SHARON DASHNAU & GREGORY RODRIGUEZ-APPELDORN, individually and on behalf of all others similarly situated v. UNILEVER MANUFACTURING (US), INC.
19-CV-10102 (KMK)
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
March 26, 2021
KENNETH M. KARAS, District Judge
OPINION & ORDER
Appearances:
Spencer Sheehan, Esq.
Sheehan & Associates,
Great Neck, NY
Counsel for Plaintiffs
August T. Horvath, Esq.
Foley Hoag LLP
New York, NY
Counsel for Defendant
KENNETH M. KARAS, District Judge:
Plaintiffs Sharon Dashnau (“Dashnau“) and Gregory Rodriguez-Appeldorn (“Rodriguez-Appeldorn“; together, “Plaintiffs“) bring this putative class action against Unilever Manufacturing (US), Inc. (“Defendant“), alleging that the labeling on Defendant‘s vanilla-flavored ice cream dessert bars is deceptive and misleading. Plaintiffs assert claims against Defendant for (1) violations of
I. Background
A. Factual Background
The following facts are drawn from Plaintiffs’ First Amended Complaint and are taken as true for the purposes of resolving the instant Motion.
Defendant manufactures, distributes, markets, labels, and sells chocolate-coated bars of vanilla-flavored ice cream under the “Magnum” brand (the “Product“). (First Am. Compl. (“FAC“) ¶ 1 (Dkt. No. 11).) The Product is sold to consumers through retail and online stores in packages of three bars. (Id. ¶ 2.) The front label of the Product contains the words, “Double Chocolate Vanilla,” and describes the Product as “Vanilla Bean Ice Cream Dipped In A Chocolatey Coating, Chocolatey Sauce And Milk Chocolate.” (Id. ¶ 3.)1
Plaintiffs allege that the words “vanilla bean ice cream” convey four distinct messages to reasonable consumers. First, “vanilla is the characterizing flavor.” (Id. ¶ 4.) Second, “vanilla is contained in a sufficient amount to flavor the product.” (Id.) Third, the Product‘s vanilla flavor is provided only “by the natural characterizing flavor of vanilla” and is “derived from vanilla extract or vanilla flavoring and unexhausted vanilla beans.” (Id.) And fourth, “no other flavors simulate, resemble, reinforce, extend[,] or enhance the [P]roduct‘s vanilla taste or compensate for any reduction in the amount of real vanilla used to supply the vanilla taste.” (Id.)
Plaintiffs allege that the Product actually contains a “de minimis amount of real vanilla.” (Id. ¶ 5.) Relying on a gas chromatography-mass spectrometry analysis (the “GC-MS Analysis“) performed on the Product, Plaintiffs allege that to the extent the Product contains “real vanilla,” it exists in such trace amounts as to be undetectable “by advanced scientific means.” (Id. ¶¶ 103-04.)2 The GC-MS Analysis also indicates that although the Product contains maltol and vanillin, two ingredients used to simulate the flavor of vanilla, the Product uses ethyl vanillin, which “is
In light of the Product‘s contents, Plaintiffs allege that “Defendant‘s branding and packaging of the Product is designed to—and does—deceive, mislead, and defraud . . . consumers.” (Id. ¶ 121.) Plaintiff Dashnau purchased the Product at a Walmart in Middletown, New York during the summer and fall of 2019. (Id. ¶ 137.) Plaintiff Rodriguez-Appeldorn purchased the Product at a store in Westchester County “on multiple occasions” in 2019 and 2020. (Id. ¶ 138.) Plaintiffs allege that they purchased the Product “because they liked the product type for its intended use and expected its vanilla flavor to come from only real vanilla beans.” (Id. ¶ 139.) They further allege that if the vanilla flavor in the Product was “provided by flavors which modified or enhanced the vanilla,” they would have “expected that to be indicated on the front label.” (Id.) Plaintiffs allege that the Product was materially less valuable than Defendant‘s labeling suggested, and if they had “known the truth,” they would not have bought the Product, or at least would have paid less for it. (Id. ¶¶ 123-24.)
B. Procedural History
Plaintiffs filed their initial Complaint on November 1, 2019, (Dkt. No. 5), and filed their First Amended Complaint on May 13, 2020, (Dkt. No. 11). Defendant filed a pre-motion letter regarding its putative motion to dismiss on May 27, 2020, (Dkt. No. 12), Plaintiffs responded on June 15, 2020, (Dkt. No. 14), and the Court held a pre-motion conference on July 9, 2020, (see Dkt. (minute entry for July 9, 2020)). Pursuant to a briefing schedule set by the Court, (Dkt. No. 17), Defendant filed the instant Motion and supporting papers on August 10, 2020, (Dkt. Nos. 19-20). Plaintiffs filed an opposition on September 10, 2020, (Dkt. No. 21), and, with leave from the Court, (Dkt. No. 23), filed their revised Opposition on September 15, 2020, (Dkt. No. 24). Defendant filed its Reply on September 30, 2020. (Dkt. No. 25.) As courts in this District and other federal jurisdictions have granted similar motions in recent months, Defendant has apprised the Court of relevant supplemental authority on eight occasions. (Dkt. Nos. 26-33.)
II. Discussion
A. Standard of Review
The Supreme Court has held that although a complaint “does not need detailed factual allegations” to survive a motion to dismiss, “a plaintiff‘s obligation to provide the ‘grounds’ of his [or her] ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration omitted). Indeed,
“[W]hen ruling on a defendant‘s motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam), and “draw[] all reasonable inferences in favor of the plaintiff,” Daniel v. T&M Prot. Res., Inc., 992 F. Supp. 2d 302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie‘s Int‘l PLC, 699 F.3d 141, 145 (2d Cir. 2012)). Additionally, “[i]n adjudicating a
B. Analysis
As noted, Plaintiffs assert claims against Defendant for (1) violations of
1. New York General Business Law §§ 349 and 350
Plaintiffs’ first cause of action is based on
The only disputed element of Plaintiffs’ GBL claim is whether the Product‘s labeling is “materially misleading.” Plaintiffs argue that the Product is misleading because reasonable consumers would expect the Product‘s vanilla flavor to come exclusively from real vanilla and, in particular, from real vanilla beans—without artificial vanilla flavoring or other flavor enhancers, such as maltol. (See FAC ¶ 4 (asserting that the Product‘s labeling gives consumers the impression that “the flavor is only provided by the natural characterizing flavor of vanilla and derived from vanilla extract or vanilla flavoring and unexhausted vanilla beans[,] and [that] . . . no
As an initial matter, the Court will accept Plaintiffs’ allegations that the Product is not flavored exclusively with “real vanilla.” (See FAC ¶¶ 102-12.) See also Wynn, 2021 WL 168541, at *3 (accepting the “[p]laintiffs’ allegations that [the] [d]efendant‘s product is not exclusively flavored by genuine vanilla extract“). Even so, Plaintiffs have not plausibly alleged that a reasonable consumer who reads the words “vanilla bean ice cream” on the Product‘s front label would conclude that this labeling implies that the vanilla flavor is derived exclusively from “real vanilla,” or from vanilla beans. Here, as in Wynn, Plaintiffs’ allegations that reasonable consumers would expect the Product “to be flavored exclusively with real vanilla are conclusory statements that the Court is not required to accept.” 2021 WL 168541, at *3. In Wynn, Judge Abrams explained that in contrast to similar cases brought in this District, the plaintiffs there did “not attempt to marshal consumer survey data to support their allegation that reasonable customers interpret ‘vanilla’ to mean ‘flavored with exclusively natural vanilla.‘” Id.; cf. Twohig, 2021 WL 518021, at *5 (discussing, but disregarding, the results of a survey “designed at the behest of counsel who apparently has brought nearly 100 similar lawsuits challenging the labeling of vanilla flavored products,” and concluding that the survey was “sufficiently flawed that it does not contribute enough to render the claims plausible“); Pichardo, 2020 WL 6323775, at *6 (discussing, but ultimately discrediting, plaintiffs’ proffered survey data). Here too, Plaintiffs provide no empirical basis to substantiate their assertion that reasonable consumers would interpret the Product‘s label to imply an exclusive source of vanilla flavoring. It is true, as in Wynn, that “Plaintiffs point to a range of federal labeling regulations as evidence of what consumers should expect different types of labels to imply about the contents of their products.” Wynn, 2021 WL 168541, at *3. (See FAC ¶¶ 24-42, 53-92, 113-19.) “But even if Plaintiffs are correct about what the federal regulations require[,] . . . the [First Amended] [C]omplaint does not allege that reasonable consumers are aware of these complex regulations, much less that they incorporate the regulations into their day-to-day marketplace expectations.” Wynn, 2021 WL 168541, at *3 (citing N. Am. Olive Oil Ass‘n v. Kangadis Food Inc., 962 F. Supp. 2d 514, 519 (S.D.N.Y. 2013) (concluding that a product‘s labeling did not mislead consumers where there was “no extrinsic evidence that the perceptions of ordinary
Indeed, Wynn is one of seven cases that have found that the word “vanilla” on a product‘s front label makes a representation about the flavor of the product, but does not make a representation about the source of the product‘s vanilla flavor. See Oregon Chai, 2021 WL 706227, at *12 (concluding that the word “vanilla” on the front of the package “appears to describe a flavor more than an ingredient“); Twohig, 2021 WL 518021, at *4 (concluding that the word “vanilla” on the front label would not “lead a reasonable consumer to believe that vanilla from vanilla beans is the exclusive or predominant flavor ingredient“); Wynn, 2021 WL 168541, at *4 (concluding that the “[d]efendant‘s ‘Vanilla Almondmilk’ front label makes no representations whatsoever about the source of the vanilla flavor or the ingredients constituting it“); Barreto, 2021 WL 76331, at *4 (concluding that the product‘s labeling—which contains the words “Vanilla Soymilk” and “Natural Vanilla Flavor With Other Natural Flavors“—“makes a representation regarding its flavor and does not imply or represent [that] the source of that flavor comes exclusively or predominantly from natural vanilla“); Blue Diamond Growers, 2020 WL 7211218, at *3 (concluding that a reasonable consumer would associate the word “vanilla” with a flavor, rather than a particular ingredient); Pichardo, 2020 WL 6323775, at *5 (noting that “reasonable consumers associate the word ‘vanilla’ with a flavor, not with an ingredient“); Steele, 472 F. Supp. 3d at 50 (explaining that the word “vanilla” assists buyers in determining the flavor of a product, rather than the source of that flavor). Thus, although the plaintiffs in each case alleged that there was a de minimis amount of real vanilla in the vanilla-flavored products, the court held that such allegations were insufficient to adequately plead a material misrepresentation. See Oregon Chai, 2021 WL 706227, at *12-15; Twohig, 2021 WL 518021, at *4-7; Wynn, 2021 WL 168541, at *2-5; Barreto, 2021 WL 76331, at *2-6; Blue Diamond Growers, 2020 WL 7211218, at *3-5; Pichardo, 2020 WL 6323775, at *3-6; Steele, 472 F. Supp. 3d at 50-51.
This case would be on all fours with these recent cases, but for one distinction. Whereas the products in the SDNY Vanilla Cases all contained the word “vanilla,” without any additional modifiers suggesting a particular source of the product‘s vanilla flavor, the Product label in this case contains the words “vanilla bean ice cream,” (see FAC ¶¶ 3-4 (emphasis added)). Thus, to the extent Plaintiffs argue that the Product label makes a representation about a particular source of vanilla flavoring, their argument is marginally stronger here than were similar arguments in the SDNY Vanilla Cases. In Mantikas v. Kellogg Co., 910 F.3d 633 (2d Cir. 2018), the Second Circuit considered whether Cheez-Its boxes “conspicuously labeled ‘WHOLE GRAIN’ and ‘MADE WITH WHOLE GRAIN‘” were misleading in light of the fact that the grain in the product was predominantly made of enriched white flour, rather than actual whole grain. Id. at 636-37. The court observed that in the context of crackers, “reasonable consumers [were] likely to understand that crackers are typically made
Distinguishing Mantikas and Sharpe, each of the SDNY Vanilla Cases has noted that the product labeling in question merely contained the word “vanilla,” without additional language modifiers that could imply a particular ingredient or source of flavoring. See Oregon Chai, 2021 WL 706227, at *12 (observing that the product labeling did not “suggest the exclusive, or even predominant, use of vanilla beans as opposed to other sources,” where there was “no reference to ‘vanilla bean’ or ‘vanilla extract’ anywhere on the packaging; nor [was] there any reference to the product being ‘made with’ or ‘made from’ any part of the vanilla plant“); Twohig, 2021 WL 518021, at *5 (“Here the [p]roduct‘s label does not contain the words ‘made with,’ and there is no mention of vanilla beans anywhere.“); Wynn, 2021 WL 168541, at *4 (“[The] [d]efendant‘s front label makes no explicit claims about the ingredients constituting the flavor; it does not, for example, say ‘made with real vanilla extract’ or even mention vanilla extract at all.“); Barreto, 2021 WL 76331, at *4 (“Here, neither the front label of [defendant‘s] Vanilla Soymilk nor the ingredient panel claim to identify the predominate source of its vanilla flavor . . . .“); Blue Diamond Growers, 2020 WL 7211218, at *4 (“[The] [d]efendant‘s [p]roduct does not use the words ‘vanilla bean’ or ‘vanilla extract,’ nor does it use language such as ‘made with vanilla’ or anything similar.“); Pichardo, 2020 WL 6323775, at *5 (“Had [the] [d]efendant‘s label contained other qualifying words, such as ‘made with,’ ‘contains,’ or ‘vanilla beans,’ a reasonable consumer might be led to believe that vanilla from vanilla extract is the exclusive or primary flavor ingredient, but that is not the case here.“); Steele, 472 F. Supp. 3d at 50 (“The [defendant‘s] container 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.“). Although the Product label here does contain an additional qualifying word (“vanilla bean ice cream“), and is distinguishable from the SDNY Vanilla Cases in this respect, it does not explicitly claim to be “made with” a particular type of ingredient, as was the case in Mantikas and Sharpe. In this sense, the instant case appears to fall somewhere between these two lines of cases.
However, even if the Court were to conclude that the Product‘s label does make a claim about a particular source of the vanilla flavor, the label makes no claim about the predominance of that particular source compared to other sources of vanilla flavoring. In other words, there is nothing to suggest that vanilla beans are the only source of vanilla flavoring, or that the flavor from vanilla beans constitutes a certain percentage of the total vanilla flavor. Cf. Barreto, 2021 WL 76331, at *4 (noting that the product label “[did] not imply or represent [that] the source of th[e] [vanilla] flavor [came] exclusively or predominantly from natural vanilla“). In this sense, a representation regarding ice cream flavor
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.
Pichardo, 2020 WL 6323775, at *4. Finally, apart from the fact that the Product does not make a representation about the predominance of a certain source of vanilla flavor, “there is good reason to doubt [Plaintiffs‘] allegations that a reasonable consumer would find the percentage of authentic vanilla material” in the first place. Blue Diamond Growers, 2020 WL 7211218, at *5; see also Pichardo, 2020 WL 6323775, at *6 (“Because the [c]ourt can take judicial notice that the grocery store shelves are stocked with many vanilla-flavored beverages that sell just fine, the [c]ourt cannot accept the conclusory allegation contained in the [First Amended Complaint] 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.“).
In any event, Plaintiffs have not alleged that the Product contains no flavor from natural vanilla. (See FAC ¶ 103 (acknowledging that the “Product contains p-methoxybenzaldehyde . . . , a compound unique to vanilla, which is an indicator the Product contains some [real] vanilla“); id. ¶ 104 (conceding that “the Product may contain some real vanilla“); id. ¶ 105 (“By using a drop of vanilla extract instead of not using any, [D]efendant can credibly claim its Product has vanilla extract.“).) Thus, as in Steele, “it is conceded that there is [real] vanilla in the [P]roduct[,] [but] it is claimed to be de minimis.” 472 F. Supp. 3d at 50. (See FAC ¶ 5 (alleging that “Defendant‘s Product contains . . . a de minimis amount of real vanilla“).) But as in Steele, “[n]o objective facts in this respect are pled.” 472 F. Supp. 3d at 51. Relying on the results of their GC-MS Analysis, Plaintiffs allege that, of the four “main” chemical compounds that are found in vanilla beans in small amounts (the “marker compounds“), only one—vanillin—was detected in the Product, at 19.178 parts per million (“PPM“). (See FAC ¶¶ 95, 102.) This was also the case in Steele, where the GC-MS Analysis detected vanillin (0.787 PPM) but none of the other marker compounds. See 472 F. Supp. 3d at 51. There, as here, Plaintiffs “argue[d] [that] this means there is too little vanilla bean extract in the ice cream, and the flavoring must come from non-vanilla bean sources.” Id. (Cf. FAC ¶ 106 (arguing that “[D]efendant cannot label the Product as ‘vanilla bean ice cream’ because it fails to contain sufficient flavor from [real] vanilla to characterize it“).) As in Steele, however, “that is not a self-evident conclusion.” 472 F. Supp. 3d at 51. As Judge Stanton explained in that case, “[t]he fact that the analysis disclosed only the vanillin may simply show that the test was not sensitive enough to detect the markers with smaller
Finally, to the extent Plaintiffs argue that the Product label is misleading because it fails to disclose that the vanilla flavor is enhanced by artificial flavors, (see FAC ¶¶ 4, 139, 154), “the use of the term vanilla [does not] imply that there are no other flavoring ingredients.” Pichardo, 2020 WL 6323775, at *5 (rejecting the argument that a product label was misleading because it failed to disclose that the vanilla flavor was bolstered by other ingredients); see also Sarr, 2020 WL 729883, at *4 (finding that a label containing the words “Real . . . Butter” was not misleading because the product contained real butter, and a reasonable consumer would not interpret those words as implying that there were no additional fats); Kennedy v. Mondelez Glob. LLC, No. 19-CV-302, 2020 WL 4006197, at *13 (E.D.N.Y. 2020) (concluding that the words “made with real honey” were not misleading, despite the fact that honey was not the only sweetener). Thus, the Court likewise rejects this theory of misrepresentation.
For the reasons stated above, Plaintiffs fail to adequately allege a material misrepresentation under
2. Plaintiffs’ Remaining Claims
Plaintiffs’ remaining claims—negligent misrepresentation, breaches of express warranty, the implied warranty of merchantability, and the Magnuson Moss Warranty Act, fraud, and unjust enrichment—are based on the assertion that Defendant‘s Product is materially misleading for reasons already discussed in connection with the GBL claim. “Because the Court has already determined that [Plaintiffs] ha[ve] failed to allege that the [P]roduct‘s labeling would be likely to deceive or mislead a reasonable consumer, these causes of action are also dismissed for the reasons already stated.” Barreto, 2021 WL 76331, at *6; see also Blue Diamond Growers, 2020 WL 7211218, at *3 (dismissing claims for negligent misrepresentation, breach of express warranty, breach of the implied warranty of merchantability, violation of the Magnuson Moss Warranty Act, fraud, and unjust enrichment because, “if [the] [d]efendant‘s [p]roduct does not misrepresent the contents of the container as a matter of law, all of [the] [p]laintiffs’ claims must be dismissed“); Wynn, 2021 WL 168541, at *6 (“[The] [p]laintiffs also assert claims for negligent misrepresentation, breach of warranty, fraud, and unjust enrichment. These claims, which largely hinge on the same theory of misleading business practices rejected by the [c]ourt above, all fail as a matter of law.“). These claims also fail for additional reasons, which the Court briefly notes.
a. Negligent Misrepresentation
A negligent misrepresentation claim under New York law requires that
b. Breach of Express Warranty and Implied Warranty of Merchantability
Plaintiffs’ claims for breach of express warranty and the implied warranty of merchantability are dismissed for
“A breach of the implied warranty of merchantability occurs when the product at issue is ‘unfit for the ordinary purposes for which such goods are used.‘” Twohig, 2021 WL 518021, at *9 (citing
c. Common Law Fraud
“Under New York law, stating a claim for fraud requires alleging (1) a material misrepresentation or omission of fact, (2) made with knowledge of its falsity, (3) with an intent to defraud, and (4) reasonable reliance on the part of the plaintiff, (5) that causes damage to the plaintiff.” Wynn, 2021 WL 168541, at *7 (citing Schlaifer Nance & Co. v. Estate of Warhol, 119 F.3d 91, 98 (2d Cir. 1997)). To adequately plead fraud, Plaintiffs must meet the particularity requirement in
d. Unjust Enrichment
Finally, Plaintiffs’ unjust enrichment claim is duplicative of their “core theory of deception, and ‘if plaintiffs’ other claims are defective, an unjust enrichment claim cannot remedy the defects.‘” Id. (quoting Corsello v. Verizon N.Y., Inc., 967 N.E.2d 1177, 1185 (N.Y. 2012)). Here, as in Barreto, the unjust enrichment claim “is based on the same allegations as [Plaintiffs‘] other claims for consumer deception,” and thus, this claim must be dismissed as duplicative of the rejected GBL claim. Id.; see also Alce v. Wise Foods, Inc., No. 17-CV-2402, 2018 WL 1737750, at *12 (S.D.N.Y. Mar. 27, 2018) (dismissing unjust enrichment claim based on “a mere regurgitation of those [allegations] made with respect to plaintiffs’ . . . claims under the GBL“); Goldemberg, 8 F. Supp. 3d at 483-84 (same).
III. Conclusion
For the reasons stated above, Defendant‘s Motion is granted.
Because this is the first adjudication of Plaintiffs’ claims on the merits, the First Amended Complaint is dismissed without prejudice. To the extent Plaintiffs have a good faith basis for filing a second amended complaint, they must do so within 30 days of the date of this Opinion & Order. Failure to properly and timely amend will result in dismissal of the First Amended Complaint with prejudice.
The Clerk of Court is respectfully directed to terminate the pending Motion, (Dkt. No. 19).
SO ORDERED.
Dated: March 26, 2021
White Plains, New York
KENNETH M. KARAS
United States District Judge