Case 7:20-cv-02933-NSR Document 20 Filed 01/28/22 Page 1 of 18
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`
`VALERIE SANTIFUL and TAMEKA RHODEN,
`individually and on behalf of all others similarly
`situated,
`
`Plaintiffs,
`
`-against-
`
`WEGMANS FOOD MARKETS, INC.,
`
`Defendant.
`
`NELSON S. ROMÁN, United States District Judge:
`
`1/28/2022
`
`No. 20-CV-2933 (NSR)
`
`OPINION & ORDER
`
`Plaintiffs Valerie Santiful and Tameka Rhoden, individually and on behalf of others
`
`similarly situated (collectively, “Plaintiffs”), bring this putative class action against Wegmans
`
`Food Markets, Inc. (“Defendant” or “Wegmans”) asserting that Defendant’s Gluten Free Vanilla
`
`Cake Mix (the “Product”) is labeled in a way that is misleading to consumers. Specifically,
`
`Plaintiffs bring claims for violation of New York’s General Business Law Sections 349 and 350,
`
`negligent misrepresentation, breach of express warranty, breach of implied warranty of
`
`merchantability, violation of the Magnuson Moss Warranty Act, fraud, and unjust enrichment.
`
`Before the Court is Defendant’s motion to dismiss Plaintiffs’ Amended Complaint under Federal
`
`Rule of Civil Procedure 12(b)(6).
`
`For the following reasons, Defendant’s motion to dismiss is granted.
`
`BACKGROUND
`
`The following facts are drawn from Plaintiffs’ Amended Complaint (First Amended Class
`
`Action Complaint “Am. Compl.”, ECF No. 12) and are assumed as true for purposes of this
`
`motion. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
`
`1
`
`

`

`Case 7:20-cv-02933-NSR Document 20 Filed 01/28/22 Page 2 of 18
`
`
`
`Wegmans distributes, markets, labels, and sells1 its store brand Gluten Free Vanilla Cake
`
`Mix with a front label stating “Vanilla,” “Naturally Flavored,” “Rich & Indulgent,” and “No
`
`Artificial Colors, Flavors or Preservatives,” as depicted in the image below:
`
`
`(Am. Comp. ¶¶ 1–3.) This Product is sold in 14-ounce boxes to consumers in Wegman’s retail
`
`
`
`stores in at least eight states, including New York, Massachusetts, Pennsylvania, Virginia, and
`
`New Jersey. (Id. ¶ 2.)
`
`
`
`Plaintiffs allege the Product’s label is misleading because the Product is not mainly
`
`flavored from vanilla, contains artificial flavors, and does not taste like vanilla. (Id. ¶¶ 4–6.)
`
`Plaintiffs allege that, contrary to the front label representations, the Product itself is “not flavored
`
`
`1 The Amended Complaint alleges that Wegmans also manufactures this product. (Am. Compl. ¶ 1.) However,
`Defendant clarified that while Wegmans markets and sells baking mixes under its store brand, it does not manufacture
`the products and instead obtains them from a supplier. (See ECF No. 17 at 4.)
`
`
`
`2
`
`

`

`Case 7:20-cv-02933-NSR Document 20 Filed 01/28/22 Page 3 of 18
`
`mainly from vanilla and has no vanilla, or at most, a de minimis, or trace amount of vanilla.” (Id.
`
`¶ 4.) The Product is instead flavored from non-vanilla sources of ethyl vanillin, vanillin, maltol,
`
`and piperonal.2 (Id. ¶ 5.) The flavor of the Product “lacks the complexity and flavor notes
`
`associated with vanilla because vanillin has never been synonymous with vanilla.” (Id. ¶ 68.) The
`
`presence of non-vanilla flavors in the Product is also inferred from the Product’s ingredient list,
`
`which lists “Natural Flavor” as the only flavoring ingredient. (Id. ¶ 33 (listing the ingredients
`
`“Sugar, Rice Flour, Potato Starch, Tapioca Starch, Corn Flour, Baking Powder (Sodium Acid
`
`Pyrophosphate, Baking Soda, Cornstarch, Monocalcium Phosphate), Natural Flavor, Sea Salt,
`
`Guar Gum, Xanthan Gum, Soy Flour”) (emphasis added).) “Natural Flavor” is a technical term
`
`for an ingredient which is a mix of flavors and does not consist only of vanilla. (Id. ¶ 34.) Plaintiffs
`
`claim this ingredient list is misleading because does not identify vanillin as an ingredient or
`
`otherwise disclose the presence of vanillin and ethyl vanillin. (Id. ¶ 65.) Further, Plaintiffs claim
`
`“lab testing reveals that the ‘Natural Flavor’ in the Product consists mainly of ethyl vanillin and
`
`vanillin, both from non-vanilla sources.” (Id. ¶ 36.)
`
`Plaintiff Valerie Santiful purchased the Product on more than one occasion, including in
`
`December 2019, at a Wegmans store in Virginia Beach, Virginia. (Id. ¶ 90.) Plaintiff Tameka
`
`Rhoden purchased the Product on more than one occasion, including in November 2019, at a
`
`Wegmans store in Montvale, New Jersey. (Id. ¶ 91.) Plaintiffs bought the Product “expect[ing] a
`
`vanilla taste, and that such taste would come exclusively and/or predominantly from vanilla beans
`
`and did not expect a taste of vanillin.” (Id. ¶ 93.) Had Plaintiffs known about the true source of
`
`
`2 Plaintiffs claim ethyl vanillin, vanillin, maltol, and piperonal are “artificial flavors.” (Id. ¶¶ 5, 40.) However, as
`discussed infra, these flavors can either be artificial or natural depending on their derivation, see 21 C.F.R.
`§ 101.22(a)(1), and the Amended Complaint is devoid of non-conclusory allegations that the flavors used in
`Defendant’s product are of the artificial sort. See Wynn v. Topco Assocs., LLC, No. 19-CV-11104 (RA), 2021 WL
`168541, at *1 n.3 (S.D.N.Y. Jan. 19, 2021).
`
`
`
`3
`
`

`

`Case 7:20-cv-02933-NSR Document 20 Filed 01/28/22 Page 4 of 18
`
`the vanilla flavor in the Product, they would not have purchased it or would have paid less for it.
`
`(Id. ¶ 75.) Plaintiffs allege that they are not alone in this regard and that consumers are willing to
`
`pay more for products labeled “vanilla—naturally flavored” instead of “artificially flavored” or
`
`“does not taste like real vanilla.” (Id. ¶¶ 69, 71–72.) Plaintiffs allege the Product’s branding and
`
`packaging misled consumers who want a vanilla product containing flavoring mainly from vanilla
`
`beans and tastes like vanilla. (Id. ¶¶ 71–72.) As a result, Defendant sold more of the Product, at
`
`a premium of approximately $2.89 per 14 ounces as compared to other similar products presented
`
`in a non-misleading way. (Id. ¶¶ 74, 76.)
`
`Plaintiffs filed the operative class action complaint on November 20, 2020 on behalf of all
`
`purchasers of the Product who reside in New York, Virginia, and New Jersey, asserting claims
`
`against Defendant for (1) violation of New York General Business Law Sections 349 and 350, (2)
`
`negligent misrepresentation, (3) breach of express warranty, (4) breach of implied warranty of
`
`merchantability, (5) violation of the Magnuson Moss Warranty Act, (6) fraud, and (7) unjust
`
`enrichment. (ECF No. 12.) Plaintiffs seek both monetary damages and injunctive relief that would
`
`require Defendant to correct the Product’s allegedly misleading label. Defendant moved to dismiss
`
`the amended complaint on February 26, 2021. (ECF No. 16.)
`
`
`
`LEGAL STANDARD
`
`To survive a Rule 12(b)(6) motion to dismiss, “a complaint must contain sufficient factual
`
`matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’” Iqbal, 556 U.S.
`
`at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 554, 570 (2007)). Factual allegations must
`
`“nudge[] [a plaintiff’s] claims across the line from conceivable to plausible.” Twombly, 550 U.S.
`
`at 570. A claim is plausible when the plaintiff pleads facts which allow the court to draw a
`
`reasonable inference the defendant is liable. Iqbal, 556 U.S. at 678. To assess the sufficiency of
`
`
`
`4
`
`

`

`Case 7:20-cv-02933-NSR Document 20 Filed 01/28/22 Page 5 of 18
`
`a complaint, the court is “not required to credit conclusory allegations or legal conclusions couched
`
`as factual allegations.” Rothstein v. UBS AG, 708 F.3d 82, 94 (2d Cir. 2013). While legal
`
`conclusions may provide the “framework of a complaint,” “[t]hreadbare recitals of the elements
`
`of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at
`
`678–79.
`
`DISCUSSION
`
`Plaintiffs assert claims against Defendant for (1) violations of sections 349 and 350 of the
`
`
`
`New York General Business Law, (2) negligent misrepresentation, (3) breach of express warranty,
`
`(4) breach of implied warranty of merchantability, (5) violation of the Magnuson Moss Warranty
`
`Act, (6) fraud, and (7) unjust enrichment. (See Am. Compl.) Defendant seeks to dismiss all claims
`
`for failure to state a claim upon which relief may be granted pursuant to Rule 12(b)(6). (See
`
`Memorandum of Law in Support of Defendant’s Motion to Dismiss Plaintiffs’ First Amended
`
`Complaint (“Def.’s Mot.”), ECF No. 17.) The Court addresses each claim below.
`
`
`
`I.
`
`New York General Business Law Claims
`
`Plaintiffs’ first cause of action arises under sections 349 and 350 of the New York General
`
`Business Law (“GBL”). Section 349 prohibits “[d]eceptive acts or practices in the conduct of any
`
`business, trade or commerce,” and section 350 prohibits “[f]alse advertising in the conduct of any
`
`business, trade or commerce.” GBL §§ 349 & 350.
`
`To state a plausible claim under sections 349 and 350 of GBL, “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) (citing Koch v. Acker, Merrall & Condit Co., 944
`
`N.Y.S.2d 452, 452 (2012)). The allegedly deceptive acts or representations must be misleading to
`
`
`
`5
`
`

`

`Case 7:20-cv-02933-NSR Document 20 Filed 01/28/22 Page 6 of 18
`
`“a reasonable consumer.” Goshen v. Mut. Life Ins. Co. of New York, 98 N.Y.2d 314, 324 (2002).
`
`Although the question of whether a business practice or advertisement is misleading to the
`
`reasonable consumer is generally a question of fact, see Hidalgo v. Johnson & Johnson Consumer
`
`Cos., Inc., 148 F. Supp. 3d 285, 295 (S.D.N.Y. 2015), it is “well settled that a court may determine
`
`as a matter of law that an allegedly deceptive advertisement would not have misled a reasonable
`
`consumer.” Fink v. Time Warner Cable, 714 F.3d 739, 741 (2d Cir. 2013).
`
`A. Plaintiffs Fail to Plausibly Allege That the “Vanilla” Label Is Misleading
`
`Plaintiffs claim the terms “vanilla” and “naturally flavored” on the front label of the
`
`Product are misleading because they imply that the Product’s flavor is derived predominantly from
`
`real vanilla when in fact the Product contains other artificial flavors and none or de minimis
`
`amounts of natural vanilla. (Am. Compl. ¶¶ 4–6, 54.) Plaintiffs claim these are statements
`
`regarding the substantive, quantitative, qualitative, compositional, and/or organoleptic attributes
`
`of the Product and are material to reasonable consumers because consumers today seek to avoid
`
`artificial flavors for health and nutritional purposes and will pay a premium for natural flavoring.
`
`(See id. ¶¶ 41, 69, 71, 110.)
`
`For the purposes of this motion, the Court accepts Plaintiffs’ allegations that the Product is
`
`not predominantly flavored by natural vanilla extract and that a reasonable consumer cares about
`
`what portion of the vanilla flavor in a product is derived from the natural vanilla. (Id. ¶¶ 4–6, 41,
`
`61, 67–68, 71.) Nevertheless, the Court finds that Plaintiffs have failed to plausibly allege that a
`
`reasonable consumer would conclude that the Product’s label implies that the Product’s flavoring
`
`was derived predominantly from natural vanilla extract.
`
`The Amended Complaint’s allegations that consumers expect the Product to be flavored
`
`mainly or predominantly with flavoring from vanilla beans are conclusory statements that the
`
`
`
`6
`
`

`

`Case 7:20-cv-02933-NSR Document 20 Filed 01/28/22 Page 7 of 18
`
`Court is not required to accept. See Iqbal, 556 U.S. at 678. The Amended Complaint does not
`
`substantiate these allegations in any manner. See Wynn v. Topco Assocs., LLC, No. 19-CV-11104
`
`(RA), 2021 WL 168541 (S.D.N.Y. Jan. 19, 2021) (discussing similar claims regarding a vanilla
`
`almond milk product as lacking any support on how consumers interpret “vanilla” to mean
`
`“flavored with exclusively natural vanilla”); cf. Pichardo v. Only What You Need, Inc., No. 20-cv-
`
`493 (VEC), 2020 WL 6323775, at *1, *4 (S.D.N.Y. Oct. 27, 2020) (discussing consumer survey
`
`data offered to support an allegation of reasonable consumers’ interpretations). The complaint
`
`merely states that consumers “want a vanilla flavored product that contains flavoring mainly from
`
`vanilla beans and tastes like vanilla.” (Am. Compl. ¶ 71.) A large portion of the complaint broadly
`
`discusses food label regulations and actions by the Flavor and Extract Manufacturers Association
`
`(“FEMA”) and others in “the flavor industry” addressing the issue of misleading practices related
`
`to the labelling of vanilla foods. (Am. Compl. ¶¶ 27–32, 42–45, 55, 58.) These allegations do not
`
`relate to the Product specifically or provide any support for the claim that a reasonable consumer
`
`would interpret the “vanilla” and “naturally flavored” terms on the Product’s front label to mean
`
`the Product is predominantly flavored with vanilla beans. See, e.g., Wynn, 2021 WL 168541, at
`
`*3 (finding plaintiffs’ discussions of federal labeling regulations as lacking because complaint
`
`“does not allege that reasonable consumers are aware of these complex regulations, much less that
`
`they incorporate the regulations into their day-to-day marketplace expectations.”).
`
`Furthermore, Plaintiffs’ claims of a misleading vanilla label have been repeatedly rejected
`
`in near-identical lawsuits involving vanilla products in this District. See, e.g., id. at *3 (“Plaintiffs
`
`have failed to plausibly allege that a reasonable customer would in fact conclude that the word
`
`‘vanilla’ on a product's front label implies that the product’s flavoring was derived exclusively
`
`from natural vanilla extract, such that the front label would be misleading,” even if the difference
`
`
`
`7
`
`

`

`Case 7:20-cv-02933-NSR Document 20 Filed 01/28/22 Page 8 of 18
`
`between natural and artificial flavoring is material to the consumer); Pichardo, 2020 WL 6323775,
`
`at *3 (holding that plaintiff failed to allege that label was misleading where the label “does not
`
`state that it is ‘made with vanilla extract’ or even contain the words ‘vanilla extract.’”); Steele v.
`
`Wegmans Food Markets, Inc., 472 F. Supp. 3d 47 (S.D.N.Y. 2020) (finding vanilla label on ice
`
`cream not misleading where the “Wegmans container does not mention vanilla beans, or bean
`
`exact, and even if vanilla or bean exact is not the predominant factor”); Cosgrove v. Blue Diamond
`
`Growers, No. 19-cv-8993 (VM), 2020 WL 7211218, at *3 (S.D.N.Y. Dec. 7, 2020) (finding
`
`vanilla-flavored almond milk not misleading “because a reasonable consumer would associate the
`
`representation of ‘Vanilla’—with no additional language modifiers—to refer to a flavor not to
`
`vanilla beans or vanilla extract as an ingredient.”); Barreto v. Westbrae Natural, Inc., 518 F. Supp.
`
`3d 795, 806 (S.D.N.Y. 2021) (finding complaint failed to plausibly allege a product’s label would
`
`be likely to deceive or mislead a reasonable consumer where “[t]he ingredient panel states the
`
`product contains ‘Natural Vanilla Flavor With Other Natural Flavors’”). This Court agrees with
`
`the analyses in those cases and similarly finds that neither the front label nor the ingredient panel
`
`of the Product claim that the Product’s predominant source of vanilla flavor comes exclusively
`
`from real vanilla. Notably, the court in Pichardo found that plaintiffs failed to adequately plead a
`
`material misrepresentation where “the label on [d]efendant’s protein drink does not state that it is
`
`‘made with vanilla extract’ or even contain the words ‘vanilla extract,’ [and finding] no basis . . .
`
`to conclude that a reasonable consumer would . . . believe that all (or even most) of the vanilla
`
`taste comes from vanilla extract.” Pichardo, 2020 WL 6323775, at *3. Similarly, Wegman’s
`
`Product does not state that the vanilla cake mix is made with vanilla extract or make any
`
`representations regarding vanilla extract. Accordingly, Plaintiffs have failed to plausibly allege
`
`that a reasonable consumer would see the label on the Product and be misled to conclude the vanilla
`
`
`
`8
`
`

`

`Case 7:20-cv-02933-NSR Document 20 Filed 01/28/22 Page 9 of 18
`
`flavor derived predominantly from real vanilla. See Wynn, 2021 WL 168541, at *3; Barreto, 518
`
`F. Supp. at 806 (dismissing similar claim where “[t]here [was] no claim anywhere on the packaging
`
`that natural vanilla is the predominant source of the vanilla flavor.”).
`
`The Court is not persuaded by the cases relied on by Plaintiffs to urge a contrary
`
`conclusion. (See Plaintiffs’ Memorandum of Law in Opposition to Defendant’s Motion to Dismiss
`
`the First Amended Complaint “Pl.’s Opp.”, ECF No. 18 at 9–10.) Plaintiffs rely on Mantikas v.
`
`Kellogg, 910 F.3d 533 (2d Cir. 2018), which held that plaintiffs had sufficiently alleged that the
`
`label on a box of Cheez-It crackers was misleading when the label stated, “made with whole grain,”
`
`even though the crackers contained more white flour than whole wheat flour. The Second Circuit
`
`held that the mere fact that the crackers did contain some whole grain was insufficient to defeat
`
`the lawsuit, because the box’s bold-faced “Made With Whole Grain” claim arguably
`
`“communicate[d] to the reasonable consumer that the grain in the product [was] predominantly, if
`
`not entirely, whole grain.” Id. at 637. Moreover, it was irrelevant to the analysis that the ingredient
`
`list on the back of the box clarified that enriched white flour was the predominant ingredient, since
`
`“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.”
`
`Id. at 637 (quoting Williams v. Gerber Prods. Co., 552 F.3d 934, 939 (9th Cir. 2008)). But
`
`Mantikas is distinguishable because the product label was an express claim about ingredients, and
`
`strongly suggested that that the crackers were made predominantly or exclusively with whole
`
`grain. See Wynn, 2021 WL 168541, *4. In contrast, the Product’s front label makes no claims
`
`about the ingredients constituting the flavor but merely states that it is “vanilla,” “naturally
`
`flavored,” and that it is “rich and indulgent.” The label does not otherwise state the cake mix is
`
`made with real vanilla extract or otherwise suggests that the product is flavored with any vanilla
`
`
`
`9
`
`

`

`Case 7:20-cv-02933-NSR Document 20 Filed 01/28/22 Page 10 of 18
`
`extract. Plaintiffs’ reliance on Sharpe v. A&W Concentrate Co., No. 19-CV-768 (BMC), 2020
`
`WL 4931045, at *5 (E.D.N.Y. Aug. 24, 2020) is inapposite for similar reasons. See Wynn, 2021
`
`WL 168541, *4. The product in Sharpe was advertised as “Made With Aged Vanilla” even though
`
`the product was made with predominantly artificial flavor. The Product here does not make any
`
`claims about the ingredient of the vanilla cake mix.
`
`As discussed above, Plaintiffs have not plausibly alleged that Defendant’s use of the words
`
`“vanilla” and “naturally flavored” on its cake mix product, without more, represents a claim that
`
`the product is predominantly flavored from vanilla extract. Accordingly, the Court finds that
`
`Plaintiffs have failed to state a claim that the front label of the Product is misleading.
`
`B. Plaintiffs Fail to Allege That the Ingredient List Fails to Disclose “Artificial
`Flavors”
`
`
`Plaintiffs also claim the ingredient list on the Product is misleading “because it does not
`
`identify vanillin as an ingredient nor discloses the presence of artificial flavors such as vanillin and
`
`ethyl vanillin” and does not otherwise clarify the “Natural Flavor” term on the front label. (Am.
`
`Compl. ¶¶ 33, 65.) Plaintiffs claim a “lab testing” “reveals” that the Product is made from non-
`
`vanilla sources. (Id. at 7–8). Defendant argues Plaintiffs’ proffered lab analysis is worthless where
`
`Plaintiffs “do not plead who conducted these analyses, what type of analyses they are, or what
`
`methodologists were followed.” (Def.’s Mot. at 17.) Further, Defendant points out that even
`
`arguendo Plaintiffs tested the Product and found those non-vanilla flavors, piperonal and maltol
`
`are natural flavors, not artificial flavors. (Id. at 19.)
`
`The Court finds that Plaintiffs have failed to plausibly allege the ingredient list fails to
`
`disclose “artificial flavors.” As an initial matter, Plaintiffs allege that the Product is made of
`
`artificial flavors based on their proffered lab analysis. This lab analysis contains no information
`
`as to the testing methodology, the date, time, or place of the testing, who conducted the testing,
`
`
`
`10
`
`

`

`Case 7:20-cv-02933-NSR Document 20 Filed 01/28/22 Page 11 of 18
`
`and what the exact product tested was. Without any information about the alleged lab analysis,
`
`Plaintiffs offer it as their only support that the Product is in fact made of artificial flavors.
`
`However, even the data offered does not appear to conclusively support Plaintiffs’ allegations.
`
`Indeed, Plaintiffs admit that their analysis showed “the Product contains at most three compounds
`
`associated with vanilla.” (Am. Comp. ¶ 39.) This analysis is thus insufficient to support Plaintiffs’
`
`otherwise conclusory statements as to the ingredients of the Product. See Steele, 472 F. Supp. 3d
`
`at 51 (rejecting a similar analysis).
`
`Most devastating to Plaintiffs’ claim is that the alleged “artificial flavors” themselves are
`
`not in fact “artificial.” Plaintiffs claim the predominant flavoring in the Product is ethyl vanillin,
`
`vanillin, maltol, and piperonal. (Am. Compl. ¶ 40.) But all these flavors can be either artificial or
`
`natural depending on how they are derived. See Wynn, 2021 WL 168541, at *5 (discussing the
`
`same and citing to 21 C.F.R. § 101.33). The Amended Complaint does not include allegations that
`
`the non-vanilla flavors in the Product are artificially derived. Rather, the complaint merely notes
`
`that ethyl vanillin, vanillin, maltol, and piperonal are present in the Product. Absent any factually
`
`substantiated allegations that these flavors are in fact not derived from natural sources, the Court
`
`finds Plaintiffs have failed to allege the presence of artificial flavors and therefore their claims
`
`about the ingredient list fails.
`
`Because the Court concludes that the Product’s labeling would not mislead a reasonable
`
`consumer, Plaintiffs’ claims under sections 349 and 350 of the GBL are dismissed. It is therefore
`
`not necessary to reach Defendant’s argument that these claims are preempted by federal law. See
`
`Barreto, 518 F. Supp. 3d at 806.
`
`
`
`11
`
`

`

`Case 7:20-cv-02933-NSR Document 20 Filed 01/28/22 Page 12 of 18
`
`
`
`II.
`
`Other Claims
`
`Plaintiffs also assert claims for negligent misrepresentation, breach of express warranty,
`
`breach of implied warranty of merchantability, violation of the Magnuson Moss Warranty Act,
`
`fraud, and unjust enrichment. These claims, which largely hinge on the core theory of consumer
`
`deception, all fail as a matter of law. See Barreto, 518 F. Supp. 3d at 806 (dismissing claims for
`
`negligent misrepresentation, breach of warranty, fraud, and unjust enrichment on the basis that the
`
`court “already determined that [plaintiff] has failed to allege that the product’s labeling would be
`
`likely to deceive or mislead a reasonable consumer”).
`
`
`
`a. Negligent Misrepresentation
`
`Under New York law, a claim for negligent misrepresentation requires the plaintiff to
`
`plausibly allege “(1) the existence of a special or privity-like relationship imposing a duty on the
`
`defendant to impart correct information to the plaintiff; (2) that the information was incorrect; and
`
`(3) reasonable reliance on the information.” Marc J. Bern & Partners LLP v. U.S. Legal Support,
`
`Inc., No. 17 Civ. 6771 (ER), 2018 WL 2943784, at *6 (S.D.N.Y. June 11, 2018) (citing J.A.O.
`
`Acquisition Corp. v. Stavitsky, 8 N.Y.3d 144, 148 (2007)). “A special relationship may be
`
`established by ‘persons who possess unique or specialized expertise, or who are in a special
`
`position of confidence and trust with the injured party such that
`
`reliance on
`
`the negligent
`
`misrepresentation is justified.’” Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d 173, 180 (2011)
`
`(quoting Kimmell v. Schaefer, 89 N.Y.2d 257, 263 (1996)). “[G]enerally, a special relationship
`
`does not arise out of an ordinary arm’s length business transaction between two parties.” Marc J.
`
`Bern, 2018 WL 2943784, at *6 (quoting MBIA Ins. Corp. v. Countrywide Home Loans, Inc., 87
`
`A.D.3d 287, 296–97 (2011)). Factors bearing on this inquiry include “whether the person making
`
`the representation held or appeared to hold unique or special expertise; whether a special
`
`
`
`12
`
`

`

`Case 7:20-cv-02933-NSR Document 20 Filed 01/28/22 Page 13 of 18
`
`relationship of trust or confidence existed between the parties; and whether the speaker was aware
`
`of the use to which the information would be put and supplied it for that purpose.” Id. at *6.
`
`Because negligent misrepresentation sounds in fraud, it is subject to Rule 9(b)’s heightened
`
`pleading standards. See, e.g., Yoomi Babytech, Inc. v. Anvyl, Inc., No. 20 CIV. 7933 (ER), 2021
`
`WL 4332258, *13 (S.D.N.Y. Sept. 22, 2021).
`
`As discussed above, the Court finds that Plaintiffs have not plausibly alleged that the
`
`Product’s label impart incorrect information to consumers. Furthermore, Plaintiffs have not
`
`plausibly alleged the existence of a special or a privity-like relationship in order to bring a negligent
`
`misrepresentation claim. Plaintiffs claim that a duty exists “based on defendant’s position as an
`
`entity, which has held itself out as having special knowledge and expertise in the production,
`
`service, and/or sale of the product type.” (Am. Compl. ¶ 123.) But case law is clear that the
`
`transactions alleged are insufficient to establish a special relationship for the purposes of a
`
`negligent representation. See, e.g., Twohig v. Shop-Rite Supermarkets, Inc., 519 F. Supp. 3d 154,
`
`166–67 (S.D.N.Y. 2021) (collecting cases on how basic commercial transactions do not give rise
`
`to a special relationship); Wynn, 2021 WL 168541, at *6 (concluding the same); Sarr v. BEF
`
`Foods, Inc., No. 18-cv-6409 (ARR) (RLM), 2020 WL 729883, at *6–7 (E.D.N.Y. Feb. 13, 2020)
`
`(finding no special relationship where the alleged misrepresentations were on a food product’s
`
`label, and finding no privity absent a direct buyer-seller relationship between the parties); see also
`
`Aetna Cas. & Sur. Co. v. Aniero Concrete Co., 404 F.3d 566, 584 (2d Cir. 2005) (“no duty of care
`
`arises” for purposes of a negligent misrepresentation claim when the alleged misrepresentation is
`
`“directed at a faceless or unresolved class of persons”) (internal quotation marks omitted).
`
`Accordingly, Plaintiffs’ negligent misrepresentation claim fails.
`
`
`
`13
`
`

`

`Case 7:20-cv-02933-NSR Document 20 Filed 01/28/22 Page 14 of 18
`
`
`
`b. Breach of Express Warranty
`
`To state a claim for an express breach of warranty under New York law, plaintiffs must
`
`plead “(1) the existence of a material statement amounting to a warranty, (2) the buyer’s reliance
`
`on this warranty as a basis for the contract with the immediate seller, (3) breach of the warranty,
`
`and (4) injury to the buyer caused by the breach.” Goldemberg v. Johnson & Johnson Consumer
`
`Companies, Inc., 8 F. Supp. 3d 467, 482 (S.D.N.Y. 2014). As discussed, Defendant’s product
`
`does not state the cake mix is made predominantly with natural vanilla flavor and a reasonable
`
`consumer would not interpret the representation of “Vanilla Cake Mix” to make this claim. Such
`
`“[g]eneralized statements by the defendant . . . do not support an express warranty claim if they
`
`are such that a reasonable consumer would not interpret the statement as a factual claim upon
`
`which he or she could rely.” Ault v. J.M. Smucker Co., 13-cv-3409 (PAC) 2014 WL 1998235, at
`
`*6 (S.D.N.Y. May 15, 2014); see also Barreto, 518 F. Supp. 3d at 806. Accordingly, Plaintiffs’
`
`breach of express warranty claim fails.
`
`
`
`c. Breach of Implied Warranty of Merchantability
`
`A breach of implied warranty of merchantability occurs when the product at issue is “unfit
`
`for the ordinary purposes for which such goods are used.” N.Y. U.C.C. Law § 2-314. The
`
`Amended Complaint claims that the cake mix does not taste like vanilla but does not otherwise
`
`allege that the cake mix is unfit for human consumption. See, e.g., Barreto, 518 F. Supp. 3d at
`
`807 (dismissing implied warranty of merchantability claim because “there were no allegations that
`
`the soymilk beverage was unfit for . . . human consumption”); Silva v. Smucker Nat. Foods, Inc.,
`
`No. 14-CV-6154 (JG), 2015 WL 5360022, at *11 (E.D.N.Y. Sept. 14, 2015) (dismissing implied
`
`warranty claim because “[w]here the sale of a food or beverage is concerned, courts have ruled
`
`that the product need only be fit for human consumption to be of merchantable quality.”). Plaintiffs
`
`
`
`14
`
`

`

`Case 7:20-cv-02933-NSR Document 20 Filed 01/28/22 Page 15 of 18
`
`argue this claim is viable because the Product was not “not capable of passing without objection
`
`in the trade.” (Pl.’s Opp. at 20.) But even on this basis, the claim fails for the same reasons as the
`
`express warranty claim. See Barreto, 518 F. Supp. 3d at 807. Accordingly, Plaintiffs’ breach of
`
`implied warranty of merchantability claim fails.
`
`
`
`d. Magnuson Moss Warranty Act
`
`Plaintiffs bring a claim under the Magnuson Moss Warranty Act (“MMWA”), 15 U.S.C.
`
`§§ 2301, et seq. (Am Compl. at 17). “To state a claim under MMWA, plaintiffs must adequately
`
`plead a cause of action for breach of written or implied warranty under state law.” Garcia v.
`
`Chrysler Gr. LLC, 127 F. Supp. 3d 212, 232 (S.D.N.Y. 2015). Defendant argues that this claim
`
`should be dismissed because Plaintiffs do not identify any statements on the label that warranty a
`
`product free from defect nor identity anything on the labels that constitute a promise that a product
`
`will meet a specified level of performance. (Def.’s Mot. at 22.) The Court agrees and, along with
`
`the same reasons discussed above as to why Plaintiffs do not have viable warranty claims, finds
`
`Plaintiffs’ MMWA claim fails.
`
`
`
`e. Fraud
`
`To state a claim of fraud under New York law, Plaintiffs must allege (1) a material
`
`misrepresentation or omission of fact, (2) made with knowledge of its falsity, (3) with an intent to
`
`defraud, and (4) reasonable reliance on the part of the plaintiff, (5) that causes damage to the
`
`plaintiff. Schlaifer Nance & Co. v. Estate of Warhol, 119 F.3d 91, 98 (2d Cir. 1997). A claim of
`
`fraud must be alleged with the particularity required by Rule 9(b), Fed. R. Civ. P., which “requires
`
`that the plaintiff (1) detail the statements (or omissions) that the plaintiff contends are fraudulent,
`
`(2) identify the speaker, (3) state where and when the statements (or omissions) were made, and
`
`(4) explain why the statements (or omissions) are fraudulent.” Fin. Guar. Ins. Co. v. Putnam
`
`
`
`15
`
`

`

`Case 7:20-cv-02933-NSR Document 20 Filed 01/28/22 Page 16 of 18
`
`Advisory Co., LLC, 783 F.3d 395, 403 (2d Cir. 2015) (quotation marks omitted). Rule 9(b) permits
`
`a plaintiff to allege scienter generally, but the Second Circuit has “repeatedly required plaintiffs to
`
`plead the factual basis which gives rise to a strong inference of fraudulent intent.” United States
`
`ex rel. Tessler v. City of New York, 712 Fed. App’x 27, 29 (2d Cir. 2017) (summary order) (quoting
`
`O’Brien v. Nat’l Prop. Analysts Partners, 936 F.2d 674, 676 (2d Cir. 1991)).
`
`As discussed above, the Court finds that Plaintiffs have failed to allege a material
`
`misrepresentation of fact or omission because a reasonable consumer would not conclude that the
`
`Product’s label communicates that the cake mix’s flavor derives predominantly from real vanilla.
`
`Furthermore, Plaintiffs fail to plead facts that give rise to an interest of fraudulent intent. The
`
`Amended Complaint merely contains conclusory statements that Defendant’s intent “is evinced
`
`by its failure to accurately identity the Product on the front label and ingredient list, when it knew
`
`its statements were neither true nor accurate and mislead consumers.” (Am. Compl. ¶ 140.) This
`
`is insufficient.