Barreto v. Westbrae Natural, Inc.

• Decision Date: 07 January 2021
• Docket Number: 19-cv-9677 (PKC)
• Citation: 518 F.Supp.3d 795
• Parties: Natasha BARRETO, individually and on behalf of all others similarly situated, Plaintiff, v. WESTBRAE NATURAL, INC., Defendant.
• Court: U.S. District Court — Southern District of New York

518 F.Supp.3d 795

Natasha BARRETO, individually and on behalf of all others similarly situated, Plaintiff,

v.WESTBRAE NATURAL, INC., Defendant.

19-cv-9677 (PKC)

United States District Court, S.D. New York.

Signed January 7, 2021

George Volney Granade, Reese LLP, Los Angeles, CA, Christopher Patalano, Spencer Sheehan, Sheehan & Associates, PC, Great Neck, NY, for Plaintiff.

August T. Horvath, Foley Hoag LLP, New York, NY, for Defendant.

OPINION AND ORDER

CASTEL, U.S.D.J.

Plaintiff Natasha Barreto brings this putative class action against defendant Westbrae Natural, Inc. ("Westbrae") alleging that the label of the vanilla-flavored soymilk product distributed and sold by Westbrae is deceptive and misleading. Barreto's First Amended Complaint (the "Complaint") asserts claims under sections 349 and 350 of the New York General Business Law ("GBL"), negligent misrepresentation, fraud, breach of express and implied warranty and unjust enrichment. (Doc 14). Westbrae now moves to dismiss the Complaint under Rules 12(b)(1) and (6), Fed. R. Civ. P.

The front label of Westbrae's product describes it as "Vanilla Soymilk" and the ingredient list discloses "Natural Vanilla Flavor With Other Natural Flavors." The Complaint's core allegation is that this labeling violates specific regulations of the Food and Drug Administration ("FDA"). However, enforcement of FDA regulations is reserved to the government, and for her claims to survive she must allege a deceptive or misleading act or practice and not merely a violation of a regulation. Barreto attempts to plead claims by alleging that the labelling is deceptive and misleading in misrepresenting the source of the product's vanilla flavor as being derived exclusively or predominately from the vanilla plant. Reviewing Barreto's Complaint in the light most favorable to her, Barreto does not plausibly allege that the labeling on Westbrae's product would deceive or mislead a reasonable consumer. Westbrae's motion to dismiss will be granted.¹

BACKGROUND

Westbrae manufactures, distributes, and sells unsweetened vanilla-flavored soymilk beverages. (Compl. ¶ 1). The front label of Westbrae's product contains the words "Vanilla" and "Soymilk." (Compl. ¶ 3). The product's ingredient list states that the product includes "Natural Vanilla Flavor With Other Natural Flavors." (Compl. ¶ 4).

Vanilla is a common ingredient used to flavor food. (Compl. ¶ 14). The source of the "natural vanilla" flavor is a plant, V. planifolia. (Compl. ¶ 13). This plant produces the vanilla bean from which the natural vanilla flavor, or vanilla extract, is derived. The main flavor component of vanilla is vanillin. (Compl. ¶ 23). According to the Complaint, vanillin can be obtained from the vanilla plant or derived from natural or artificial sources other than the vanilla plant. However, only 1-2% of vanillin in commercial use today is obtained from the vanilla plant. (Compl. ¶ 26). Most vanillin that purports to be a "natural flavor" is derived from natural source material other than the vanilla plant. (Compl. ¶¶ 31–33). For purposes of this Opinion "natural vanilla" will be used to denote vanilla flavor derived from the vanilla plant and "added vanillin" refers to vanilla flavor derived from sources other than the vanilla plant.

One of the law firm's representing Barreto secured a Gas-Chromatography-Mass Spectrometry analysis ("GC-MS") of Westbrae's product. Although the test detected vanillin, it did not detect other marker compounds that are present in small concentrations when vanillin is derived from natural vanilla. (Compl. ¶¶ 85–88). Although the Complaint is equivocal about the presence of any natural vanilla in the product,² in briefing the motion to dismiss, Barreto asserts that the Complaint alleges the "product contains de minimis vanilla." (Doc 27 at 1). The GC-MS analysis also detected the flavor enhancer maltol, which according to plaintiff "does not contribute a flavor of its own but is used to enhance and substitute for real vanilla, by increasing the sweetness of a food." (Compl. ¶ 96) (internal quotations omitted). Barreto contends that maltol is "designated" as a "synthetic flavoring substance" in certain FDA regulations, a legal conclusion with which Westbrae disagrees. (Compl. ¶ 97).

Barreto alleges that the front label of Westbrae's product gives consumers the impression that the vanilla flavor is contributed entirely or predominantly from natural vanilla and deceives consumers who expect the product to contain more natural vanilla than it actually does. (Compl. ¶¶ 55, 107, 113). Barreto alleges that the front label is misleading because it does not disclose that it contains "Other Natural Flavors" as is disclosed on the ingredient panel of the product. (Compl. ¶ 59). From the GS-MS testing, Barreto concludes that its vanilla flavor, at least in part, comes from added vanillin and maltol. (Compl ¶¶ 97–98). From these factual allegations, Barreto contends that the product's labeling violates the Food, Drug, and Cosmetic Act ("FDCA"), 21 U.S.C. § 301 et seq. and the food labeling regulations adopted pursuant to the statute, specifically 21 C.F.R § 101.22, "Foods; Labeling of Spices, Flavorings, Colorings, and Chemical Preservatives." (See, e.g., Compl. ¶¶ 63–64, 107).

The Complaint alleges that Barreto relied on the alleged misrepresentations when purchasing Westbrae's product and would not have done so or would have paid less for the product had she known the vast proportion of the vanilla flavor was not derived from vanilla beans. (Compl. ¶¶ 119–20, 137).

RULE 12(b)(6) STANDARD

Rule 12(b)(6) requires a complaint to "contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). In assessing the sufficiency of a pleading, a court must disregard legal conclusions, which are not entitled to the presumption of truth. Id. Instead, the Court must examine the well-pleaded factual allegations, which are accepted as true, and "determine whether they plausibly give rise to an entitlement to relief." Id. at 678–79, 129 S.Ct. 1937. "Dismissal is appropriate when ‘it is clear from the face of the complaint, and matters of which the court may take judicial notice, that the plaintiff's claims are barred as a matter of law.’ " Parkcentral Global Hub Ltd. v. Porsche Auto. Holdings SE, 763 F.3d 198, 208–09 (2d Cir. 2014) (quoting Conopco, Inc. v. Roll Int'l, 231 F.3d 82, 86 (2d Cir. 2000) ).

A court reviewing a Rule 12(b)(6) motion "does not ordinarily look beyond the complaint and attached documents in deciding a motion to dismiss brought under the rule." Halebian v. Berv, 644 F.3d 122, 130 (2d Cir. 2011) (citing Staehr v. Hartford Fin. Servs. Grp., Inc., 547 F.3d 406, 425 (2d Cir. 2008) ). A court may, however, "consider ‘any written instrument attached to [the complaint] as an exhibit or any statements or documents incorporated in it by reference ... and documents that the plaintiffs either possessed or knew about and upon which they relied in bringing the suit.’ " Stratte-McClure v. Morgan Stanley, 776 F.3d 94, 100 (2d Cir. 2015) (first alteration in original) (quoting Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000) ).

DISCUSSION

I. New York General Business Law Sections 349 and 350

Section 349 of the GBL declares deceptive acts and practices unlawful and section 350 declares false advertising unlawful. "The standard for recovery under [ section] 350, while specific to false advertising, is otherwise identical to Section 349." Denenberg v. Rosen, 71 A.D.3d 187, 194, 897 N.Y.S.2d 391 (2010) (quoting Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 324 n.1, 746 N.Y.S.2d 858, 774 N.E.2d 1190 (2002) ). The elements of a cause of action under both sections 349 and 350 are that: "(1) the challenged transaction was ‘consumer-oriented’; (2) defendant engaged in deceptive or materially misleading acts or practices; and (3) plaintiff was injured by reason of defendant's deceptive or misleading conduct." Id. (citing Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20, 25, 623 N.Y.S.2d 529, 647 N.E.2d 741 (1995) ). On its motion, Westbrae does not contest that the labeling of its product was consumer oriented or that Barreto plausibly alleges that she was injured by reason of the allegedly deceptive conduct. Its motion focuses on the deceptive or misleading element.

To be actionable, the alleged deceptive act must be "likely to mislead a reasonable consumer acting reasonably under the circumstances." Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, N.A., 85 N.Y.2d 20, 26, 623 N.Y.S.2d 529, 647 N.E.2d 741 (1995) ; see also Orlander v. Staples, Inc., 802 F.3d 289, 300 (2d Cir. 2015). In determining whether a reasonable consumer would be misled, "[c]ourts view each allegedly misleading statement in light of its context on the product label or advertisement as a whole." Pichardo v. Only What You Need, Inc., 20-cv-493 (VEC), 2020 WL 6323775, at *2 (S.D.N.Y. Oct. 27, 2020) (citing Wurtzburger v. Kentucky Fried Chicken, 16-cv-08186, 2017 WL 6416296, at *3 (S.D.N.Y. Dec. 13, 2017) ); see also Fink v. Time Warner Cable, 714 F.3d 739, 742 (2d Cir. 2013) ("In determining whether a reasonable consumer would have been misled by a particular advertisement, context is crucial."). "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, 714 F.3d at 741 (citing Freeman v. Time, Inc., 68 F.3d 285, 289 (9th Cir. 1995) and Marine Midland Bank, 85 N.Y.2d at 26, 623 N.Y.S.2d 529, 647 N.E.2d 741 ).

The Court concludes that the Complaint fails to plausibly allege that the product's label would be likely to deceive or mislead a reasonable consumer. The ingredient panel...