Case 1:19-cv-06448-RPK-LB Document 26 Filed 12/03/21 Page 1 of 20 PageID #: 162
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
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`AMY WARREN and IESHA CONLEY,
`individually and on behalf of all others
`similarly situated,
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`WHOLE FOODS MARKET GROUP, INC.,
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`Defendant.
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`RACHEL P. KOVNER, United States District Judge:
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`Plaintiffs,
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`v.
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`MEMORANDUM AND ORDER
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`19-CV-6448 (RPK) (LB)
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`On behalf of themselves and all New Yorkers similarly situated, sugar-conscious plaintiffs
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`Amy Warren and Iesha Conley bring this suit against defendant Whole Foods Market Group, Inc.
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`(“Whole Foods”). Ms. Warren and Ms. Conley assert that the packaging of Whole Foods’ “Oats
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`& Flax” instant oatmeal tricked them into paying inflated prices. Whole Foods now moves to
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`dismiss. I grant defendant’s motion.
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`BACKGROUND
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`Under its 365 Everyday Value brand, Whole Foods sells “Oats & Flax Instant Oatmeal.”
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`Am. Compl. ¶ 9 (Dkt. #15). The front of each oatmeal box bears a stamp on its bottom right corner
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`that says “100% Whole Grain – 18g or more per serving.”
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`Am. Compl. 2 fig.1: The Box Front
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`The back lists the oatmeal’s ingredients: “organic rolled oats, organic dehydrated cane juice
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`solids, organic flaxseed, sea salt.” Id. ¶ 10. “[D]ehydrated cane juice solids,” as it turns out, is
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`just another term for “sugar.” Id. ¶ 16. Immediately to the left of the ingredient list, in text the
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`same size or large, the nutrition label states “Sugars 11g.” Def.’s Ex. 1 (Dkt. #22-1) (“Ex. 1”).
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`Ex. 1: The Back Label
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`Amy Warren and Iesha Conley claim this packaging misled them into buying Whole
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`Foods’ oatmeal at premium prices. Id. ¶ 6. Hoping to avoid added sugar, they allege that they
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`purchased the oatmeal believing that “dehydrated cane juice solids” referred to some sort of fruit
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`juice—not sugar. Id. ¶ 71. Ms. Warren and Ms. Conley also say the whole grain stamp misled
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`them into thinking the oatmeal contains only whole grains. Id. ¶¶ 30-31. In fact, though, it
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`contains flax, which, they note, is not a grain at all, but an “oilseed.” Id. ¶ 31. Had they known
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`the reality about Whole Foods’ oatmeal, they say, they would never have paid so much. Id. ¶¶ 36-
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`37. In their complaint, plaintiffs cite Food and Drug Administration (“FDA”) guidance heavily.
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`Id. ¶¶ 12-25.
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`Ms. Warren and Ms. Conley now bring this putative class action on behalf of themselves
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`and all others in New York who were deceived by the packaging. Seeking damages and injunctive
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`relief, id. ¶¶ 59, 65, they allege violations of (i) Sections 349 and (ii) Section 350 of New York’s
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`General Business Law (“GBL”), and they also pursue claims of (iii) negligent misrepresentation;
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`(iv) breach of express warranty; (v) breach of implied warranty; (vi) breach of a written warranty
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`under the Magnuson-Moss Warranty Act (“MMWA”); and (vii) unjust enrichment, id. ¶¶ 66-89.
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`Whole Foods has moved to dismiss all claims.
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`STANDARD OF REVIEW
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`When evaluating a motion to dismiss under Rule 12(b)(6), a court must “accept[] all factual
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`claims in the complaint as true, and draw[] all reasonable inferences in the plaintiff’s favor.” Lotes
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`Co., Ltd. v. Hon Hai Precision Indus. Co., 753 F.3d 395, 403 (2d Cir. 2014) (quoting Famous
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`Horse Inc. v. 5th Ave. Photo Inc., 624 F.3d 106, 108 (2d Cir. 2010)). To survive the motion, the
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`complaint must allege “enough facts to state a claim to relief that is plausible on its face.” Bell
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`Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible “when the plaintiff pleads
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`factual content that allows the court to draw the reasonable inference that the defendant is liable
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`for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This means, for
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`example, that a complaint is properly dismissed where, as a matter of law, “the allegations in a
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`complaint, however true, could not raise a claim of entitlement to relief.” Twombly, 550 U.S. at
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`558.
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`Where, as here, plaintiffs allege negligent misrepresentation, that claim must satisfy the
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`heightened pleading requirements of Federal Rule of Civil Procedure 9(b). See Aetna Cas. & Sur.
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`Co. v. Aniero Concrete Co., 404 F.3d 566, 583 (2d Cir. 2005). Under Rule 9(b), plaintiffs must
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`allege knowledge and intent, and they may do so “through allegations of a motive to deceive and
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`access to accurate information.” Id. at 579 (quoting Cohen v. Koenig, 25 F.3d 1168, 1173-74 (2d
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`Cir. 1994)). To succeed, these allegations must be backed by a showing of “facts giving rise to a
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`strong inference of fraudulent intent.” IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049,
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`1057 (2d Cir. 1993) (internal quotations omitted). Additionally, a plaintiff must allege “the time,
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`place, speaker and sometimes even the content of the alleged misrepresentation.” Ibid.
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`DISCUSSION
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`Seeking damages and injunctive relief, plaintiffs allege violations of (i) Section 349 and
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`(ii) Section 350 of New York’s General Business Law, which prohibit deceptive acts and false
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`advertising respectively; (iii) negligent misrepresentation; (iv) breach of express warranty; (v)
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`breach of implied warranty; (vi) breach of a written warranty under the MMWA; and (vii) unjust
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`enrichment. Am. Compl. ¶¶ 59, 65-89. Whole Foods challenges plaintiffs’ standing to seek
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`injunctive relief and moves to dismiss their suit in its entirety. For the reasons that follow, I dismiss
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`all seven claims. Since plaintiffs’ claims all fail as a matter of law, the matter of injunctive standing
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`need not be decided. See Axon v. Florida’s Nat. Growers, Inc., 813 F. App’x 701, 703 n.1 (2d Cir.
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`2020) (summary order); Wallace v. Wise Foods, Inc., No. 20-CV-6831 (JPO), 2021 WL 3163599,
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`at *1 n.2 (S.D.N.Y. July 26, 2021); Boswell v. Bimbo Bakeries USA, Inc., No. 20-CV-8923 (JMF),
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`2021 WL 5144552, at *4 n.5 (S.D.N.Y. Nov. 4, 2021).
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`I.
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`Plaintiffs Fail to State Claims Under Sections 349 and 350
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`Sections 349 and 350 of New York General Business Law protect New York’s consumers.
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`Section 349 prohibits “[d]eceptive acts or practices in the conduct of any business, trade or
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`commerce or in the furnishing of any service in this state,” and Section 350 bars “[f]alse
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`advertising.” See N.Y. Gen. Bus. Law §§ 349 & 350 (McKinney 2020). Both employ the same
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`test. Koch v. Acker, Merrall & Condit Co., 18 N.Y.3d 940, 941 (N.Y. 2012). To state claims
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`under either section, plaintiffs “must plausibly allege that [Whole Foods] has engaged in (1)
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`consumer-oriented conduct that is (2) materially misleading and that (3) [they] suffered injury as
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`a result of the allegedly deceptive act or practice.” Orlander v. Staples, Inc., 802 F.3d 289, 300
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`(2d Cir. 2015) (quoting Koch, 18 N.Y.3d at 941).
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`Ms. Warren and Ms. Conley contend that Whole Foods’ packaging materially misled them
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`in two ways: by “giv[ing] the impression” that the oatmeal “contain[s] a fruit juice ingredient as
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`opposed to the common sweetener, sugar,” and by conveying through the use of a “whole grain”
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`stamp that the product consisted entirely of whole grains. Am. Compl. ¶ 71. Whole Foods denies
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`that the packaging is misleading and contends that the Food, Drug, and Cosmetic Act (“FDCA”),
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`21 U.S.C. § 301 et seq., preempts this suit. Def.’s Mem. of L. in Supp. 5-13 (Dkt. #21) (“Mem. in
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`Supp.”). While Whole Foods’ preemption argument lacks merit, plaintiffs have not plausibly
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`alleged that the oatmeal’s packaging is materially misleading.
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`A.
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`The FDA Regulations Neither Preempt Nor Control
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`Federal law does not preempt plaintiffs’ GBL claims, but the regulations that plaintiffs cite
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`bear little weight in determining liability under GBL Sections 349 and 350.
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`1. The FDCA Does Not Preempt Plaintiffs’ GBL Claims
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`Federal law does not preempt plaintiffs’ claims. Whole Foods contends that plaintiffs’
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`Sections 349 and 350 claims are preempted by the FDCA because plaintiffs’ theory of liability for
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`the “dehydrated cane juice solids” language rests on FDA guidance discouraging the term’s use.
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`Mem. in Supp. 12. Therefore, Whole Foods argues, this suit is an FDCA enforcement action in
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`disguise. And because the FDCA authorizes only the United States to enforce its provisions, that
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`statute preempts plaintiffs’ suit. Since the Amended Complaint does not necessarily need to be
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`read as relying entirely on FDA guidance, though, plaintiffs’ suit is not preempted.
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`The principle that “enforcement of the FDCA is the sole province of the FDA” is “well
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`established.” In re Bayer Corp. Combination Aspirin Prods. Mktg. & Sales Pracs. Litig., 701 F.
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`Supp. 2d 356, 369 (E.D.N.Y. 2010) (citing Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341,
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`348 (2001)). The FDCA “leaves no doubt that it is the Federal Government rather than private
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`litigants who are authorized to file suit for noncompliance.” Buckman, 531 U.S. at 349 n.4. Not
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`only does this bar plaintiffs from suing for noncompliance with the FDCA directly, but it also bars
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`plaintiffs from enforcing the FDCA via state-law claims. “Where a state law claim would not exist
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`but for a FDCA regulation, [21 U.S.C.] § 337(a) impliedly preempts [it].” Patane v. Nestlé Waters
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`N. Am., Inc., 314 F. Supp. 3d 375, 387 (D. Conn. 2018).
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`The FDCA, though, does not preempt all suits involving FDA-regulated products. Rather,
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`it preempts only suits that “depend entirely upon[] an FDCA violation.” In re Bayer Corp., 701
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`F. Supp. 2d at 369. Claims “premised on conduct that would give rise to liability under traditional
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`common law principles” remain viable. Ibid. So long as plaintiffs are not suing for a violation of
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`the FDCA alone, they may “incorporate” reference to FDCA violations into their suit. Ibid.
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` Ms. Warren’s and Ms. Conley’s claims about “dehydrated cane juice solids” fall into the
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`un-preempted category. Whole Foods reads plaintiffs’ complaint as saying that the term
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`“dehydrated cane juice solids” is only misleading because the FDA guidance says it is. If so, then
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`this claim would “depend entirely upon[] an FDCA violation” and therefore be barred. Ibid. But
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`plaintiffs say that they cite the FDA’s guidance merely as evidence and that “dehydrated cane juice
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`solids” is deceptive. Pls.’ Mem. of L. in Opp. 10, 11-12 (Dkt. #24) (“Mem. in Opp.”).
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`“[C]onstruing all ambiguities and drawing all inferences in . . . plaintiffs’ favor,” I agree—
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`plaintiffs’ allegations can be read as resting on broader grounds than as alleging a violation of the
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`FDA’s guidance alone. Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir.
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`2005) (internal quotations omitted). “Although these statements touch on areas regulated by the
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`FDA, and . . . even . . . reference . . . FDA definitions,” their “misleading nature . . . can be verified
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`without relying on any special expertise of the FDA and is therefore properly before this Court.”
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`Dayan v. Swiss-Am. Prods., Inc., No. 15-CV-6895 (DLI) (VMS), 2017 WL 1214485, at *4
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`(E.D.N.Y. Mar. 31, 2017) (quoting In re Bayer Corp., 701 F. Supp. 2d at 375). Plaintiffs “threaded
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`the needle and alleged conduct that violates the FDCA but sounds in traditional principles of state
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`law and would give rise to recovery even had the FDCA never been enacted.” In re Bayer Corp.,
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`701 F. Supp. 2d at 375. The FDCA does not preempt their claim.
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`2. The Federal Regulations Are Not Probative of Liability
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`While the FDCA does not preempt the claims, neither are FDA regulations controlling.
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`The FDA and New York law apply different standards. The FDA has promulgated some
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`categorical rules concerning whether food labels qualify as false or misleading under the FDCA.
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`One such regulation requires most ingredients on food labels to be listed by their common or usual
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`name, in descending order of predominance by weight. 21 C.F.R. § 101.4; see Ingredients
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`Declared As Evaporated Cane
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`Juice: Guidance
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`for
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`Industry,
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`available
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`at
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`https://www.fda.gov/media/97827/download (last visited Dec. 1, 2021). In contrast, whether a
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`statement on a food label is misleading under GBL Sections 349 and 350 depends on a context-
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`specific inquiry into whether a reasonable consumer, viewing the representation in context, would
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`likely be misled. Mantikas v. Kellogg Co., 910 F.3d 633, 636 (2d Cir. 2018) (citation omitted).
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`Because of these differences, courts have concluded that FDA guidance is “without consequence”
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`when stating a claim under New York law. Steele v. Wegmans Food Mkts, Inc., 472 F. Supp. 3d
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`47, 49 (S.D.N.Y. 2020) (citing PDK Labs Inc. v. Friedlander, 103 F.3d 1105, 1113 (2d Cir. 1997));
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`Pichardo v. Only What You Need, Inc., No. 20-CV-493 (VEC), 2020 WL 6323775, at *3 n.6
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`(S.D.N.Y. Oct. 27, 2020) (“Plaintiffs’ claims regarding FDA regulations are not relevant to
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`determining whether a label is deceptive or misleading under GBL §§ 349-50.”). Here, the
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`“[c]omplaint does not allege that reasonable consumers are aware of these complex regulations,
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`much less that they incorporate the regulations into their day-to-day marketplace expectations.”
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`Dashnau v. Unilever Mfg. (US), Inc., 529 F. Supp. 3d 235, 242-43 (S.D.N.Y. 2021) (quoting Wynn
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`v. Topco Assocs., LLC, No. 19-CV-11104 (RA), 2021 WL 168541, at *3 (S.D.N.Y. Jan. 19, 2021)).
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`Nor do plaintiffs supply “extrinsic evidence that the perceptions of ordinary consumers align with
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`these various labeling standards.” N. Am. Olive Oil Ass’n v. Kangadis Food Inc., 962 F. Supp. 2d
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`514, 519 (S.D.N.Y. 2013). Therefore, plaintiffs must plead that Whole Foods’ packaging is likely
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`misleading on its own, in context, to a reasonable consumer. Steele, 472 F. Supp. 3d at 50 (“The
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`point here is not conformity with this or that standard . . . but whether the [representation] was
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`deceptive.”).
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`B.
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`Plaintiffs Fail to Allege Whole Foods’ Packaging Is Materially Misleading
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`Plaintiffs have not adequately pleaded that Whole Foods’ packaging is materially
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`misleading. As noted above, materially misleading representations are those “likely to mislead a
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`reasonable consumer acting reasonably under the circumstances.” Mantikas, 910 F.3d at 636
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`(internal quotations omitted). The inquiry is “objective,” Cohen v. JP Morgan Chase & Co., 498
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`F.3d 111, 126 (2d Cir. 2007), and a court may decide whether conduct is materially misleading as
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`a matter of law, Fink v. Time Warner Cable, 714 F.3d 739, 741 (2d Cir. 2013). “In determining
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`whether a reasonable consumer would have been misled . . . context is crucial.” Mantikas, 910
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`F.3d at 636 (internal quotations omitted). The inquiry turns on “[t]he entire mosaic . . . rather than
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`each tile separately.” Davis v. Hain Celestial Grp., Inc, 297 F. Supp. 3d 327, 334 (E.D.N.Y. 2018)
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`(quoting Belfiore v. Procter & Gamble Co., 311 F.R.D. 29, 53 (E.D.N.Y. 2015)).
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`Plaintiffs claim to have been misled in two ways. First, they assert that the packaging
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`misled them regarding the product’s sugar content. Second, plaintiffs allege that a whole-grain
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`stamp on the packaging fooled them into thinking that the product consisted only of whole grains,
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`without any non-grain components. See Am. Compl. ¶¶ 5 & 30. I evaluate each claim in turn.
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`1. In Context, “Dehydrated Cane Juice Solids” Does Not Mislead
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`Plaintiffs have failed to plausibly allege that the product’s packaging would mislead a
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`reasonable consumer by “giv[ing] the impression” that the oatmeal “contain[s] a fruit juice
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`ingredient as opposed to the common sweetener, sugar.” Id. ¶ 71.
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`Insofar as plaintiffs are alleging that a reasonable consumer would be materially misled as
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`to the sugar content of the product, they have failed to state a claim. That theory finds no support
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`on the front of the box. Plaintiffs suggest that Whole Foods’ marketing of its product “as a simple,
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`no-frills basic oatmeal and flax” misleads consumers because a reasonable consumer would not
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`expect the oatmeal to contain sugar as its “second most predominant ingredient.” Id. ¶¶ 28-29.
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`But while the front of the box bills the product as “low fat,” there are no representations that the
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`oatmeal is “sugar-free,” “low in sugar,” “without added sugar,” or anything similar. See Am.
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`Compl. ¶ 9. A reasonable consumer would not be tricked into believing that a product is sugar-
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`free or low in sugar simply because the product is labeled “instant oatmeal” or “Oats & Flax.”
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`I therefore turn to the back of the box, to “the spot consumers are trained to look” to clarify
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`a product’s contents: the ingredients list. Davis, 297 F. Supp. 3d at 337. As plaintiffs say, Whole
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`Foods lists “sugar” as “dehydrated cane juice solids.” Ex. 1. Plaintiffs allege that “[b]y declaring
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`‘sugar’ by a term which fails to describe the basic function and qualities of the ingredient,” Whole
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`Foods deceives “reasonable consumers . . . into purchasing a product with added sugar as its
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`second most predominant ingredient.” Am. Compl. ¶ 27. But while some consumers may not
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`recognize “dehydrated cane juice solids” as sugar from the ingredients list alone, immediately to
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`the left consumers will find the far larger and more prominent nutrition label. And there, printed
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`in font the same size as the ingredient list or larger, are the words: “Sugar 11g.” Ex. 1.
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`“Courts ‘view each allegedly misleading statement in light of its context on the product
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`label or advertisement as a whole.’” Belfiore, 311 F.R.D. at 53 (quoting Delgado v. Ocwen Loan
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`Servicing, LLC, No. 13-CV-4427 (NGG) (RML), 2014 WL 4773991, at *8 (E.D.N.Y. Sept. 24,
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`2014)). In that analysis, “font size, placement, or emphasis” count. Rivera v. Navient Sols., LLC,
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`No. 20-CV-1284 (LJL), 2020 WL 4895698, at *9 (S.D.N.Y. Aug. 19, 2020) (quoting Delgado,
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`2014 WL 4773991, at *8). Accordingly, I consider not only the ingredient list, but also the
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`immediately adjacent and much larger nutrition label and its prominent words, “Sugars 11g.” It
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`seems unlikely that a reasonable consumer interested in a product’s sugar content would ignore
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`the very place its sugar content is disclosed. And even if a reasonable consumer was unaware of
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`sugar’s many names, or of the nutrition label’s purpose, the fact remains that the words “Sugar
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`11g” are prominently displayed immediately next to the ingredient list. Those words are hard to
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`miss. See Kommer v. Bayer Consumer Health, 252 F. Supp. 3d 304, 311-12 (S.D.N.Y. 2017)
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`(“Assuming that a reasonable consumer might ignore the evidence plainly before him attributes to
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`consumers a level of stupidity that the Court cannot countenance and that is not actionable under
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`G.B.L. § 349.” (internal quotations omitted)), aff’d sub nom. Kommer v. Bayer Consumer Health,
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`a Div. of Bayer AG, 710 F. App’x 43 (2d Cir. 2018). Accordingly, it is not plausible that a
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`reasonable consumer would have been misled about the product’s sugar content.
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`Nor have plaintiffs adequately pleaded that the term “dehydrated cane juice solids” would
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`materially mislead a reasonable consumer by signaling that the product’s sugar content comes
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`from fruit. See Am. Compl. ¶¶ 28, 36 & 71. As with the product’s sugar content, this analysis
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`begins with the front of the box and ends on its back. Plaintiffs assert that the box front itself
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`somehow suggests a “fruit juice ingredient,” highlighting the depiction of “a simple, no-frills basic
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`oatmeal and flax, pictured beneath fresh raspberries.” Id. ¶¶ 28 & 71. But just as the front bears
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`no claims like “sugar-free” or “free of added sugar,” neither does it bear slogans like “contains
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`fruit” or “made with real fruit.” Id. ¶ 9. Nor does product’s name, “Oats & Flax,” suggest fruit.
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`Ibid. At most, a reasonable consumer might wonder whether the oatmeal contained raspberries,
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`the “actual fruit . . . prominently displayed” on the front of the box, id. ¶ 28, but a quick trip to the
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`ingredient label dispels that idea, see Ex. 1 (no reference to “raspberries” anywhere); Melendez v.
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`ONE Brands, LLC, No. 18-CV-6650 (CBA) (SJB), 2020 WL 1283793, at *7 (E.D.N.Y. Mar. 16,
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`2020) (explaining a reasonable consumer would look to the ingredient panel to clarify ambiguity).
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`This leaves plaintiffs relying on the words of the ingredients label. But the label speaks of
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`cane juice, not fruit juice. As the complaint itself acknowledges, juices come from products
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`besides fruit. See id. ¶ 17; see also, e.g. Juice, Merriam-Webster.com, https://www.merriam-
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`webster.com/dictionary/juice (accessed Nov. 30, 2021) (defining juice as “the extractable fluid
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`contents of cells or tissues”); Juice, oed.com, https://www.oed.com/view/Entry/101976 (accessed
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`Nov. 30, 2021) (defining juice variously as “the watery or liquid parts of vegetables or fruits,”
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`“alcoholic liquor,” and “[t]he liquor from sugar cane.” (emphasis added)). Plaintiffs offer no
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`reason why a reasonable consumer would conclude that “cane juice” means “fruit juice.” Without
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`more than an image including raspberries on the box front and the term “cane juice” (rather than
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`“cane sugar” or “cane syrup”) on the back, plaintiffs have not plausibly alleged that a reasonable
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`consumer would conclude that the oatmeal contained a “fruit juice ingredient.”
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`2. In Context, the “Whole Grain” Stamp Does Not Mislead
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`Nor is the whole-grain stamp materially misleading. Plaintiffs allege that the stamp stating
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`“100% Whole Grain – 18g or more per serving,” see Am. Compl. ¶ 9, gives the inaccurate
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`“impression that the entire [p]roduct is made from whole grains,” id. ¶ 30. Plaintiffs’ claim that
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`they understood the stamp that way is hard to square with their assertion that they believed, based
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`on the ingredients label, that the product contained “a fruit juice ingredient.” See id. ¶ 71. In any
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`event, plaintiffs have failed to adequately plead that a reasonable consumer would be materially
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`misled in this fashion.
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`Ms. Warren’s and Ms. Conley’s troubles begin with precedent. The Second Circuit
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`considered stamps similar this one in Mantikas. See 910 F.3d at 637. The plaintiffs there read the
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`whole-grain stamp as communicating that “the grain content” of the product “is entirely, or at least
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`predominantly, whole grain.” Id. at 638. The Second Circuit agreed, stating that “[t]he
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`representation that a cracker is ‘made with whole grain’ would thus plausibly lead a reasonable
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`consumer to conclude that the grain ingredient was entirely, or at least predominately, whole
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`grain.” Id. at 639 (emphasis added). In other words, the court of appeals (like the plaintiffs)
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`understood the whole-grain stamp to make an apples-to-apples (or grain-to-grain) comparison of
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`grains—that the grain in the product is mostly or all whole grain. Ms. Warren’s and Ms. Conley’s
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`argument that defendant’s whole-grain stamp communicates that defendant’s oatmeal is made
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`exclusively of grains requires giving the stamp a different construction from the one that the court
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`of appeals found natural in Mantikas.
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`Furthermore, the text surrounding the whole-grain stamp makes Ms. Warren’s and Ms.
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`Conley’s understanding of the stamp implausible. The oatmeal badge does not simply say “100%
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`Whole Grain”; it states “100% Whole Grain – 18g or more per serving.” That accompanying
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`language communicates that whole grains make up a portion of each serving of oatmeal, rather
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`than the whole thing. Cf. id at 637 (describing comparable language as “[c]larif[ying] the amount
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`of whole grain as a proportion of a total serving”).
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`More critically, the very name of defendant’s product, “Oats & Flax,” discloses another,
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`nongrain ingredient—flax. Mantikas directs courts to “consider the challenged advertisement as
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`a whole, including disclaimers and qualifying language,” rather than considering phrases in
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`isolation. Id. at 636. If disclosing a product’s ingredients in its name is not enough to dispel
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`misapprehensions based on an isolated phrase, then it is unclear what sort of “disclaimer[] or
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`qualifying language” can be expected to do so. Ibid. Taking the front of the oatmeal package as
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`a whole, it is not plausible that the whole-grain stamp on Whole Foods’ “Oats & Flax” oatmeal
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`would mislead a reasonable consumer.
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`
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`Even if I found plaintiffs’ interpretation of the whole-grain badge more plausible, that
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`understanding would be—at most—one possible reading of an ambiguous term. See Mantikas,
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`910 F.3d at 637-39 (different understanding of “whole grain” stamp). A plaintiff whose claim
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`turns on an “unavoidable interpretation of an allegedly deceptive statement[] may rely upon it
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`without further investigation.” Boswell, 2021 WL 5144552, at *2 (quoting In re: 100% Grated
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`Parmesan, 275 F. Supp. 3d at 923). But “consumers who interpret ambiguous statements in an
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`unnatural or debatable manner do so unreasonably if an ingredient label would set them straight.”
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`Ibid. (quoting 100% Grated Parmesan, 275 F. Supp. 3d at 923); see Engram v. GSK Consumer
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`Healthcare Holdings, 19-CV-2886 (EK) (PK), 2021 WL 4502439, at *5 (E.D.N.Y. Sep. 30, 2021).
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`Plaintiffs’ understanding of the whole-grain badge is debatable at best. And the ingredient label
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`would set plaintiffs straight. That label lists several non-grain ingredients: organic dehydrated
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`cane juice solids, organic flaxseed, and sea salt. Am. Compl. ¶ 10. Given that label, plaintiffs’
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`allegations would fall short even if their reading of the whole-grain stamp, in isolation, were a
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`colorable construction.
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`II.
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`Plaintiffs’ Allegations of Negligent Misrepresentation Are Insufficient
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`Ms. Warren’s and Ms. Conley’s negligent misrepresentation claims are also dismissed. To
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`make a successful negligent misrepresentation claim under New York law, a plaintiff must allege:
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`(1) the defendant had a duty, as a result of a special relationship, to give correct
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`information; (2) the defendant made a false representation that he or she should have
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`known was incorrect; (3) the information supplied in the representation was known by the
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`defendant to be desired by the plaintiff for a serious purpose; (4) the plaintiff intended to
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`rely and act upon it; and (5) the plaintiff reasonably relied on it to his or her detriment.
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`Anschutz Corp. v. Merrill Lynch & Co., 690 F.3d 98, 114 (2d Cir. 2012) (internal quotations
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`omitted). These claims are subject to Rule 9(b)’s heighted pleading standards. See Aetna Cas. &
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`Sur. Co., 404 F.3d at 583.
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`Since plaintiffs “fail to adequately plead that [d]efendant’s [p]roduct conveyed incorrect
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`information, their negligent misrepresentation claim fails.” Dashnau, 529 F. Supp. 3d at 248.
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`Even if this were not enough, Ms. Warren’s and Ms. Conley’s claim falls short for at least two
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`additional reasons: 1) they do not successfully allege that a special relationship existed between
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`them and Whole Foods, and 2) the economic loss doctrine bars their claim.
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`A. Plaintiffs Do Not Establish a Special Relationship
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`Liability for negligent misrepresentation is “imposed only on those persons who possess
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`unique or specialized expertise, or who are in a special position of confidence and trust,” like
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`lawyers, engineers, or other professionals. Kimmell v. Schaefer, 89 N.Y.2d 257, 263 (N.Y. App.
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`Div. 1996). Plaintiffs neither adequately plead that they enjoyed a special relationship with Whole
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`Foods, nor that Whole Foods possessed specialized expertise. “In the commercial context, a closer
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`degree of trust between the parties than that of the ordinary buyer and seller is required to establish
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`the ‘existence of . . . a special relationship . . . [capable of] giv[ing] rise to an exceptional duty
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`regarding commercial speech and justifiable reliance on such speech.’” Stoltz v. Fage Dairy
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`Processing Indus., S.A., No. 14-CV-3826 (MKB), 2015 WL 5579872, at *24 (E.D.N.Y. Sept. 22,
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`2015) (quoting Kimmell, 89 N.Y.2d at 264). Alternatively, to establish liability under a “special
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`expertise” theory, plaintiffs must “emphatically allege[]” in the alternative (1) that Whole Foods
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`“held or appeared to hold unique or special expertise” and (2) “was aware of the use to which the
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`information would be put and supplied it for that purpose.” Eternity Glob. Master Fund Ltd. v.
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`Morgan Guar. Trust Co. of N.Y., 375 F.3d 168, 188 (2d Cir. 2004) (internal quotations omitted).
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`Describing only an arms-length transaction, Ms. Warren and Ms. Conley fail to allege any such
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`relationship of “special confidence and trust” existed between them and Whole Foods. Nor do
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`they suggest that Whole Foods was privy to secret scientific studies concerning its product, or that
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`it dealt in technical products like dietary supplements or airplanes, as courts have required to
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`establish special expertise claims. See, e.g., Greene v. Gerber Prod. Co., 262 F. Supp. 3d 38, 75
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`(E.D.N.Y. 2017); Hughes v. Ester C Co., NBTY, Inc., 930 F. Supp. 2d 439, 475 (E.D.N.Y. 2013);
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`Wells Fargo Bank Nw., N.A. v. Taca Intern. Airlines, S.A., 247 F. Supp. 2d 352, 366-67 (S.D.N.Y.
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`2002). In sum, Ms. Warren and Ms. Conley only plead that Whole Foods sold a common
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`commercial product—oatmeal—via an arms-length transaction. This is not enough to establish a
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`special relationship.
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`B. The Economic Loss Doctrine Also Bars a Negligent Misrepresentation Claim
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`Even if plaintiffs did allege a special relationship, the economic loss doctrine bars their
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`claim. Negligent misrepresentation sounds in tort, and the economic loss doctrine “restricts the
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`remedy of plaintiffs who have suffered economic loss, but not personal or property injury, to an
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`action in contract.” Elkind v. Revlon Consumer Prod. Corp., No. 14-CV-2484 (JS) (AKT), 2015
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`WL 2344134, at *12 (E.D.N.Y. May 14, 2015); see Weisblum v. Prophase Labs, Inc., 88 F. Supp.
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`3d 283, 297 (S.D.N.Y. 2015). Since Ms. Warren and Ms. Conley allege no physical or property
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`Case 1:19-cv-06448-RPK-LB Document 26 Filed 12/03/21 Page 17 of 20 PageID #: 178
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`harm, only that they paid price premiums, Am. Compl. ¶ 37, the economic loss doctrine applies,
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`Gordon v. Hain Celestial Grp., No. 16-CV-6526 (KBF), 2017 WL 213815, at *6 (S.D.N.Y. Jan.
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`18, 2017). Therefore, plaintiffs’ tort claim is barred.
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`III.
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`Plaintiffs’ Express Warranty Claim Is Barred
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`Ms. Warren’s and Ms. Conley’s express warranty claim fails both because plaintiffs did
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`not give presuit notice and because they do not allege that Whole Foods breached a warranty.
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`A. Plaintiffs Failed to Give Presuit Notice
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`First, plaintiffs neglected to give presuit notice as New York law requires. In New York,
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`“a buyer must provide the seller with timely notice of an alleged breach of warranty.” Colella v.
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`Atkins Nutritionals, Inc., 348 F. Supp. 3d 120, 143 (