Wynn v. Topco Assocs.
| Decision Date | 19 January 2021 |
| Docket Number | No. 19-CV-11104 (RA),19-CV-11104 (RA) |
| Parties | GLYNNIS WYNN and KATELYNN EDGERLY, individually and on behalf of all others similarly situated, Plaintiffs, v. TOPCO ASSOCIATES, LLC, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Plaintiffs Glynnis Wynn and Katelynn Edgerly1 brought this putative class action suit against Defendant Topco Associates, LLC, asserting that Defendant's "Vanilla Almondmilk" product is labeled in a way that is misleading to consumers, in violation of the New York General Business Law as well as several other common law and statutory protections. The gravamen of the complaint is that the word "Vanilla" on the product's label falsely communicates to a reasonable consumer that the beverage's flavor derives entirely from real vanilla, when in fact Defendant's product includes non-vanilla flavors. Now before the Court is Defendants' motion to dismiss Plaintiffs' first amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Dkt. 25. For the reasons that follow, the motion is granted. The Court, however, grants Plaintiffs leave to file a Second Amended Complaint to curethe deficiencies identified below, to the extent that they have a good-faith basis to do so. Any amended complaint shall be filed no later than February 19, 2021.
The following facts are drawn from Plaintiffs' First Amended Complaint, Dkt. 21 ("Compl."), and are assumed to be true for the purpose of resolving this motion. See Stadnick v. Vivint Solar, Inc., 861 F.3d 31, 35 (2d Cir. 2017).
Defendant manufactures and distributes a vanilla-flavored non-dairy almond drink under the Full Circle Market brand, which is available to consumers at Price Chopper supermarkets. Compl. ¶¶ 1, 111. The product is labeled on the front of the carton as "Vanilla Almondmilk," as reflected in the following image:
Image materials not available for display.
Plaintiffs purchased the product at Price Chopper stores near to their homes in 2019 and 2020, "expect[ing] its vanilla flavor to not be enhanced by artificial flavors." Id. ¶ 112. As the complaint alleges, the use of the word "vanilla" without qualification communicates to consumers that all of the product's flavor and vanilla taste derives from real vanilla. Id. at 3.2 When Plaintiffs saw that Defendant's product package did not display any qualifying terms such as "vanilla-flavored," "contains artificial flavors," or "with other natural flavors," they drew the conclusion that the beverage's vanilla taste was supplied "only from . . . vanilla beans." Id. ¶ 35 (emphasis added).
In fact, Plaintiffs allege, Defendant's Vanilla Almondmilk is flavored by more than just real vanilla extract. Plaintiffs allege that the drink contains certain non-vanilla flavors, in addition to a trace amount of real vanilla—a blend known in the trade as "Vanilla With Other Natural Flavors." Id. ¶¶ 36, 67-69. The presence of non-vanilla flavors in Defendant's product, including vanillin, maltol, and piperonal, was detected through a process called "gas chromatography-mass spectrometry" testing (GC-MS). See id. ¶¶ 51-67.3 The presence of non-vanilla flavors can also be inferred from the product's ingredient list, which lists "'Natural Flavors' as the only flavoringingredient." See id. ¶ 38 (listing the product's ingredients as "Almondmilk (filtered water, almonds), evaporated cane syrup, tricalcium phosphate, natural flavors, sea salt, gellan gum, dipotassium phosphate, xanthan gum, sunflower lecithin, Vitamin A palmitate, Vitamin D2, D-Alpha tocopherol (Vitamin E)" (emphasis added); id. ¶ 44 ().
Had Plaintiffs known that the source of the vanilla flavor in Defendant's beverage was not exclusively genuine vanilla extract, they assert that they would not have purchased it or paid as much money for it. Id. ¶ 153. And they allege that they are not alone in this regard. Id. ¶ 98. Consumers today are willing to pay more for products labeled solely with the term "vanilla"—as opposed to say, "vanilla-flavored"—because they want and expect the flavors of those products to be supplied only from real vanilla beans. Id. ¶¶ 34-35. Plaintiffs suggest that many an unwitting customer has bought Defendants' product in reliance on the representations and omissions on its front label and ingredient list, which together imply that the almond milk's "flavor contain[s] only vanilla flavoring from vanilla beans and [does] not contain artificial flavors." Id. ¶ 110, 112.
Plaintiffs filed the operative class-action complaint on June 30, 2020, asserting claims against Topco for (1) violations of Sections 349 and 350 of the New York General Business Law ("GBL"), which prohibit deceptive business practices and false advertising, (2) negligent misrepresentation, (3) breaches of express warranty, the implied warranty of merchantability, and the Magnuson Moss Warranty Act, 15 U.S.C. §§ 2301, et seq., (4) fraud, and (5) unjust enrichment. Compl. at 24-27. Plaintiffs seek both monetary damages and injunctive relief that would require Defendant to correct its allegedly misleading labeling. Defendant moved todismiss the amended complaint, arguing principally that the "Vanilla Almondmilk" label is not materially misleading to a reasonable consumer. See Dkt. 26.
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557). On a Rule 12(b)(6) motion, the question is "not whether [the plaintiff] will ultimately prevail," but "whether [her] complaint [is] sufficient to cross the federal court's threshold." Skinner v. Switzer, 562 U.S. 521, 529-30 (2011) (citation omitted). In answering this question, the Court must "accept[] all factual allegations as true, but 'giv[e] no effect to legal conclusions couched as factual allegations.'" Stadnick, 861 F.3d at 35 (quoting Starr v. Sony BMG Music Entm't, 592 F.3d 314, 321 (2d Cir. 2010)).
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," whereas Section 350 prohibits "[f]alse advertising in the conduct of any business, trade or commerce." GBL §§ 349-50. To successfully assert a claim under either section, "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 "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).
Plaintiffs argue that the word "Vanilla" in Defendant's "Vanilla Almondmilk" is misleading to a reasonable consumer because it implies that the beverage's flavor is derived exclusively from real vanilla, when in fact Defendant's product contains both real vanilla and other natural and artificial flavors. See Pls. Opp. at 7, 12; see also Compl. ¶ 35 (); id. ¶ 36 (). And Plaintiffs argue that this is not only misleading but materially so, see Orlander, 802 F.3d at 300, in that today's consumers are attuned to the distinction between artificial and natural flavors and will pay a premium for natural flavoring. See Compl. ¶¶ 5-7.
The Court accepts Plaintiffs' allegations that Defendant's product is not exclusively flavored by genuine vanilla extract. The Court also assumes that Plaintiffs are correct that this distinction is material—that is, that a reasonable customer cares about what share of the vanilla flavor in a vanilla-flavored beverage derives from natural vanilla. See id. Nonetheless, the Courtfinds that 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.
The Complaint's allegations that consumers expect a product labeled "Vanilla Almondmilk" to be flavored exclusively with real vanilla are conclusory statements that the Court is not required to accept. See Iqbal, 556 U.S. at 678. The Complaint alleges at several points that the...
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