Case 1:19-cv-02249-ERK-RER Document 26 Filed 07/28/20 Page 1 of 8 PageID #: 238
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`NOT FOR PUBLICATION
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`MEMORANDUM AND ORDER
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`19-cv-2249 (ERK) (RER)
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`Plaintiffs,
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
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`CHARLES HARRIS, et al., individually and on
`behalf of all others similarly situated,
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`MONDELĒZ GLOBAL LLC,
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` Defendant.
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`– against –
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`KORMAN, J.:
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`Purchasers of Oreo cookies allege that the manufacturer has misleadingly
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`stated on the front packaging label that the cookies are “Always Made With Real
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`Cocoa,” even though the cocoa has been refined through an alkalizing process.
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`Second Am. Compl. (“SAC”) ¶¶ 88–89, ECF No. 18. Plaintiffs claim that the
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`addition of alkali diminishes the quality and taste of the cocoa and that a reasonable
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`consumer would understand “real cocoa” to refer to cocoa in an “unadulterated, non-
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`artificially processed form.” Id. ¶¶ 48, 64, 89. Plaintiffs further allege that Oreos
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`are sold at a price premium as a result of this misleading representation. Id. ¶ 90.
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`BACKGROUND
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`Plaintiffs are consumers from twelve states who purchased Defendant’s well-
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`known Oreo cookies.1 SAC ¶¶ 96–109. Plaintiffs allege that they were misled by
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`1 Plaintiffs are citizens of California, Colorado, Connecticut, Florida, Idaho, Illinois,
`Massachusetts, New Jersey, New York, Texas, Virginia, and Washington State.
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`1
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`NOT FOR PUBLICATION
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`MEMORANDUM AND ORDER
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`19-cv-2249 (ERK) (RER)
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`Plaintiffs,
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
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`CHARLES HARRIS, et al., individually and on
`behalf of all others similarly situated,
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`MONDELĒZ GLOBAL LLC,
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` Defendant.
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`– against –
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`KORMAN, J.:
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`Purchasers of Oreo cookies allege that the manufacturer has misleadingly
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`stated on the front packaging label that the cookies are “Always Made With Real
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`Cocoa,” even though the cocoa has been refined through an alkalizing process.
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`Second Am. Compl. (“SAC”) ¶¶ 88–89, ECF No. 18. Plaintiffs claim that the
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`addition of alkali diminishes the quality and taste of the cocoa and that a reasonable
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`consumer would understand “real cocoa” to refer to cocoa in an “unadulterated, non-
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`artificially processed form.” Id. ¶¶ 48, 64, 89. Plaintiffs further allege that Oreos
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`are sold at a price premium as a result of this misleading representation. Id. ¶ 90.
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`BACKGROUND
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`Plaintiffs are consumers from twelve states who purchased Defendant’s well-
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`known Oreo cookies.1 SAC ¶¶ 96–109. Plaintiffs allege that they were misled by
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`1 Plaintiffs are citizens of California, Colorado, Connecticut, Florida, Idaho, Illinois,
`Massachusetts, New Jersey, New York, Texas, Virginia, and Washington State.
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`1
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`Case 1:19-cv-02249-ERK-RER Document 26 Filed 07/28/20 Page 2 of 8 PageID #: 239
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`the representation on the Oreos’ front label that the cookies are “Always Made With
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`Real Cocoa.” Id. ¶¶ 4–5. Specifically, they claim that this text is misleading because
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`the cocoa used in the cookies is “highly processed and modified” with alkali. Id. ¶
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`6. In Plaintiffs’ view, Defendant’s failure to caveat that the cocoa is processed with
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`alkali is misleading to a reasonable consumer. Rather, they allege that reasonable
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`consumers “expect ‘real cocoa’ to be a quality of cocoa that is not processed with
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`alkali.” Id. ¶ 88.
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`As Plaintiffs explain, cocoa powder can be mixed with alkali ingredients to
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`make the cocoa less acidic, which makes the taste of the cocoa milder. Id. ¶¶ 43,
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`47–49. Plaintiffs claim that “[t]he representation ‘real cocoa’ is false, deceptive and
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`misleading because consumers expect ‘real cocoa’ to indicate a higher quality cocoa
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`than had the ingredient merely been accurately identified as ‘cocoa,’ (minus the
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`descriptor ‘real’).” Id. ¶ 12. Additionally, they allege that unalkalized cocoa is
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`commercially available and has certain health benefits. Id. ¶¶ 50–74.
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`Plaintiffs assert claims under statutes from forty states and the District of
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`Columbia prohibiting deceptive or misleading business practices, as well as a claim
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`for unjust enrichment.2 Plaintiffs have withdrawn their claims for fraud, negligent
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`2 Plaintiffs do not allege claims under the consumer protection statutes of Arizona,
`Indiana, Iowa, Maryland, North Carolina, Pennsylvania, Texas, Utah, Virginia, or
`Wyoming. SAC ¶ 122.
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`2
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`Case 1:19-cv-02249-ERK-RER Document 26 Filed 07/28/20 Page 3 of 8 PageID #: 240
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`misrepresentation, and breach of warranty. Pls.’ Br. 15, ECF No. 25-3. They seek
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`damages and injunctive relief on behalf of a putative nationwide class and on behalf
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`of subclasses for the states of each named plaintiff. I have jurisdiction over this
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`putative class action under 28 U.S.C. § 1332(d) because there is minimal diversity
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`among the parties and the amount in controversy exceeds $5 million.3
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`STANDARD OF REVIEW
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`In deciding a motion to dismiss under Rule 12(b)(6), I “constru[e] the
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`complaint liberally, accept[ ] all factual allegations in the complaint as true, and
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`draw[ ] all reasonable inferences in the plaintiff’s favor.” Elias v. Rolling Stone LLC,
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`872 F.3d 97, 104 (2d Cir. 2017) (quoting Chase Grp. All. LLC v. City of N.Y. Dep’t
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`of Fin., 620 F.3d 146, 150 (2d Cir. 2010)). “To survive a motion to dismiss, a
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`complaint must contain sufficient factual matter, accepted as true, to state a claim to
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`relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In
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`addition to the facts alleged in the SAC, I may also consider documents that Plaintiffs
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`have incorporated by reference. Chamberlain v. City of White Plains, 960 F.3d 100,
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`105 (2d Cir. 2020).
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`3 Plaintiffs allege that Defendant is a Delaware limited liability company with co-
`principal places of business in Illinois and New Jersey. SAC ¶ 110. Because this is
`a putative class action, Defendant is considered a citizen only of Delaware, Illinois,
`and New Jersey. Claridge v. N. Am. Power & Gas, LLC, 2015 WL 5155934, at
`*1–2 (S.D.N.Y. Sept. 2, 2015) (citing 28 U.S.C. § 1332(d)(10)).
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`3
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`Case 1:19-cv-02249-ERK-RER Document 26 Filed 07/28/20 Page 4 of 8 PageID #: 241
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`DISCUSSION
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`I.
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`The Challenged Statement Is Not Misleading
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`Although Plaintiffs allege violations of consumer protection statutes from
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`forty states and the District of Columbia, the parties agree that the critical issue for
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`resolving this motion is whether a reasonable consumer would be misled by
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`Defendant’s statement that its Oreos are “Always Made With Real Cocoa.” See
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`Def.’s Br. 11, ECF No. 25-1; Pls.’ Br. 12–13; see also Fink v. Time Warner Cable,
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`714 F.3d 739, 741 (2d Cir. 2013) (applying New York and California law); In re
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`100% Grated Parmesan Cheese Mktg. & Sales Practices Litig., 275 F. Supp. 3d 910,
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`920 (N.D. Ill. 2017) (noting that, while states’ consumer protection laws “differ in
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`certain particulars, all share a common requirement: to state a claim, a plaintiff must
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`allege conduct that plausibly could deceive a reasonable consumer”).4 “It is well
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`settled that a court may determine as a matter of law that an allegedly deceptive
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`4 In re 100% Grated Parmesan Cheese analyzed the consumer protection statutes of
`most of the states in which the named Plaintiffs bring claims here. The reasonable
`consumer standard also applies to the remaining statutes under which the named
`plaintiffs bring claims. See Anderson v. State Farm Mut. Auto. Ins. Co., 416 F.3d
`1143, 1148–49 (10th Cir. 2005) (Colorado law); Tomasella v. Nestlé USA, Inc., 962
`F.3d 60, 71 (1st Cir. 2020) (Massachusetts law); Panag v. Farmers Ins. Co. of
`Washington, 204 P.3d 885, 895 (Wash. 2009) (Washington law); see also IDAHO
`ADMIN. CODE r. 04.02.01.030 (2019) (“It is an unfair and deceptive act or practice
`for a seller to make any claim or representation concerning goods or services which
`directly, or by implication, has the capacity, tendency, or effect of deceiving or
`misleading a consumer acting reasonably under the circumstances.”).
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`4
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`Case 1:19-cv-02249-ERK-RER Document 26 Filed 07/28/20 Page 5 of 8 PageID #: 242
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`advertisement would not have misled a reasonable consumer.” Fink, 714 F.3d at
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`741.
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`Plaintiffs do not dispute that the challenged products are in fact made with
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`cocoa, which is fatal to their case. SAC ¶¶ 43–49 (describing the alkalization process
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`applied to cocoa powder). Instead, they argue that reasonable consumers are misled
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`by the claim that the cookies are made with “real” cocoa and therefore would not
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`expect that the cocoa has been “adulterated, processed with alkali, or modified from
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`its real nature.” Id. ¶ 87; Pls.’ Br. 15. Plaintiffs rely on Mantikas v. Kellogg Co.,
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`but that case does not resolve this one. 910 F.3d 633 (2d Cir. 2018). Mantikas held
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`that purchasers of Cheez-Its had adequately alleged that the phrase “Made With
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`Whole Grain” was misleading, because it falsely implied that there was more whole
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`grain than white flour in the crackers. Id. at 638. Indeed, Mantikas distinguished
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`cases in which consumers could not reasonably have believed that the advertised
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`ingredient was the primary one, such as that cookies were made with “real fruit.” Id.
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`(citing Manchouk v. Mondelez Int’l, Inc., 2013 WL 5400285, at *2 (N.D. Cal. Sept.
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`26, 2013)).
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`Courts following Mantikas have reaffirmed that a representation that a food
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`is “made with” a “real” ingredient does not necessarily mislead from the truth that
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`the advertised ingredient may have been combined with another. As Judge Ross and
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`Judge Garaufis have explained in cases involving mashed potatoes packaged with
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`5
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`Case 1:19-cv-02249-ERK-RER Document 26 Filed 07/28/20 Page 6 of 8 PageID #: 243
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`the label “Made with Real Butter,” “it is not plausible that a reasonable consumer
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`would likely interpret the ‘real butter’ representation to imply that the Mashed
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`Potatoes did not also contain additional fats.” Sarr v. BEF Foods, Inc., 2020 WL
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`729883, at *4 (E.D.N.Y. Feb. 13, 2020); see also Reyes v. Crystal Farms
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`Refrigerated Distrib. Co., 2019 WL 3409883, at *3 (E.D.N.Y. July 26, 2019) (phrase
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`was not materially misleading merely because the package contained butter and
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`margarine). Or as Judge Bulsara explained in recommending the dismissal of a claim
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`regarding graham crackers, “[s]tating the grahams are ‘made with real honey’ is a
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`factually true statement about the product” that “does not foreclose the use of other
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`sweeteners” so as to “make the representation deceptive.” Kennedy v. Mondelez
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`Global LLC, 2020 WL 4006197, at *12 (E.D.N.Y. July 10, 2020).5
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`Similarly here, it is not misleading for Defendant to represent that its Oreos
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`are made with “real” cocoa when they in fact contain cocoa. The crux of Plaintiffs’
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`claim is not that the label misrepresents the quantity or proportion of cocoa; they
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`allege that the cocoa it contains is not “real” in light of the application of alkali. SAC
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`¶¶ 6, 12. Unlike Mantikas, Plaintiffs do not allege, for example, that the amount of
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`cocoa is de minimis relative to the amount of alkali. Plaintiffs’ claims are trained on
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`5 See also Davis v. Hain Celestial Grp., Inc., 297 F. Supp. 3d 327, 335 (E.D.N.Y.
`2018) (concluding that an accurate statement that a juice was “cold-pressed” “does
`not cease to be a truthful moniker . . . simply because there were subsequent steps in
`the juice’s production process”); Campbell v. Freshbev LLC, 322 F. Supp. 3d 330,
`341 (E.D.N.Y. 2018) (same).
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`6
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`Case 1:19-cv-02249-ERK-RER Document 26 Filed 07/28/20 Page 7 of 8 PageID #: 244
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`whether the product contains cocoa that is real, and the Oreos indisputably do
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`contain cocoa, along with other ingredients. “There is no ‘only’ or ‘exclusively’
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`modifier before” the phrase “real cocoa.” Campbell, 322 F. Supp. 3d at 341. In that
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`context, “[r]easonable consumers would not expect, upon learning that the [Oreos]
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`contain [cocoa], that the [cocoa] is present in a particular form or not mixed with
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`other ingredients.” Kennedy, 2020 WL 4006197, at *13.
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`Accordingly, I dismiss Plaintiffs’ claims for failure to allege a statement that
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`would mislead a reasonable consumer.
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`II.
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`Plaintiffs’ Unjust Enrichment Claim Fails For the Same Reason
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`Because Plaintiffs’ unjust enrichment claim is premised on the same theory
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`of misrepresentation I have rejected, that claim likewise fails. This claim is pleaded
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`in a single sentence alleging that Defendant was unjustly enriched “because the
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`Products were not as represented and expected[.]” SAC ¶ 179. “Where a deceptive
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`trade practices claim fails for failure to allege deception, an unjust enrichment claim
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`fails, too.” Kennedy, 2020 WL 4006197, at *15 (citing Axon v. Florida’s Natural
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`Growers, Inc., 2020 WL 2787627, at *3 (2d Cir. May 29, 2020)).
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`III. Plaintiffs’ Leave to Amend
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`Plaintiffs request leave to amend in the event Defendant’s motion is granted,
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`but offer no explanation of what new allegations might be added. “A plaintiff need
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`not be given leave to amend if it fails to specify . . . how amendment would cure the
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`7
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`Case 1:19-cv-02249-ERK-RER Document 26 Filed 07/28/20 Page 8 of 8 PageID #: 245
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`pleading deficiencies in its complaint.” TechnoMarine SA v. Giftports, Inc., 758
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`F.3d 493, 505 (2d Cir. 2014). Because Plaintiffs’ “substantive problem could not be
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`cured through better pleadings,” I deny leave to amend as futile. Morales v. N.Y.
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`City Dep’t of Educ., 808 F. App’x 35, 38 (2d Cir. 2020) (citing Cuoco v. Moritsugu,
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`222 F.3d 99, 112 (2d Cir. 2000)); see Melendez v. ONE Brands, LLC, 2020 WL
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`1283793, at *9 (E.D.N.Y. Mar. 16, 2020) (denying leave to amend where no
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`reasonable consumer could have been misled by the challenged statement).
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`CONCLUSION
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`Defendant’s motion to dismiss is granted with prejudice.6
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`Brooklyn, New York
`July 28, 2020
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`SO ORDERED.
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`Edward R. Korman
`Edward R. Korman
`United States District Judge
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`6 Defendant’s request for judicial notice is denied as moot. ECF No. 25-2.
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`8
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