Case 1:22-cv-00013-KPF Document 35 Filed 11/28/22 Page 1 of 27
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`CATHERINE NGUYEN, individually and on
`behalf of all others similarly situated,
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`ALGENIST LLC,
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`Plaintiff,
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`-v.-
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`Defendant.
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`22 Civ. 13 (KPF)
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`OPINION AND ORDER
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`
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`KATHERINE POLK FAILLA, District Judge:
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`Enticed by the promise of age-defying effects, Catherine Nguyen
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`(“Plaintiff”) purchased a skincare product from Algenist LLC (“Defendant”).
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`Unhappy with her results after using the product, Plaintiff filed this putative
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`class action against Defendant for false advertising and related claims. Her
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`allegations center on one of the product’s ingredients: vegan collagen, a
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`substance designed to mimic a naturally occurring protein found in skin, hair,
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`and other parts of the body. According to Plaintiff, vegan collagen cannot
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`possibly deliver the results Defendant advertises. For the reasons that follow,
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`the Court grants Defendant’s motion to dismiss.
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`BACKGROUND1
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`A.
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`Factual Background
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`Collagen is a structural protein that occurs naturally in the human body.
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`1
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`This Opinion draws its facts from the Complaint (Dkt. #1 (“Compl.”)), the well-pleaded
`allegations of which are taken as true for the purposes of this Opinion. The Court
`sources additional facts from the Declaration of Steven W. Garff in support of
`Defendant’s motion to dismiss and the exhibits attached thereto (Dkt. #24 (“Garff
`Decl.”)), including images of the products and packaging at issue in this case, which
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`Case 1:22-cv-00013-KPF Document 35 Filed 11/28/22 Page 2 of 27
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`(Compl. ¶ 3). It is a main building block for bones, skin, hair, muscles,
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`tendons, and ligaments, and gives the skin “a firm, plump, and youthful look.”
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`(Id. at ¶¶ 3, 15). A decrease in collagen production — which occurs naturally
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`over time and can be accelerated by factors like smoking and sun exposure —
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`undermines the skin’s structural integrity, leading to wrinkles, sagging skin,
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`and weakened joint cartilage. (Id. at ¶¶ 4, 16-17). As a result, many
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`consumers seek out collagen-based beauty products that are designed to
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`combat the effects of natural collagen loss. (Id. at ¶ 18).
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`Defendant is a Delaware corporation that sells, among other things,
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`products containing a proprietary vegan collagen. (Compl. ¶¶ 1, 12). Three of
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`Defendant’s products are named in this suit: (i) Algenist Genius Collagen
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`Calming Relief (“Calming Relief”), (ii) Algenist Genius Liquid Collagen (“Liquid
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`Collagen”), and (iii) Algenist Genius Sleeping Collagen (“Sleeping Collagen”)
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`(collectively, the “Products”). (Id. at ¶ 1 n.1). The Products’ packaging features
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`Algenist branding and descriptive phrases. (See Garff Decl., Ex. A). Plaintiff
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`alleges that each product’s front label features the words “ADVANCED ANTI-
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`AGING.” (Compl. ¶ 27). The name of each product appears immediately under
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`that phrase. (See Garff Decl., Ex. A). The lower half of the labels feature the
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`images the Court may consider because the Complaint incorporates them by
`reference. See Hu v. City of New York, 927 F.3d 81, 88 (2d Cir. 2019).
`For ease of reference, the Court refers to Defendant’s memorandum of law in support of
`its motion to dismiss as “Def. Br.” (Dkt. #23); to Plaintiff’s memorandum of law in
`opposition to Defendant’s motion as “Pl. Opp.” (Dkt. #29); and to Defendant’s reply
`memorandum as “Def. Reply” (Dkt. #32).
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`2
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`Case 1:22-cv-00013-KPF Document 35 Filed 11/28/22 Page 3 of 27
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`word “ALGENIST,” in large letters and, in smaller letters below that, either
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`“Alguronic Acid + Collagen” or “Alguronic Acid + Vegan Collagen.” (Id.).
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`Calming Relief
`(front)
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`Liquid Collagen
`(front)
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`Sleeping Collagen
`(front)
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`Plaintiff, who is a New York citizen, purchased Calming Relief at a
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`TJMaxx store in New York City in April 2021. (Compl. ¶ 11). The Complaint
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`does not specify how much Plaintiff paid for the product. In making her
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`decision to purchase Calming Relief over comparable products, Plaintiff relied
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`on the assertions made on the product’s label and packaging. (Id.). The
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`packaging led her to believe that Calming Relief contained “collagen” and/or
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`3
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`Case 1:22-cv-00013-KPF Document 35 Filed 11/28/22 Page 4 of 27
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`“vegan collagen” that would provide “advanced anti-aging benefits.” (Id.).
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`Based on these representations, Plaintiff paid “a substantial price premium” for
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`the product. (Id.).
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`After her purchase, Plaintiff used Calming Relief as directed. (Compl.
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`¶ 11). To her dismay, she did not enjoy any “anti-aging or skin-firming
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`benefits” as a result. (Id.). She asserts that the Products cannot possibly offer
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`those benefits because the molecules in topically-applied collagen — vegan or
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`otherwise — cannot penetrate the skin’s top layer. (Id. at ¶¶ 8-9, 26-27). This
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`is because animal-based collagen has a molecular weight of 300 kilodaltons
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`and thus is “too large to be absorbed into the skin when applied in a cream.”
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`(Id. at ¶ 8). Vegan collagen has the same issue, claims Plaintiff, because it
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`“[t]ypically … mimic[s] the exact structure of human collagen.” (Id. at ¶ 26). In
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`short, Plaintiff believes that Defendant’s advertising is “false, misleading, and
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`deceptive” (id. at ¶ 32), because “no topical collagen product can stimulate and
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`increase natural collagen production” (id. at ¶ 20).
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`Plaintiff claims that, had she known that the representations on Calming
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`Relief’s label were untrue, she would not have paid a price premium for it.
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`(Compl. ¶ 11). Despite her disappointment, she intends to purchase Calming
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`Relief again in the future if it is truthfully labeled. (Id.). She brings this suit on
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`behalf of a putative nationwide class of purchasers of the Products. (Id. at ¶ 1).
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`B.
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`Procedural Background
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`Plaintiff initiated this action by filing the Complaint on January 3, 2022.
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`(Dkt. #1). On January 25, 2022, Defendant requested leave to file a motion to
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`Case 1:22-cv-00013-KPF Document 35 Filed 11/28/22 Page 5 of 27
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`dismiss. (Dkt. #8). The Court held a pre-motion conference on February 18,
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`2022, at which time (i) Plaintiff declined an opportunity to amend her
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`Complaint and (ii) the Court set a briefing schedule for Defendant’s
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`contemplated motion. (Feb. 18, 2022 Minute Entry). Defendant filed its
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`motion to dismiss and supporting papers on February 25, 2022 (Dkt. #20),
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`portions of which were refiled on March 3, 2022, to comply with the Court’s
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`filing conventions (Dkt. #22-24). Plaintiff filed her opposition on March 15,
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`2022. (Dkt. #29). The Court granted Defendant’s request to extend its reply
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`deadline by a week (Dkt. #31), and Defendant filed its reply on April 18, 2022
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`(Dkt. #32). Subsequently, Plaintiff filed a notice of supplemental authority
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`(Dkt. #33), to which Defendant promptly responded (Dkt. #34). The motion is
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`thus fully briefed and ripe for the Court’s consideration.
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`DISCUSSION
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`A. Motions to Dismiss Under Federal Rule of Civil Procedure 12(b)(6)
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`In considering a motion to dismiss under Federal Rule of Civil Procedure
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`12(b)(6), the Court must “draw all reasonable inferences in [p]laintiffs’ favor,
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`assume all well-pleaded factual allegations to be true, and determine whether
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`they plausibly give rise to an entitlement to relief.” Faber v. Metro. Life Ins. Co.,
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`648 F.3d 98, 104 (2d Cir. 2011) (internal quotation marks omitted); see
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`also Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “In deciding a Rule
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`12(b)(6) motion, the court may consider ‘only the facts alleged in the pleadings,
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`documents attached as exhibits or incorporated by reference in the pleadings,
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`and matters of which judicial notice may be taken.’” Hu v. City of New York,
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`5
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`Case 1:22-cv-00013-KPF Document 35 Filed 11/28/22 Page 6 of 27
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`927 F.3d 81, 88 (2d Cir. 2019) (quoting Samuels v. Air Transp. Local 504, 992
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`F.2d 12, 15 (2d Cir. 1993)).
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`A complaint will survive a motion to dismiss if it alleges “enough facts to
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`state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
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`550 U.S. 544, 570 (2007); see also In re Elevator Antitrust Litig., 502 F.3d 47,
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`50 (2d Cir. 2007) (“While Twombly does not require heightened fact pleading of
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`specifics, it does require enough facts to nudge plaintiff’s claims across the line
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`from conceivable to plausible.” (internal quotation marks omitted) (citing
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`Twombly, 550 U.S. at 570)). “Where a complaint pleads facts that are ‘merely
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`consistent with’ a defendant’s liability, it ‘stops short of the line between
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`possibility and plausibility of entitlement to relief.’” Iqbal, 556 U.S. at
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`678 (quoting Twombly, 550 U.S. at 557). Moreover, “the tenet that a court
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`must accept as true all of the allegations contained in a complaint is
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`inapplicable to legal conclusions. Threadbare recitals of the elements of a cause
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`of action, supported by mere conclusory statements, do not suffice.” Id.
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`B.
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`Plaintiff Lacks Standing to Seek Injunctive Relief, But Has Standing
`to Raise a Claim for Damages
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`The Court begins by addressing the threshold issue of Plaintiff’s Article
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`III standing. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102
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`(1998). Only those disputes that meet the “irreducible constitutional
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`minimum” of standing can be heard in a federal forum. Lujan v. Defs. of
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`Wildlife, 504 U.S. 555, 560 (1992). To establish Article III standing, a plaintiff
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`must show that (i) she suffered an actual or imminent injury in fact which is
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`concrete and particularized; (ii) there is a causal connection between the injury
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`and the defendant’s actions; and (iii) it is likely that a favorable decision in the
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`case will redress the injury. Id. at 560-61. “The party invoking federal
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`jurisdiction bears the burden of establishing these elements.” Id. at 561. In a
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`class action, the standing inquiry focuses on the experience of the named
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`plaintiff, not unnamed members of the potential class. See Warth v. Seldin,
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`422 U.S. 490, 502 (1975); Nicosia v. Amazon.com, Inc., 834 F.3d 220, 239 (2d
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`Cir. 2016) (“A plaintiff seeking to represent a class must personally have
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`standing.”).
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`“[A] plaintiff must demonstrate standing for each claim and form of relief
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`sought.” Cacchillo v. Insmed, Inc., 638 F.3d 401, 404 (2d Cir. 2011) (quoting
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`Baur v. Veneman, 352 F.3d 625, 642 n.15 (2d Cir. 2003)). Among other relief,
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`Plaintiff seeks an injunction directing Defendant to stop its allegedly misleading
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`advertising practices. (Compl. 20 (Prayer for Relief (e))). Defendant argues that
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`Plaintiff lacks standing to seek injunctive relief on behalf of herself or a
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`putative class because she cannot allege imminent future harm. (Def. Br. 22-
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`23). The Court agrees.
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`The Second Circuit recently explained why it is difficult to establish
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`imminent future harm in consumer protection cases:
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`For several reasons, past purchasers of a product, …
`are not likely to encounter future harm of the kind that
`makes injunctive relief appropriate. In the first place,
`past purchasers are not bound to purchase a product
`again — meaning that once they become aware they
`have been deceived, that will often be the last time they
`will buy that item. No matter how ubiquitous [the
`product] may be, there is no reason to believe that
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`Case 1:22-cv-00013-KPF Document 35 Filed 11/28/22 Page 8 of 27
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`[plaintiff(s)] — having suffered the harm alleged — will
`choose to buy it in the future.
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`But even if they do purchase it again, there is no reason
`to believe that all, or even most, of the class members
`will incur a harm anew. Supposing that they have been
`deceived by the product’s packaging once, they will not
`again be under the illusion [of the false advertising].
`Instead, next time they buy one of the newer [products],
`they will be doing so with exactly the level of information
`that they claim they were owed from the beginning.
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`Berni v. Barilla S.p.A., 964 F.3d 141, 147-48 (2d Cir. 2020).
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`Plaintiff alleges that she would buy Calming Relief again in the future
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`“if … truthfully labeled.” (Compl. ¶ 11). This allegation does not suffice to
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`establish likely future injury. Assuming arguendo that Plaintiff is now aware
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`that the collagen in the Product may not perform as advertised, she cannot be
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`misled by Defendant’s representations regarding that ingredient. If she
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`chooses to pay a premium for the Product in the future, she does so knowingly;
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`she “cannot plausibly again by deceived by the Product’s label, regardless of
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`whether it is changed.” Gordon v. Target Corp., No. 20 Civ. 9589 (KMK), 2022
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`WL 836773, at *8 (S.D.N.Y. Mar. 18, 2022); see also Wargo v. Hillshire Brands
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`Co., — F. Supp. 3d —, No. 20 Civ. 8672 (NSR), 2022 WL 1204652, at *10
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`(S.D.N.Y. Apr. 22, 2022); Campbell v. Whole Foods Mkt. Grp., Inc., 516 F. Supp.
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`3d 370, 395-96 (S.D.N.Y. 2021); Goldstein v. Walmart, Inc., No. 22 Civ. 88
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`(LJL), 2022 WL 16540837, at *14 (S.D.N.Y. Oct. 28, 2022) (all rejecting future
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`injury theories similar to Plaintiff’s).
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`Plaintiff does, however, have standing to bring claims for monetary
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`damages. Past injury can provide a basis for standing to seek damages.
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`Case 1:22-cv-00013-KPF Document 35 Filed 11/28/22 Page 9 of 27
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`Nicosia, 834 F.3d at 239. In the consumer protection context, a plaintiff is
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`injured by paying extra for a product based on the defendant’s deception. Axon
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`v. Fla.’s Nat. Growers, Inc., 813 F. App’x 701, 703-04 (2d Cir. 2020) (summary
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`order). Plaintiff alleges that she paid a “substantial price premium” for
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`Calming Relief because of Defendants’ representation that the collagen in the
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`product would combat aging. (Compl. ¶ 11). This allegation is sufficient to
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`establish constitutional injury at this stage in the proceedings, even though
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`Plaintiff does not identify the exact amount of that premium. Fla.’s Nat.
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`Growers, Inc., 813 F. App’x at 704 (“[A plaintiff]’s failure to identify the prices of
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`competing products to establish the premium that she paid is not fatal to her
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`claim at this stage of the proceedings.” (alteration adopted and internal citation
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`and quotation marks omitted)). The Court will therefore proceed to consider
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`the merits of Plaintiffs’ damages claims.2
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`Defendant raises a second standing challenge, this time requesting that the suit be
`limited to allegations regarding Calming Relief because Plaintiff lacks standing to
`pursue claims related to products she did not purchase. (Def. Br. 21-22). This
`argument confuses constitutional standing with class standing. See NECA-IBEW Health
`& Welfare Fund v. Goldman Sachs & Co., 693 F.3d 145, 158 (2d Cir. 2012) (explaining
`that whether a plaintiff has “‘class standing’ — that is, standing to assert claims on
`behalf of purchasers [of the same or similar products] — does not turn on whether [she]
`would have statutory or Article III standing”). Once a consumer-plaintiff has
`established Article III standing, as Plaintiff has done here, she may assert consumer
`protection claims relating to products she did not purchase if she plausibly pleads that
`“[i] the products are substantially similar to the products that [she] did purchase; and
`[ii] the alleged misrepresentation is the same.” Rivera v. S.C. Johnson & Son, Inc.,
`No. 20 Civ. 3588 (RA), 2021 WL 4392300, at *9 (S.D.N.Y. Sept. 24, 2021).
`Plaintiff made that showing for Calming Relief, Liquid Collagen, and Sleeping Collagen.
`She alleges that the Products are similar because each contains Defendant’s proprietary
`vegan collagen. (Compl. ¶¶ 1, 27). She also alleges that each Product’s label represents
`that its component collagen will produce “advanced anti-aging” benefits.” (Id. at ¶ 27).
`Defendant does not contest those similarities. (See Def. Br. 21-22; Def. Reply 9). No
`more is required at this early stage in the litigation. See Buonasera v. Honest Co., Inc.,
`208 F. Supp. 3d 555, 563 (S.D.N.Y. 2016).
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`9
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`2
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`Case 1:22-cv-00013-KPF Document 35 Filed 11/28/22 Page 10 of 27
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`C.
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`The Court Dismisses Plaintiff’s Deceptive Business Practice and
`False Advertising Claims for Failure to State a Claim
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`1.
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`New York General Business Law §§ 349-350
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`New York General Business Law (“GBL”) Section 349 prohibits
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`“[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[.]” N.Y. Gen. Bus.
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`Law § 349(a). GBL Section 350 prohibits the same, except that it is limited to
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`claims of false advertising. Id. § 350; see also Goshen v. Mut. Life Ins. Co. of
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`N.Y., 98 N.Y.2d 314, 324 n.1 (2002) (noting that the statutes are “identical”
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`other than this difference in scope). These provisions are broadly designed to
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`address “the numerous, ever-changing types of false and deceptive business
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`practices which plague consumers in [New York] State.” Karlin v. IVF Am., Inc.,
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`93 N.Y.2d 282, 290-91 (1999).
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`The standard for recovery is the same under both provisions. Goshen, 98
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`N.Y.2d at 324 n.1. “To successfully assert a claim under either section, ‘a
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`plaintiff must allege that a defendant has engaged in [i] consumer-oriented
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`conduct that is [ii] materially misleading and that [iii] plaintiff suffered injury
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`as a result of the allegedly deceptive act or practice.’” Orlander v. Staples, Inc.,
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`802 F.3d 289, 300 (2d Cir. 2015) (quoting Koch v. Acker, Merrall & Condit
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`Co., 18 N.Y.3d 940, 944 (2012)). The deceptive act can either be a
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`The same cannot be said for Defendant’s other, unnamed products alluded to in the
`Complaint. (See Compl. ¶ 1 n.1 (“Algenist Collagen Products include, but are not
`limited to, Algenist Genius Calming Relief, Algenist Genius Liquid Collagen, and
`Algenist Genius Sleeping Collagen.”)). Without more specific allegations as to the
`identity of those products, the Court cannot assess their similarities to the product
`Plaintiff purchased.
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`Case 1:22-cv-00013-KPF Document 35 Filed 11/28/22 Page 11 of 27
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`representation or an omission. See Oswego Laborers’ Local 214 Pension Fund
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`v. Marine Midland Bank, N.A., 85 N.Y.2d 20, 26 (1995). Deceptive conduct
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`“need not reach the level of common-law fraud to be actionable,” Stutman v.
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`Chem. Bank, 95 N.Y.2d 24, 29 (2000), and thus deceptive business practice
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`and false advertising claims are not subject to the heightened pleading
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`requirements of Federal Rule of Civil Procedure 9(b), Pelman ex rel. Pelman v.
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`McDonald’s Corp., 396 F.3d 508, 511 (2d Cir. 2005).
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`Defendant does not contest that the challenged advertising is consumer-
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`oriented. Its arguments focus instead on the other two elements of claims
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`under Sections 349 and 350: whether Defendant engaged in materially
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`misleading conduct and whether that conduct injured Plaintiff. Because
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`Plaintiff has not adequately alleged that Defendants’ representations regarding
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`topical collagen are untrue, she has not carried her burden on the materially
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`misleading element and thus has not stated a claim for deceptive practices or
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`false advertising under New York law.3
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`Because Plaintiff’s statutory claims fail for lack of materially misleading conduct, the
`Court need not reach the injury analysis. The Court notes briefly, however, that
`Plaintiff likely carried her burden on that element.
`To state a claim of injury under Sections 349 and 350, a consumer must allege that,
`“on account of a materially misleading practice, she purchased a product and did not
`receive the full value of her purchase.” Orlander v. Staples, Inc., 802 F.3d 289, 302 (2d
`Cir. 2015). This can be shown by asserting that “a particular product was marketed as
`having a special quality, that the marketing enabled the company to charge a premium
`for the product, and that the plaintiff paid this premium and later discovered that the
`product ‘did not, in fact, have the marketed quality.’” Anderson v. Unilever U.S., Inc., —
`F. Supp. 3d —, No. 21 Civ. 3117 (KMK), 2022 WL 2181575, at *7 (S.D.N.Y. June 16,
`2022) (quoting Duran v. Henkel of Am., Inc., 450 F. Supp. 3d 337, 350 (S.D.N.Y. 2020));
`see also Eidelman v. Sun Prods. Corp., No. 21-1046-cv, 2022 WL 1929250, at *1 (2d Cir.
`June 6, 2022) (summary order) (“One method of demonstrating actual injury in the
`consumable goods context is by showing that the plaintiff paid a ‘price premium’ — that
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`Case 1:22-cv-00013-KPF Document 35 Filed 11/28/22 Page 12 of 27
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`2.
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`Plaintiff Fails to Allege That Defendant Made a Materially
`Misleading Representation
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`Defendant primarily argues that Plaintiff’s GBL claims fail as a matter of
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`law because Plaintiff failed to plausibly allege that Defendant’s advertising is
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`false or misleading. (Def. Br. 8-18). Conduct is materially misleading if it is
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`“likely to mislead a reasonable consumer acting reasonably under the
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`circumstances.” Cohen v. JP Morgan Chase & Co., 498 F.3d 111, 126 (2d Cir.
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`2007) (quoting Oswego Laborers’ Local 214, 85 N.Y.2d at 26). To survive a
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`motion to dismiss, the plaintiff “must do more than plausibly allege that a label
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`might conceivably be misunderstood by some few consumers.” Twohig v. Shop-
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`Rite Supermarkets, Inc., 519 F. Supp. 3d 154, 160 (S.D.N.Y. 2021) (internal
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`quotation marks omitted) (quoting Sarr v. BEF Foods, Inc., No. 18 Civ. 6409
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`(ARR) (RLM), 2020 WL 729883, at *3 (E.D.N.Y. Feb. 13, 2020)). “Instead, [the]
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`plaintiff[] must ‘plausibly allege that a significant portion of the general
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`consuming public or of targeted customers, acting reasonably in the
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`circumstances, could be misled.’” Id. (quoting Sarr, 2020 WL 729883, at
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`*3); see also Weinstein v. eBay, Inc., 819 F. Supp. 2d 219, 228 (S.D.N.Y.
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`is, as a result of the defendant’s deception, the plaintiff paid more for a product than he
`otherwise would have.”).
`Consistent with this line of cases, Plaintiff alleges that she paid a “substantial price
`premium due to [Defendant’s] false and misleading collagen claims” (Compl. ¶ 11), and
`that had she known that Calming Relief could not provide the anti-aging benefits it
`advertises, she would not have purchased it or “would not have paid as much as [she]
`did” (id. at ¶ 10). Courts in this District consistently find similar allegations sufficient
`at the motion to dismiss stage. See, e.g., Fishon v. Peloton Interactive, Inc., No. 19 Civ.
`11711 (LJL), 2020 WL 6564755, at *10-11 (S.D.N.Y. Nov. 9, 2020); Duran, 450 F. Supp.
`3d at 351; Weisblum v. Prophase Labs, Inc., 88 F. Supp. 3d 283, 292-93 (S.D.N.Y.
`2015); see also Ackerman v. Coca-Cola Co., No. 09 Civ. 395 (JG) (RML), 2010 WL
`2925955, at *23 (E.D.N.Y. July 21, 2010).
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`2011) (“[T]he applicable legal standard is whether a reasonable consumer, not
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`the least sophisticated consumer, would be misled by [the defendant’s]
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`actions.”). Although consumer fraud claims are often fact-intensive, in
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`appropriate circumstances courts may conclude as a matter of law that an
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`allegedly deceptive advertisement would not have misled a reasonable
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`consumer. Fink v. Time Warner Cable, 714 F.3d 739, 741 (2d Cir. 2013) (per
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`curiam) (citing, inter alia, Marine Midland Bank, 85 N.Y.2d at 26).
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`The primary evidence in a false advertising case is the advertising itself.
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`Fink, 714 F.3d at 742. Courts do not look at the challenged statement in
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`isolation, but rather “consider the challenged advertisement as a whole[.]”
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`Mantikas v. Kellogg Comp., 910 F.3d 633, 636 (2d Cir. 2018); see also Lugones
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`v. Pete & Gerry’s Organic, LLC, 440 F. Supp. 3d 226, 241 (S.D.N.Y. 2020) (“The
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`entire mosaic is viewed rather than each tile separately.” (quoting Belfiore v.
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`Procter & Gamble Co., 311 F.R.D. 29, 53 (E.D.N.Y. 2015))). Thus a potentially
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`misleading statement may not be actionable if accompanied by “a disclaimer or
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`similar clarifying language[.]” Fink, 714 F.3d at 742; see also Broder v. MBNA
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`Corp., 722 N.Y.S.2d 524, 526 (1st Dep’t 2001) (“[T]here can be no [S]ection
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`349(a) claim when the allegedly deceptive practice was fully disclosed[.]”).
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`Defendant asserts that dismissal is warranted because (i) the challenged
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`advertisements do not make the representations the Complaint alleges, and
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`(ii) Plaintiff failed to plead facts showing that the Products cannot provide the
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`Case 1:22-cv-00013-KPF Document 35 Filed 11/28/22 Page 14 of 27
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`advertised benefits. (Def. Br. 7-16).4 The Court considers each of these
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`arguments in turn.
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`a.
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`The Meaning of the Challenged Representations
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`The parties first disagree on what the Products advertise. In Plaintiff’s
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`view, the Products “prominently claim[]” to “contain vegan collagen that will
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`provide … anti-aging and skin restoring” benefits. (Compl. ¶ 9). Defendant
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`counters that a reasonable consumer viewing the challenged advertisements
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`would understand that the Products as a whole, and not any one ingredient,
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`produce the advertised results. (Def. Br. 7-8).
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`Both views find support in the face of the advertisements. Several facts
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`lend credibility to Plaintiff’s interpretation. For one, the phrase “ADVANCED
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`ANTI-AGING” appears in close proximity to the word “collagen” on the Products’
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`front labels, potentially suggesting a connection between the ingredient and the
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`advertised effect. (Compl. ¶ 22; Garff Decl., Ex. A). Additionally, “collagen” is
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`referenced twice on the front of each Product, more than any other ingredient.
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`And finally, the Product names each include the word “collagen.” From all of
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`these factors, a consumer viewing the Products could plausibly interpret the
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`advertisements as promising that their collagen combats signs of aging.
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`Defendant also argues that the phrase “vegan collagen” itself is not misleading because
`reasonable consumers are aware that vegan products mimic animal-based products but
`do not exactly replicate them. (Def. Br. 16-19). Plaintiff does not defend this theory of
`false advertising in its reply, instead focusing on whether Defendant’s anti-aging claims
`are misleading. (See Pl. Opp. 3-15). Accordingly, any claims based on this theory are
`dismissed. See Malik v. City of N.Y., 841 F. App’x 281, 284 (2d Cir. 2021) (summary
`order) (“‘When a party fails adequately to present arguments’ in a brief, a court may
`properly ‘consider those arguments abandoned[.]’” (quoting State St. Bank & Tr.
`Co. v. Inversiones Errazuriz Limitada, 374 F.3d 158, 172 (2d Cir. 2004))).
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`Case 1:22-cv-00013-KPF Document 35 Filed 11/28/22 Page 15 of 27
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`Defendant’s view is supported as well. Importantly, the Products’ labels
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`do not explicitly say that collagen causes “ADVANCED ANTI-AGING” — that
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`phrase stands alone. (See Garff Decl., Ex. A). And each label prominently
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`names a second ingredient — “Alguronic Acid” or “Algae Oligosaccarides” —
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`alongside collagen below the brand’s name. (Id.; Compl. ¶ 22). From this, a
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`consumer could understand that those two ingredients work together to fight
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`aging. Significantly, however, the fact that the labels name two ingredients
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`does not make it “patently implausible” for a consumer to think that collagen is
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`responsible for the advertised effects, particularly given the other factors
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`described above. See Eidelman v. Sun Prods. Corp., No. 21-1046-cv, 2022 WL
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`1929250, at *4 (2d Cir. June 6, 2022) (summary order).
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`Because Plaintiff’s reading and Defendant’s reading of the face of the
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`challenged advertisements are both reasonable, the Court cannot say that one
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`is correct as a matter of law. “Where a representation is capable of two
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`possible reasonable interpretations, the misleading one should not be rejected
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`simply because there is an alternative, non-misleading interpretation.” Fishon
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`v. Peloton Interactive, Inc., No. 19 Civ. 11711 (LJL), 2020 WL 6564755, at *7
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`(S.D.N.Y. Nov. 9, 2020); see also Hess v. Godiva Chocolatier, Inc., 463 F. Supp.
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`3d 453, 467 (S.D.N.Y. 2020) (denying motion to dismiss because consumer’s
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`interpretation of words on product package was “equally, if not more plausible”
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`than manufacturer’s).
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`Other parts of the Products’ packaging do not dispel this ambiguity.
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`Defendant calls the Court’s attention to another side of the Liquid Collagen
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`Case 1:22-cv-00013-KPF Document 35 Filed 11/28/22 Page 16 of 27
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`box, which (i) describes that product as “a collagen-based formulation for a
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`more youthful and vital appearance” and (ii) notes that Liquid Collagen’s
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`“unique dual-phase formula suspends microbeads of microalgae oil in a vegan
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`plant collagen water and plant collagen amino acids to help reclaim a more
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`youthful appearance and fight the 5 visible signs of aging.” (Def. Br. 8; Garff
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`Decl., Ex. A). Similarly, the Calming Relief package explains that its
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`“combination of Active Vegan Collagen,* Alguronic Acid, Calendula & other
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`soothing agents is designed to visibly reduce redness & the look of irritated
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`skin, protect moisture retention, restoring bounce & resilience.” (Def. Br. 3;
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`Garff Decl., Ex. A). In Defendant’s view, these more detailed descriptions make
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`clear to consumers that the Products’ unique combination of ingredients, and
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`not collagen alone, produce the advertised benefits. (Def. Br. 3, 7-8).
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`Before addressing this argument, the Court briefly explains why it may
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`consider those statements even though they do not appear on the Products’
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`front label alongside the challenged representations. The Second Circuit has
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`addressed circumstances in which a court could consider non-challenged
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`statements and representations on packaging; it concluded in that case that
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`the ingredients list on the side of a cereal box did not dispel consumer
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`confusion about the meaning of the phrase “MADE WITH WHOLE GRAIN” on
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`the front of the box. Mantikas v. Kellogg Comp., 910 F.3d 633, 637 (2d Cir.
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`2018). The Court explained that “reasonable consumers should not be
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`expected to look beyond misleading representations on the front of the box to
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`discover the truth from … small print on the side of the box.” Id. (alteration
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`Case 1:22-cv-00013-KPF Document 35 Filed 11/28/22 Page 17 of 27
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`adopted) (quoting Williams v. Gerber Prods. Co., 552 F.3d 934, 939 (9th Cir.
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`2008)). However, even considering the ingredient list, the Court found that
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`certain entries on the list “contradict, rather than confirm, Defendant’s ‘whole
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`grain’ representations on the front of the box.” Id.
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`Mantikas does not stand for the proposition that courts may never
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`consider other sides of a package in false advertising cases. Instead, after
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`Mantikas, courts in this District have distinguished between cases involving
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`statements susceptible to only one interpretation and cases involving
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`ambiguous statements. See, e.g., Bynum v. Family Dollar Stores, Inc., 592 F.
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`Supp. 3d 304, 311-13 (S.D.N.Y. 2022) (collecting cases). When the meaning of
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`a challenged statement is clear, shoppers expect that the rest of the package
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`will confirm that representation and are not reasonably expected to investigate
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`further. See Mantikas, 910 F.3d at 637 (“[R]easonable consumers expect that
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`the ingredient list contains more detailed information about the product that
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`confirms other representations on the packaging.” (quoting Gerber Prods. Co.,
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`552 F.3d at 939-40) (emphasis added)). But when a statement is ambiguous,
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`“every reasonable shopper knows the devil is in the details” and thus would
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`seek clarification elsewhere on the package. Boswell v. Bimbo Bakeries USA,
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`Inc., 570 F. Supp. 3d 89, 94 (S.D.N.Y. 2021) (quoting In re 100% Grated
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`Parmesan Cheese Mktg. & Sales Pracs. Litig., 275 F. Supp. 3d 910, 923 (N.D.
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`Ill. 2017)); see also Bynum, 592 F. Supp. 3d at 311 (determining that a
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`reasonable consumer would consider other side of label to “clarify his or her
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`understanding” of ambiguous term). Because, as described above, the
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`Case 1:22-cv-00013-KPF Document 35 Filed 11/28/22 Page 18 of 27
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`challenged representations in this case can be interpreted in two ways, they fall
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`into the latter camp and the Court may consider the supplemental descr