Case 1:21-cv-10858-JSR Document 29 Filed 03/30/22 Page 1 of 13
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`WILLIAM RANDOLPH,
`individually and on behalf of
`a class of similarly situated
`persons,
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`Plaintiffs,
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`-v-
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`MONDELĒZ GLOBAL LLC,
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`Defendant.
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`21-cv-10858 (JSR)
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`OPINION AND ORDER
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`JED S. RAKOFF, U.S.D.J.:
`This is a putative class action alleging New York state law
`deceptive practices, false advertising, and unlawful enrichment claims
`concerning the labeling of the snack cracker “Stoned Wheat Thins.”
`Plaintiffs allege that the box misleadingly suggests to consumers that
`the crackers are made with “stoneground whole wheat,” for which
`consumers are willing to pay a premium, when in fact unbleached
`enriched white flour milled on steel rollers is the predominant
`ingredient.
`The Second Circuit held in Mantikas v. Kellogg Co. that a
`plaintiff states a claim under New York’s deceptive practices and
`false advertising statutes where a food package features the term
`“whole grain” and “the grain content is [not] entirely or at least
`predominantly whole grain.” 910 F.3d 633, 637 (2d Cir. 2018). Since
`Mantikas, a line of snack crackers cases has emerged in this district
`extending that reasoning to packages of “graham crackers” that are
`predominantly made with white flour, rather than the coarsely ground
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`1
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`WILLIAM RANDOLPH,
`individually and on behalf of
`a class of similarly situated
`persons,
`
`
`Plaintiffs,
`
`
`-v-
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`MONDELĒZ GLOBAL LLC,
`
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`Defendant.
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`21-cv-10858 (JSR)
`
`OPINION AND ORDER
`
`JED S. RAKOFF, U.S.D.J.:
`This is a putative class action alleging New York state law
`deceptive practices, false advertising, and unlawful enrichment claims
`concerning the labeling of the snack cracker “Stoned Wheat Thins.”
`Plaintiffs allege that the box misleadingly suggests to consumers that
`the crackers are made with “stoneground whole wheat,” for which
`consumers are willing to pay a premium, when in fact unbleached
`enriched white flour milled on steel rollers is the predominant
`ingredient.
`The Second Circuit held in Mantikas v. Kellogg Co. that a
`plaintiff states a claim under New York’s deceptive practices and
`false advertising statutes where a food package features the term
`“whole grain” and “the grain content is [not] entirely or at least
`predominantly whole grain.” 910 F.3d 633, 637 (2d Cir. 2018). Since
`Mantikas, a line of snack crackers cases has emerged in this district
`extending that reasoning to packages of “graham crackers” that are
`predominantly made with white flour, rather than the coarsely ground
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`1
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`Case 1:21-cv-10858-JSR Document 29 Filed 03/30/22 Page 2 of 13
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`whole-grain flour recommended by Sylvester Graham as the cornerstone
`of the American diet. See Valcarcel v. Ahold U.S.A., Inc., 2021 WL
`6106209, at *1 (S.D.N.Y. Dec. 22, 2021); see also, e.g., Campbell v.
`Whole Foods Mkt. Grp. Inc., 516 F.Supp. 3d 370 (S.D.N.Y. 2021).
`Plaintiffs say this case is the same, but the Court disagrees.
`Mantikas has established a useful rule that prevents food companies
`from confusing consumers into thinking that certain crunchy snacks are
`healthier than they are. The Court now suggests an endpoint to
`Mantikas’s reasoning: where a package nowhere uses the phrase “whole
`grain” or any synonym or type thereof, the Court will not infer that
`the reasonable consumer shopping reasonably would mistake the product
`for being predominantly whole grain, absent specific allegations to
`the contrary. And since the amended complaint nowhere makes factual
`allegations that give rise to a plausible inference that consumers
`reasonably interpret the phrase “stoned wheat” to mean that the
`crackers are made with whole wheat, the motion to dismiss of defendant
`Mondelēz Global LLC is granted (though without prejudice to amendment).
`I.
`Factual Background
`The packaging for “Stoned Wheat Thins” snack crackers includes
`an image of a wheat field below a blue and orange background, which
`is overlaid with a red oval containing large, white letters reading
`“STONED WHEAT THINS.” First Amended Complaint, ECF 16 (FAC) ¶ 13. 1
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`1 There are three varieties of crackers at issue: “Stoned Wheat
`Thins,” “Mini Stoned Wheat Thins,” and “Stoned Wheat Thins Low Sodium.”
`FAC ¶¶ 13-15. There is no material difference between the packaging
`for the three varieties, so the Court will refer throughout this
`2
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`Case 1:21-cv-10858-JSR Document 29 Filed 03/30/22 Page 3 of 13
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`Below that, in smaller, thin black letters, it reads “WHEAT CRACKERS.”
`Id. The box also features an image of a cracker topped with thin apple
`slices and cheddar cheese and garnished with an unidentified green
`herb. Id. Nowhere does the package mention “whole wheat” or the word
`“stoneground.”
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`Plaintiffs allege that the box leads the reasonable consumer to
`believe that stone-ground whole wheat flour is the predominant
`ingredient in the crackers. FAC ¶ 16. In fact, as the ingredients list
`discloses, the predominant ingredient is “unbleached enriched flour,”
`and the second ingredient is “cracked wheat.” See ECF 22-1 (label).
`William Randolph, the named plaintiff of a putative class, alleges
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`opinion to the original Stoned Wheat Thins box, which is inserted
`below. The complaint itself has images of the three boxes, but those
`images do not include the ingredients lists. Id. Mondelez correctly
`argues that the full labels, provided via a defendant’s declaration,
`are cognizable on a motion to dismiss claims under GBL §§ 349 & 350,
`because the full packaging is integral to the complaint and
`incorporated by reference. See ECF 22-1, 22-2, 22-3 (Labels).
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`Case 1:21-cv-10858-JSR Document 29 Filed 03/30/22 Page 4 of 13
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`that he has purchased Stoned Wheat Thins near his home on the Upper
`West Side on a bi-monthly basis from the beginning of the class period
`December 18, 2015 to 2019, “believing that the main ingredient of the
`Product was stoneground whole wheat flour.” FAC ¶ 1.2
`The complaint alleges that stone ground flour is more nutritious
`than flour produced on conventional steel roller mills, which expose
`the flour to high temperatures. FAC ¶¶ 6-10. The complaint further
`alleges that the market for stone-ground whole wheat has grown in
`recent years, and that consumers are willing to pay a premium for
`stone-ground whole wheat products because of perceived health
`benefits. FAC ¶¶ 11-12. The complaint therefore claims that purchasers
`of Stoned Wheat Thins received a product that was worth less than what
`the packaging led them to believe they paid for. FAC ¶¶ 24-31.
`The complaint brings three claims under New York law. Plaintiffs
`sue under both General Business Law §§ 349 and 350, which respectively
`prohibit “[d]eceptive acts or practices in the conduct of any business,
`trade or commerce or in the furnishing of any service” and “[f]alse
`advertising in the conduct of any business, trade or commerce or in
`the furnishing of any service.” FAC ¶¶ 39-57. It also brings a claim
`for unjust enrichment under New York common law. FAC ¶¶ 58-61.
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`2 Unless otherwise specified, all internal quotation marks,
`citations, elisions, alterations, and emphases are removed from all
`sources cited herein.
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`Case 1:21-cv-10858-JSR Document 29 Filed 03/30/22 Page 5 of 13
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`II.
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`Whether the Label is Misleading
`“To successfully assert a claim under either section [349 or
`350], ‘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., 967 N.E.2d
`675, 675-67 (N.Y. 2012)). “To state a claim for false advertising or
`deceptive business practices under New York ... law, a plaintiff must
`plausibly allege that the deceptive conduct was ‘likely to mislead a
`reasonable consumer acting reasonably under the circumstances.’”
`Mantikas v. Kellogg Co., 910 F.3d 633, 636 (2d Cir. 2018).
`Mantikas concerned “Cheez-It” crackers labeled as “whole grain”
`on the box. Id. at 635. It held, in sum, that when a label prominently
`claims a product is “whole grain” or “made with whole grain,” then
`“the reasonable expectations communicated” are that “the grain content
`is entirely or at least predominantly whole grain.” Id. at 637. The
`labeling is therefore deceptive if white flour is the predominant
`ingredient, even if the ingredients list discloses that whole grain
`flour is also used as a lesser component or the specific amount of
`whole grain per serving is disclosed. Id. Mantikas explains why
`disclosure of a product’s white flour content on the mandatory
`ingredients list does not cure a misimpression about whole grain
`content created by the front label:
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`[W]e cannot conclude that these disclosures on the side of the
`box render Plaintiffs’ allegations of deception implausible.
`Reasonable consumers should [not] be expected to look beyond
`misleading representations on the front of the box to discover
`the truth from the ingredient list in small print on the side of
`the box. Instead, reasonable consumers expect that the ingredient
`list contains more detailed information about the product that
`confirms other representations on the packaging. We conclude that
`a reasonable consumer should not be expected to consult the
`Nutrition Facts panel on the side of the box to correct misleading
`information set forth in large bold type on the front of the box.
`Id. Since it is undisputed that white flour is the predominant
`ingredient in Stoned Wheat Thins, Mantikas provides that Mondelēz’s
`motion should be denied if the label would give the reasonable consumer
`an expectation that the crackers are purporting to be made from
`“stoneground whole wheat.”
`On a motion to dismiss, the Court must of course treat all well-
`pleaded factual allegations as true and draw all reasonable inferences
`in the plaintiff’s favor to determine if they give rise to a plausible
`entitlement for relief. See Lynch v. City of New York, 952 F.3d 67,
`75 (2d Cir. 2020). “A claim has facial plausibility when the plaintiff
`pleads factual content that allows the court to draw the reasonable
`inference that the defendant is liable for the misconduct alleged.”
`Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “[A] well-pleaded
`complaint may proceed even if it strikes a savvy judge that actual
`proof of those facts is improbable, and that a recovery is very remote
`and unlikely.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007).
`It is accepted that claims under sections 349 and 350 may be
`dismissed on the pleadings if the court finds that the consumer-facing
`representations were, as a matter of law, not “likely to mislead a
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`reasonable consumer acting reasonably under the circumstances.” Oswego
`Laborers’ Loc. 214 Pension Fund v. Marine Midland Bank, N.A., 85 N.Y.2d
`20, 26 (1995); see also Fink v. Time Warner Cable, 714 F.3d 739, 741
`(2d Cir. 2013). This is an objective test. However, dismissal is only
`appropriate where the defendant’s “documentary evidence utterly
`refutes plaintiff’s factual allegations, conclusively establishing a
`defense as a matter of law.” Goshen v. Mut. Life Ins. Co. of New York,
`98 N.Y.2d 314, 326 (2002). Courts in this district have repeatedly
`held that “this inquiry is generally a question of fact not suited for
`resolution at the motion to dismiss stage.” Duran v. Henkel of Am.,
`Inc., 450 F. Supp. 3d 337, 346 (S.D.N.Y. 2020).
`The FAC alleges in three ways that reasonable consumers are misled
`by the Stoned Wheat Thins packaging. The key challenge for plaintiffs
`is that the label nowhere says “stoneground” or “whole wheat,” so the
`entire weight of the complaint rests on whether a reasonable consumer
`would interpret the words “Stoned Wheat” in the brand name to imply
`that the predominant ingredient is whole wheat.
`First, the complaint alleges that Randolph bought the crackers
`“believing that the main ingredient of the Product was stoneground
`whole wheat flour. Had Plaintiff known the truth that the main
`ingredient was not stoneground wheat flour (but rather, unbleached
`enriched flour, a.k.a. “white flour”) he would not have bought the
`Product.” FAC ¶ 1. But since the test for deception under sections 349
`and 350 is an objective one, and because reliance is not an element
`of the claims, the plaintiff’s personal expectations do not establish
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`Case 1:21-cv-10858-JSR Document 29 Filed 03/30/22 Page 8 of 13
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`that “a reasonable consumer acting reasonably under the circumstances”
`would be misled by the label. Oswego Laborers’, 85 N.Y.2d at 26; see,
`e.g., Sharpe v. A&W Concentrate Co., 2021 WL 3721392 (E.D.N.Y. July
`23, 2021); Kurtz v. Kimberly-Clark Corp., 321 F.R.D. 482, 498-499
`(E.D.N.Y. 2017). Therefore, this allegation is irrelevant.
`Second, plaintiffs allege that “[t]he Product’s name, ‘Stoned
`Wheat Thins’ -- which is depicted in bold white print against a
`contrasting red background-- conveys to reasonable consumers that the
`Product contains stoneground whole wheat flour. The accompanying
`graphics of a wheat field under a blue sky reinforce the message of a
`wholesome, natural product.” FAC ¶ 16. The second sentence in this
`paragraph does not logically support the necessary inference of
`deception, since neither the fact that wheat is steel-ground nor the
`predominance of white flour is alleged to make the crackers less
`“wholesome” or “natural.” While the first sentence does describe how
`the key words in the brand name appear, it is as a whole merely
`conclusory. It does not explain why consumers would interpret “stoned
`wheat” to mean “stoneground whole wheat.” This allegation is therefore
`not entitled to the presumption of truth that attaches to factual
`allegations. Iqbal, 556 U.S. at 664.
`Third, the complaint alleges that plaintiffs’ counsel conducted
`a consumer survey and found that “[a] substantial majority of
`respondents -- 80.1% -- selected ‘stoneground wheat flour’ as one of
`the three main ingredients in the Product, the highest percentage for
`all of the ingredients listed, and 62.9% of them indicated this factor
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`Case 1:21-cv-10858-JSR Document 29 Filed 03/30/22 Page 9 of 13
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`would make them more likely to purchase the Product.” FAC ¶ 17.
`However, the plaintiffs’ opposition brief disclaims reliance on the
`survey for the purpose of the motion to dismiss. Opp. 11 n. 1
`(“Plaintiff is not relying on the survey for purposes of defeating
`Defendant’s Motion.”). Counsel made this choice, perhaps, because the
`motion points out that “cracked wheat” (which Mondelēz avers via an
`attorney declaration is stoneground) is the second-most prevalent
`ingredient by weight. The survey’s structure thus offers no support
`to the theory of deception asserted in the amended complaint, because
`the survey establishes only that consumers expect stoneground whole
`wheat to be a main ingredient in Stoned Wheat Thins, not the main
`ingredient. In any event, since the plaintiffs disclaim reliance on
`the allegation, the Court need not consider this allegation.
`Mondelēz emphasizes that the label nowhere includes the words
`“whole wheat” or “stoneground,” so the label can only be deceptive if
`the reasonable consumer would infer from the words “Stoned Wheat” in
`the product’s brand name that the predominant ingredient is stoneground
`whole wheat flour. Mot. 7. This is a dispositive distinction between
`this case and the prior “whole wheat” snack cracker cases, including
`Mantikas and the graham cracker cases, Valcarcel, 2021 WL 6106209, and
`Campbell, 516 F.Supp. 3d 370. In each of those cases, the box
`prominently featured the words “whole grain” or “graham,” which
`specifically refers to a form of whole wheat flour. Here, by contrast,
`the literal words on the box do not assert that the flour is stoneground
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`or whole wheat, so any such expectation would have to be inferred by
`consumers.
`Randolph’s inference relies on two steps: that “stoned” means
`“stoneground” and that stoneground flour (or “stoned wheat” itself)
`implies whole wheat flour. Mondelēz disputes both, and the Court
`concludes that Randolph establishes neither inference.
`First, Mondelēz argues that “stoned wheat” does not mean
`“stoneground wheat,” and the complaint nowhere alleges that these
`phrases are equivalent. Mot. 9. Indeed, the phrases are not the same,
`and the definition of “stoned” does not describe milling techniques.
`See Mot. 11 n. 9 (citing dictionaries). Moreover, unlike with “graham
`flour,” which FDA regulations define as a synonym to “whole wheat
`flour,” 21 C.F.R. § 137.200(a), there is no regulatory definition that
`identifies “stoned wheat” or “stoneground” flour. See Mot. 9-10.
`Mondelēz argues instead that “Stoned Wheat” should be understood as a
`trademarked brand name that is not descriptive of the product. Mot.
`10. Mondelēz analogizes the use of “stoned” to the trademark “FROOT
`LOOPS,” which a California district court held did not lead consumers
`to expect that the cereal was made with fruit, McKinnis v. Kellogg
`USA, 2007 WL 4766060 at *4 (C.D. Cal. Sept. 19, 2007), and the trademark
`“Sugar in the Raw,” which was held not to state that the product was
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`“raw” or “unprocessed,” Rooney v. Cumberland Packing Corp., 2012 WL
`1512106, at *4 (S.D. Cal. Apr. 16, 2012).3
`Second, Mondelēz argues that neither “stoneground wheat” nor
`“stoned wheat” means “whole wheat.” Mot. 7-9. While not dispositive
`of consumer understanding, it is relevant that the FDA’s standard of
`identity for whole wheat does not specify anything about milling
`technique. See 21 C.F.R. § 137.200. And dictionary definitions of
`“stoneground” only refer to the milling process, not the content of
`the resulting flour. See Mot. 7-8 (collecting definitions). Mondelēz
`also points to various sources explaining that “stoneground wheat” may
`describe white flour, including government reports of which the Court
`could take judicial notice and websites cited in the complaint itself
`and so incorporated by reference therein. See Mot. 8.
`Randolph responds that it is common knowledge that crackers are
`made of flour, so “stoned wheat” should be understood as “stoned wheat
`flour” and thus “can reasonably mean ‘stoneground wheat flour.’” Opp.
`6. But the amended complaint nowhere alleges that reasonable consumers
`reasonably understand “stoned wheat,” or even “stoneground wheat” to
`necessarily imply whole grain. Indeed, when the complaint itself makes
`various health claims about a superior flour, it refers more
`specifically to “whole grain stone-ground flour.” FAC ¶ 7.
`
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`3 These cases were applying California’s consumer protection law, not
`the New York statutes at issue here.
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`Case 1:21-cv-10858-JSR Document 29 Filed 03/30/22 Page 12 of 13
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`Therefore, the Court concludes that plaintiffs have failed to
`state a claim under either section 349 or section 350, notwithstanding
`Mantikas’s expansive rule.
`III.
`The Unjust Enrichment Claim
`“To state a claim for unjust enrichment under New York law a
`Plaintiff must show that (1) the defendant was enriched; (2) at the
`expense of the plaintiff; and (3) that it would be inequitable to
`permit the defendant to retain that which is claimed by
`Plaintiff.” Twohig v. Shop-Rite Supermarkets, Inc., 519 F.Supp.3d 154,
`167 (S.D.N.Y., 2021). “However, ‘unjust enrichment is not a catchall
`cause of action to be used when others fail.’” Campbell, 516 F. Supp.
`3d at 394 (quoting Corsello v. Verizon N.Y., Inc., 18 N.Y.3d 777
`(2012)). “An unjust enrichment claim is not available where it simply
`duplicates, or replaces, a conventional contract or tort
`claim.” Corsello, 944 N.Y.S.2d at 790. Accordingly, an unjust
`enrichment claim “will not survive a motion to dismiss where plaintiffs
`fail to explain how their unjust enrichment claim is not merely
`duplicative of their other causes of action.” Campbell, 516 F. Supp.
`3d at 393. Here, plaintiffs have offered no explanation of how the
`unjust enrichment claim differs from the GBL sections 349 and 350,
`“which seek relief from the same conduct.” In re Ford Fusion & C-Max
`Fuel Econ. Litig., 2015 WL 7018369, at *39 (S.D.N.Y. Nov. 12, 2015).
`As such, the motion to dismiss the unjust enrichment claim is granted.
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`IV.
`
`Conclusion
`For the reasons set forth above, the Court concludes that the
`amended complaint fails to state a claim upon which relief may be
`granted. But since the Court cannot conclude that amendment of the
`complaint would be futile, and it would produce neither undue delay
`nor undue prejudice to Mondelēz, plaintiffs are granted leave to file
`an amended complaint within 30 days of the entry of this order.
`SO ORDERED.
`
`New York, NY
`
`March 29, 2022
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`________________________
`JED S. RAKOFF, U.S.D.J.
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