Opinion
1:19-cv-08975 (PGG) (SDA)
02-15-2021
Eric Parham, individually and on behalf of all others similarly situated, Plaintiffs, v. Aldi Inc., Defendant.
REPORT AND RECOMMENDATION
STEWART D. AARON, United States Magistrate Judge
TO THE HONORABLE PAUL G. GARDEPHE, UNITED STATES DISTRICT JUDGE:
Pending before the Court is a motion by Defendant Aldi Inc. (“Aldi” or “Defendant”), pursuant to Fed.R.Civ.P. 12(b)(6), to dismiss the First Amended Class Action Complaint (“FAC”) of Plaintiff Eric Parham (“Parham” or “Plaintiff”) for failure to state a claim. (Def.'s Not. of Mot., ECF No. 45.) For the reasons set forth below, I respectfully recommend that Defendant's motion to dismiss be GRANTED and that the Complaint be dismissed.
Defendant's notice of motion also purports to seek dismissal, pursuant to Fed.R.Civ.P. 12(b)(1), for lack of subject matter jurisdiction. (Def.'s Not. of Mot. at 1.) However, in Defendant's legal memoranda, it fails to articulate why the Court lacks jurisdiction over this action.
For purposes of this motion to dismiss, the Court assumes that the well-pleaded allegations of the FAC are true. See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (when “well-pleaded factual allegations” are present, “a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.”).
Aldi manufactures, distributes, markets, labels and sells organic unsweetened vanilla almondmilk under the Friendly Farms brand (the “Product”). (FAC ¶ 1.) Parham is a Bronx resident who purchased the Product at Aldi's stores, including the location at 3006 Third Avenue, Bronx, New York 10455. (Id. ¶¶ 109, 113.) His most recent purchase occurred in September 2019. (Id. ¶ 113.) Parham bought the Product because he liked the product type for its intended use and expected its vanilla flavor to not be enhanced by artificial flavors. (Id. ¶ 114.)
The Product is available to consumers from Aldi's retail stores and website and is sold in 64-ounce cartons at a price of $2.99 per carton. (FAC ¶¶ 2, 96.) The front label of the Product contains the brand name “Friendly Farms” at the top. (See Id. ¶ 3.) Beneath the brand name is a banner that says “Organic.” (See id.) Under the banner is the word “Almond” in a larger font, and below that are the words “Unsweetened” and “Vanilla” beneath one another. (See id.) The Complaint contains an image of the Product carton:
(Image Omitted)
(Id.)
Parham contends that “[t]he representations [on the front of the carton] are misleading because although the characterizing flavor is represented as vanilla, its flavor is (1) not derived exclusively from vanilla beans, (2) has less vanilla than the label represents, (3) contains non-vanilla artificial flavors and (4) not disclosed to consumers on the front label or ingredient list as required by law and consumers' expectations.” (FAC ¶ 4.) He notes that the ingredient list on the Product carton does not mention vanilla-flavoring; rather, “Natural Flavor” is the only flavoring ingredient. (See Id. ¶ 48.) According to the Complaint, “natural flavor” is the term used for a flavor that may contain some vanilla and non-vanilla natural flavors. (See Id. ¶ 52 (citing 21 C.F.R. § 101.22(h)(1).)
Parham alleges that, based upon a gas chromatography-mass spectrometry analysis of the Product, it contained a comparatively high level of vanillin, but only a trace or de minimis amount of vanilla. (See FAC ¶¶ 56, 60, 67.) Vanillin simulates vanilla taste, but is obtained from tree bark. (See Id. ¶ 13.)
Parham alleges that, had he known that the source of the vanilla flavor in the Product did not come exclusively from vanilla beans, he and members of the class he seeks to represent would not have purchased it, and that it was worth less than what they paid. (FAC ¶¶ 94-101, 114.)
PROCEDURAL HISTORY
Parham commenced this action on September 26, 2019, by filing a Complaint against Aldi, in which he sought to represent a class “consist[ing] of all consumers in all 50 states with subclasses for the individual states and nationwide classes.” (Compl., ECF No. 1, ¶ 47.) He alleged claims under New York General Business Law (“GBL”) §§ 349 & 350, as well as consumer protection statutes of other states and territories, as well as claims for negligent misrepresentation, breach of warranty, Magnuson Moss Warranty Act, fraud and unjust enrichment. (See Id. ¶¶ 56-85.)
On May 20, 2020, Parham filed the FAC, which is the subject of the pending motion to dismiss. (See FAC.) In the FAC, he limited the class to “all purchasers of the Product who reside[d] in New York during the applicable statutes of limitations.” (Id. ¶ 116.) Aside from limiting his first claim to New York's GBL, Parham pled the same claims as were contained in his initial Complaint. (See Id. ¶¶ 124-57.)
On July 2, 2020, Parham dismissed his negligent misrepresentation claim. (See 7/2/20 Order, ECF No. 33.) On July 13, 2020, the Court dismissed on consent Parham's breach of warranty, Magnuson Moss Warranty Act, fraud and unjust enrichment claims. (Mem. Endorsement, ECF No. 37.)
Plaintiff also had pled an injunctive relief claim in his FAC, but that claim was withdrawn by Plaintiff in his memorandum in opposition to the pending motion to dismiss. (See Pl.'s Opp. Mem., ECF No. 50, at 1.)
On October 9, 2020, pursuant to District Judge Gardephe's Individual Rules of Practice, the parties' papers in connection with the motion to dismiss were filed. (See Def.'s Mem., ECF No. 46; Goldstein Decl., ECF No. 47; Pl.'s Opp. Mem.; Def.'s Reply Mem., ECF No. 49.) On January 22, 2021, the motion to dismiss was referred to me for a report and recommendation. (Order of Reference, ECF No. 65.)
DISCUSSION
I. Legal Standards
A. Rule 12(b)(6) Standard
To survive a motion to dismiss for failure to state a claim upon which relief can be granted under Rule 12(b)(6), a complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. The Court “must accept as true all of the [factual] allegations contained in a complaint[, ]” but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citation omitted).
Further, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Id.; see also Rothstein v. UBS AG, 708 F.3d 82, 94 (2d Cir. 2013) (“we are not required to credit conclusory allegations or legal conclusions couched as factual allegations.”) (citing Twombly, 550 U.S. at 555, 557).
B. GBL §§ 349 & 350
Section 349 of the GBL prohibits “[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in [New York].” GBL § 349(a). Similarly, Section 350 of the GBL bars “[f]alse advertising in the conduct of any business, trade or commerce or in the furnishing of any service in [New York].” Id. § 350. To state a claim under either Section 349 or Section 350 of the GBL, “a plaintiff must allege that a defendant has engaged in (1) consumer-oriented conduct that is (2) materially misleading and that (3) plaintiff suffered injury as a result of the allegedly deceptive act or practice.” Orlander v. Staples, Inc., 802 F.3d 289, 300 (2d Cir. 2015) (quoting Koch v. Acker, Merrall & Condit Co., 18 N.Y.3d 940, 941 (2012)). “It is well settled that a court may determine as a matter of law that an allegedly deceptive advertisement would not have misled a reasonable consumer.” Fink v. Time Warner Cable, 714 F.3d 739, 741 (2d Cir. 2013) (citations omitted).
II. Analysis
In his GBL claim, Plaintiff asserts that “Defendant misrepresented the substantive, quality, compositional, organoleptic and/or nutritional attributes of the Product.” (FAC ¶ 127.) He alleges that “[t]he amount and proportion of the characterizing component, vanilla, has a material bearing on price and consumer acceptance of the Product and consumers do not expect that nonvanilla, artificial flavors where a product is labeled ‘vanilla' without more.” (Id. ¶ 128.) Plaintiff further alleges that “[t]he ingredient list declaration of ‘natural flavor' fails to tell consumers and plaintiff that a trace amount of vanilla is present and what they taste as vanilla is actually from artificial flavors.” (Id. ¶ 129.)
The Court finds as a matter of law that a reasonable consumer would not have been misled by the labeling on the Product container. A reasonable consumer would understand that the word “vanilla” on the front of the carton describes how the Product tastes, not what it contains, especially in circumstances where the ingredients listed on the Product container do not mention vanilla at all. See Twohig v. Shop-Rite Supermarkets, Inc., No. 20-CV-00763 (CS), 2021 WL 518021, at *3 (S.D.N.Y. Feb. 11, 2021) (“A reasonable consumer would understand that ‘vanilla' is merely a flavor designator, not an ingredient claim.”); Wynn v. Topco Assocs., LLC, No. 19-CV-11104 (RA), 2021 WL 168541, at *3 (S.D.N.Y. Jan. 19, 2021) (“the Court finds that Plaintiffs have failed to plausibly allege that a reasonable customer would in fact conclude that the word ‘vanilla' on a product's front label implies that the product's flavoring was derived exclusively from natural vanilla extract, such that the front label would be misleading” (emphasis in original)); Barreto v. Westbrae Nat., Inc., No. 19-CV-09677 (PKC), 2021 WL 76331, at *4 (S.D.N.Y. Jan. 7, 2021) (word “vanilla” not misleading to reasonable consumer because “does not imply or represent the source of [soymilk's] flavor comes exclusively or predominantly from natural vanilla”); Cosgrove v. Blue Diamond Growers, No. 19-CV-08993 (VM), 2020 WL 7211218, at *3 (S.D.N.Y. Dec. 7, 2020) (“The Court finds the Product is not misleading because a reasonable consumer would associate the representation of ‘Vanilla' --with no additional language modifiers -- to refer to a flavor and not to vanilla beans or vanilla extract as an ingredient.”); Pichardo v. Only What You Need, Inc., No. 20-CV-00493 (VEC), 2020 WL 6323775, at *5 (S.D.N.Y. Oct. 27, 2020) (“a reasonable consumer would not be misled by [vanilla protein drink's] label to believe the vanilla flavor is exclusively sourced from vanilla extract”).
The cases cited by Plaintiff in his opposition memorandum (Pl.'s Opp. Mem. at 6-8) are inapposite because they involved products where the label stated that the products were “made with” certain ingredients and thus are based upon statements regarding ingredients, not flavor, as in the present case. See Mantikas v. Kellogg Co., 910 F.3d 633, 638-39 (2d Cir. 2018) (cracker boxes contained the words “MADE WITH WHOLE GRAIN” and “MADE WITH 8G OF WHOLE GRAIN PER SERVING” or “WHOLE GRAIN” and “MADE WITH 5G of WHOLE GRAIN PER SERVING”); Sharpe v. A&W Concentrate Co., No. 19-CV-00768, 2020 WL 4931045 (BMC), at *1 (E.D.N.Y. Aug. 24, 2020) (beverage labels stated “MADE WITH AGED VANILLA”).
Similarly, the Seventh Circuit decision submitted by Plaintiff in its notice of supplemental authority filed on December 16, 2020 (see Pl.'s 12/16/20 Notice, ECF No. 59) was based upon a claim regarding ingredients. See Bell v. Publix Super Markets, Inc., 982 F.3d 468, 474 (7th Cir. 2020) (products labeled “100% Grated Parmesan Cheese”).
Because I find that the Product's labeling would not mislead a reasonable consumer, I recommend that the Court dismiss Plaintiff's claims under §§ 349 and 350 of the GBL, which are the only remaining claims in this case.
In the present case, as in Twohig, “Plaintiff [] [has] not asked to amend again or otherwise suggested that [he is] in possession of facts that would cure the deficiencies identified in this opinion.” See Twohig, 2021 WL 518021, at *10. Thus, I recommend that the Court decline to grant leave to amend sua sponte. See id.
CONCLUSION
For the foregoing reasons, the Court respectfully recommends that Defendant's motion to dismiss the FAC be GRANTED.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed. R. Civ. P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Gardephe.
THE FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).