*1 KATHERINE POLK FAILLA, District Judge:
In the past two years, counsel for Plaintiffs Ryan Cosgrove and Amanda Crout has filed numerous class action complaints across the country,
including several in this District, challenging food manufacturers’ use of the
term “vanilla” in their descriptions or advertising. See, e.g. , Twohig v. Shop-Rite
Supermarkets
, — F. Supp. 3d —, No. 20 Civ. 763 (CS),
(S.D.N.Y. Feb. 11, 2021); Wynn v. Topco Assocs., LLC , No. 19 Civ. 11104 (RA),
No. 19 Civ. 9677 (PKC),
Blue Diamond Growers
, No. 19 Civ. 8993 (VM),
Dec. 7, 2020); Pichardo v. Only What You Need, Inc. , No. 20 Civ. 493 (VEC),
Aug. 24, 2020). In nearly all of these cases, the district court ultimately found
that the plaintiffs had failed to state a viable claim for relief. This time,
Plaintiffs challenge Defendant Oregon Chai, Inc. (“Oregon Chai”), claiming that
Defendant’s use of the term “vanilla” and other statements on the packaging of
its chai tea latte powdered mix is misleading to consumers. As set forth in the
remainder of this Opinion, this Court agrees with the majority of district courts
to have considered the matter, and dismisses the complaint for failure to state
a claim.
BACKGROUND [1] A. Factual Background
According to the Second Amended Complaint (or “SAC”), Defendant Oregon Chai “manufactures, distributes, markets, labels[,] and sells powdered
chai tea mix with a purported primary characterizing flavor of vanilla, under
the Oregon Chai brand.” (SAC ¶ 1). The packaging at issue is reproduced
below: *3 ( Id. at ¶ 4).
The packaging for the Oregon Chai products contains, among other items, references to: (i) “Vanilla,” (ii) “Vanilla and honey combine with premium
black tea and chai spices,” and (iii) “Made with Natural Ingredients.” (SAC ¶ 4).
According to Plaintiffs, these references are misleading because
[i] although labeled as “Vanilla,” they have less (or no) real vanilla than the label represents, [ii] they are flavored with artificial vanillin, [iii] they contain more honey and cinnamon than vanilla and [iv] despite the representation they are “Made with Natural Ingredients” that gives reasonable consumers the impression that all of the ingredients … are natural, they contain synthetic ingredients and artificial flavors.
( Id. at ¶ 9).
As background to their claims, Plaintiffs include an extensive discussion of the flavor commonly known as vanilla, both as extracted from the vanilla
bean and as replicated using other means. (SAC ¶¶ 10-19). Plaintiffs use the
term “vanilla” to refer to the extract from the orchid V. planifolia , and “vanillin”
to refer to the flavor compound. According to Plaintiffs, “only 1-2% of vanillin *4 in commercial use is vanillin obtained from the vanilla plant, which means that
almost all vanillin has no connection to the vanilla bean.” ( Id. at ¶ 35). Indeed,
Plaintiffs categorize various efforts to replicate the vanilla bean flavor as “food
fraud” ( e.g. , id. at ¶ 18), and argue more broadly that a global shortage of vanilla beans has prompted the flavor and food manufacturing industries —
including Defendant’s parent company, Kerry plc (the “Kerry Group”) — to
develop flavor alternatives that partially or completely replace the vanilla bean
( id. at ¶¶ 21-35).
Plaintiffs allege that they and other consumers of the Oregon Chai products have been tricked into believing that the products have more vanilla
than other flavors (such as cinnamon or honey), and that the vanilla flavor
touted on the packaging comes from vanilla beans, as opposed to artificial
vanillins. (SAC ¶¶ 57-78). In point of fact, according to a gas chromatography-
mass spectrometry (“GC-MS”) analysis summarized in the SAC, the Oregon
Chai products contain “the abundance of cinnamon flavor yet a trace, if any, of
real vanilla.” ( Id. at ¶ 56; see also id. at ¶ 67 (noting that “real vanilla … is likely present in a nominal amount far enough back in the supply chain so
defendant can credibly and truthfully claim, ‘Yes, the Products contain[] vanilla
(extract).’”)). Similarly, consumers are deceived by the Oregon Chai products’
references in their packaging to “Made with Natural Ingredients,” because
(i) not all of the constituent ingredients are natural; (ii) apart from “dried
honey,” the ingredients list only contains a generic reference to “natural
flavors” without further elaboration; and (iii) the reference suggests that the
vanilla flavor in the products is derived only from vanilla beans. ( Id. at ¶¶ 79-
99).
Plaintiff Ryan Cosgrove lives in, and purchased Oregon Chai products in, the Bronx, New York. (SAC ¶¶ 115, 119). Plaintiff Amanda Crout lives in, and
purchased Oregon Chai products in, Brooklyn, New York. ( Id. at ¶¶ 116, 121).
Each Plaintiff recites that she
bought the Products because she liked chai, expected the vanilla flavor to only come from real vanilla beans because the front label lacked any reference to the Products being “flavored,” thought that the Products would contain more vanilla than its other flavoring components, did not state it contained vanillin, an artificial flavor when used with vanilla and she believed it only contained natural ingredients.
( Id. at ¶¶ 120, 122). Each Plaintiff also represents that she would buy the
Oregon Chai products again “if [she] were assured the vanilla flavor in the
Products was only from real vanilla and did not come from non-vanilla sources
and was only made with natural ingredients.” ( Id. at ¶ 123).
B. Procedural Background
Plaintiffs filed the original complaint in this action on November 18, 2019 (Dkt. #1), and an amended complaint on February 20, 2020 (Dkt. #19). After a
pre-motion conference that was held on March 19, 2020, in part to discuss
Defendant’s contemplated motion to dismiss, Plaintiffs filed a Second Amended
Complaint on April 1, 2020. (Dkt. #25). The SAC alleges violations of New
York’s General Business Law (“GBL”) Sections 349 and 350 and the federal
Magnuson-Moss Warranty Act (the “MMWA”), Pub. L. 93-637, 88 Stat. 2183
(1975), codified at 15 U.S.C. Ch. 50; as well as common-law claims for
negligent misrepresentation, breach of warranty, fraud, and unjust
enrichment. ( Id. at ¶¶ 132-59).
Defendant filed its motion to dismiss and supporting brief on May 8, 2020 (Dkt. #28, 31-32); Plaintiffs filed their opposition brief on June 12, 2020
(Dkt. #29); and Defendant filed its reply brief on June 26, 2020 (Dkt. #30).
After briefing had concluded, the parties filed several letters addressing
decisions from other district courts resolving ostensibly similar cases. (Dkt.
#33, 35-41).
DISCUSSION A. The Court Has Subject Matter Jurisdiction Under CAFA
1. Motions to Dismiss Under Fed. R. Civ. P. 12(b)(1) Defendants begin by challenging the Court’s jurisdiction to hear the matter in the first instance. ( See Def. Br. 4-8). Federal Rule of Civil Procedure
12(b)(1) permits a party to move to dismiss a complaint for “lack of subject-
matter jurisdiction.” Fed. R. Civ. P. 12(b)(1). “A case is properly dismissed for
lack of subject matter jurisdiction under Rule 12(b)(1) when the district court
lacks the statutory or constitutional power to adjudicate it.” Lyons v. Litton
Loan Servicing LP
,
v.
United States,
The Second Circuit has identified two types of Rule 12(b)(1) motions:
facial and fact-based.
See Carter
v.
HealthPort Techs., LLC
,
(2d Cir. 2016);
see also Katz
v.
Donna Karan Co., L.L.C.
,
of the complaint or the complaint and exhibits attached to it.” Carter , 822 F.3d
at 56. A plaintiff opposing such a motion bears “no evidentiary burden.” Id.
Instead, to resolve a facial Rule 12(b)(1) motion, a district court must
“determine whether [the complaint and its exhibits] allege[ ] facts that”
establish subject matter jurisdiction. Id. (quoting Amidax Trading Grp. v.
S.W.I.F.T. SCRL
,
that determination, a court must accept the complaint’s allegations as true
“and draw[ ] all reasonable inferences in favor of the plaintiff.” Id. at 57
(internal quotation marks and citation omitted).
“Alternatively, a defendant is permitted to make a fact-based Rule 12(b)(1) motion, proffering evidence beyond the complaint and its
exhibits.”
Carter
,
Peru
,
Rule 12(b)(1) motion as one where “the defendant puts forward evidence to
challenge the factual contentions underlying the plaintiff’s assertion of subject-
matter jurisdiction”). “In opposition to such a motion, [a plaintiff] must come
forward with evidence of their own to controvert that presented by the
defendant, or may instead rely on the allegations in the[ir p]leading if the
evidence proffered by the defendant is immaterial because it does not
contradict plausible allegations that are themselves sufficient to show
standing.”
Katz
,
a defendant supports a fact-based Rule 12(b)(1) motion with “material and *8 controverted” “extrinsic evidence,” a “district court will need to make findings of
fact in aid of its decision as to subject matter jurisdiction.” Carter , 822 F.3d at
57.
2. There Is a Reasonable Probability That Plaintiffs Meet the Jurisdictional Requirements of CAFA Plaintiffs purport to represent a class of all New York purchasers of the Oregon Chai products during the applicable statutes of limitations. (SAC
¶ 124). They assert subject matter jurisdiction under the Class Action
Fairness Act of 2005 (“CAFA”), Pub. L. 109-2, 119 Stat. 4-14 (2005), which
requires that (i) at least one plaintiff and one defendant are citizens of different
states; (ii) the putative class contains at least 100 members; and (iii) the
amount in controversy exceeds $5 million in the aggregate, not including
interest or costs. 28 U.S.C. § 1332(d); see also Blockbuster, Inc. Galeno , 472
F.3d 53, 56 (2d Cir. 2006). Defendants focus their motion to dismiss on
Plaintiffs’ ability to satisfy CAFA’s third prong. [2]
Unlike the original and first amended complaints, the SAC does not recite an amount in controversy. ( Compare Dkt. #1 at ¶ 43 and Dkt. #16 at
¶ 123, with Dkt. #25 at ¶¶ 107-14; see also Dkt. #28-2 (redline of first and
second amended complaints)). Presumably in response, Defendant included
with its motion papers a declaration from Chris Rankin, Commercial Finance
Manager with Oregon Chai’s parent corporation, the Kerry Group, stating in
*9 relevant part that during the applicable limitations period, Oregon Chai (i) sold
48,743 boxes and 8,992 tins of products in New York and (ii) realized $226,237
in total revenue from these sales. (Dkt. #28-3 at ¶¶ 5-8). Even assuming that
each box was purchased by a separate putative class member and that each
member would be entitled to $50 in statutory damages under GBL § 349(h),
Defendants argue that the total damages could not exceed $2,886,750. (Def.
Br. 7-8). In their opposition, however, Plaintiffs note that a larger statutory
damages award of $500 is available under GBL § 350(e), which, using the one-
package-to-one-class-member ratio offered by Defendants, would result in an
award of $28,867,500 that would comfortably exceed CAFA’s $5 million
threshold. (Pl. Opp. 2-3).
“Generally, the plaintiff, as the party asserting subject matter jurisdiction, has the burden of proving that it exists by a preponderance of the
evidence.”
Broidy Cap. Mgmt. LLC
v.
Benomar
,
5751175, at *5 (S.D.N.Y. Sept. 25, 2020);
see also Cutrone
v.
Mortg. Elec.
Registration Sys.
,
probability” standard). When “the defendant challenges the factual basis for
the plaintiff’s assertion of jurisdiction, ‘[j]urisdiction must be shown
affirmatively, and that showing is not made by drawing from the pleadings
inferences favorable to the party asserting it.’” Jordan v. Verizon Corp ., 391 F.
App’x 10, 12 (2d Cir. 2010) (summary order) (quoting APWU Potter , 343 F.3d
619, 623 (2d Cir. 2003)) (alteration in original). “[T]he district court can refer to
evidence outside the pleadings when resolving a motion to dismiss under
Federal Rule of Civil Procedure 12(b)(1).”
Broidy
,
quotation marks and alterations omitted).
It is also generally the case that “[o]n a motion to dismiss challenging the sufficiency of the amount in controversy, the sum claimed by the plaintiff
ordinarily controls, so long as it is claimed in good faith.”
Stengel
v.
Black
,
No. 03 Civ. 0495 (GEL),
(citing
St. Paul Mercury Indem. Co.
v.
Red Cab Co.
,
Where, as here, the aggregate amount in controversy is not obvious from the
face of the complaint, the party invoking jurisdiction under CAFA must show is
that there is a “reasonable probability” that the amount in controversy meets
the threshold of $5 million.
Blockbuster
,
record.” United Food & Com. Workers Union v. CenterMark Props. Meriden
Square, Inc.
,
Conversely, “the party opposing jurisdiction must show ‘to a legal certainty’ that the amount recoverable does not meet the jurisdictional
threshold.”
Shulman Chaitman LLP
,
2019). “[T]he legal impossibility of recovery must be so certain as virtually to
negate the plaintiff’s good faith in asserting the claim. If the right of recovery is
uncertain, the doubt should be resolved in favor of the subjective good faith of
the plaintiff.” Chase Manhattan Bank, N.A. v. Am. Nat. Bank & Tr. Co. of
Chicago
,
It is true that Plaintiffs’ SAC omits an allegation regarding the amount in controversy. However, as demonstrated above, Plaintiffs are able to use the
evidence Defendant submitted with its opening brief in order to establish a
“reasonable probability” regarding the $5 million threshold. And while
Defendant asks the Court to reject the GBL § 350(e) statutory penalties as
“extraordinary” (Def. Reply 1 (citing Belfiore v. Procter & Gamble Co. , 311 F.R.D.
29 (E.D.N.Y. 2015))), the Court cannot conclude at this early stage of the
litigation that Defendant has shown “to a legal certainty” that Plaintiffs have
not met the amount in controversy threshold. Accordingly, the Court
concludes that it has subject matter jurisdiction to hear this case.
B. The Court Dismisses Plaintiffs’ Claims for Injunctive Relief
Defendant further argues that Plaintiffs lack standing under Article III to seek injunctive relief. (Def. Br. 22). Although standing challenges are
sometimes brought under Rule 12(b)(6), “the proper procedural route is under
Rule 12(b)(1).” See All. for Env’t Renewal, Inc. Pyramid Crossgates Co. , 436
F.3d 82, 88 n.6 (2d Cir. 2006). Therefore, the Court will analyze Defendant’s
argument as if it were made in a motion pursuant to Rule 12(b)(1).
Defendant argues that Plaintiffs cannot satisfy the injury component of Article III because they have made clear that they will not purchase Oregon
Chai products again absent assurances that “‘the vanilla flavor in the Products
was only from real vanilla and did not come from non-vanilla sources and was
only made with natural ingredients.’” (Def. Br. 22 (quoting SAC ¶ 123)).
Plaintiffs respond that it is precisely their “inability to rely on the Products’
labels in the future, which causes them to avoid purchasing the Products even
though they would like to if they could trust the labels, [that] constitutes an
imminent threat of future harm sufficient to satisfy Article III’s injury in fact
requirement.” (Pl. Opp. 23). In an analogous factual context, this Court
analyzed Second Circuit caselaw on the issue, and concluded that a plaintiff’s
failure to allege an actual intent to purchase the challenged product amounted
to a failure to “establish[] a likelihood of future injury sufficient to show
standing.”
Lugones
v.
Pete & Gerry’s Organic, LLC
,
(S.D.N.Y. 2020);
see also Axon Florida’s Nat. Growers, Inc.
,
relief for consumer deception have standing where they allege that they would
buy the products in the future if not mislabeled is unsettled in this Circuit.”).
The Court incorporates its prior analysis by reference, see 440 F. Supp. 3d at
238-38, and concludes similarly here that Plaintiffs lack standing to pursue
injunctive relief.
C. The Court Dismisses Plaintiffs’ Other Claims for Failure to State
a Claim
1. Motions to Dismiss Under Fed. R. Civ. P. 12(b)(6) The Court now turns to whether Plaintiffs have stated a claim upon which relief can be granted. When considering a motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6), a court must “draw all reasonable
inferences in Plaintiff’s favor, assume all well-pleaded factual allegations to be
true, and determine whether they plausibly give rise to an entitlement to relief.”
Faber
v.
Metro. Life Ins. Co.
,
marks omitted);
see also Ashcroft
v.
Iqbal
,
deciding a Rule 12(b)(6) motion, the court may consider only the facts alleged
in the pleadings, documents attached ... or incorporated by reference in the
pleadings, and matters of which judicial notice may be taken.” Hu City of
N.Y.
,
A plaintiff is entitled to relief if she alleges “enough facts to state a claim
to relief that is plausible on its face.”
Bell Atl. Corp.
v.
Twombly
,
570 (2007);
see also In re Elevator Antitrust Litig.
,
2007) (“While Twombly does not require heightened fact pleading of specifics, it
does require enough facts to nudge plaintiff’s claims across the line from
conceivable to plausible.” (internal quotation marks omitted) (citing Twombly ,
“Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and
plausibility of entitlement to relief.’”
Iqbal
,
the allegations contained in a complaint is inapplicable to legal conclusions.
Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id.
2. Plaintiffs Have Failed to State a Claim Under GBL §§ 349 and 350
a. Overview of Plaintiffs’ Claims The SAC focuses on the Oregon Chai products’ packaging, and in particular the representations “Oregon Chai,” “Vanilla,” Vanilla and honey
combine with premium black tea and chai spices,” and “Made with Natural
Ingredients.” (SAC ¶ 4). According to Plaintiffs, the last three of these
representations, individually and in tandem, mislead consumers concerning
the amount, the percentage, and the types of ingredients in the Oregon Chai
products. ( Id. at ¶¶ 38-99). Plaintiffs argue that Defendant’s prominent use of the term “Vanilla,” along with the identifying description of “Vanilla and honey
combine with premium black tea and chai spices,” foster the misimpression
that the vanilla flavor is present in an amount greater than the honey and the
chai spices, when in fact there is more honey and cinnamon in the products.
( Id. at ¶¶ 40-45, 57-61). Plaintiffs reason that the prominent use of the term
“Vanilla” also fosters the misimpression that the vanilla flavor is derived from
vanilla beans, rather than artificial vanillin. ( Id. at ¶¶ 62-78). Finally,
Plaintiffs argue that the products’ reference to “Made with Natural Ingredients”
is misleading on several levels: it reinforces the impression that the vanilla
flavor is derived from vanilla beans and not artificial vanillin, and it suggests
(falsely, according to Plaintiffs) that the products do not contain any synthetic
or artificial ingredients. ( Id. at ¶¶ 79-99).
b. GBL §§ 349 and 350 Generally “The standard for recovery under General Business Law § 350, while specific to false advertising, is otherwise identical to section 349,” Goshen v.
Mut. Life Ins. Co. of N.Y.
,
claim under either § 349 or § 350, “a plaintiff must allege [i] that the
defendant … engaged in consumer-oriented conduct; [ii] that the conduct was
materially misleading; and [iii] that the plaintiff suffered injury as a result of
the allegedly deceptive act or practice.” Weisblum v. Prophase Labs. Inc. , 88 F.
Supp. 3d 283, 292 (S.D.N.Y. 2015). Plaintiffs are not required to meet the
heightened pleading requirements of Federal Rule of Civil Procedure 9(b) for
their claims.
See Daniel
v.
Mondelez Int’l, Inc.
,
(E.D.N.Y. 2018).
The Second Circuit has clarified that:
The primary evidence in a consumer-fraud case arising out of allegedly false advertising is, of course, the advertising itself. And in determining whether a reasonable consumer would have been misled by a particular advertisement, context is crucial. For example, under certain circumstances, the presence of a disclaimer or similar clarifying language may defeat a claim of deception.
Fink Time Warner Cable
,
omitted). And while such claims may be fact-intensive, a court retains the
discretion in appropriate circumstances to conclude as a matter of law that an
allegedly deceptive advertisement would not have misled a reasonable
consumer. See id. at 741 (citing, inter alia , Oswego Laborers’ Local 214 Pension
Fund
v.
Marine Midland Bank
,
The SAC contains references to the Pure Food and Drugs Act of 1906, Pub. L. 59-384, 34 Stat. 768 (1907), as well as regulations and letters issued
by the Food and Drug Administration (the “FDA”). ( See, e.g. , SAC ¶¶ 12, 38-46,
62-63, 74-77, 83-89, 99). Purported violations of these FDA pronouncements
form the basis for the bulk of Plaintiffs’ claims here. When reminded by
Defendant that there is no private right of action to enforce FDA regulations
( see Def. Br. 8-11), Plaintiffs responded that (i) they use federal regulations as a
touchstone for deceptive behavior and (ii) their claims cannot be preempted
because New York State has adopted the federal labeling laws (Pl. Opp. 3-8).
This Court agrees with Defendant that Plaintiffs’ second argument appears
nowhere in the SAC and cannot be raised for the first time in opposition to a
motion to dismiss. (Def. Reply 3). See Cal Distrib., Inc. Cadbury Schweppes
Ams. Beverages. Inc.
, No. 06 Civ. 496 (RMB),
Jan. 5, 2007) (“[I]t is axiomatic that [a][c]omplaint cannot be amended by the
briefs in opposition to a motion to dismiss[.]” (internal citation omitted)).
Moreover, not every violation of a federal regulation can support a GBL claim:
[A] GBL claim is viable where the plaintiff “make[s] a free-standing claim of deceptiveness under GBL § 349 that happens to overlap with a possible claim” under another statute that is not independently actionable, but fails where the violation of the other statute by conduct that is not inherently deceptive is claimed to constitute a deceptive practice that serves as the basis for the GBL § 349 claim.
Nick’s Garage, Inc.
v.
Progressive Cas. Ins. Co.
,
2017) (quoting
Broder
v.
Cablevision Sys. Corp.
,
2005)). Accordingly, to the extent that the conduct ascribed to Defendant is
inherently deceptive, it supports a claim under the GBL, irrespective of whether
it also may constitute a violation of one or more FDA regulations. See generally
N. Am. Olive Oil Ass’n Kangadis Food Inc.
,
(S.D.N.Y. 2013) (distinguishing violations of FDA and New York state labeling
standards from actionable claims under GBL §§ 349 and 350). False Advertising Decisions Since Mantikas
c. In the area of false advertising claims, this Court does not write on a blank slate, but rather benefits from extensive analyses recently undertaken in
the Second Circuit and its constituent district courts. It begins with the
Second Circuit’s seminal 2018 decision in Mantikas v. Kellogg Co. , 910 F.3d
633 (2d Cir. 2018), a case that concerned claims on packaging that crackers
were “whole grain” or “made with whole grain,” when in fact the grain content
was principally enriched white flour. In reversing the district court’s dismissal
of the case, the Court found that:
Plaintiffs’ core allegation is that the statements “WHOLE GRAIN” and “MADE WITH WHOLE GRAIN” are misleading because they communicate to the reasonable consumer that the grain in the product is predominantly, if not entirely, whole grain. Contrary to the reasonable expectations communicated by the large, bold-faced claims of “WHOLE GRAIN,” however, the grain in the product is predominantly enriched white flour. While the disclosures on the front of the box relied on by the district court (“MADE WITH 5G [OR 8G] OF WHOLE GRAIN PER SERVING”) do set forth *18 accurately the amount of whole grain in the crackers per serving, they are nonetheless misleading because they falsely imply that the grain content is entirely or at least predominantly whole grain, whereas in fact, the grain component consisting of enriched white flour substantially exceeds the whole grain portion.
Id. at 637.
Further, the Second Circuit rejected arguments that information on the reverse side of the packaging, in the listing of ingredients, could clarify any
potential misimpressions and thereby negate a claim of false advertising. While
it was true that the ingredients list recited a 29-gram serving size, it did not
identify what portion of the serving size was grain, and by extension did not
explain the ratio of whole grain to white flour. More fundamentally, the Court
rejected arguments that a reasonable consumer should be required to consult
the ingredients list for information that contradicts, rather than confirms,
information in larger type on the front of the package. Mantikas , 910 F.3d at
637 . Finally, the Court rejected defense efforts to analogize the case to other
decisions in which courts had rejected claims that plaintiffs were misled “about
the quantity of an ingredient that obviously was not the products’ primary
ingredient,” id. at 638, such as the percentage of vegetables in a cracker or fruit in a cookie.
Since Mantikas , a number of district courts in this Circuit have considered claims regarding references to “vanilla” in the packaging of various
food products. Earlier cases in this category focused on whether inclusion of
the term “vanilla” presupposed that the source of the flavor was the vanilla
bean. In
Steele
v.
Wegmans Food Markets, Inc.
,
court considered ice cream packaging that prominently displayed the word
“Vanilla,” and recited that it was “Made with Milk, Cream and Natural Vanilla
Flavor.” In dismissing the plaintiffs’ complaint, the court explained the thought
process of the reasonable buyer:
Although they are processed almost simultaneously by the buyer, to analyze the total effect of the messages on the container it is useful to consider them in sequence. The buyer’s first desire is for ice cream, and when he is in the frozen food area he must select, from many choices (chocolate, lemon, mint, lime, etc.) the one he wants. Thus the large-type “Vanilla” is of immediate use. Of course he is not looking for a bowl of vanilla, and the next largest words confirm that the container holds ice cream. Those who prefer natural ingredients will note that it has natural vanilla flavor, and no artificial flavors. Evidently there are various natural substances which have a vanilla flavor. Those interested in the actual ingredients can read the list, which mentions neither vanilla beans nor extracts, but they will not learn the components, amounts or proportions of the Natural Flavor.
Id. at 50. The court further distinguished the case from Mantikas by noting
that the packaging
does not mention vanilla beans, or bean extract, and even if vanilla or bean extract is not the predominant factor, if the sources of the flavor are natural, not artificial, it is hard to see where there is deception. What is misrepresented? The ice cream is vanilla flavored. The sources of the flavor are natural, not artificial.
Id. Addressing arguments similar to those raised in Steele , the district court in
Cosgrove Blue Diamond Growers
,
identical conclusion:
The Court finds the Product is not misleading because a reasonable consumer would associate the *20 representation of ‘Vanilla’ — with no additional language modifiers — to refer to a flavor and not to vanilla beans or vanilla extract as an ingredient. … The large font ‘Vanilla’ on the front of the Product allows the consumer to quickly understand the flavor of the almond milk and differentiate between products. The Product makes no additional representations about how that flavor is achieved.
Id. (internal citations omitted)).
The court in
Pichardo
v.
Only What You Need, Inc.
,
packaging of a non-dairy, vanilla-flavored protein beverage. Id. at *1. The
plaintiffs to that suit included in their pleadings (i) a GC-MS analysis that
made clear that the vanilla taste did not derive exclusively from the vanilla
plant, and (ii) a consumer survey that purported to demonstrate that more
than 70% of respondents believed the flavor to come “only from vanilla beans,”
and that almost 50% of respondents would be less likely to purchase the
product if they knew the flavor did not come solely from the vanilla plant. Id.
Even with this additional information, the district court dismissed the
complaint with prejudice, finding that a reasonable consumer would not be
misled by the defendant’s label. In so concluding, the district court analogized
the case to Steele , finding no references to the product being “made with vanilla
extract” or even “vanilla extract.” Id. at *3. [3] The court also amplified the Steele
court’s distinction of Mantikas :
In Mantikas Kellogg Co. , the Second Circuit reversed a grant of a motion to dismiss.910 F.3d 633 (2d Cir. 2018). The Second Circuit found that labeling Cheez- Its crackers as “whole grain” could be misleading because it falsely implies that the predominant ingredient is whole grain flour, not white flour. Id. at 637. But those facts are not analogous largely because vanilla describes both a taste and an ingredient. There is a clear difference between whole grain flour and white flour — whole grain flour has more fiber and more nutrients than white flour. In fact, capitalizing on that difference, Kellogg created a separate Cheez-Its product made with whole grain as a healthier alternative to Cheez-Its Original, which are made with white flour. Other food products also clearly designate whether they are made with whole grain flour, specifically because the presence of whole grain flour (as opposed to white flour) is significant from a health perspective. But vanilla products are not similar. A vanilla product that exclusively uses vanilla extract for vanilla flavor is not healthier — or materially different in any other way — than a vanilla product that uses vanillin from some other natural source. Unlike whole grain and white flour products, vanilla products are not even divided into those that are flavored exclusively with vanilla extract and those that are not. Implying that whole grain flour is the dominant ingredient when, in fact, the dominant ingredient is white flour can be misleading because, given the labeling, reasonable consumers would expect a different, healthier product. In contrast, stating that a protein drink is vanilla flavored when it is, even without clarifying the source of the vanilla, does not mislead because reasonable consumers would expect a vanilla taste, and that is exactly what they get.
Id. at *4 (emphases added). Separately, the court found that the mere use of
the term “vanilla” did not imply that there were no other flavoring ingredients.
of vanilla flavored commercial products do not derive their flavor entirely from vanilla
extract, it is not plausible to allege that a reasonable consumer would understand that the vanilla flavoring in a beverage is derived entirely from vanilla extract.”). *22 Alternatively, the Pichardo court found that even if the “vanilla” reference were misleading, the amount of vanilla extract in the product would not have
been material to the reasonable consumer:
Plaintiffs supplement their conclusory allegation with their survey results that “show that almost 50% of the consumer survey respondents would be less likely to purchase the product if the vanilla flavor did not come [exclusively] from a vanilla plant.” The problem with that argument is that it runs headlong into Plaintiffs’ acknowledgement in the original complaint that approximately 98% of commercial vanillin does not come from vanilla extract. Because the Court can take judicial notice that the grocery store shelves are stocked with many vanilla-flavored beverages that sell just fine, the Court cannot accept the conclusory allegation contained in the FAC as a well-pled allegation that consumers view the percentage of vanilla taste that derives from vanilla extract to be a material fact that influences consumers’ buying habits.
materiality presented a second, independent basis for dismissal.
In other class actions involving references to “vanilla,” the plaintiffs have separately claimed deception because the packaging has failed to disclose the
presence of artificial ingredients. Sister courts in this District have generally
rejected such arguments. In
Barreto
v.
Westbrae Natural, Inc.
,
the packaging on the challenged soy milk included the references “Vanilla” and
“Natural Vanilla Flavor with Other Natural Flavors”; a GC-MS analysis,
however, found only a “ de minimis ” amount of vanilla, as well as maltol, which
the plaintiff alleged to be a “synthetic flavoring substance” under certain FDA
regulations. Id. at *1. For reasons similar to those discussed supra in this
section, the district court rejected the argument that inclusion of the descriptor
“Vanilla” was itself deceptive. Of note, however, the court also rejected the
plaintiff’s challenge to the “natural” flavor references, finding: (i) both vanillin
and maltol can be derived from natural and artificial sources; (ii) the results of
the GC-MS analysis “d[id] not purport to identify the source of the vanillin as
natural or artificial”; (iii) “[a]lthough the GS-MS analysis detected maltol, it
contain[ed] no finding whether the maltol was derived artificially or naturally.”
Id. at *3-4. The Barreto court concluded:
Here, neither the front label of Westbrae’s Vanilla Soymilk nor the ingredient panel claim to identify the predominate source of its vanilla flavor other than that it is “Natural Vanilla Flavor With Other Natural Flavors.” The Complaint and testing results on which it relies do not claim that there is no natural vanilla in the product but only that it is a de minimis amount. The Complaint further urges that the label and ingredient panel are materially misleading because natural vanilla is not the predominate source of the vanilla flavor. But the Complaint concedes that “only 1-2% of vanillin in commercial use is vanillin obtained from the vanilla plant[.]” (Compl. ¶ 26). A reasonable consumer would not draw a conclusion as to the quantity or predominance of the natural vanilla flavor so long as some of the vanilla flavor was derived from natural vanilla and the balance from other natural flavors. Like the product’s labeling in Steele , Pichardo [,] and Cosgrove , Westbrae’s product makes a representation regarding its flavor and does not imply or represent the source of that flavor comes exclusively or predominantly from natural vanilla.
Id.
at *4;
accord Wynn
,
involving vanilla almond milk, finding insufficient allegations that purportedly
artificial flavors vanillin, maltol, and piperonal were in fact artificially, as
opposed to naturally, derived);
see also Twohig
,
(same, citing, inter alia , Barreto and Wynn ).
The Court’s research has disclosed one instance in this Circuit in which a vanilla false advertising case was permitted to proceed. The court in Sharpe
v.
A&W Concentrate Co.
, No. 19 Civ. 768 (BMC),
Aug. 24, 2020), considered packaging for root beer and cream soda that
included the phrase “MADE WITH AGED VANILLA,” when in fact the vanilla
flavor was derived predominately from ethyl vanillin, an artificial, synthetic
ingredient. To bolster their deception arguments, the plaintiffs had included a
survey of 411 consumers that was conducted in March 2020, in which “68% of
surveyed consumers believed that the statement meant that the vanilla flavor
‘comes from a vanilla plant, such as a vanilla extract, which is made from
vanilla beans from the vanilla plant.’” Id. at *2. Relying on Mantikas , its own review of the packaging, and the plaintiffs’ survey results, the district court
denied the defendant’s motion to dismiss:
Foremost, the use of the word “aged” suggests to consumers that the vanilla content is naturally derived and has acquired a desirable quality upon the passage of time. By holding out their products as containing “aged vanilla,” defendants’ representation is the equivalent to stating the beverages are “Made With Natural Vanilla.”
Indeed, in some respects, this case presents a stronger case of misrepresentation than in Mantikas . There, the disputed ingredient, whole grain, was at least present in a discernable quantity (5 to 8 grams out of a serving size of 29 grams). In contrast, plaintiffs here allege that the desired or preferred ingredient is entirely absent or, alternatively, de minimis in quantity when compared to the artificial and synthetic substitute for vanilla. Id. at *5; see also id. (“After viewing the label of the products in context and
accepting plaintiffs’ allegations as true, I hold that plaintiffs have plausibly
alleged that the ‘MADE WITH AGED VANILLA’ representation — prominently
displayed underneath the A&W logo and on front of the bottle or box, bolded
and in all capital letters — falsely implies that any vanilla content derives
predominantly from the vanilla plant, instead of its artificial and synthetic
counterpart. This determination is further bolstered by the persuasive
extrinsic evidence that the overwhelming percentage of consumers share this
misconception.”). [4]
d. Plaintiffs Have Failed to Allege an Actionable Misrepresentation
While the instant case is not identical to any of those just discussed, the logic of those cases leads this Court to conclude that Plaintiffs’ allegations
concerning the Oregon Chai products’ packaging do not suffice to state an
actionable claim under GBL §§ 349 or 350. On the front of the packaging, the
word “Vanilla” appears just below the words “Chai Tea Latte” in a slightly larger
font. (SAC ¶ 4). However, as in Steele , Pichardo , and Cosgrove , the term
appears to describe a flavor more than an ingredient — more particularly, to
distinguish the vanilla flavor from Defendant’s other chai tea latte flavors,
including “The Original,” “Salted Caramel,” and “Spiced.” See
https://oregonchai.com/our-products/ (accessed February 21, 2021). [5]
Plaintiffs have perhaps a better argument with respect to the statement, “Vanilla and honey combine with premium black tea and chai spices,” insofar
*27 as, in context, “vanilla” and “honey” appear to be ingredients (as distinguished
from flavors) alongside the tea and chai spices. (SAC ¶ 4). Even then, there is
nothing to suggest the exclusive, or even predominant, use of vanilla beans as
opposed to other sources. There is no reference to “vanilla bean” or “vanilla
extract” anywhere on the packaging; nor is there any reference to the product
being “made with” or “made from” any part of the vanilla plant (the reference
instead being “Made with Natural Ingredients”); [6] nor is there anything
comparable to the “aged vanilla” claim made in Sharpe . Indeed, there is
nothing in the remainder of the Oregon Chai products’ packaging that suggests
the exclusive or predominant use of vanilla beans: The depiction of the
product is surrounded by cinnamon sticks, cloves, and fresh and dried tea
leaves, with neither vanilla beans nor honey present. And the ingredient list on
the back of the products confirms, and does not contradict, the statements on
the front; it lists as ingredients, in descending order of predominance, sugar,
dried whole milk, dried nonfat milk, dried honey, tapioca maltodextrin, instant
black tea, maltodextrin, salt, and natural flavors. ( Id. at ¶ 5). Accord Barreto ,
Plaintiffs counter that the references to “natural ingredients” and “natural flavors” are themselves deceptive because (i) they allow Defendant to
hide the fact that there is more cinnamon than vanilla in the products (SAC
¶ 61); (ii) they give the impression that the vanilla flavor in the Products is only
from natural vanilla beans and not artificial vanillin ( id. at ¶ 80); and (iii) the
products also contain synthetic ingredients including maltol, limonene, and
linalool ( id. at ¶ 85). [7] Taking the claims in order, the Court rejects as a matter
of law Plaintiffs’ broader argument that consumers were or could be deceived
for GBL purposes about the relevant quantities of vanilla, honey, and
cinnamon in the Oregon Chai products. On this point, it bears noting that
consumers were selecting among chai tea lattes. Plaintiffs themselves adopt a
definition of chai that includes tea and unspecified spices in no particular
proportions. ( See SAC ¶ 7 and n.1). There is nothing in the SAC to suggest
that, so long as the products contained vanilla, honey, and chai spices (which
can include cinnamon), any consumer would be deceived by the packaging in
this case. Plaintiffs do not allege, nor is the Court aware, of a common
understanding of the ingredients in chai, as there is for graham crackers, nor
is there any nutritional basis for a consumer to prefer one proportion of these
flavor ingredients to another. [8]
For similar reasons, the Court rejects Plaintiffs’ argument that references to “natural ingredients” or “natural flavors” lead inexorably to the conclusion
that the vanilla flavor in the Oregon Chai products is derived from vanilla
beans and not artificial vanillin. For starters, Plaintiffs’ use of the term
“artificial vanillin” proves too much, as Plaintiffs concede that the flavor derived
from the vanilla bean can be replicated by both natural and artificial means.
( See SAC ¶ 18). And while Plaintiffs’ GC-MS analysis was inconclusive, they
posit that “[t]he high level of vanillin detected, without the other marker
compounds is consistent with industry practice where vanillin is added to a
drop of real vanilla to ‘fortify’ or ‘spike’ a vanilla taste.” ( Id. at ¶ 72). Such
speculation straddles the Iqbal/Twombly plausibility line, but even were the
Court to accept it, it could not accept Plaintiffs’ corollary argument that the
inclusion of vanillin derived from “a natural source and made through a
natural process” with vanilla extract would nonetheless be deceptive under the
GBL because it may run afoul of FDA regulations. ( Id. at ¶ 73). As previously
noted, the statements in the Oregon Chai products’ packaging, in context,
cannot fairly be read to claim that the vanilla flavor derives exclusively, or even
predominantly, from vanilla beans or vanilla extract. Defendant’s use of the
terms “natural ingredients” and “natural flavors” only confirms that analysis.
research)). As the Second Circuit has observed, in order to state a claim, “plaintiffs
must do more than plausibly allege that a ‘label might conceivably be misunderstood by some few consumers.’” Jessani v. Monini N. Am., Inc. ,744 F. App’x 18 , 19 (2d Cir. 2018) (summary order) (quoting Ebner Fresh Inc. ,838 F.3d 958 , 965 (9th Cir. 2016)). Instead, they must “plausibly allege ‘that a significant portion of the general consuming public or of targeted customers, acting reasonably in the circumstances, could be misled.’” Id. (quoting Ebner ,838 F.3d at 965 ).
There remains Plaintiffs’ allegation that the terms “natural ingredients” and “natural flavors” are false because the Oregon Chai products include
maltol, limonene, and linalool. On this point, Defendant argues principally
that the “use of the word ‘natural’ alone does not convey that a product is
composed exclusively of natural ingredients.” (Def. Br. 15). But while
persuasive at first blush, the force of the argument is undercut by the Second
Circuit’s analysis in Mantikas :
[T]he rule that Defendant contends emerges from these
district court decisions — that, as a matter of law, it is
not misleading to state that a product is made with a
specified ingredient if that ingredient is in fact
present — would validate highly deceptive advertising
and labeling. Such a rule would permit Defendant to
lead consumers to believe its Cheez-Its were made of
whole grain so long as the crackers contained an iota of
whole grain, along with 99.999% white flour. Such a
rule would validate highly deceptive marketing.
Mantikas
,
This Court instead resolves the issue using the analysis adopted by the Barreto , Wynn , and Twohig courts, which examined the pleadings to see
whether there were any non-conclusory allegations that the flavoring substance
in question was derived from artificial sources.
See Barreto
,
n.6). As Plaintiffs note, maltol, limonene, and linalool are listed by the FDA
among “synthetic flavoring substances and adjuvants.” (SAC ¶¶ 86, 88 (citing
21 C.F.R. §§ 172.515(b), 182.60)). However, the FDA classifies each as an
“artificial flavor or artificial flavoring … except where these are derived from
natural sources.” 21 C.F.R. § 101.22(a)(1) (emphasis added). The three district
court decisions cited in this paragraph addressed maltol, and concluded that
the respective pleadings did not plausibly allege that the maltol was derived
from artificial rather than natural sources. This Court reaches the same
conclusion upon examination of the SAC. Further, the Court observes that
both limonene and linalool can be derived from natural sources, and concludes
that Plaintiffs have similarly failed to plausibly allege that either or both of
these flavoring substances was derived from an artificial source. See
Limonene, Merriam-Webster,
https://www.merriamwebster.com/dictionary/limonene (“a widely distributed
terpene hydrocarbon C [10] H [16] that occurs in essential oils (as of oranges or
lemons) and has a lemon odor”) (last visited February 21, 2021); Linalool,
Merriam-Webster, https://www.merriamwebster.com/dictionary/linalool (“a
fragrant liquid alcohol C [10] H [18] O that occurs both free and in the form of esters in many essential oils and is used in perfumes, soaps, and flavoring materials”)
(last visited February 21, 2021). [9]
In sum, viewing each of the challenged statements in context, the Court concludes as a matter of law that Plaintiffs have failed to plausibly allege a
violation of GBL §§ 349 and 350. To the extent the reasonable consumer would
view the “vanilla” reference as an ingredient rather than a flavor of chai tea
latte, there is nothing in the packaging to suggest that the vanilla is sourced
exclusively or predominantly to vanilla beans or vanilla extract. Nor would the
reasonable consumer be misled by the packaging’s references to natural
ingredients or natural flavors, as Plaintiffs have failed plausibly to allege that
the challenged flavoring substances were artificially derived.
3. Plaintiffs Have Failed to State a Claim for Negligent Misrepresentation
Plaintiffs alternatively assert claims for negligent misrepresentation, breach of warranty, fraud, and unjust enrichment. As other courts resolving
similar claims have observed, the failure of Plaintiffs’ overarching theory of
misleading business practices dooms these claims as well. See, e.g. , Barreto ,
fraud, breach of warranty, and unjust enrichment on the basis that the court
had “already determined that [plaintiff] has failed to allege that the product’s
root beer and cream soda.
See
does not resolve in this Opinion whether a trace amount of an artificial ingredient would constitute a violation of GBL §§ 349 or 350.
labeling would be likely to deceive or mislead a reasonable consumer”); Wynn ,
To state a claim for negligent misrepresentation under New York law, a plaintiff must plead “[i] the existence of a special or privity-like relationship
imposing a duty on the defendant to impart correct information to the plaintiff;
[ii] that the information was incorrect; and [iii] reasonable reliance on the
information.”
Mandarin Trading Ltd
. v.
Wildenstein
,
see also Anschutz Corp. Merrill Lynch & Co.
,
(explaining that New York law strictly limits negligent misrepresentation claims
to “situations involving actual privity of contract between the parties or a
relationship so close as to approach that of privity” (internal quotation marks
omitted)). In addition to the pleading deficiencies outlined in the preceding
section, the negligent misrepresentation claim also fails because Plaintiffs have
not plausibly alleged the existence of a special relationship or a privity-like
relationship with Defendant.
See generally Campbell
,
transaction … does not give rise to the kind of special relationship necessary to
maintain a claim for negligent misrepresentation” and rejecting argument
nearly identical to that made by Plaintiffs here that the requisite relationship is
adequately alleged by claim that defendant had “unique or special expertise”).
4. Plaintiffs Have Failed to State a Claim for Breach of Warranty a. There Is No Viable Claim for Breach of an Express Warranty
Plaintiffs’ several warranty claims fare no better. “New York breach of express warranty claims require [i] a material statement amounting to a
warranty; (ii) the buyer’ s reliance on this warranty as a basis for the contract
with his immediate seller; (iii) the breach of this warranty; and (iv) injury to the
buyer caused by the breach.” Brady v. Basic Rsch., L.L.C. , 101 F. Supp. 3d
217, 235 (E.D.N.Y. 2015) (quoting
Avola La.-Pac. Corp.
,
391 (E.D.N.Y. 2013)). Furthermore, such a claim requires that “a buyer ...
provide the seller with timely notice of the alleged breach of warranty.” Quinn
v.
Walgreen Co.
,
§ 2-607(3)(a)). Here, Plaintiffs have failed to allege that the Oregon Chai
products do not comport with the statements on their packaging, and thus
have failed to allege a breach of any warranty. Moreover, Plaintiffs neglected to
give any notice, much less timely notice, [11] and their arguments for an exception to this rule ( see Pl. Opp. 18), have been rejected by this Court in an
analogous case, the analysis of which is incorporated herein by reference. See
Lugones
,
b. There Is No Viable Claim for Breach of an Implied Warranty of Merchantability Plaintiffs also claim a breach of the implied warrant of merchantability. Under the New York Uniform Commercial Code, “a warranty that the goods
shall be merchantable is implied in a contract for their sale if the seller is a
merchant with respect to goods of that kind.” N.Y. U.C.C. § 2-314(1); see
generally Brodie
v.
Green Spot Foods, LLC
, — F. Supp. 3d —, No. 20 Civ. 1178
(ER),
Italian Cheese Specialties, Inc. v. Euro Foods Inc. , No. 14 Civ. 2902 (DF), 2018
WL 4278284, at *37 (S.D.N.Y. Mar. 30, 2018) (recognizing an implied warranty
of merchantability in contract for sale of deli meats)). To be merchantable,
goods “must be ... fit for the ordinary purposes for which such goods are used;
and ... conform to the promises or affirmations of fact made on the container or
label if any.” N.Y. U.C.C. § 2-314(2).
Significantly, however, “[a] warranty of merchantability … does not mean that the product will fulfill a buyer’s every expectation but rather simply
provides for a minimum level of quality.”
Ackerman
v.
Coca-Cola Co.
, No. 09
Civ. 395 (JG),
Viscusi Proctor & Gamble
, No. 05 Civ. 1528 (DLI) (LB),
*13 (E.D.N.Y. July 16, 2007)) (internal quotation marks removed). “Where the
sale of a food or beverage is concerned, courts have ruled that the product need
only be fit for human consumption to be of merchantable quality.” Silva v .
Smucker Nat. Foods, Inc.
, No. 14 Civ. 6154 (JG) (RML),
*11 (E.D.N.Y. Sept. 14, 2015). The SAC asserts that: “The Products did not
conform to their affirmations of fact and promises due to defendant’s actions
and were not merchantable.” (SAC ¶ 154). However, because Plaintiffs do not
suggest that the Oregon Chai products are not fit for human consumption,
they fail to state a claim for breach of the implied warranty of merchantability
under New York law. Additionally, New York law “requires a showing of privity
between the manufacturer and the plaintiff.” Ebin v. Kangadis Food Inc. ,
No. 13 Civ. 2311 (JSR),
accord Hesse
v.
Godiva Chocolatier, Inc.
,
2020). Plaintiffs acknowledge that they did not obtain the Oregon Chai
products directly from Defendant (SAC ¶¶ 119, 121), and thus do not
adequately allege privity.
c. There Is No Viable Claim Under the Magnuson-Moss Warranty Act
Finally, Plaintiffs allege a claim under the MMWA, which “grants relief to [ ] consumer[s] ‘who [are] damaged by the failure of a ... warrantor ... to comply
with any obligation ... under a written warranty.’” Bowling v. Johnson &
Johnson
,
Motor Sales, U.S.A., Inc.
,
Under the statute, a “written warranty” is defined as “any written affirmation of
fact or written promise ... which ... affirms or promises that such material ...
will meet a specified level of performance over a specified period of time.”
15 U.S.C. § 22301(6)(A). At its core, however, the MMWA “merely incorporates
and federalizes state-law breach of warranty claims, including state-law
standards for liability and damages.”
Ebin
,
2006) (“The MMWA ... creates no additional bases for liability, but allows a
consumer to recover damages under existing state law[.]”)).
Defendant argues principally that Plaintiffs have failed to identify a qualifying written warranty under the MMWA, and that the statement “Made
with Natural Ingredients” is insufficient as a matter of law. (Def. Br. 18-19). In
their opposition brief, Plaintiffs responded to other of Defendant’s challenges to
their warranty claims ( see Pl. Opp. 18-20), but offered no response to the
MMWA arguments. Accordingly, the Court find the claim to be abandoned.
See Campbell
,
failing to brief the issue in response to Defendant’s motion to dismiss.”
(collecting cases)). In any event, the Court finds that the absence of a
qualifying warranty necessitates dismissal of the MMWA claim. See Garcia v.
Chrysler Gr. LLC
,
under the MMWA, plaintiffs must adequately plead a cause of action for breach
of written or implied warranty under state law.”).
3. Plaintiffs Have Failed to State a Claim for Fraud To state a claim for fraud under New York law, a plaintiff must allege that (i) the defendant made a misrepresentation or material omission of fact,
(ii) that was false and known to be false by the defendant, (iii) made for the
purpose of inducing the plaintiff to rely upon it, (iv) the plaintiff’s justifiable
reliance on the misrepresentation or material omission, and (v) injury.
Pasternack
v.
Lab’y Corp. of Am. Holdings
,
Fyre Festival Litig.
,
fraud, even under state law, must also satisfy the heightened pleading
requirements of Rule 9(b). See Premium Mortg. Corp. v. Equifax, Inc. , 583 F.3d
103, 108 (2d Cir. 2009); see generally Malvar Egerique v. Chowaiki , No. 19 Civ.
3110 (KPF),
Plaintiffs fall at the first hurdle: For all of the reasons outlined above, Plaintiffs
have not alleged an actionable misrepresentation or omission. Accordingly, the
fraud claim will be dismissed.
4. Plaintiffs Have Failed to State a Claim for Unjust Enrichment Finally, Plaintiffs allege a claim for unjust enrichment. A claim for unjust enrichment under New York law requires a plaintiff to allege that
“[i] defendant was enriched; [ii] at plaintiff’s expense; and [iii] equity and good
conscience militate against permitting defendant to retain what plaintiff is
seeking to recover.” Diesel Props S.r.l. v. Greystone Bus. Credit II LLC , 631 F.3d
42, 55 (2d Cir. 2011) (internal quotation marks omitted). Plaintiffs’ unjust
enrichment claim is premised on the same theory of misrepresentation this
Court has rejected, and is pleaded in a single sentence: “Defendant obtained
benefits and monies because the Products were not as represented and
expected, to the detriment and impoverishment of plaintiffs and class *39 members, who seek restitution and disgorgement of inequitably obtained
profits.” (SAC ¶ 161). “Where a deceptive trade practices claim fails for failure
to allege deception, an unjust enrichment claim fails, too.” Kennedy v.
Mondelez Glob. LLC
, No. 19 Civ. 302 (ENV) (SJB),
(E.D.N.Y. July 10, 2020) (citing
Axon
,
Mondelez Glob. LLC
, No. 19 Civ. 2249 (ERK) (RER),
(E.D.N.Y. July 28, 2020).
CONCLUSION For all of the foregoing reasons, the Court grants Defendant’s motion to dismiss the SAC pursuant to Rules 12(b)(1) and 12(b)(6). Because Plaintiffs
have twice amended their complaint after receiving pre-motion letters from
Defendant, and because Plaintiffs’ one-clause request for leave to amend in
their opposition ( see Pl. Opp. 25) does not explain how they can cure the
deficiencies identified in this Opinion, this Court dismisses the SAC with
prejudice. Cf. Nat’l Credit Union Admin. Bd. U.S. Bank Nat’l Ass’n , 898 F.3d
243, 257-58 (2d Cir. 2018) (“When a plaintiff was aware of the deficiencies in
his complaint when he first amended, he clearly has no right to a second
amendment even if the proposed second amended complaint in fact cures the
defects of the first. Simply put, a busy district court need not allow itself to be
imposed upon by the presentation of theories seriatim.” (alteration, footnote,
and internal quotation marks omitted)). *40 The Clerk of Court is directed to terminate all pending motions, adjourn all pending dates, and close this case.
SO ORDERED. Dated: February 22, 2021
New York, New York __________________________________ KATHERINE POLK FAILLA United States District Judge
Notes
[1] The facts in this Opinion are drawn primarily from the well-pleaded allegations of Plaintiffs’ Second Amended Complaint (“SAC” (Dkt. #25)), which is the operative pleading in this case. For ease of reference, the Court refers to Defendant’s Memorandum of Law in Support of Its Motion to Dismiss the Second Amended Complaint as “Def. Br.” (Dkt. #32); Plaintiffs’ Memorandum of Law in Opposition as “Pl. Opp.” (Dkt. #29); and Defendant’s Reply Memorandum of Law as “Def. Reply” (Dkt. #30).
[2] Plaintiffs allege that Defendant is an Oregon corporation with a principal place of business in Seattle, Washington. (SAC ¶¶ 111, 117). Defendant responds that its principal place of business is in fact in Beloit, Wisconsin. (Def. Br. 2). This correction does not affect the Court’s jurisdictional analysis.
[3] The
Pichardo
also court emphasized the plaintiffs’ allegation, contained here in the SAC,
that the vast majority of vanillin used commercially does not derive from vanilla extract.
See Pichardo Only What You Need, Inc.
, No. 20 Civ. 493 (VEC),
[4] Another recent decision similarly focused on the difference between flavors and
ingredients in denying a motion to dismiss. The plaintiff in
Campbell
v.
Whole Foods
Market Group, Inc.
, No. 20 Civ. 1291 (GHW),
[5] “[A] court may take judicial notice of information publicly announced on a party’s
website, as long as the website’s authenticity is not in dispute and it is capable of
accurate and ready determination.”
Wells Fargo Bank
v.
Wrights Mill Holdings
, 127 F.
Supp. 3d 156, 167 (S.D.N.Y. 2015) (internal quotation omitted). On the theory that the
provision of different flavors of chai tea latte products may have been of recent vintage,
the Court also examined archival copies of Defendant’s website using the Internet
Archive Wayback Machine (https://archive.org/web/), where it observed similar flavor
offerings.
See Distributorsoutlet.com, LLC Glasstree, Inc.
, No. 11 Civ. 6079 (PKC)
(SLT),
[6]
Cf. Campbell
,
[7] For the reasons outlined supra at 15-16, the Court rejects Plaintiffs’ argument that the term “Made with Natural Ingredients” is misleading because the reasonable consumer’s understanding of the term “comports with that of federal regulators and common meaning.” (SAC ¶ 91).
[8] Unlike in other of the vanilla false advertising cases, Plaintiffs have offered no consumer surveys suggesting confusion by or deception of the chai tea latte-consuming public. ( See SAC ¶ 90 (discussing, in conclusory terms, contemplated surveys and other market
[9] As noted, the
Mantikas
Court distinguished a series of cases in which the alleged
misrepresentations concerned “the quantity of an ingredient that obviously was not the
products’ primary ingredient,” such as the vegetable content in a cracker:
In our case of Cheez-Its crackers, in contrast, 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. That same
consumer, confronted with the claim that a cracker is “made with
real vegetables,” likely would not likely conclude that the cracker
was made predominantly of vegetables.
[10] With respect to these remaining claims, the Court acknowledges its debt to Judge Castel for his analysis in Barreto and to Judge Abrams for her analysis in Wynn .
[11] The SAC recites that “Plaintiffs provided or will provide notice to defendant, its agents, representatives, retailers and their employees” (SAC ¶ 152), but there is no indication in the pleadings or the briefing that Plaintiffs provided timely notice of the breach to Defendant. To the contrary, as discussed in the text, Plaintiffs argue for an exception to the notice requirement in their opposition brief.
[12] Specifically, Rule 9(b) requires a plaintiff to specify the fraudulent statements, identify
the speaker, state when and where the statements were made, and explain why the
statements were fraudulent.
See Eternity Glob. Master Fund Ltd. Morgan Guar. Tr. Co.
of N.Y.
,