Case Information
USDC SONY DOCUl\lE~T UNITED STATES DISTRICT COURT ELECTRO:\ICALLY FILED SOUTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - -x DOC #: _ __ ~ .,.....-,------- DA TE FILE.o: ~hvl z a QUINCY STEELE and JIMMY ARRIOLA, on
behalf of themselves and all others
others similarly situated,
Plaintiffs 19 Civ. 9227 (LLS) - against - OPINION & ORDER
WEGMANS FOOD MARKETS, INC. Defendants
- - - - - - - - - - - - - - - - - - -x
In this putative class action, defendant Wegmans Food Markets, Inc. moves to dismiss plaintiffs Quincy Steele and Jimmy Arriola' s first amended complaint ("FAC") (Dkt. No. 10) pursuant to Federal Rules of Civil Procedure 12(b) (6) and 9(b) For the following reasons, the motion (0kt . No. 13) is granted.
BACKGROUND Plaintiffs sue Wegmans, a grocery store chain and food manufacturer, for claimed deceptive acts or practices in violation of federal, New York, and Pennsylvania statutes and standards, false advertising, common-law negligent
misrepresentation, fraud, breach of warranty and unjust enrichment.
Nevertheless, the case comes down to two decisive questions: did the label on the ice cream container misrepresent the container's contents? and did the elaborate gas chromatography- mass spectrometry analysis plaintiffs ' chemists performed show there was fraudulently little vanilla bean extract in the ice cream?
The answers to each of those questions being No , the complaint is dismissed .
A picture included in the FAC of the packaging of the product in question and its ingredient list is below .
Milk, Cream, Corn Syrup. Liquid Sugar. S ,m Mil , Buttermilk. M1lkfat. Whey, atural Flavor, Mono • and D1glycendes, Guar Gum, Cellulose Gum, Carrageenan, Dex trose, Annatto (color) .
Plaintiffs contend they were deceived by Wegmans to believe that ice cream they bought from Wegmans got its vanilla flavor from vanilla beans or vanilla bean extract , when in fact the ice cream got most of its vanilla flavor from some non - vanilla source . FAC ~~ 5 , 6 ("Defendant ' s Product contains non - vanilla flavor, a de minimis amount of vanilla and to the extent it tastes like vanilla , such flavor is contributed by vanillin from non - vanilla sources . The Product is not truthfully or lawfully identified as ' Vanilla Ice Cream ' which misleads consumers . ") .
Plaintiffs ' claim that Wegmans ' ice cream is flavored by artificial flavors , not natural vanilla flavor , has no factual support , since the test performed does not show that .
Plaintiffs ' claim that Wegmans' label is misleading under the law requires some explanation , but also fails .
DISCUSSION The Federal and State Statutes The food , and ice cream , business is closely regulated , in ways described for many pages in the complaint . The primary federal Food Drug and Cosmetic Act deals generally with food , not with flavoring , 21 U. S . C . § 343(g) , and its enforcement is left to the federal and State (if the food is located within the State) authorities . There is no private civil right of action for breaches of its provisions . See 21 U. S.C. § 337. The New York Agriculture and Markets Law , which in its ice cream regulations , 1 NYCRR 17 . 19 , adopted the federal ice cream regulations , is also administered by a Commissioner who investigates and may sue for penalties. N. Y. Agric. & Mkts . Law § 35. No private civil actions can be inferred ; the legislature created such a right of action only when it wished to (N.Y.
Agric. & Mkts . Law§ 378(3) , dealing with tampering with animal research) .
Thus , in this private civil action , the extensive discussion and argument in the motion papers with respect to particular federal standards for ice cream flavor descriptions is without consequence . POK Labs Inc . v . Friedlander , 103 F . 3d 1105 , 1113 (2d Cir . 1997) (Plaintiff ' s "dogged insistence that PDK ' s products are sold without proper FDA approval suggests" his goal is "to privately enforce alleged violations of the FDCA . However , no such private right of action exists ." )
The point here is not conformity with this or that standard (which is left to the authorities to regulate) but whether the marketing presentation was deceptive .
The relevant portions of the Pennsylvania Unfair Trade Practices and Consumer Protection Law (73 Penn . Statutes§§ 201 - 1 , 2 , 3) , like the provisions of New York ' s General Business Law Sections 349 and 350 , are not product standards , but prohibitions of misrepresentations , deceptions and misleading conduct . They, like the common - law false advertising , and fraud issues , turn on the honesty and accuracy of the ice cream container ' s label , to which we now turn .
The Container Label: Deceptive? 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 1 •
That is where the container ' s disclosures start , and where they stop . Where is the deception? What is misleading , or misrepresented?
[1] In a highly competitive market for consumer taste , ice cream producers seek not just a vanilla ice cream , but a different and better tasting vanilla ice cream than their competitors. To this end , many manufacturers flavor their vanilla ice creams not just with vanilla extract , but with a package of flavorings of which vanilla extract is the predominant , but not the only, flavoring component . These flavoring packages often are carefully developed by specialized flavor suppliers , with their proprietary formulations kept as a trade secret. Defts ' April 20 , 2020 brief, p.4.
The plaintiffs assume that buyers take it for granted that natural vanilla flavor is wholly or largely derived from vanilla beans , and argue that if the predominant component of the flavoring is not from beans or vanilla extract , the customer is misled. They point to Mantikas v . Kellogg Co ., 910 F . 3d 633 (2d Cir. 2018) where the Cheez - It crackers box proclaimed WHOLE GRAIN in large type ; there was in fact a small amount of whole grain in the crackers , but they were mainly made of less nutritious enriched white flour . This case is different . The Wegmans 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 . What is misrepresented? The ice cream is vanilla flavored . The sources of the flavor are natural , not artificial .
In this case , it is conceded that there is vanilla in the product ; it is claimed to be de minimis . No objective facts in this respect are pled.
Plaintiffs ' authority for that argument is its alleged experts ' test.
The Mass Spectrometry Analysis The subject - matter of the discussion of plaintiffs ' mass spectrometry analysis is four chemical compounds that are present in vanilla beans in small amounts ("marker compounds " ) They are vanillin (1 . 3% to 1 . 7% present) , p - hydroxybenzaldehyde (a tenth of a percent), vanillic acid (a twentieth of a percent) , and p - hydroxybenzoic acid (three hundredths of a percent) . The latter three proportions are tiny , from 6% to 2 ~ • [0] as much as the vanillin .
The analysis of the ice cream picked up vanillin at 0 . 787 parts per million , and did not detect any of the smaller three markers . Plaintiffs argue this means there is too little vanilla bean extract in the ice cream , and the flavoring must come from non - vanilla bean sources . But that is not a self - evident conclusion .
The fact that the analysis disclosed only the vanillin may simply show that the test was not sensitive enough to detect the markers with smaller profiles in the bean .
The test may just confirm that the vanilla flavor derives solely from vanilla extract .
That is left to speculation . What is needed is to test , not for the universe of the ice cream ' s contents , but specifically for the presence of the particular chemical markers.
The test performed under plaintiffs ' instructions is as inapplicable to this action as are the federal specifications for ice cream flavorings , which are not enforceable by private plaintiffs .
CONCLUSION The Amended Complaint does not state a claim of misrepresentation regarding the flavoring of Wegmans Vanilla Ice Cream and is dismissed .
So ordered .
Dated : July 14 , 2020
New York , New York
LOUIS L . STANTON U. S . D. J .