Case Information
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------------x SEAN TWOHIG, SANDY BALBIN, individually
and on behalf of all others similarly situated,
Plaintiffs, OPINION & ORDER - against - No. 20-CV-763 (CS) SHOP-RITE SUPERMARKETS, INC.,
Defendant.
-------------------------------------------------------------x
Appearances:
Spencer Sheehan
Sheehan & Associates, P.C.
Great Neck, New York
Michael R. Reese
Sue J. Nam
Reese LLP
New York, New York
Counsel for Plaintiffs
August T. Horvath
Foley Hoag LLP
New York, New York
Counsel for Defendant
Seibel, J.
Before the Court is Defendant’s motion to dismiss Plaintiffs’ Amended Complaint. (Doc.
16.) For the following reasons, Defendant’s motion is GRANTED.
I. BACKGROUND
Facts For purposes of this motion, the Court accepts as true the facts, but not the conclusions, alleged by Plaintiffs in the Amended Complaint (“AC”), (Doc. 15). Defendant ShopRite Supermarkets, Inc. (“ShopRite”) manufactures, distributes, markets, labels, and sells organic vanilla soymilk under the Wholesome Pantry™ brand (“the Product”) in its retail stores and on its website. (AC ¶ 1.) Plaintiff Twohig purchased the Product at ShopRite stores in Poughkeepsie, New York and Fishkill, New York on multiple occasions in 2019, and Plaintiff Balbin purchased the Product at a ShopRite store in Stony Point, New York on multiple occasions in 2020. ( Id. ¶¶ 97-98.) The Product sells for approximately $2.74 for a 32-ounce carton and $3.99 for a 64-ounce carton, excluding tax. ( Id. ¶ 77.) The front label of the Product contains the brand name “Wholesome Pantry” at the top. Beneath is a small banner that says “Organic.” Under the banner is the word “Soymilk,” and below that word, in a different font and color and a smaller size, is the word “Vanilla.” ( Id. ¶ 3.) A picture included in the AC of the Product’s front label is below.
( Id. )
Plaintiffs contend that the front label deceived them into believing that the vanilla flavoring in the Product came only from vanilla beans and was not enhanced by non-vanilla flavors or artificial flavors. ( Id. ¶¶ 96, 99-101.) But, they claim, vanillin – which is the main molecule in vanilla but is derived from wood pulp or sources other than the vanilla bean, ( id. ¶¶ 13, 18, 54) – and other compounds contribute to the vanilla flavor of the Product. ( Id. ¶¶ 22, 23, 37.) They contend that the ingredient list, which includes “Organic Natural Flavors” and “Organic Vanilla Extract,” among other ingredients, ( id. ¶ 37), “fails to clarify any front label ambiguity” because organic vanilla extract contributes less to the Product’s vanilla taste “than the front label and the ingredient list would have consumers believe,” ( id. ¶ 70).
Plaintiffs rely on a consumer survey they commissioned to support their contentions. ( Id. ¶¶ 34-35.) According to Plaintiffs, the survey found that over forty-three percent of consumers expected the origin of the Product’s vanilla taste to be “vanilla beans from the vanilla plant” and that almost fifty-five percent of consumers would be less likely to purchase the Product if the taste were due to imitation vanilla flavoring. (Doc. 15-2 at 7-8; see AC ¶¶ 35-36.) Plaintiffs also provide the results of a Gas Chromatography-Mass Spectrometry (“GC-MS”) test performed on the Product, which they allege demonstrates that “the Product contains vanillin from non- vanilla sources,” among other things. (AC ¶¶ 39-51.)
Plaintiffs assert that had they known that the source of the vanilla flavor in Defendant’s soymilk did not come exclusively from vanilla beans, they would not have purchased it, ( see id. ¶¶ 76, 99, 101, 103), and that it was worth less than what they paid, ( id. ¶¶ 75, 105, 122).
Procedural History
Plaintiffs filed the original complaint in this action on January 28, 2020. (Doc. 1). On June 19, 2020, the Court granted Defendant’s request for a pre-motion conference concerning a proposed motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). (Doc. 8.) At the conference on July 9, 2020, the Court gave Plaintiffs leave to amend. ( See Minute Entry dated July 9, 2020.) Plaintiffs filed the AC on July 27, 2020. (Doc. 15.) Plaintiffs assert state-law claims for: 1) violations of Sections 349 and 350 of the New York General Business Law (“GBL”), which prohibit deceptive business practices and false advertising; 2) fraud; 3) negligent misrepresentation; 4) breaches of express warranty and the implied warranty of merchantability, and violation of the Magnuson Moss Warranty Act, 15 U.S.C. §§ 2301, et seq. ; and 5) unjust enrichment. (AC ¶¶ 118-151.) Plaintiffs wish to represent a class of all persons residing in New York who have purchased the Product, ( id. ¶¶ 109-117), and seek both monetary damages and injunctive relief that would require Defendant to correct its allegedly misleading labeling, ( id. at 24-25). Defendant moves to dismiss the AC pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 16.)
II. LEGAL STANDARD
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal
, 556
U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly
,
complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do.”
Twombly
,
from the hypertechnical, code-pleading regime of a prior era, . . . it does not unlock the doors of
discovery for a plaintiff armed with nothing more than conclusions.”
Iqbal
,
In considering whether a complaint states a claim upon which relief can be granted, the court “begin[s] by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth,” and then determines whether the remaining well-pleaded factual allegations, accepted as true, “plausibly give rise to an entitlement to relief.” Id. at 679. Deciding whether a complaint states a plausible claim for relief is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged – but it has not ‘shown’ – ‘that the pleader is entitled to relief.’” Id. (alteration omitted) (quoting Fed. R. Civ. P. 8(a)(2)).
III. DISCUSSION
New York General Business Law Claims
Plaintiffs’ first cause of action arises under Sections 349 and 350 of the New York
General Business Law (“GBL”). Section 349 prohibits “[d]eceptive acts or practices in the
conduct of any business, trade, or commerce,” and Section 350 prohibits “[f]alse advertising in
the conduct of any business, trade or commerce.” GBL §§ 349, 350. To state a claim under
either section, Plaintiffs must show “first, that the challenged act or practice was consumer-
oriented; second, that it was misleading in a material way; and third, that the plaintiff suffered
injury as a result of the deceptive act.”
Izquierdo v. Mondelez Int’l, Inc.
, No. 16-CV-4697, 2016
WL 6459832, at *6 (S.D.N.Y. Oct. 26, 2016) (internal quotation marks omitted);
see Orlander v.
Staples, Inc.
,
Plaintiffs argue in their brief that the “‘VANILLA’ representation on the Product caused consumers, like Plaintiffs, to believe that the Product’s vanilla flavor comes predominantly, if not exclusively, from the vanilla bean.” (Doc. 18 at 2.) They contend that the “ingredient list fails to tell consumers or Plaintiffs that the vanilla taste of the Product is predominantly from artificial flavors and not real vanilla from the vanilla bean.” ( Id. at 3.) These and other statements about the alleged “false message that the vanilla flavoring comes predominantly from real vanilla,” ( id . at 10-11 (emphasis added); see id. at 8, 17), conflict with the AC, in which Plaintiffs allege that they believed the Product was flavored “ only by vanilla beans,” (AC ¶ 101) (emphasis added), that they purchased the Product in reliance on the representations that the Product’s flavor “contained only vanilla flavoring from vanilla beans,” ( id. ¶ 96), and that “[c]onsumers expect the Product’s vanilla taste to only come from vanilla beans,” ( id . ¶ 34). While the AC does allege that the Product “contains less flavoring from vanilla beans than consumers expect based on the front label and ingredient list,” ( id. ¶ 4), the word “predominantly” does not appear in Plaintiffs’ AC. Nevertheless, I will assume for the sake of argument that Plaintiffs made the claim in the AC that they were misled into thinking that the Product’s taste came predominantly, not exclusively, from vanilla beans.
1. The Label I accept as true Plaintiffs’ allegation that Defendant’s product is not predominantly or exclusively flavored by vanilla beans. (Doc. 18 at 3.) Nonetheless, I find that Plaintiffs have failed to plausibly allege that a reasonable consumer would in fact conclude that the word “vanilla” on the Product’s front label implies that the Product’s flavoring was derived exclusively or predominantly from vanilla beans, such that the front label would be misleading. A reasonable consumer would understand that “vanilla” is merely a flavor designator, not an ingredient claim.
Five other courts in this district have recently addressed nearly identical arguments
regarding other vanilla-flavored products. All five courts rejected claims that the labeling of
vanilla-flavored products was misleading because the vanilla flavor did not come predominantly
or exclusively from natural vanilla.
See Wynn
,
In
Pichardo
the plaintiffs similarly alleged that “the labeling on Defendant’s vanilla-
flavored protein drink violates New York General Business Law §§ 349-50 . . . because the
vanilla flavor is not derived exclusively from the vanilla plant.”
When consumers read vanilla on a product label, they understand it to mean the product has a certain taste. It is difficult to comprehend what is misleading when the Defendant’s [non-dairy vanilla protein beverage] tastes like vanilla. Had Defendant’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. Nor does the use of the term vanilla imply that there are no other flavoring ingredients.
Id.
Here too, the front label of the Product does not contain qualifying words that would lead a
reasonable consumer to believe that vanilla from vanilla beans is the exclusive or predominant
flavor ingredient.
See Cosgrove
,
In
Steele
the Court analyzed the “total effect of the messages on the container” in
sequence,
see
The survey commissioned by Plaintiffs’ counsel does not salvage their claim either.
See
Becerra v. Dr Pepper/Seven Up
,
Inc.
,
Finally, as in Wynn,
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. But even if Plaintiffs are correct about what the federal regulations require – a point Defendants dispute – the complaint 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. There is no extrinsic evidence that the perceptions of ordinary consumers align with these various labeling standards.
2. The Ingredient List Plaintiffs argue that the Ingredient List on the back of the Product is insufficient to correct or clarify the misleading statement on the front of the product. (Doc. 18 at 11.) But, as discussed, the Product’s front label is not misleading. Moreover, the ingredient list makes clear that vanilla beans are not the exclusive source of the vanilla flavor – the Product’s ingredient list lists “ORANIC NATURAL FLAVORS” before “ORGANIC VANILLA EXTRACT.” (AC ¶ 37.)
Plaintiffs argue that the results of their GS-MS analysis support their claim that the
“vanilla taste comes from artificial vanilla flavors like vanillin, piperonal, and maltol,” (Doc. 18
at 13), but Plaintiffs do not plausibly allege that the vanillin, piperonal, and maltol detected by
the GS-MS analysis were derived from artificial rather than natural sources.
See Wynn
, 2021
WL 168541, at *1 n.3 (finding plaintiffs’ complaint “devoid of non-conclusory allegations that
the vanillin, maltol, and piperonal used in Defendant’s product are of the artificial sort”);
Barreto
,
[i]n assessing the product’s packaging as a whole, a reasonable consumer would conclude that the soymilk has a vanilla flavor and at least some of it is natural vanilla flavor. There is no claim anywhere on the packaging that natural vanilla is the predominant source of the vanilla flavor and . . . the Complaint does not adequately allege the presence of artificial flavors. The Complaint also does not allege the soymilk fails to have a vanilla taste or that the taste would be any different if it came exclusively from natural vanilla. Accepting as true [Plaintiffs’] allegation that natural vanilla does not predominantly provide the vanilla flavor, [they] ha[ve] failed to plausibly allege that [the Product’s] label is materially deceptive or misleading to a reasonable consumer.
Barreto
,
Because the Product’s labeling would not mislead a reasonable consumer, I dismiss Plaintiffs’ claims under §§ 349 and 350 of the GBL.
Plaintiffs’ Remaining Claims Plaintiffs also bring claims for fraud, negligent misrepresentation, breaches of express and implied warranty, and unjust enrichment. These claims are all premised on the assertion that Defendant’s labeling is materially misleading. Because I have already determined that Plaintiffs have failed to allege that the Product’s labeling would be likely to deceive or mislead a reasonable consumer, these causes of action are also dismissed for the reasons already stated. These claims also fail for the independent reason that they are inadequately pleaded.
1. Fraud
To state a claim for common law fraud a plaintiff must show that: “(1) the defendant
made a material false statement or omission; (2) the defendant intended to defraud the plaintiff;
(3) the plaintiff reasonably relied upon the representation or omission; and (4) the plaintiff
suffered damage as a result of such reliance.”
B & M Linen, Corp. v. Kannegiesser, USA, Corp.
,
Apart from the fact that Plaintiffs have not pleaded facts rendering plausible the
conclusion that the Defendant made a material false statement or omission, Plaintiffs’ fraud
claim is separately dismissed because it fails to plead facts that give rise to a strong inference of
fraudulent intent. The complaint only contains the conclusory allegation that “Defendant’s
fraudulent intent is evinced by its failure to accurately identify the Product on the front label and
ingredient list, when it knew its statements were neither true nor accurate and misled
consumers.” (AC ¶ 148.) Accordingly, the fraud claim is dismissed.
See Campbell
, 2021 WL
355405, at *12 (dismissing fraud claim where “Plaintiff’s only allegation about Defendant’s
intent is that Defendant’s fraudulent intent is evinced by its failure to accurately identify the
Product on the front label when it knew this was not true”) (internal quotation marks omitted);
Barreto
,
2. Negligent Misrepresentation Under New York law, to allege a negligent misrepresentation claim a Plaintiff must show that:
(1) the defendant had a duty, as a result of a special relationship, to give correct information; (2) the defendant made a false representation that he or she should have known was incorrect; (3) the information supplied in the representation was known by the defendant to be desired by the plaintiff for a serious purpose; (4) the plaintiff intended to rely and act upon it; and (5) the plaintiff reasonably relied on it to his or her detriment.
Anschutz Corp. v. Merrill Lynch & Co.
,
Defendant argues that Plaintiffs’ negligent misrepresentation claim fails because no
special relationship existed between the parties. (Doc. 17 at 21-22.) The existence of a special
relationship between parties depends on: “whether the person making the representation held or
appeared to hold unique or special expertise; whether a special relationship of trust or confidence
existed between the parties; and whether the speaker was aware of the use to which the
information would be put and supplied it for that purpose.”
Suez Equity Invs., L.P. v. Toronto-
Dominion Bank
,
The transactions alleged are insufficient to establish a special relationship for purposes of
a negligent representation claim.
See Sarr
,
Therefore, Plaintiffs’ negligent representation claim is dismissed.
3. Breach of Express and Implied Warranty
Plaintiffs contend that Defendant breached both express and implied warranties. An
express warranty is an “affirmation of fact or promise made by the seller to the buyer which
relates to the goods and becomes part of the basis of the bargain.” N.Y. U.C.C. Section 2-
313(1)(a). Without specifying any particular language from the Product’s labeling, Plaintiffs
allege that Defendant “warranted to Plaintiffs and class members that they possessed substantive,
functional, nutritional, qualitative, compositional, organoleptic, sensory, physical and other
attributes which they did not.” (AC ¶ 136.) But Plaintiffs point to no express statements on
these subjects. Defendant’s organic vanilla soymilk “does not state it is [flavored] exclusively
with [vanilla beans] and a reasonable consumer would not interpret the representation of ‘Vanilla
Soymilk’ to make this claim.”
Barreto
,
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,”
see
U.C.C. Section 2-314(c), –
in this case, unfit to drink. Plaintiffs’ claim for breach of implied warranty of merchantability
fails because Plaintiffs did not allege that the Product is not of merchantable quality. To the
extent the Complaint alleges that the Product does not conform to any promise or affirmation of
fact made on its label, Plaintiffs’ claim fails for the same reason as their express warranty claim.
Barreto
,
4. Unjust Enrichment
To state a claim for unjust enrichment under New York law a Plaintiff must show that
“(1) the defendant was enriched; (2) at the expense of the plaintiff; and (3) that it would be
inequitable to permit the defendant to retain that which is claimed by Plaintiff.”
Reynolds v.
Lifewatch, Inc.
,
Courts will routinely dismiss an unjust enrichment claim that “simply duplicates, or
replaces, a conventional contract or tort claim.”
Ebin v. Kangadis Food Inc.
, No. 13-CV-2311,
explain how it was not merely duplicative of negligent misrepresentation, fraud, and breach of
warranty claims);
see Barrreto
,
Leave to Amend
Leave to amend a complaint should be freely given “when justice so requires.” Fed. R.
Civ. P. 15(a)(2). “[I]t is within the sound discretion of the district court to grant or deny leave to
amend.”
Kim v. Kimm
,
Plaintiffs have already amended once, after having the benefit of a pre-motion letter from
Defendant stating the grounds on which they would move to dismiss, (Doc. 7), as well as the
Court’s observations during the pre-motion conference, (
see
Minute Entry dated July 9, 2020).
In general, a plaintiff’s failure to fix deficiencies in the previous pleading, after being provided
notice of them, is alone sufficient ground to deny leave to amend.
See Nat’l Credit Union
Admin. Bd. v. U.S. Bank Nat’l Ass’n
,
Further, Plaintiffs have not asked to amend again or otherwise suggested that they are in
possession of facts that would cure the deficiencies identified in this opinion.
See TechnoMarine
SA v. Giftports, Inc
.,
Accordingly, the Court declines to grant leave to amend sua sponte .
IV. CONCLUSION
For the foregoing reasons, Defendant’s motion to dismiss is GRANTED. The Clerk of Court is respectfully directed to terminate the pending motion, (Doc. 16), and close the case. SO ORDERED.
Dated: February 11, 2021
White Plains, New York
________________________________ CATHY SEIBEL, U.S.D.J.
Notes
[1] Citations to page numbers in Doc. 15-2 refer to the page numbers generated by the Court’s Electronic Filing System.
[2] Plaintiffs filed the original AC on July 24, 2020, (Doc. 12), and re-filed a revised version, (Doc. 15), on July 27, 2020, pursuant to stipulation, (Doc. 14).
[3] One of Plaintiffs’ lawyers here – Spencer Sheehan of Sheehan & Associates, P.C. – was one of the lawyers in each of these cases.
[4] Plaintiffs note that Defendant’s Product “prominently states, ‘VANILLA’” (Doc. 18 at
1), as if the prominence of the word somehow makes it more misleading. First, the word
“Vanilla” as written on Defendant’s Product is not in all uppercase letters, as Plaintiffs’
memorandum suggests. Second, the word “vanilla” on Defendant’s soymilk is not particularly
prominent. In three of the five aforementioned cases the word “vanilla” stood out significantly
more than is the case here. In
Steele
the word “vanilla” was the largest and most dramatic word
on the container.
[5] Debra Cassens Weiss, Lawyer has filed nearly 100 consumer lawsuits over vanilla labeling , ABA Journal (Dec. 23, 2020), available at https://www.abajournal.com/news/article/lawyer-has-filed-nearly-100-consumer-lawsuits-over- vanilla-labeling.
[6] “Maltol, piperonal, and vanillin can be either artificial or natural, depending on how
they are derived.”
Wynn
,
[7] To the extent Plaintiffs contend that Defendant’s labeling violates regulations of the Food and
Drug Administration (“FDA”), such a claim fails because the right to enforce the Food, Drug,
and Cosmetic Act rests exclusively with the FDA.
See
21 U.S.C. § 337(a);
Steele
, 472 F. Supp.
3d at 49 (“There is no private civil right of action for breaches of [FDA] provisions”). Nor
would any potential violation of FDA regulations 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
.,
[8] The Complaint also purportedly brings a claim under the Magnuson Moss Warranty
Act, 15 U.S.C. §§ 2301,
et seq.
, but neither party addresses this claim in its briefing on the
motion to dismiss. Regardless, Plaintiffs’ claim brought under the Magnuson Moss Warranty
Act is dismissed because Plaintiffs have not adequately pleaded a cause of action for breach of
written or implied warranty.
See Garcia v. Chrysler Gr. LLC
,
[9] Based on this disposition, the Court need not evaluate the parties’ preemption or standing arguments.