Kamara v. Pepperidge Farm, Inc.

• Decision Date: 09 November 2021
• Docket Number: 20-cv-9012 (PKC)
• Parties: Hawa KAMARA, individually and on behalf of all others similarly situated, Plaintiff, v. PEPPERIDGE FARM, INCORPORATED, Defendant.
• Court: U.S. District Court — Southern District of New York

570 F.Supp.3d 69

Hawa KAMARA, individually and on behalf of all others similarly situated, Plaintiff,

v.PEPPERIDGE FARM, INCORPORATED, Defendant.

20-cv-9012 (PKC)

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

Signed November 9, 2021

Spencer Sheehan, Sheehan & Associates, P.C., Great Neck, NY, for Plaintiff.

Dale J. Giali, Keri Elizabeth Borders, Rebecca Bari Johns, Mayer Brown LLP, Los Angeles, CA, for Defendant.

OPINION AND ORDER

CASTEL, U.S.D.J.

Plaintiff Hawa Kamara purchased "Golden Butter" crackers at a Target store on West 34th Street with the expectation that "wherever butter could be used in the Product, it would be used instead of using its synthetic substitutes, vegetable oils." According to an ingredients list quoted in the First Amended Complaint (the "Complaint"), the crackers were indeed made with butter, but also included a lesser quantity of vegetable oils. Kamara asserts that the presence of vegetable oils renders the "Golden Butter" packaging misleading or deceptive because a reasonable consumer would have falsely concluded that the crackers were "all or predominantly made with butter."

The Complaint asserts that the packaging's "Golden Butter" label is misleading or deceptive. It brings several claims under New York law, as well as a claim under the Magnuson Moss Warranty Act, 15 U.S.C. § 2301, et seq. Defendant Pepperidge Farm, Inc. ("Pepperidge Farm") moves to dismiss the Complaint pursuant to Rule 12(b)(6), Fed. R. Civ. P. It urges that the product name "Golden Butter" accurately identifies butter as the crackers’ predominant fat or oil ingredient and that a reasonable consumer would not understand the "Golden Butter" label to preclude the use of a lesser amount of vegetable oils.

For the reasons that will be explained, the Court concludes that the Complaint does not plausibly allege that the packaging is deceptive or misleading. The motion to dismiss will be granted in full and judgment will be entered for Pepperidge Farm.

BACKGROUND.

Pepperidge Farm manufactures and sells a type of cracker identified on its packaging as a "Golden Butter" cracker. (Compl't ¶ 1.) The Complaint includes the following image of the packaging:

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(Compl't ¶ 1.) Aside from the "Golden Butter" name, the Complaint does not allege that the packaging touted other qualities about the crackers or their ingredients.

The Complaint acknowledges that the product "contains butter." (Compl't ¶ 11.) However, according to Kamara, consumers who see the packaging are misled into thinking that they are buying "a cracker which is all or predominantly made with butter," when, in fact, the Golden Butter crackers also contain vegetable oils. (Compl't ¶¶ 2-3, 11.) Kamara states: "The meaning of compound words is greater than the sum of its parts, such that ‘butter cracker’ does not mean ‘a cracker made with butter’ but a cracker which is all or predominantly made with butter." (Compl't ¶ 3.) "This means that wherever butter could be used in the Product, it would be used instead of using its synthetic substitutes, vegetable oils." (Compl't ¶ 4.)

Kamara states that the cracker "contains a non-de minimis amount of vegetable oil, more than expected given the absence of any qualification of ‘Golden Butter.’ " (Compl't ¶ 5.) The ingredients list displayed on the packaging reads in part:

ENRICHED WHEAT FLOUR (FLOUR, NIACIN

, REDUCED IRON, THIAMINE MONONITRATE, RIBOFLAVIN, FOLIC ACID ), BUTTER (MILK), VEGETABLE OILS (CANOLA, SUNFLOWER AND/OR SOYBEAN) ....

(Compl't ¶ 11.)

The Complaint asserts that consumers prefer butter-based products over those containing vegetable oils. (Compl't ¶¶ 5-24.) According to Kamara, butter tastes better, "is rich in nutrients like calcium

and Vitamins A and D," does not contain trans fats, is more expensive, and "is less processed, since it is made by churning cow's milk, instead of chemical reactions to make vegetable oils." (Compl't ¶¶ 6-10.) Kamara alleges that the "Golden Butter" crackers may use vegetable oil as a shortening agent and that "many crackers" are also sprayed with a warm vegetable oil to give them a pleasing appearance. (Compl't ¶¶ 12-18.) According to Kamara, "The use of vegetable oil in this way is misleading because the result is consumers will expect the Product to have more butter." (Compl't ¶ 18.) She also alleges that vegetable oils are susceptible to oxidation, which can detract from a butter flavor and result in a beany, powdery or fishy taste. (Compl't ¶¶ 20-23.) However, Kamara does not allege that the crackers have a displeasing taste or are not butter-flavored.

According to the complaint, marketing the crackers as "Golden Butter" misrepresents the product through affirmative misstatements, half-truths and omissions, and deceives, misleads and defrauds consumers about the crackers. (Compl't ¶¶ 25-27.)

The Complaint includes allegations that seek class-wide relief on behalf of New York purchasers of the Golden Butter crackers. (Compl't ¶¶ 48-56.) Jurisdiction is premised on the Class Action Fairness Act, 28 U.S.C. § 1332(d)(2), but the Complaint also alleges complete diversity between Kamara, a citizen of New York, and Pepperidge Farm, which is alleged to be a Connecticut corporation with its principal place of business in Connecticut. (Compl't ¶¶ 32-34, 39-40.) The Court also has federal question jurisdiction because the Complaint brings a claim under the Magnuson Moss Warranty Act, 15 U.S.C. § 2301. (Compl't ¶¶ 71-78.) The Complaint brings claims under New York law of negligent misrepresentation, breach of express and implied warranty, fraud and unjust enrichment, as well as a claim under New York General Business Law §§ 349 and 350. (Compl't ¶¶ 57-84.)

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 and "determine whether they plausibly give rise to an entitlement to relief." Id. at 679, 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) ).

DISCUSSION.

I. The Complaint Does Not Plausibly Allege a Deceptive Act under the New York General Business Law.

Kamara's consumer-fraud claim under GBL 349 and 350 asserts that, as a reasonable consumer, she wanted to purchase a product containing butter in the "amount and proportion" described in the packaging. (Compl't ¶¶ 58, 61.) Kamara asserts that use of the word butter in the "Golden Butter" cracker packaging "has a material bearing on price and consumer acceptance of the Product and consumers do not expect butter alternatives where the label says, ‘Golden Butter’ without qualification." (Compl't ¶ 61.)

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 (1st Dep't 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) ).

To be actionable, the alleged deceptive act must be "likely to mislead a reasonable consumer acting reasonably under the circumstances." Oswego Laborers’ Local 214, 85 N.Y.2d at 26, 623 N.Y.S.2d 529, 647 N.E.2d 741 ; 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., 2020 WL 6323775, at *2 (S.D.N.Y. Oct. 27, 2020) (Caproni, J.) (quoting Wurtzburger v. Kentucky Fried Chicken, 2017 WL 6416296, at *3 (S.D.N.Y. Dec. 13, 2017) (Roman, J.)); see also Fink v. Time Warner Cable, 714 F.3d 739, 742 (2d Cir. 2013) ("[I]n 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." Id. at 741 (citing Freeman v. Time, Inc., 68 F.3d 285, 289 (9th Cir. 1995), and Oswego, 85 N.Y.2d at 26, 623 N.Y.S.2d 529, 647 N.E.2d 741 ).

In urging that she has plausibly alleged consumer deception, Kamara points to the Second Circuit's decision in Mantikas v. Kellogg Co., 910 F.3d 633, 636-39 (2d Cir. 2018), which concluded that a plaintiff had plausibly alleged Cheez-It brand crackers were deceptively labeled as "WHOLE GRAIN" and "MADE WITH WHOLE GRAIN" when enriched flour was actually the principal grain ingredient in the crackers. Mantikas explained that a review of the ingredients list showed that enriched flour predominated over whole grain, which contradicted the package's prominent "WHOLE GRAIN" labeling. Id. at 637. It observed that a...