while undeniably present—was only the smallest constituent in a four-oil blend.
The Complaint asserts claims for violation of sections
I. BACKGROUND
A. Factual Background
For purposes of a motion to dismiss, the Court accepts the Complaint‘s well-pleaded factual allegations as true, drawing all reasonable inferences in favor of the non-movant, Clemmons. In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007).
Upfield is the largest manufacturer of margarines and “plant-based” consumer products in the world. (Compl. ¶ 37) Relevant here, the company markets and sells a spread labeled “Country Crock Plant Butter Made With Olive Oil” (“the Product“).1 (Id. ¶ 1) The Product is marketed as “Dairy Free,” and its packaging is green-themed with pictures of olives. (Id.) The Complaint includes the following image of the packaging:
(Id.)
The Complaint asserts that the packaging is misleading because, despite the olive imagery and the highlighted statement “Made With Olive Oil,” the Product is made mostly of palm and canola oil. The Complaint alleges that the Product packaging includes following ingredient list:
INGREDIENTS: BLEND OF PLANT-BASED OILS (PALM FRUIT, PALM KERNEL, CANOLA AND OLIVE OIL), WATER, SALT, PEA PROTEIN, SUNFLOWER LECITHIN, CITRIC ACID, VITAMIN A PALMITATE, NATURAL FLAVOR, BETA CAROTENE (COLOR)
(Id. ¶ 16) The first ingredient is a “blend of plant-based oils,” which consists of palm fruit oil, palm kernel oil, canola oil, and
The Complaint states that olive oil is sought out by consumers as a healthy alternative to butter, other oils, and spreads. (Id. ¶¶ 19-21) Additionally, an increasing number of consumers seek out plant-based foods due to the perceived health benefits and lower environmental impaсt of such products. (Id. ¶ 12) Consumers may also understand “plant-based” products to have only natural ingredients.3 (Id. ¶ 11)
The Complaint alleges that the Product has been labeled to take advantage of these consumer trends and to mislead consumers seeking out the health benefits of olive oil into purchasing a product that is “indistinguishable” from margarine. (Id. ¶¶ 8-10, 14) In contrast to
the above trends, consumers have moved away from margarine due to rising consumer awareness of potential negative health effects associated with trans fats and other margarine components. (Id. ¶¶ 4-6) The Product is alleged to have a fat content of 79%, which just narrowly avoids the 80% threshold that would require classification in the disfavored category of margarine. (Id. ¶¶ 3, 8) Other diffеrences between the Product‘s ingredients and those of margarine are alleged to be minimal. (Id. ¶ 9)
Clemmons alleges he purchased the Product on at least one occasion in Bronx County, New York between July 2021 and December 2021. (Id. ¶ 42) When deciding to purchase the Product, Clemmons observed the phrase “Made With Olive Oil” and the pictures of olives on the label; on this basis, he believed olive oil would be the main oil used in the Product. (Id. ¶¶ 43-47) Clemmons states that had he known that olive oil was only a minor ingredient, he would not have made the purchase, or at minimum would have paid less. (Id. ¶¶ 52-54).
B. Procedural History
Clemmons filed his Complaint on January 14, 2022. He seeks to represent a class of consumers in New York, as well as a Multi-State Class comprising consumers in Michigan, Montana, Rhode Island, Georgia, North Dakota, Virginia, South Dakota, and Oklahoma. (Id. ¶ 57) The Complaint asserts claims for (1) violation of sections
Upfield moved to dismiss the Complaint in its entirety (Dkt. 14) and filed an accompanying memorandum of law (Dkt. 15) (“Def. Br.“). Clemmons filed a response in which he withdrew his request for injunctive
II. LEGAL STANDARD FOR MOTION TO DISMISS UNDER RULE 12(B)(6)
To survive a
“The choice between two plausible inferences that may be drawn from factual allegаtions is not a choice to be made by the court on a
III. DISCUSSION
A. Plaintiff‘s State Law Claims Are Not Preempted
As an initial matter, Upfield argues that Clemmons‘s state law claims are expressly preempted by the Food, Drug, and Cosmetic Act (“FDCA“), as amended by the Nutrition Labeling and Education Act of 1990 (“NLEA“). See
Section
The Food and Drug Administration (“FDA“) sets rules for how these nutrients must be displayed in the Nutrition Facts panel on a food product, see generally
unless the claim is made in accordance with this regulation. . . .“). These claims are divided into two types. “An expressed nutrient content claim is any direct statement about the level (or range) of a nutrient in the food, e.g., ‘low sodium’ or ‘contains 100 calories.‘”
(i) Describes the food or an ingredient therein in a manner that suggests that a nutrient is absent or present in a certain amоunt (e.g., “high in oat bran“); or
(ii) Suggests that the food, because of its nutrient content, may be useful in maintaining healthy dietary practices and is made in association with an explicit claim or statement about a nutrient (e.g., “healthy, contains 3 grams (g) of fat“).
One of the changes made by the NLEA to the FDCA was the addition of an express preemption provision. In enacting this change, “Congress declared that the NLEA ‘shall not be construed to preempt any provision of State law, unless such provision is expressly preempted under section 343-1(a) of the FDCA.‘” Korte v. Pinnacle Foods Grp., LLC., 17 Civ.
199 (SMY) (SCW), 2018 WL 1508855, at *2 (S.D. Ill. Mar. 27, 2018) (brackets omitted) (quoting Section 6(c), Pub.L. No. 101-535, 104 Stat. 2353, 2364 (Nov. 8, 1990)). Relevant here, the preemption provision states:
[N]o State . . . may directly or indirectly establish under any authority or continue in effect as to any food in interstate commerce-- . . . (5) any requirement respecting any claim of the type described in section 343(r)(1) of this title made in the label or labeling of food that is not identical to the requirement of section 343(r) of this title . . . .
Assessed under this framework, the state law claims are not preempted. Clemmons does not invoke FDA requirements in the Complaint, and he does not argue that “Made With Olive Oil” is a nutrient claim. Olive oil is not itself a label nutrient. Cf.
category of “valued ingredient” claims—like “made with real butter“—which are not nutrient content claims.
Upfield‘s arguments to the contrary are unpersuasive. Upfield initially asserts that “Plaintiff‘s claim that ‘Made with Olive Oil’ falsely implies a certain amount of olive oil in the Product as a nutrient is expressly preempted” by FDA regulations. (Def. Br. at 4) As discussed above, the Complaint makes no such claim. Upfield later clarifies that it means that the claims are preempted specifically because section
The Court concludes the state law claims are not preempted.
B. The Complaint Plausibly Alleges a Deceptive Act Under the GBL
The Complaint adequately pleads a violation of sections
Section
Under
proceed with care in” determining whether a reasonable consumer would be misled as a matter of law because “the inquiry is generally a question of fact not suited for resolution at the motion to dismiss stage“) (internal quotation marks omitted)).
Ultimately, “in determining whether a reasonable consumer would have been misled by a particular advertisement, context is crucial.” Fink, 714 F.3d at 742. Courts are to “view each allegedly misleading statement in light of its context on the product label or advertisement as a whole.” Wargo v. Hillshire Brands Co., 599 F.Supp.3d 164, 172 (S.D.N.Y. 2022) (internal quotation marks omitted). But where the front packaging of a product contains a misleading representation, “a reasonable consumеr should not be expected to consult the Nutrition Facts panel on the side of the box to correct” the misrepresentation. Mantikas v. Kellogg Co., 910 F.3d 633, 637 (2d Cir. 2018).
Upfield does not dispute that the Complaint has adequately alleged that the Product is consumer-oriented or that it alleges Clemmons suffered injury. It moves to dismiss solely on the ground that Clemmons has failed to plausibly allege a materially misleading deceptive act or practice. The central question here is whether the labeling of the Product as plant butter “made with” olive oil would lead a reasonable consumer to believe that olive oil was the primary—or predominant—oil used to make the Product. In this Circuit, Mantikas governs “predominant” ingredient claims.5
Mantikas concerned Cheez-It brand crackers labeled as “WHOLE GRAIN” and “MADE WITH WHOLE GRAIN.” The plaintiff understоod this statement to mean that the grain content of the crackers was predominantly whole grain; but while “whole wheat flour” was in the ingredient list, the primary ingredient was “enriched white flour.” Id. at 634-35. The Second Circuit allowed the claim to proceed because it found it plausible that the “large, bold-faced claims of ‘WHOLE GRAIN‘” would communicate to a reasonable consumer that whole grain was the predominant grain in the crackers. Id. at 637. The misrepresentation was not cured by additional language on the front of the box giving “the precise number of grams of whole grain per serving.” Id. at 636-37. In context, this disclosure was consistent with the misleading representation that the grain used was primarily whole grain. Id. at 637. And while the ingredient list disclosed that whole grain was not the
The holding in Mantikas did not reach all ingredient-labeling claims. The opinion distinguished a subset of claims involving “an ingredient that obviously was not the products’ primary ingredient.” Id. at 638. For example, crackers labeled as “made with real vegetables” would not mislead a consumer into thinking vegetables were the predominant ingredient because consumers “would be ‘familiar with the fact of life that a cracker is not composed of primarily fresh vegetables.‘” Id. (quoting Red v. Kraft Foods, Inc., 10 Civ. 1028, 2012 WL 5504011, at *2 (C.D. Cal. Oct. 25, 2012)). A claim that a “made with” label misrepresented that an ingredient was the “predominant” one may accordingly be dismissed where it is obvious that could not be the predominant ingredient in the relevant product.
The direct comparison with Mantikas is instructive here. Mantikas summarized its reasoning as follows:
In our case of Cheez-Its crackers . . . reasonable consumers are likely to understand that crackers are typically made predominantly of grain. They look to the bold assertions on the packaging to discern what type of grain. The representation that a cracker is “made with whole grain” would thus plausibly lead a reasonable consumer to conclude that the grain ingredient was entirely, or at least predominately, whole grain.
Id. Similar reasoning applies here. While reasonable consumers may not have a well-defined understanding of what “plant butter” is, they are likely to understand that a “plant butter” spread is made from plant-based ingredients.6 As in Mantikas, they will likely look to emphasized assertions on the packaging to discern what these ingredients are. It is therefore plausible that the representation that the plant butter is “Made With Olive Oil” could lead a reasonable consumer to conclude that the major plant-based ingredient was olive oil. In this context, the disclosure on the front of the packaging that the Product is a “79% vegetable oil spread” would not necessarily contradict the initial impression: As Upfield insists, olive oil is a constituent part of oil blend used in the Product and therefore some unknown portion of that number.7
In contrast to the cases distinguished in Mantikas, the Court cannot conclude that it would be “obvious” to a reasonable consumer
Upfield unsuccessfully attempts to distinguish this case from Mantikas. Its primary argument is that—unlike the “whole grain” ingredient representations in Mantikas—the statement “Made With Olive Oil” can only be understood as making a flavoring claim: Consumers will understand that olive oil is intended as a “flavor note” to the butter-imitating flavors of the other oils in the spread. This is not a particularly compelling argument, much less a conclusion the Court can reach as a matter of law. Olive oil is a known alternative to butter, and the Prоduct is a butter alternative where the primary ingredients are plant-based oils like olive oil. The inference that “Made With Olive Oil” is an ingredient statement is a straightforward allegation that meets the plausibility standard.
Additionally, “where the relevant term is both an ingredient and a flavor,” courts have routinely read the words “made with” to “designate[] a product as an ingredient.” Campbell v. Whole Foods Mkt. Grp., Inc., 516 F. Supp. 3d 370, 383 n.4 (S.D.N.Y. 2021); see Russett v. Kellogg Sales Co., 21 Civ. 8572 (NSR), 2022 WL 2789837, at *4 (S.D.N.Y. July 15, 2022) (referring to “made with” as “an ingredient indicator“); Brown v. Kellogg Sales Co., 20 Civ. 7283 (ALC), 2022 WL 992627, at *4 (S.D.N.Y. Mar. 31, 2022) (“Courts typically find misleading representations about ingredients when the product label explicitly asserts that it is made with a specific ingredient . . . when the ingredient is not predominant in the Product. The front labels in most of these cases prominently make assertions such as ‘Made with [Ingredient]’ . . . on the front packaging.“); Kennedy v. Mondelez Glob. LLC, 19 Civ. 302 (ENV) (SJB), 2020 WL 4006197, at *10 (E.D.N.Y. July 10, 2020) (outcome of dismissal “would be different if the products were labeled as ‘Crackers Made with Graham Flour.‘“); Mitchell v. Whole Foods Market Group, Inc., 20 Civ. 8496 (ER), 2022 WL 657044, at *5 (S.D.N.Y. Mar. 4, 2022) (distinguishing from Mantikas on the ground that “the representations here do not include any modifiers such as ‘made with‘“). The Complaint plausibly alleges that the front of the Product‘s packaging uses the phrase “Made With Olive Oil,” thereby implying that olive oil is an ingredient and at least a predominant one.
The parties will be able to develop a factual record concerning a reasonable consumer‘s understanding of the meaning of the Product‘s label. It suffices that Clemmons‘s claimed understanding is not unreasonable as a matter of law. And “at
interpretation.” Cooper, 553 F. Supp. 3d at 97 (brackets, ellipsis, and internal quotation marks omitted).
C. The Complaint Does Not State a Claim for Breach of Contract
To recover on a breach of contract claim under New York law against a particular defendant, a plaintiff must establish: “(1) the existence of a contract between itself and that defendant; (2) performance of the plaintiff‘s obligations under the contract; (3) breach of the contract by that defendant; and (4) damages to the plaintiff caused by that defendant‘s breach.” Diesel Props S.r.l. v. Greystone Bus. Credit II LLC, 631 F.3d 42, 52 (2d Cir. 2011). To properly state a claim, “[t]he plaintiff must identify the essential terms of the contract, including a specific provision of the contract that was breached.” Trustpilot Damages LLC v. Trustpilot, Inc., 21 Civ. 432 (JSR), 2021 WL 2667029, at *8 (S.D.N.Y. June 29, 2021) (citing NFA Grp. v. Lotus Research, Inc., 180 A.D.3d 1060, 1061 (2d Dep‘t 2020)). “[T]he general rule [is] that privity between a plaintiff and a defendant is required to support a breach of contract claim.” Tutor Perini Bldg. Corp. v. Port Auth. of New York & New Jersey, 191 A.D.3d 569, 570 (1st Dep‘t 2021). “[S]tating in a conclusory manner that an agreement was breached does not sustain a claim of breach of contract.” Ellington Credit Fund, Ltd. v. Select Portfolio Servicing, Inc., 837 F. Supp. 2d 162, 189 (S.D.N.Y. 2011) (brackets and internal quotation marks omitted).
Clemmons has failed to adequately plead a breach of a contract claim. The Complaint alleges that Clemmons and the other members of the proposed class purchased the Product from grocery stores and similar third-party retailers. (Compl. ¶ 41) There are no facts alleged showing that Clemmons and Upfield were in privity. The allegation that (a) there was a contract with Upfield and (b) the terms of that contract were identical to Clemmons‘s belief thаt
olive oil would be the predominant oil is wholly conclusory and thus insufficient to survive a motion to dismiss. (Compl. ¶¶ 77-78)
The breach of contract claim will be dismissed.
D. The Complaint Does Not State a Claim for Breach of Warranty
1. Express Warranty
An express warranty is an “affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain.”
The Complaint alleges that “Plaintiff provided or will provide notice to Defendant.” (Compl. ¶ 89) This conclusory assertion that notice may or may not have been given at an unspecified time in an unspecified manner is “wholly equivoсal” and “insufficient” to
adequately plead notice. Campbell, 516 F. Supp. 3d at 391; see also Wargo, 599 F. Supp. 3d at 177.
Clemmons alternately asserts that he has served notice through the Complaint itself. (Compl. ¶ 90) “Whether the required notice for a breach of warranty claim must be made pre-lawsuit or can be accomplished by commencing litigation is an open question, and courts in this District have split in answering it.” Wheeler v. Topps Co., Inc., 22 Civ. 2264 (LGS), 2023 WL 405015, at *4 (S.D.N.Y. Jan. 25, 2023); see Leonard v. Mondelez Glob. LLC, 21 Civ. 10102 (PAC), 2023 WL 2403259, at *5 (S.D.N.Y. Mar. 8, 2023) (same). The courts of New York have said little on this point, and the split has arisen over divergent readings of a single case:
This argument [i.e., one urging dismissal for lack of timely notice,] overlooks the fact that the complaint and subsequent amended complaint in this action themselves constituted such notice, and that the plaintiff had repeatedly made its objections to Kopo‘s pattern of deficient рerformance known prior to the shipments reflected in the invoices. Under these circumstances, it is at the very least an issue of fact as to whether reasonably timely notice of breach was given.
Panda Cap. Corp. v. Kopo Int‘l, Inc., 242 A.D.2d 690, 692 (2d Dep‘t 1997). Courts allowing for notice by complaint have focused on the portion of this passage stating that “the complaint and subsequent amended complaint . . . themselves constituted such notice.” See, e.g., Bayne v. Target Corp., 21 Civ. 5938 (MKV), 2022 WL 4467455, at *3 (S.D.N.Y. Sept. 23, 2022) (referring to this passage as “unequivocally” stating the premise); see id. at *3 n.5 (collecting and comparing cases for both propositions).
On the other hand, “the clear majority of courts in this District” have rejected this reading. Wheeler, 2023 WL 405015, at *4 (compiling cases); see Barton v. Pret A Manger (USA) Ltd., 535 F. Supp. 3d 225, 246 (S.D.N.Y. 2021) (compiling cases for the proposition that
“[t]he weight of authority in this Circuit does not view a complaint to be by itself sufficient reasonable notice“). The statement in Panda Capital was made in the “specific context . . . where ‘the plaintiff had repeatedly made its objections known,‘” and it was “those repeated objections and the filing of the suit together [that] created ‘at the very least an issue of fact as to whether reasonably timely notice of breach was given.‘” Wheeler, 2023 WL 405015, at *4 (ellipsis omitted) (quoting Panda Capital, 242 A.D.2d at 692); see Lugones v. Pete & Gerry‘s Organic, LLC, 440 F. Supp. 3d 226, 244 (S.D.N.Y. 2020) (“The Court does not believe that such an equivocal statement amounts to a binding rule that Plaintiffs’ filed complaint . . . satisfies
2. Implied Warranties
Clemmons alleges breaches of two implied warranties: (1) the implied warranty of merchantability, see
The breach of implied warranty claims will likewise be dismissed.
3. Magnuson Moss Warranty Act
Clemmons‘s claim under the Magnuson Moss Warranty Act,
necessitates dismissal of the MMWA claim.“); Garcia v. Chrysler Grp. LLC, 127 F. Supp. 3d 212, 232 (S.D.N.Y. 2015) (“To state a claim under the MMWA, plaintiffs must adequately plead a cause of action for breach of written or implied warranty under state law.“).
E. The Complaint Does Not State a Claim for Negligent Misrepresentation
To state a claim for negligent misrepresentation under New York law, a plaintiff must allege, “(1) the existence of a special or privity-like relationship imposing a duty on the defendant to impart correct information to the plaintiff; (2) that the information was incorrect; and (3) reasonable reliance on the information.” Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d 173, 180 (2011) (quotation marks omitted). To
The Complaint does not plausibly allege any privity-type or special relationship of this sort. It instead alleges that Upfield had a “duty to truthfully represent” the Product on account of the company‘s “special knowledge and experience” and market position as a “trusted company, known for its transparent labeling.” (Compl. ¶¶ 96-97) The only described contact between the parties is that Clemmons, like many other consumers, viewed and purchased Upfield‘s product. This indirect, attenuated relationship is insufficient to impose a duty upon
Upfield. See, e.g., Wargo, 599 F. Supp. 3d at 176 (dismissing negligent misrepresentation claim where allegations “only describe a relationship between Plaintiff and Defendant which is that of an ordinary buyer and seller“); Izquierdo v. Mondelez Int‘l, Inc., 16 Civ. 4697 (CM), 2016 WL 6459832, at *9 (S.D.N.Y. Oct. 26, 2016) (“[A] basic commercial transaction does not give rise to a special relаtionship.“).
The negligent misrepresentation claim will be dismissed.
F. The Complaint Does Not State a Claim for Fraud
“‘The elements of a cause of action for fraud require a material misrepresentation of a fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by the plaintiff and damages.‘” Epiphany Cmty. Nursery Sch. v. Levey, 171 A.D.3d 1, 8 (1st Dep‘t 2019) (quoting Eurycleia Partners, LP v. Seward & Kissel, LLP, 12 N.Y.3d 553, 559 (2009)). A plaintiff must also allege that the defendant intended to commit fraud, and “proof of intent is to be determined from surrounding circumstances.” ACA Fin. Guar. Corp. v. Goldman, Sachs & Co., 131 A.D.3d 427, 428-29 (1st Dep‘t 2015).
evidence of conscious misbehavior or recklessness.” Id. at 290-91 (internal quotation marks omitted).
The Complaint‘s allegations of fraudulent intent do not meet this standard, stating only that Upfield‘s “fraudulent intent is evinced by its knowledge that the Product was not consistent with its representations.” (Compl. ¶ 106) Merely alleging that a “statement is false is not sufficient to establish fraudulent intent.” Wargo, 599 F. Supp. 3d at 178 (internal quotation marks omitted). Further, it is undisputed that the packaging itself discloses in the ingredients list the component parts of the oil blend used, which is not consistent with fraudulent intent. See Campbell, 516 F. Supp. 3d at 391 (concluding that identification in the ingredients list “is certainly a substantial barrier to a plaintiff seeking to plead a claim of fraud” even where it would “not stymie a deceptive labeling claim“). The Complaint‘s vague allegations of fraudulent intent are insufficient.
The fraud claim will therefore be dismissed.
G. The Complaint Does Not State a Claim for Unjust Enrichment
Under New York law, “[t]he elements of a cause of action to recover for unjust enrichment are (1) the defendant was enriched, (2) at the plaintiff‘s expense, and (3) that it is against equity and good conscience to permit the defendant to retain what is sought to be recovered.” GFRE, Inc. v. U.S. Bank, N.A., 130 A.D.3d 569, 570 (2d Dep‘t 2015) (citations and internal quotation marks omitted). The central inquiry is whether “the defendant has obtained a benefit which in ‘equity and good consciеnce’ should be paid to the plaintiff.” Corsello v. Verizon New York, Inc., 18 N.Y.3d 777, 790 (2012). Unjust enrichment is not intended to be “a catchall cause of action to be used when others fail.” Id. It is “not available where it simply duplicates, or replaces, a conventional contract or tort claim.” Id. at 790-91.
Here, the basis of Clemmons‘s unjust enrichment claim is that “the Product was not as represented and expected.” (Compl. ¶ 107) Accordingly, this claim cannot succeed “because it merely duplicates [his] other claims based on the same alleged misrepresentations.” Davis v. Hain Celestial Grp., Inc., 297 F. Supp. 3d 327, 338 (E.D.N.Y. 2018) (citing Corsello, 18 N.Y.3d at 790). The Complaint also does not plausibly allege how or why equitable considerations would weigh against Upfield.
IV. CONCLUSION
In accordance with the above, the Court GRANTS in part and DENIES in part the Motion to Dismiss. (Dkt. 14) The motion is GRANTED with respеct to the claims for (1) breach of contract, (2) breach of express warranty, breach of the implied warranty of merchantability/fitness for a particular purpose, and violation of the Magnuson Moss Warranty Act, (3) negligent misrepresentation, (4) fraud, and (5) unjust enrichment. These claims are dismissed with prejudice. The motion is DENIED with respect to the consumer protection claims under sections
SO ORDERED.
P. Kevin Castel
United States District Judge
Dated: New York, New York
March 31, 2023
Notes
The common or usual name of a mixture of edible fats and oils containing less than 100 percent and more than 0 percent olive oil shall be as follows: . . . (b) When the label bears any representation, other than in the ingredient listing, of the presence of olive oil in the mixture, the descriptive name shall be followed by a statement of the percentage of olive oil contained in the product in the manner set forth in § 102.5(b)(2).