Silva v. Smucker Natural Foods, Inc.

• Decision Date: 14 September 2015
• Docket Number: 14-CV-6154 (JG)(RML)
• Parties: CHRISTOPHER SILVA, individually on behalf of himself and all others similarly situated, Plaintiff, v. SMUCKER NATURAL FOODS, INC., and J.M. SMUCKER CO., Defendants.
• Court: U.S. District Court — Eastern District of New York

CHRISTOPHER SILVA, individually on behalf of himselfand all others similarly situated, Plaintiff, v. SMUCKER NATURAL FOODS, INC., and J.M. SMUCKER CO., Defendants.

14-CV-6154 (JG)(RML)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

September 14, 2015

FOR ONLINE PUBLICATION ONLY

MEMORANDUM AND ORDER

APPEARANCES:

THE SULTZER LAW GROUP P.C.

77 Water Street, 8^th Floor

New York, NY 10005

By: Joseph Lipari, Esq.

Jason P. Sultzer, Esq.

Attorneys for Plaintiff

JONES DAY

222 East 41^st Street

New York, NY 10017

By: Kevin D. Boyce, Esq.

Mark Mansour, Esq.

Jennifer Del Medico, Esq.

Attorneys for Defendants

JOHN GLEESON, United States District Judge:

Christopher Silva has brought a putative class action against defendants Smucker Natural Foods, Inc., and J.M. Smucker Company (collectively, "Smucker") alleging violations of New York consumer statutes and New York common law with respect to the sale of Natural Brew® Draft Root Beer ("Natural Brew").

Smucker now moves to dismiss. For the reasons stated below, the motion is granted in part and denied in part.

BACKGROUND

The Class Action Complaint ("CAC") charges six causes of action under New York law against Smucker: violations of New York General Business Law ("GBL") §§ 349, 350 and 350-a(1), as well as breach of express warranty, breach of implied warranty of merchantability, and unjust enrichment. As this is a putative class action with an aggregate amount in controversy exceeding five million dollars, subject matter jurisdiction is proper under 28 U.S.C. § 1332(d)(2).

The crux of this case centers on alleged misrepresentations on Natural Brew's label, packaging, and website that it is "natural" when, in fact, it contains artificial ingredients, specifically caramel color and phosphoric acid. The CAC, as originally submitted, contains illegible photographs of Natural Brew's label and packaging. Silva has supplemented his papers with more legible copies of the photos contained in the CAC, and Smucker, for its part, has attached its own copy of the label as an exhibit to the motion to dismiss. See Declaration of Joseph Lipari ("Lipari Decl."), Ex. A, ECF No. 12-1; Declaration of Kevin D. Boyce ("Boyce Decl."), Ex. 1, ECF No. 11-2. I am permitted to take judicial notice of these documents, and I do so now. See Waldman v. New Chapter, Inc., 714 F. Supp. 2d 398, 400 n.1 (E.D.N.Y. 2010) (holding "the Court may take judicial notice of the actual [food] package, even on a motion to dismiss" because the complaint "makes numerous references to this package"); see also Bruton v. Gerber Prods. Co., 961 F. Supp. 2d 1062, 1074 n.1 (N.D. Cal. 2013) (holding motion exhibits were "appropriate for judicial notice as they are packaging labels for ten Gerber products that the [complaint] specifically references, but which are not completely legible [in the complaint]"); RJCapital, S.A. v. Lexington Capital Funding III, Ltd., No. 10-CV-24 (PGG), 2011 WL 3251554, at *4 (S.D.N.Y. July 28, 2011) ("In determining the sufficiency of a complaint, this Court may consider . . . 'documents either in plaintiffs' possession or of which the plaintiffs had knowledge and relied on in bringing suit.'") (quoting Brass v. Am. Film. Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993)). Since the heart of this case concerns the labeling and packaging, the photographs are reproduced below:

Image materials not available for display.

CAC ¶ 7; Lipari Decl., Ex. A.

Image materials not available for display.

CAC ¶ 8; Lipari Decl., Ex. A.

Image materials not available for display.

Boyce Decl., Ex. 1.

In addition to having the trademark "Natural Brew" prominently displayed on its front, the label also states, in smaller script, that "[t]o give our Root Beer a subtly rich, creamy flavor we add vanilla extract and other natural flavors to our recipe." CAC ¶ 9 (text in CAC altered to match label); Boyce Decl., Ex. 1. The label also represents that Natural Brew "blendstradition and quality, naturally." CAC ¶ 8. On the back side of the label, the Food and Drug Administration ("FDA")-mandated ingredients list discloses that the product contains caramel color and phosphoric acid. See Boyce Decl., Ex. 1.

To support his claims, Silva also attaches screenshots of Smucker's website containing statements that Natural Brew is "made from all natural ingredients," has "no artificial colors, flavors, or additives, ever," and is "brewed in small batches with the finest natural ingredients." CAC ¶ 3, Ex. A. Silva alleges that Smucker promoted Natural Brew on its website by making the following statements:

Natural Brew was specially formulated to meet the consumer's need for a quality-crafted, natural carbonated beverage. We make Natural Brew using old-fashioned micro-brewing techniques to bring out the robust flavor of all key ingredients. Unlike most other soft drink companies, Natural Brew is brewed in small batches allowing the ingredients to blend together forming a full, rich flavor, free from any artificial additives or preservatives.

CAC ¶ 4, Ex. B.

We chose the name Natural Brew® to reflect the hand-crafted, premium nature of our products. Far from the typical options, our sodas are lovingly brewed in small batches from high-quality natural and organic ingredients, using time-honored traditional methods.

CAC ¶ 5, Ex. C.

We utilize traditional brewing methods that have been perfected over centuries. These simple processes allow the true essences of the ingredients to stand out, creating an honest and bold flavor experience unlike any other. The flavor essences are then carefully blended with other natural ingredients to give our handcrafted brews a complex flavor profile.

CAC ¶ 6, Ex. D.

DISCUSSION

A. The Legal Standards

To survive a motion to dismiss pursuant to Rule 12(b)(6), a complaint must allege sufficient facts to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bigio v. Coca-Cola Co., 675 F.3d 163, 173 (2d Cir. 2012). In making this determination, a court should assume all well-pleaded allegations in the complaint to be true "and then determine whether they plausibly give rise to an entitlement to relief." Iqbal, 556 U.S. at 679; see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) ("Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." (internal citations omitted)). In deciding a motion to dismiss, a court considers "the facts alleged in the pleadings, documents attached as exhibits or incorporated by reference in the pleadings and matters of which judicial notice may be taken . . . ." Samuels v. Air Transp. Local 504, 992 F.2d 12, 15 (2d Cir. 1993).

B. Preemption

Smucker argues first that Silva's claims should be dismissed because they are expressly preempted by the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 343 et seq. ("FDCA").¹ Under the Supremacy Clause, U.S. Const., Art. VI, cl. 2, state laws that "interfere with, or are contrary to the laws of Congress, made in pursuance of the constitution" are invalid. Gibbons v. Ogden, 22 U.S. 1, 211 (1824). An otherwise valid state law is preempted, inter alia, if Congress expressly preempts the state law. See Wis. Pub. Intervenor v. Mortier, 501 U.S. 597, 603-05 (1991).

The Supreme Court has instructed that the task of determining whether a federal statute has preempted state law is guided by two basic principles. First, "the purpose of Congress is the ultimate touchstone in every pre-emption case." Wyeth v. Levine, 555 U.S. 555, 565 (2009) (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)). "Second, [i]n all pre-emption cases, and particularly in those in which Congress has legislated . . . in a field which the States have traditionally occupied, . . . we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." Id. at 1194-95 (quoting Medtronic, 518 U.S. at 485) (internal quotation marks omitted); accord New York State Rest. Ass'n v. New York City Bd. of Health, 556 F.3d 114, 123 (2d Cir. 2009). Both the Supreme Court and the Second Circuit have recognized this presumption in matters of public health and safety, including the regulation of food and drugs. See id.; Hillsborough Cty., Fla. v. Automated Med. Labs., Inc., 471 U.S. 707, 715-19 (1985); see also Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 144 (1963) ("States have always possessed a legitimate interest in the protection of their people against fraud and deception in the sale of food products at retail markets within their borders." (quotations and alterations omitted)). Furthermore, consistent with these principles, where Congress enacts an express preemption clause, the presumption against preemption requires courts to read the clause narrowly. See Medtronic, 518 U.S. at 485 (citing Cipollone v. Liggett Group, Inc., 505 U.S. 504, 518 (1992)).

1. The FDCA and the NLEA

The FDCA empowers the FDA to (a) promote the public health by ensuring that "foods are safe, wholesome, sanitary, and properly labeled," 21 U.S.C. § 393(b)(2)(A); (b) promulgate regulations pursuant to this authority; and (c) enforce its regulations throughadministrative proceedings. See 21 C.F.R. § 7.1 et seq. There is no private right of action under the statute. Merrell Dow Pharms., Inc. v. Thompson, 478 U.S. 804, 810 (1986).

Congress amended the FDCA in 1990 with the NLEA to "clarify and to strengthen the FDA's legal authority to require nutrition labeling on foods, and to establish the circumstances under which claims may be made about nutrients in foods." Nutritional Health Alliance v. Shalala, 144 F.3d 220, 223 (2d Cir. 1998) (quoting H. R. Rep. No. 101-538, at 7 (1990), reprinted in 1990 U.S.C.C.A.N. 3336, 3337). Congress included an express preemption clause in the NLEA that prohibits state and local governments...