ALEXA GROSSMAN, individually and on behalf of others similarly situated, Plaintiff, -against- SIMPLY NOURISH PET FOOD COMPANY LLC, PETSMART, INC., Defendants.
Case 2:20-cv-01603-KAM-ST
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
January 27, 2021
KIYO A. MATSUMOTO, United States District Judge
Document 18 Filed 01/27/21 Page 1 of 43 PageID #: 249
20-CV-1603 (KAM)(ST)
KIYO A. MATSUMOTO, United States District Judge:
Plaintiff Alexa Grossman, individually and on behalf of others similarly situated, commenced this action against Simply Nourish Pet Food Company LLC (“Simply Nourish“) and Petsmart, Inc. (collectively, “defendants“), alleging that defendants falsely and deceptively represent that their pet food products are made from “Natural Ingredients” or “Natural Wholesome Ingredients,” when in fact they contain synthetic ingredients, in violation of
BACKGROUND
The following facts -- drawn from the complaint and documents that are incorporated by reference in, or integral to, the complaint -- are assumed to be true for purposes of this motion. See, e.g., DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010).
I. Factual Background
This putative class action seeks to remedy defendants’ alleged deceptive and misleading business practices with respect to the marketing and sales of Simply Nourish‘s pet foods and treats (the “Products“).1
Defendant Simply Nourish Pet Food Company LLC (“Simply Nourish“) is a corporation with its principal place of business in Phoenix, Arizona. (Compl. ¶ 32.) Simply Nourish manufactures, markets, advertises and distributes the Products
Plaintiff is an individual consumer and resident of the State of New York. (Compl. ¶ 30.) Plaintiff purchased two Simply Nourish products: large breed dog foods and Simply Nourish dog treats from PetSmart in Commack, Long Island during the class period. (Id.) Plaintiff purchased the Products because she believed they did not contain synthetic ingredients. (Id.) Plaintiff alleges that had she known that defendants’ representations she relied upon in purchasing the Products were false, misleading, and deceptive, she would not have purchased the Products. (Id. ¶ 31.) As a result of defendants’ alleged misrepresentations, the Products which plaintiff and the putative class members received were worth less than the Products for which they paid, and they were injured and lost money as a result of defendants’ conduct. (Id. ¶¶ 25, 31.)
Based on defendants’ purported false and misleading representations on the Products’ packaging, plaintiff brought this class action on behalf of herself and those similarly situated alleging the following five causes of action: (1)
A. Deceptive Product Labeling
Plaintiff alleges that defendants used a deceptive marketing and advertising campaign centered around claims that appeal to health-conscious consumers, i.e., that its Products are made from “Natural Ingredients” or “Natural Wholesome Ingredients.” (Compl. ¶¶ 2, 7.) Defendants’ “Natural” label was generally followed by the statement, “with Added Vitamins and Minerals.” (Id. ¶ 7.) In the complaint, plaintiff provides several photos of the Products and identifies the alleged misrepresentations:
(See Compl. ¶ 7 (Simply Nourish Adult Dog Food Lamb & Oatmeal, which states, in the bottom right corner, “Natural Food for Dogs with Added Vitamins, Minerals & Trace Nutrients“).)
(See Compl. ¶ 7 (Simply Nourish Limited Ingredient Diet Dog Food Venison & Sweet Potato, which states “Natural Wholesome Ingredients with Added Essential Vitamins & Minerals“).)
(See Compl. ¶ 7 (Simply Nourish Grain Free Large Breed Adult Dog Food Chicken with Peas & Potatoes, which states “Natural Wholesome Ingredients with Added Essential Vitamins & Minerals“).)
(See Compl. ¶ 7 (Simply Nourish Grain Free Gluten Free Chewy Chicken Jerky Fillets Dog Treat, which states “Naturally Wholesome Ingredients“).)
Plaintiff alleges that defendants’ representations that its Products are “Natural” is false, misleading, and deceptive because the Products contain synthetic ingredients including: niacin, thiamine mononitrate, riboflavin, citric acid, tocopherol, calcium carbonate, folic acid, manganese sulfate, ascorbic acid, xantham gum, potassium chloride, tricalcium phosphate, dicalcium phosphate, zinc oxide, glycerin (vegetable). (Compl. ¶ 8.) According to plaintiffs, the above ingredients are synthetic as defined by the United States
B. USDA‘s Decision Tree for Classification of Materials as Synthetic or Nonsynthetic
In support of the complaint‘s allegations, plaintiff attaches “Draft Guidance” from the USDA, highlighting the USDA‘s “Decision Tree for Classification of Materials as Synthetic of Nonsynthetic,” under USA regulations for organic human foods. (See Compl. ¶ 10, Ex. A.) Following the decision tree, the USDA provides definitions for synthetic ingredients and classifies a number of substances as “synthetic” or “nonsynthetic” and provides an explanation justifying each classification. (See Ex. A, at 3-4.) The decision tree issued by the USDA does not appear to apply directly to pet foods. Plaintiff argues that the USDA decision tree provides some guidance as to what a reasonable consumer may deem “natural.” (ECF No. 13, Plaintiff‘s Memorandum of Law in Opposition to Defendants’ Motion to Dismiss (“Pl. Mem.“), at 8.)
C. The Association of American Feed Control Officials’ Guidelines for “Natural” Claims
In support of its motion to dismiss, defendants argue that its product labeling is not deceptive because its use of the term “Natural” is consistent with guidelines issued by the Association of American Feed Control Officials (“AAFCO“). (Def. Mem. at 3, 6; see also ECF No. 12-2, Declaration of Keri E.
[T]he use of the term ‘natural’ is false and misleading if any chemically synthesized ingredients are present in the product; however, AAFCO recommends that exceptions be made in the cases when chemically synthesized vitamins, minerals, or other trace nutrients are present as ingredients in the product, provided that the product is not a dietary supplement and that a disclaimer is used to inform the consumer that the vitamins, minerals or other trace nutrients are not natural.
II. Procedural History
On March 30, 2020, plaintiff commenced the instant action seeking declaratory and injunctive relief, monetary damages, punitive damages, and attorney‘s fees. (See ECF No. 1.) On June 5, 2020, defendants filed a pre-motion letter
Presently before the Court is defendants’ motion to dismiss plaintiff‘s complaint pursuant to
LEGAL STANDARD
In evaluating defendants’ motion to dismiss, the Court must accept all well-pleaded facts in the complaint as true and draw all reasonable inferences in plaintiff‘s favor. See, e.g., Burch v. Pioneer Credit Recovery, Inc., 551 F.3d 122, 124 (2d Cir. 2008) (per curiam). A claim survives a
District courts “must consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on
DISCUSSION
Plaintiff seeks relief for defendants’ alleged deceptive and misleading business practices in violation of New York state law, federal law, and common law. Defendants move to dismiss plaintiff‘s complaint under
I. Standing
Defendants argue that plaintiff lacks standing to seek prospective injunctive relief because she cannot allege an imminent future harm and similarly lacks standing to bring a class action suit with respect to Products she did not purchase. (Def. Mem. at 4, 19.) The Court will first consider defendants’ motion to dismiss for lack of standing pursuant to
A. Standing to Seek Injunctive Relief
“To establish Article III standing, a plaintiff must show (1) an injury in fact, (2) a sufficient causal connection between the injury and the conduct complained of, and (3) a likelihood that the injury will be redressed by a favorable decision.” Knife Rights, Inc. v. Vance, 802 F.3d 377, 383 (2d Cir. 2015). “Plaintiffs seeking injunctive relief must also prove that the identified injury in fact presents a real and immediate threat of repeated injury.” Kreisler v. Second Ave. Diner Corp., 731 F.3d 184, 187 (2d Cir. 2013). “The prospective-orientation of the analysis is critical: to maintain an action for injunctive relief, a plaintiff cannot rely on past injury . . . but must show a likelihood that he . . . will be injured in the future.” Berni v. Barilla S.p.A., 964 F.3d 141, 147 (2d Cir. 2020). “Although past injuries may provide a basis to seek money damages, they do not confer standing to seek injunctive relief unless the plaintiff can demonstrate that she is likely to be harmed again in the future in a similar way.” Nicosia v. Amazon.com, Inc., 834 F.3d 220, 239 (2d Cir. 2016).
After reviewing the binding Second Circuit precedent, the Court concludes that plaintiff lacks standing to seek injunctive relief.4 The Second Circuit has explained that “past
purchasers of a consumer product who claim to be deceived by that product‘s packaging . . . have, at most, alleged a past harm.” Berni, 964 F.3d at 147. Accordingly, “past purchasers of a product . . . are not likely to encounter future harm of the kind that makes injunctive relief appropriate.” Id. Here, plaintiff alleges that if the Products were actually “natural,” as represented on the labels, she “would purchase the Products again in the immediate future.” (Compl. ¶ 30.) In other words, by her own admission, plaintiff would purchase defendants’ Products only if defendants either changed the labeling or ingredients in the Products. Thus, there is no risk that plaintiff would purchase defendants’ Products with the current state of ingredients or labels because, by plaintiff‘s own allegations, these Products are purportedly deceptive.
Because plaintiff knows that the vitamins and minerals in the Simply Nourish Products are allegedly synthetic and that she will not purchase the Products in their current state, she cannot show an imminent risk of future deception and injury. Indeed, district courts in this Circuit have held that a plaintiff in a false advertisement case has necessarily become aware of the alleged misrepresentations, “there is no danger
B. Standing as to Unpurchased Products
Defendants further argue that plaintiff lacks standing to bring a class action with respect to the Products she did not purchase. (Def. Mem. at 19.) Specifically, defendants contend that plaintiff‘s complaint “challenges 99 varieties of Simply Nourish products” but does not indicate which Product plaintiff purchased. (Id.) In response, plaintiff contends that she has standing to challenge any unpurchased Products because the
A plaintiff in a putative class action has class standing if “he plausibly alleges (1) that he personally has suffered some actual ... injury as a result of the putatively illegal conduct of the defendant ... and (2) that such conduct implicates the same set of concerns as the conduct alleged to have caused injury to other members of the putative class by the same defendants[.]” NECA-IBEW Health & Welfare Fund v. Goldman Sachs & Co., 693 F.3d 145, 162 (2d Cir. 2012) (internal citations and quotations omitted). District courts in this Circuit are divided over whether class standing should be resolved at the pleading stage or the class certification stage. See Buonasera v. Honest Co., 208 F. Supp. 3d 555, 562-63 (S.D.N.Y. 2016) (collecting cases that have and have not resolved class standing at the motion to dismiss stage). Several courts “have held that, subject to further inquiry at the class certification stage, a named plaintiff has standing to bring class action claims under state consumer protection laws
Here, to the extent class standing must be addressed at this stage, the Products (both purchased and unpurchased) are sufficiently similar to support plaintiff’s class standing at this time. Specifically, the “nature and content of the specific misrepresentation alleged,” NECA–IBEW Health & Welfare Fund, 693 F.3d at 162, is similar because the Products were all sold and marketed by defendants and possessed the same allegedly deceptive representation that the underlying ingredients were “natural.” (See Compl. ¶ 68 (“Defendants’ material misrepresentations were substantially uniform in content, presentation, and impact upon consumers at large.”); see, e.g., Suarez v. California Nat. Living, Inc., No. 17-cv-9847 (VB), 2019 WL 1046662, at *5 (S.D.N.Y. Mar. 5, 2019) (finding plaintiff had class standing to challenge unpurchased products where the products were “sold and marketed by defendant,” “labeled and marketed as ‘natural’ (or, in one instance, “naturally perfect for the whole family,” and “plaintiff alleges
Thus, defendant’s motion to dismiss for lack of standing for unpurchased Products is denied without prejudice, and “any specific concerns regarding the [Products’] differences can be addressed at the class certification stage.” Wai Chu v. Samsung Elecs. Am., Inc., No. 18-cv-11742 (GHW), 2020 WL 1330662, at *3 (S.D.N.Y. Mar. 23, 2020) (quotation marks omitted); see also Segedie v. Hain Celestial Group, Inc., No. 14-cv-5029 (NSR), 2015 WL 2168374, at *11 (S.D.N.Y. May 7, 2015) (declining to address class standing at the motion to dismiss stage and noting that the Court would address the issue at a later time); Moses v. Apple Hospitality REIT Inc., 14-cv-3131 (DLI)(SMG), 2016 WL 8711089, at *4 (E.D.N.Y. Sept. 30, 2016) (holding that “[s]ince Plaintiff has Article III standing, the more prudent approach is to analyze class standing at the class certification stage because the Plaintiff has already
II. New York GBL §§ 349 and 350
Plaintiff’s first and second cause of action assert that defendants’ conduct violated New York law because the representations were deceptive acts and practices in violation of
Defendants’ improper consumer-oriented conduct -- including labeling and advertising the Products as being “Natural” -- is misleading in a material way in that it, inter alia, induced Plaintiff and the New York Subclass Members to purchase and pay a premium for Defendants’ Products and to use the Products when they otherwise would not have. Defendants made their untrue and/or misleading statements and representations willfully, wantonly, and with reckless disregard for the truth.
Whether a representation is likely to deceive a reasonable consumer is usually a question of fact that should not be resolved on a motion to dismiss. Goldemberg v. Johnson & Johnson Consumer Cos., Inc., 8 F. Supp. 3d 467, 478 (S.D.N.Y. 2014). Given that the reasonable consumer inquiry is, in most instances, a factual one, a party seeking to dismiss a false labeling claim must “extinguish . . . the possibility” that a reasonable consumer could be misled into believing the Products contained no synthetic materials. In re Frito-Lay N. Am., Inc. All Nat. Litig., No. 12-MD-2413 (RRM) (RLM), 2013 WL 4647512, at *16 (E.D.N.Y. Aug. 29, 2013) (declining to dismiss plaintiffs’ claims that the statement “made with all natural ingredients” on the product labels would mislead a reasonable consumer). Nonetheless, under both
Having reviewed the complaint and supporting documents, the Court concludes that plaintiff plausibly alleged that a reasonable consumer may be deceived by the statements regarding “Natural” ingredients provided on defendants’ Products’ labels. Thus, for the reasons set forth below, the Court denies defendants’ motion to dismiss with respect to plaintiff’s claims under
As an initial matter, the Court notes that its conclusion today is consistent with recent district court decisions in this Circuit and outside of this Circuit addressing similar claims challenging “Natural” advertising representations on pet food products. See Scandore v. Nylabone Corp., No. 20-cv-0254 (GRB)(ARL), at 38-39 (E.D.N.Y. 2020) (denying motion to dismiss after concluding that plaintiff plausibly alleged a claim under
First, the Court concludes that plaintiff plausibly alleged a claim under
Second, this Court declines to adopt the AAFCO guidelines discussing “natural” claims in this instant case, and thus, the defendants’ contention that its Products are “AAFCO-compliant” bears no dispositive weight in deciding this motion. (Def. Mem. at 12-14.) Several district courts have declined to adopt the AAFCO’s guidelines on “natural” representations, and this Court similarly finds no authority requiring it to follow these standards. See Roper, 2020 WL 7769819, at *5 (“AAFCO’s guidelines are not an enforceable provision of California law”); Blue Buffalo Co. v. Nestle Purina Petcare Co., No. 15-cv-384 (RWS), 2015 WL 3645262, at *5 (E.D. Mo. June 10, 2015) (“[T]here is no legal authority for the proposition that no reasonable consumer could be misled by labeling that complies with FDA and
Third, defendants’ contention that the “qualified statement” on the Products’ label prevents any consumer misconception is also unpersuasive. Notably, one Simply Nourish Product identified by plaintiff, “Simply Nourish Grain Free Gluten Free Chewy Chicken Jerky Fillets Dog Treat,” does not contain the qualified statement and instead simply represents that the Product is made of “Naturally Wholesome Ingredients.” (See Compl. ¶ 7 at 14); see also Scandore, No. 20-cv-0254, at 38 (noting that some of defendants’ products did not include the disclaimer language referring to “added vitamins and minerals”). Accepting plaintiff’s allegations that the ingredients contained in the Products are synthetic and non-natural (see Compl. ¶ 8),
Fourth, although some courts have found that an ingredient statement may clarify a consumer’s understanding of what is being advertised, the mere presence of an ingredient list on a product “does not eliminate the possibility that reasonable consumers may be misled.” Ackerman v. Coca–Cola Co., No. 09-cv-0395 (JG), 2010 WL 2925955, at *16–17 (E.D.N.Y. July 21, 2010). Thus, although the ingredient list provided on the Products is relevant to whether a reasonable consumer would be misled by the labels, the effect that such list may have on a reasonable consumer’s understanding of the Products’ label is a factual inquiry. See Sitt v. Nature’s Bounty, Inc., No. 15-cv 4199 (MKB) (E.D.N.Y. Sept. 26, 2016); Goldemberg, 8 F. Supp. 3d at 478 (rejecting motion and holding that a reasonable consumer could interpret “Active Naturals” to mean the product was completely natural). Furthermore, although defendants argue that the allegedly synthetic ingredients are properly characterized as natural (see Def. Mem. at 8-9, 11-12), “that question of fact is improperly resolved on a motion to dismiss, when the Court must accept plaintiff’s well-pleaded allegations as true and draw all reasonable inferences in plaintiff’s favor.” Suarez, 2019 WL 1046662, at *8; In re Frito-Lay N. Am., Inc. All Nat. Litig., 2013 WL 4647512, at *16 (noting that while
Finally, plaintiff sufficiently alleged causation and injury at this stage in the litigation to survive dismissal. As noted above, the complaint alleges facts that, if true, establish that the “natural” representations were plausibly misleading to a reasonable consumer, misled plaintiff, and caused plaintiff harm in the form of economic injury. (See Compl. ¶ 54 (“Defendants’ improper consumer-oriented conduct -- including labeling and advertising the Products as being “Natural” -- is misleading in a material way in that it, inter alia, induced Plaintiff and the New York Subclass Members to purchase and pay a premium for Defendants’ Products and to use the Products when they otherwise would not have”)); see Ackerman, 2010 WL 2925955, at *23 (“Injury is adequately alleged under
III. Breach of Express Warranty
Plaintiff’s third cause of action asserts that defendants breached an express warranty under state warranty laws by providing a “written affirmation of fact” promising that the Products are “Natural.” (Compl. ¶¶ 70-78.)
To properly plead breach of an express warranty under New York law, plaintiff must allege “an affirmation of fact or promise by the seller, the natural tendency of which was to induce the buyer to purchase....” Sitt, 2016 WL 5372794, at *15 (quoting Factory Assocs. & Exporters, Inc. v. Lehigh Safety Shoes Co. LLC, 382 Fed. App‘x 110, 111–12 (2d Cir. 2010) (summary order)). “Any 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 creates an express warranty
To recover on a breach of warranty claim under New York law, the buyer of the allegedly mislabeled product “must within a reasonable time after [s]he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy.”
Here, the Court concludes that plaintiff adequately stated a claim that the “natural” label on the Products warranted, through its description of the Products, a statement of fact about the Products that was allegedly breached by the inclusion of synthetic ingredients. See In re Frito-Lay N. Am., Inc., 2013 WL 4647512, at *27; Acquard, 2020 U.S. Dist. LEXIS 224712, *14 (declining to dismiss plaintiff’s express warranty claim challenging an “All Natural” label on pet food products); Goldemberg, 8 F. Supp. 3d at 483 (declining to dismiss plaintiff’s express warranty claim challenging the “Active Naturals” labeling on Aveeno skin care products). The Court also finds that plaintiff sufficiently alleged that she relied on the “natural” claim, which was the basis for the bargain, and
Nonetheless, the Court concludes that plaintiff failed to allege pre-suit notice as required for a breach of express warranty claim. Plaintiff’s complaint states that “[w]ithin a reasonable time after they knew or should have known of Defendants’ breach, Plaintiff, on behalf of herself and Class Members, placed Defendants on notice of their breach, giving Defendants an opportunity to cure their breach, which they refused to do.” (Compl. ¶ 75.) This allegation, by itself, is insufficient to plead pre-suit notice. Instead, plaintiff must provide factual allegations -- such as the date and method plaintiff sent a pre-suit notice -- supporting the contention that she notified defendant of the alleged breach within a reasonable time. See Suarez, 2019 WL 1046662, at *9 (noting that the amended complaint specifically alleged that plaintiff mailed a “pre-suit notice” on a specific date, asserting that defendant breached an express warranty under New York law). Although plaintiff states in her opposition to defendants’ motion to dismiss that “Plaintiff mailed Defendants a pre-suit notice letter on September 5, 2018, prior to filing the original complaint in this case,” such allegation is absent from the complaint. (Pl. Mem. at 18.) Consequently, because plaintiff failed to allege any facts supporting the allegation that she
IV. The Magnuson-Moss Warranty Act
Plaintiff’s fourth cause of action asserts that defendants violated the MMWA by providing a “written warranty” promising that the Products are “Natural.” (Compl. ¶¶ 79-88.) Defendants argue that a “natural” label “in the context of a qualified claim” is not a written warranty that the Products “will meet a specified level of performance over a specified period of time.” (Def. Mem. at 21.)
“The [Magnuson-Moss Warranty Act] grants relief to a consumer ‘who is damaged by the failure of a ... warrantor ... to comply with any obligation ... under a written warranty.’ ” Wilbur v. Toyota Motor Sales, U.S.A., Inc., 86 F.3d 23, 26 (2d Cir. 1996) (quoting
any written affirmation of fact or written promise made in connection with the sale of a consumer product by a supplier to a buyer which relates to the nature of the material or workmanship and affirms or promises that such material or workmanship is defect free or will
meet a specified level of performance over a specified period of time[.]
The Court concludes that plaintiff failed to allege a violation of a written warranty as defined under the MMWA because the “natural” representation on defendants’ Products relates to the nature of the material in the product, but does not “affirm[] or promise[] that such material or workmanship is defect free or will meet a specified level of performance over a specified period of time.”
V. Unjust Enrichment
Finally, plaintiff’s fifth cause of action alleges that defendants’ “unlawful conduct as described in this
“Under New York law, a plaintiff may prevail on a claim for unjust enrichment by demonstrating ‘(1) that the defendant benefitted; (2) at the plaintiff‘s expense; and (3) that equity and good conscience require restitution.’” Nordwind v. Rowland, 584 F.3d 420, 434 (2d Cir. 2009) (quoting Beth Isr. Med. Ctr. v. Horizon Blue Cross & Blue Shield of N.J., Inc., 448 F.3d 573, 586 (2d Cir. 2006)). Unjust enrichment is an equitable remedy, available “only in unusual situations when, though the defendant has not breached a contract nor committed a recognized tort, circumstances create an equitable obligation running from the defendant to the plaintiff.” Corsello v. Verizon N.Y., Inc., 967 N.E.2d 1177, 1185 (N.Y. 2012). Notably, “[u]njust enrichment claims should be dismissed ‘where the violative conduct alleged is conterminous with a conventional tort or contract claim, regardless of whether the tort or contract claim is dismissed.’” Hughes v. Ester C Co., 330 F. Supp. 3d 862, 877 (E.D.N.Y. 2018) (quoting Obeid on behalf of Gemini Real Estate Advisors LLC v. La Mack, No. 14-cv-6498 (LTS) (HBP), 2018 WL 2059653, at *29 (S.D.N.Y. May 1, 2018)); see also Bowring v. Sapporo U.S.A., Inc., 234 F. Supp. 3d 386, 392 (E.D.N.Y. 2017) (dismissing unjust enrichment claim because it was duplicative of plaintiff’s other dismissed claims).
Here, the unjust enrichment claim duplicates the plaintiff’s other claims, which arise out identical facts: the defendants’ alleged misrepresentation on the Product packaging. Because plaintiff’s unjust enrichment claim under New York law is based on the same allegations as her claims of violations of
CONCLUSION
For the foregoing reasons, defendants’ motion to dismiss is denied in part and granted in part without prejudice, and with leave to amend the breach of express warranty claim in conformity with this Memorandum and Order. The Court grants defendants’ motion to dismiss plaintiff’s claims for injunctive relief, breach of a written warranty under the MMWA, breach of
SO ORDERED.
/s/
KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York
Dated: January 27, 2021
Brooklyn, New York
Notes
Indeed, even before Berni, district courts in this Circuit would dismiss requests for injunctive relief where, as here, the future harm alleged was speculative. See, e.g., Holve v. McCormick & Co., Inc., 334 F. Supp. 3d 535, 552 (W.D.N.Y. 2018) (concluding that plaintiff failed to demonstrate real or immediate injury and denying standing for injunctive relief where, by plaintiff‘s own admission, she would purchase products in the future only if the Product “was not misbranded“); Gonzalez v. Costco Wholesale Corp., No. 16-cv-2590, 2018 WL 4783962, at *6 (E.D.N.Y. Sept. 29, 2018) (plaintiff lacked standing to seek injunctive relief because her claim that she would resume purchasing the offending products in the future if the misleading conduct was remedied was insufficient to establish likelihood of future injury); Atik v. Welch Foods, Inc., No. 15-cv-5405 (MKB) (VMS), 2016 WL 5678474, at *6 (E.D.N.Y. Sept. 30, 2016) (“Plaintiffs also allege that they would resume purchasing the Products in the future but only if the representations on the Products’ labels were ‘truthful and non-deceptive.’ These allegations are insufficient to establish a likelihood of future injury because Plaintiffs cannot rely on past injury.” (internal citation omitted)); Tomasino v. Estee Lauder Cos. Inc., 44 F. Supp. 3d 251, 256 (E.D.N.Y. 2014) (holding that the plaintiffs did not have standing to seek injunctive relief because the plaintiffs alleged that the products at issue had been deceptively advertised and that they would not have bought the products “absent the allegedly misleading advertisements“).