Case 1:19-cv-09227-LLS Document 27 Filed 07/14/20 Page 1 of 8
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`- - - - - - -
`- - - - - - - - - -x
`
`QUINCY STEELE and JIMMY ARRIOLA, on
`behalf of themselves and all others
`others similarly situated,
`
`USDC SONY
`DOCUl\lE~T
`ELECTRO:\ICALLY FILED
`DOC #: _ __ ~ .,.....-,-------
`DA TE FILE.o: ~hvl z a
`
`Plaintiffs
`
`- against -
`
`19 Civ. 9227
`
`(LLS)
`
`OPINION & ORDER
`
`WEGMANS FOOD MARKETS,
`
`INC.
`
`Defendants
`- - - - - - - - - - - - - - - - - - -x
`
`In this putative class action, defendant Wegmans Food
`
`Markets, Inc. moves to dismiss plaintiffs Quincy Steele and
`
`Jimmy Arriola' s first amended complaint ("FAC")
`
`(Dkt. No. 10)
`
`pursuant to Federal Rules of Civil Procedure 12(b) (6) and 9(b)
`
`For the following reasons, the motion (0kt . No. 13) is granted.
`
`BACKGROUND
`
`Plaintiffs sue Wegmans, a grocery store chain and food
`
`manufacturer, for claimed deceptive acts or practices in
`
`violation of federal, New York, and Pennsylvania statutes and
`
`standards, false advertising, common-law negligent
`
`misrepresentation, fraud, breach of warranty and unjust
`
`enrichment.
`
`Nevertheless, the case comes down to two decisive
`
`questions: did the label on the ice cream container misrepresent
`
`the container's contents? and did the elaborate gas
`
`1
`
`
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`- - - - - - -
`- - - - - - - - - -x
`
`QUINCY STEELE and JIMMY ARRIOLA, on
`behalf of themselves and all others
`others similarly situated,
`
`USDC SONY
`DOCUl\lE~T
`ELECTRO:\ICALLY FILED
`DOC #: _ __ ~ .,.....-,-------
`DA TE FILE.o: ~hvl z a
`
`Plaintiffs
`
`- against -
`
`19 Civ. 9227
`
`(LLS)
`
`OPINION & ORDER
`
`WEGMANS FOOD MARKETS,
`
`INC.
`
`Defendants
`- - - - - - - - - - - - - - - - - - -x
`
`In this putative class action, defendant Wegmans Food
`
`Markets, Inc. moves to dismiss plaintiffs Quincy Steele and
`
`Jimmy Arriola' s first amended complaint ("FAC")
`
`(Dkt. No. 10)
`
`pursuant to Federal Rules of Civil Procedure 12(b) (6) and 9(b)
`
`For the following reasons, the motion (0kt . No. 13) is granted.
`
`BACKGROUND
`
`Plaintiffs sue Wegmans, a grocery store chain and food
`
`manufacturer, for claimed deceptive acts or practices in
`
`violation of federal, New York, and Pennsylvania statutes and
`
`standards, false advertising, common-law negligent
`
`misrepresentation, fraud, breach of warranty and unjust
`
`enrichment.
`
`Nevertheless, the case comes down to two decisive
`
`questions: did the label on the ice cream container misrepresent
`
`the container's contents? and did the elaborate gas
`
`1
`
`
`
`Case 1:19-cv-09227-LLS Document 27 Filed 07/14/20 Page 2 of 8
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`chromatography- mass spectrometry analysis plaintiffs ' chemists
`
`performed show there was fraudulently little vanilla bean
`
`extract in the ice cream?
`
`The answers to each of those questions being No , the
`
`complaint is dismissed .
`
`A picture included in the FAC of the packaging of the
`
`product in question and its ingredient list is below .
`
`Milk, Cream, Corn Syrup. Liquid Sugar. S ,m Mil , Buttermilk. M1lkfat. Whey, atural Flavor, Mono • and D1glycendes, Guar Gum,
`Cellulose Gum, Carrageenan, Dextrose, Annatto (color) .
`
`Plaintiffs contend they were deceived by Wegmans to believe
`
`that ice cream they bought from Wegmans got its vanilla flavor
`
`from vanilla beans or vanilla bean extract , when in fact the ice
`
`2
`
`
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`Case 1:19-cv-09227-LLS Document 27 Filed 07/14/20 Page 3 of 8
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`cream got most of its vanilla flavor from some non - vanilla
`
`source . FAC ~~ 5 , 6 ("Defendant ' s Product contains non - vanilla
`
`flavor, a de minimis amount of vanilla and to the extent it
`
`tastes like vanilla , such flavor is contributed by vanillin from
`
`non - vanilla sources . The Product is not truthfully or lawfully
`
`identified as ' Vanilla Ice Cream ' which misleads consumers . ") .
`
`Plaintiffs ' claim that Wegmans '
`
`ice cream is flavored by
`
`artificial flavors , not natural vanilla flavor , has no factual
`
`support , since the test performed does not show that .
`
`Plaintiffs ' claim that Wegmans' label is misleading under the
`
`law requires some explanation , but also fails .
`
`DISCUSSION
`
`The Federal and State Statutes
`
`The food , and ice cream , business is closely regulated , in
`
`ways described for many pages in the complaint . The primary
`
`federal Food Drug and Cosmetic Act deals generally with food ,
`
`not with flavoring , 21 U. S . C . § 343(g) , and its enforcement is
`
`left to the federal and State (if the food is located within the
`
`State) authorities . There is no private civil right of action
`
`for breaches of its provisions . See 21 U. S.C. § 337. The New
`
`York Agriculture and Markets Law , which in its ice cream
`
`regulations , 1 NYCRR 17 . 19 , adopted the federal ice cream
`
`regulations , is also administered by a Commissioner who
`
`investigates and may sue for penalties. N. Y. Agric. & Mkts . Law
`
`3
`
`
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`Case 1:19-cv-09227-LLS Document 27 Filed 07/14/20 Page 4 of 8
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`§ 35. No private civil actions can be inferred ; the legislature
`
`created such a right of action only when it wished to (N.Y.
`
`Agric. & Mkts . Law§ 378(3) , dealing with tampering with animal
`
`research) .
`
`Thus , in this private civil action , the extensive
`
`discussion and argument in the motion papers with respect to
`
`particular federal standards for ice cream flavor descriptions
`
`is without consequence .
`
`POK Labs Inc . v . Friedlander , 103 F . 3d
`
`1105 , 1113 (2d Cir . 1997) (Plaintiff ' s "dogged insistence that
`
`PDK ' s products are sold without proper FDA approval suggests"
`
`his goal is "to privately enforce alleged violations of the
`
`FDCA .
`
`However , no such private right of action exists ." )
`
`The point here is not conformity with this or that standard
`
`(which is left to the authorities to regulate) but whether the
`
`marketing presentation was deceptive .
`
`The relevant portions of the Pennsylvania Unfair Trade
`
`Practices and Consumer Protection Law (73 Penn . Statutes§§ 201 -
`
`1 , 2 , 3) , like the provisions of New York ' s General Business Law
`
`Sections 349 and 350 , are not product standards , but
`
`prohibitions of misrepresentations , deceptions and misleading
`
`conduct . They, like the common - law false advertising , and fraud
`
`issues , turn on the honesty and accuracy of the ice cream
`
`container ' s label , to which we now turn .
`
`4
`
`
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`Case 1:19-cv-09227-LLS Document 27 Filed 07/14/20 Page 5 of 8
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`The Container Label: Deceptive?
`
`Although they are processed almost simultaneously by the
`
`buyer , to analyze the total effect of the messages on the
`
`container it is useful to consider them in sequence . The buyer ' s
`
`first desire is for ice cream , and when he is in the frozen food
`
`area he must select , from many choices (chocolate ,
`
`lemon , mint ,
`
`lime , etc . ) the one he wants . Thus the large - type " Vanilla " is
`
`of immediate use . Of course he is not looking for a bowl of
`
`vanilla , and the next largest words confirm that the container
`
`holds ice cream . Those who prefer natural ingredients will note
`
`that it has natural vanilla flavor , and no artificial flavors .
`
`Evidently there are various natural substances which have a
`
`vanilla flavor . Those interested in the actual ingredients can
`
`read the list , which mentions neither vanilla beans nor
`
`extracts , but they will not learn the components , amounts or
`
`proportions of the Natural Flavor 1 •
`
`That is where the container ' s disclosures start , and where
`
`they stop . Where is the deception? What is misleading , or
`
`misrepresented?
`
`1 In a highly competitive market for consumer taste , ice cream producers seek
`not just a vanilla ice cream , but a different and better tasting vanilla ice
`cream than their competitors. To this end , many manufacturers flavor their
`vanilla ice creams not just with vanilla extract , but with a package of
`flavorings of which vanilla extract is the predominant , but not the only,
`flavoring component . These flavoring packages often are carefully developed
`by specialized flavor suppliers , with their proprietary formulations kept as
`a trade secret. Defts ' April 20 , 2020 brief, p.4.
`
`5
`
`
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`Case 1:19-cv-09227-LLS Document 27 Filed 07/14/20 Page 6 of 8
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`The plaintiffs assume that buyers take it for granted that
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`natural vanilla flavor is wholly or largely derived from vanilla
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`beans , and argue that if the predominant component of the
`
`flavoring is not from beans or vanilla extract , the customer is
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`misled. They point to Mantikas v . Kellogg Co ., 910 F . 3d 633 (2d
`
`Cir. 2018) where the Cheez - It crackers box proclaimed WHOLE
`
`GRAIN in large type ; there was in fact a small amount of whole
`
`grain in the crackers , but they were mainly made of less
`
`nutritious enriched white flour . This case is different . The
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`Wegmans container does not mention vanilla beans , or bean
`
`extract , and even if vanilla or bean extract is not the
`
`predominant factor , if the sources of the flavor are natural ,
`
`not artificial , it is hard to see where there is deception . What
`
`is misrepresented? The ice cream is vanilla flavored . The
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`sources of the flavor are natural , not artificial .
`
`In this case , it is conceded that there is vanilla in the
`
`product ; it is claimed to be de minimis . No objective facts in
`
`this respect are pled.
`
`Plaintiffs ' authority for that argument is its alleged
`
`experts ' test.
`
`The Mass Spectrometry Analysis
`
`The subject - matter of the discussion of plaintiffs ' mass
`
`spectrometry analysis is four chemical compounds that are
`
`present in vanilla beans in small amounts ("marker compounds " )
`
`6
`
`
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`Case 1:19-cv-09227-LLS Document 27 Filed 07/14/20 Page 7 of 8
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`They are vanillin (1 . 3% to 1 . 7% present) , p - hydroxybenzaldehyde
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`(a tenth of a percent), vanillic acid (a twentieth of a
`
`percent) , and p - hydroxybenzoic acid (three hundredths of a
`
`percent) . The latter three proportions are tiny , from 6% to 2 ~
`
`0
`
`•
`
`as much as the vanillin .
`
`The analysis of the ice cream picked up vanillin at 0 . 787
`
`parts per million , and did not detect any of the smaller three
`
`markers . Plaintiffs argue this means there is too little vanilla
`
`bean extract in the ice cream , and the flavoring must come from
`
`non - vanilla bean sources . But that is not a self - evident
`
`conclusion .
`
`The fact that the analysis disclosed only the vanillin may
`
`simply show that the test was not sensitive enough to detect the
`
`markers with smaller profiles in the bean .
`
`The test may just confirm that the vanilla flavor derives
`
`solely from vanilla extract .
`
`That is left to speculation . What is needed is to test , not
`
`for the universe of the ice cream ' s contents , but specifically
`
`for the presence of the particular chemical markers.
`
`The test performed under plaintiffs ' instructions is as
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`inapplicable to this action as are the federal specifications
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`for ice cream flavorings , which are not enforceable by private
`
`plaintiffs .
`
`7
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`
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`Case 1:19-cv-09227-LLS Document 27 Filed 07/14/20 Page 8 of 8
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`CONCLUSION
`
`The Amended Complaint does not state a claim of
`
`misrepresentation regarding the flavoring of Wegmans Vanilla Ice
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`Cream and is dismissed .
`
`So ordered .
`
`Dated :
`
`July 14 , 2020
`New York , New York
`
`LOUIS L . STANTON
`U. S . D. J .
`
`8
`
`
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