Scholder v. Sioux Honey Association, Cooperative
Filing
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MEMORANDUM AND ORDER - Based on foregoing, defendant's motion to dismiss is granted as to the express warranty claim and requests for injunctive relief, but denied as to plaintiff's GBL and unjust enrichment claims. The parties are directed to proceed with discovery with the assigned Magistrate Judge. SO Ordered by Judge Gary R. Brown on 1/13/2022. (Tirado, Chelsea)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JASON SCHOLDER, on behalf of himself and all others
FILED
CLERK
12:17 pm, Jan 13, 2022
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
similarly situated,
Plaintiff,
-against-
MEMORANDUM &
ORDER
CV 16-5369 (GRB)
SIOUX HONEY ASSOCIATION COOPERATIVE,
Defendant.
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GARY R. BROWN, United States District Judge:
Plaintiff Jason Scholder commenced this putative class action against defendant Sioux
Honey Association Cooperative alleging claims under New York State’s consumer protection
statutes prohibiting deceptive business practices and false advertising, as well as common law
claims for breach of express warranty and unjust enrichment based on alleged misrepresentations
in the company’s labeling of its honey products marketed under the SueBee brand. The
gravamen of Sioux Honey’s alleged misrepresentations and omissions is that the words “Pure” or
“100% Pure” on the SueBee product labels are deceptive because the honey contains glyphosate,
a synthetic chemical and herbicide. Presently before the Court is defendant’s motion to dismiss
the amended class action complaint (hereinafter the “complaint”) pursuant to Rule 12 of the
Federal Rules of Civil Procedure. For the reasons that follow, defendant’s motion is granted in
part and denied in part.
BACKGROUND
1. Factual Background
The following facts, drawn from the complaint, are assumed to be true for purposes of the
pending motion to dismiss and are viewed in the light most favorable to plaintiff, the nonmoving party:
Sioux Honey, a cooperative in Sioux City, Iowa, manufactures, markets, sells and
distributes SueBee honey in retail stores in New York and throughout the United States. Docket
Entry (“DE”) 41 ¶¶ 23-24. Scholder, a citizen of New York, purchased SueBee honey on
multiple occasions at a Stop and Shop supermarket located in Port Washington, New York. Id. ¶
25. Scholder made these purchases after seeing and relying upon the product label representing
the SueBee honey to be “Pure” or “100% Pure” and was willing to pay more for the honey
because of the representation. Id. ¶¶ 26-27. However, Scholder alleges that SueBee honey is not
“Pure” or “100% Pure” because the honey contains the biocide glyphosate, an artificial chemical
and potential carcinogen. Id. ¶ 2. Because SueBee honey contains glyphosate, plaintiff contends
that the use of the words “Pure” or “100% Pure Unfiltered Honey” on the label is false and
misleading. Id. ¶¶ 2, 37. Scholder maintains that “[c]onsumers reasonably believe that a product
labeled ‘[P]ure’ or ‘100% [P]ure’ does not contain synthetic substances, such as artificial
biocides,” id. ¶ 35, and that had he known at the time that SueBee honey contained glyphosate,
he would not have considered the honey to be pure and would not have paid a premium for the
product, id. ¶¶ 27-28. Plaintiff states that he plans to purchase SueBee honey in the future if he
can rely on accurate marketing representations on the product’s label. Id. ¶¶ 59-60.
Plaintiff provided photos of the product labels for SueBee honey, id., Ex. 1:
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2. Procedural Background
On September 27, 2016, Scholder commenced this action on behalf of himself and a
nationwide class of all consumers who purchased SueBee honey, as well as a sub-class of all
New York residents who purchased the product. DE 1. Plaintiff alleges four causes of action
against Sioux Honey: (1) violation of New York General Business Law § 349 for deceptive
practices; (2) violation of New York General Business Law § 350 for false advertising; (3)
breach of express warranty; and (4) unjust enrichment. DE 41 ¶¶ 82-108.
On June 27, 2017, the Honorable Arthur D. Spatt (i) stayed this matter pending the
outcome of the FDA’s determination regarding the permissible uses of the term “natural” in food
labeling; (ii) denied defendant’s motions to dismiss without prejudice; and (iii) granted defendant
leave to refile the motions after the FDA’s decision. Plaintiff thereafter moved to vacate the
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stay, and Judge Spatt denied the application on March 5, 2019. DE 35. The case was reassigned
from Judge Spatt to the undersigned on June 30, 2020.
By Order dated October 15, 2020, the Court lifted the stay and granted plaintiff thirty
days to amend the complaint. Plaintiff filed an amended complaint on November 6, 2020. DE
41. Defendant thereafter filed a pre-motion letter outlining the grounds for its proposed motion
to dismiss the amended complaint in accordance with the undersigned’s individual rules. DE 43.
Following plaintiff’s response to the letter, DE 44, the Court held a pre-motion conference on
January 4, 2021. At the conference, the Court directed the parties to submit a brief focused on
the sole issue of the use of the term “Pure” or “100% Pure” on the SueBee label and the
implications thereof regarding the plausibility of plaintiff’s claims, particularly in light of the
Second Circuit’s decision in Axon v. Florida Natural Growers, Inc., 813 F. App’x 701 (2d Cir.
2020).
Defendant now moves to dismiss the complaint pursuant to Rule 12 of the Federal Rules
of Civil Procedure. DE 46. Plaintiff opposes the motion. DE 48, 49.
DISCUSSION
Standard of Review
Generally, motions to dismiss are decided under the well-established standard of review
for such matters, as discussed in Burris v. Nassau County District Attorney, No. 14-5540 (JFB)
(GRB), 2017 WL 9485714, at *3-4 (E.D.N.Y. Jan. 12, 2017), adopted by 2017 WL 1187709
(E.D.N.Y. Mar. 29, 2017), and incorporated by reference herein. The gravamen of that standard,
of course, is the question of whether, assuming the allegations of the complaint to be true solely
for the purposes of the motion, the complaint sets forth factual material to render the claims
plausible.
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Analysis
As noted, Plaintiff alleges the following causes of action against Sioux Honey: (1)
violations of §§ 349 and 350 of New York General Business Law; (2) breach of express
warranty; and (3) unjust enrichment. DE 41 ¶¶ 82-108. In addition, plaintiff seeks injunctive
relief. Id. at ¶ 61 and page 22.
(1) New York General Business Law § 349 and § 349
Section 349 of the New York General Business Law (“GBL”) prohibits “deceptive acts
and practices in the conduct of any business, trade or commerce or in furnishing of any service.”
N.Y. Gen. Bus. Law § 349. A deceptive act or practice is one that is “likely to mislead a
reasonable consumer acting reasonably under the circumstances.” Maurizio v. Goldsmith, 230
F.3d 518, 521 (2d Cir. 2000). Section 350 prohibits “[f]alse advertising in the conduct of any
business, trade or commerce or in the furnishing of any service.” N.Y. Gen. Bus. Law § 350.
False advertising means “advertising, including labeling . . . if such advertising is misleading in a
material respect.” Id. § 350-a(1). Both provisions permit “any person who has been injured by
reason of any violation” thereof to bring an action to recover damages or to enjoin the deceptive
act or practice, or both. Id. §§ 349(h), 350-e(3).
“The standard for recovery under General Business Law § 350, while specific to false
advertising, is otherwise identical to § 349.” Goshen v. Mut. Life Ins. Co. of N.Y., 98 N.Y.2d
314, 324 n.1 (2002); see also Gristede’s Foods Inc. v. Unkechauge Nation, 532 F. Supp. 2d 439,
451 (E.D.N.Y. 2007) (the standards under Sections 349 and 350 are “substantively identical”).
To state 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
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as a result of the allegedly deceptive act or practice.” Orlander v. Staples, Inc., 802 F.3d 289,
300 (2d Cir. 2015) (quoting Koch v. Acker, Merrall & Condit Co., 18 N.Y.3d 940, 941 (2009)).
There is no dispute that the sale of defendant’s product constitutes consumer oriented
conduct. See Sykes v. Mel S. Harris & Assocs. LLC, 780 F.3d 70, 84 (2d Cir. 2015). This
element “may be satisfied by showing that the conduct at issue potentially affects similarly
situated consumers.” Id. Here, plaintiff alleges that defendant marketed and sold its honey
nationwide, including New York, and plaintiff and the putative class members purchased the
product. DE 41 ¶¶ 24-25, 56. In addition, plaintiff asserts that he and other members of the class
were deceived by defendant’s false and misleading representations on the product’s label. Id. ¶¶
53-56. These allegations are sufficient to satisfy the first element. See Karlin v. IVF Am., Inc.,
93 N.Y.2d 282, 290 (1999) (observing that claims under Sections 349 and 350 of the GBL
“apply to virtually all economic activity, and their application has been correspondingly broad”).
To determine whether a product’s label is materially misleading, the operative question is
an objective one: whether “a significant portion of the general consuming public or of targeted
consumers, acting reasonably under the circumstances, could be misled.” Jessani v. Monini N.
Am. Inc., 744 F. App’x 18, 19 (2d Cir. 2018) (internal quotation marks and citation omitted); see
also Engram v. GSK Consumer Healthcare Holdings (US) Inc., No. 19-CV-2886 (EK), 2021 WL
4502439, at *3 (E.D.N.Y. Sept. 30, 2021). In evaluating whether the SueBee label is misleading,
the Court considers whether the complaint “plausibly alleges that a reasonable consumer would
ascribe the meaning that plaintiffs allege they ascribed to it.” Fishon v. Peloton Interactive, Inc.,
No. 19-CV 11711 (LJL), 2020 WL 6564755, at *7 (S.D.N.Y. Nov. 9, 2020). This analysis
focuses on the precise representations made on the product’s label, see, e.g., Axon, 813 F. App’x
at 705 (distinguishing between representations that a product is “pure” and a representation that a
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product is “natural”), “in light of its context on the product label or advertisement as a whole,”
Delgado v. Ocwen Loan Servicing, LLC, No. 13-CV-4427 (NGG), 2014 WL 4773991, at *8
(E.D.N.Y. Sept. 24, 2014) (internal quotation marks and citations omitted). The question is one
of gestalt: the Court considers the entire mosaic of the label “rather than each tile separately.”
Time Warner Cable, Inc. v. DIRECTV, Inc., No. 06 Civ. 14245 (LTS), 2007 WL 1138879, at *4
(S.D.N.Y. Apr. 16, 2007); see Geffner v. Coca-Cola Co., 928 F.3d 198, 200-01 (2d Cir. 2019)
(holding “[c]ontext is crucial” when determining if a label is materially misleading, and that
context includes information on the product’s packaging along with the product itself). Usually,
the reasonable consumer inquiry is a question of fact not suited for resolution at the motion to
dismiss stage. Grossman v. Simply Nourish Pet Food Co., 516 F. Supp. 3d 261, 278 (E.D.N.Y.
2021). Nevertheless, in certain cases, whether a product’s label is materially misleading may be
decided as a matter of law. See also Fink v. Time Warner Cable, 714 F.3d 739, 742 (2d Cir.
2013) (per curium).
Defendant urges the Court to conclude as a matter of law that SueBee’s label is not
materially misleading to a reasonable consumer because any trace amounts of glyphosate in the
honey was the result of the natural process of bees interacting with agriculture and not its
production process, and thus its honey was in fact “Pure.” DE 44, 46. At this stage of the
proceedings, however, the Court cannot conclude as a matter of law that the label on the SueBee
products would not be misleading to a reasonable consumer. Stated differently, it is not so clear
that a reasonable consumer would understand the terms “Pure” or “100% Pure” to mean that
trace amounts of glyphosate could end up in honey from the bees foraging process. See
Grossman, 516 F. Supp. 3d at 278 (holding “a party seeking to dismiss a false labeling claim
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must extinguish . . . the possibility that a reasonable consumer could be misled into believing the
[p]roducts contained no synthetic materials”) (internal quotation marks and citation omitted).
To the contrary, plaintiff has plausibly explained that a reasonable consumer viewing the
product labeled “Pure” or “100% Pure” would interpret the terms to mean the final honey would
be free of substances other than honey, including glyphosate. As the Second Circuit noted in
Axon:
[u]nlike “natural,” the words “pure” and “100% natural” indicate the absolute
absence of contaminants. See, e.g., Pure, Merriam-Webster Dictionary,
http://merriam-webster.com/dictionary/pure (defining “pure” as “free from dust, dirt, or
taint”).
813 F. App’x at 705.
Moreover, viewing the label in context, the Court finds that a reasonable consumer could
be misled into believing a product labeled “100% Pure Unfiltered Honey” contained no
contaminants. Unlike the specific packaging in Axon where the Second Circuit found that “the
term ‘natural’ occurred only within the brand name ‘Florida Natural’ and nowhere else on the
packaging,” and that the “packaging d[id] not describe the orange juice as ‘natural’ on a standalone label or as ‘100% natural,’” 813 F. App’x at 705, here, the product label did describe the
honey as “100% Pure Unfiltered Honey” on a stand-alone basis.
Further, the complaint alleges that the targeted consumers, including plaintiff, “value
pure foods” in part in order to avoid chemicals and additives, such as glyphosate, and attain
health and wellness, and would not consider a product containing synthetic substances or
chemicals to be “Pure” or “100% Pure.” DE 41 ¶¶ 31, 35-36. To bolster this claim, plaintiff
provided detailed allegations, including (i) a declaration by the International Agency for
Research on Cancer (“IARC”), a research arm of the World Health Organization, that glyphosate
is a probable human carcinogen; (ii) research abstracts documenting that glyphosate is a
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suspected human endocrine disrupter in human cell lines; and (iii) studies reflecting that even
low doses of glyphosate-based herbicides could nevertheless cause liver and kidney damage. Id.
¶¶ 2, 37-45. The IARC declaration, research abstracts and studies, at a minimum, make
plaintiff’s allegations plausible rather than merely possible, and therefore, the Court is unable to
conclude, as a matter of law, that the product’s label would not be materially misleading to a
significant portion of the general consuming public or to the targeted customers who value pure
foods acting reasonably under the circumstances. See Stolz v. Fage Dairy Processing Indus., No.
14-CV-3826, 2015 WL 5579872, at *20 (E.D.N.Y. Sept. 15, 2015) (observing dismissal
appropriate only if plaintiff’s claims are “patently implausible,” not rational or unrealistic); see
also In re Frito-Lay N. Am., Inc. v. All Nat. Litig., No. 12-MD-2413 (RRM), 2013 WL 4647512,
at *16 (E.D.N.Y. Aug. 29, 2013) (noting dismissal as a matter of law is appropriate where a
plaintiff’s allegations regarding misleading and deceptive labeling “border on fantasy”). Hence,
plaintiff has adequately pled the second element of the GBL claims.
Finally, with respect to the third element of the GBL claims, plaintiff alleges harm in the
form of economic injury in that he (and the putative class members) paid a premium price for the
product that he (and the class members) thought was pure and free from contaminants, such as
artificial biocides. A plaintiff satisfies this element under Sections 349 and 350 when the
plaintiff avers that “on account of a materially misleading practice, [the plaintiff] purchased a
product and did not receive full value of [the] purchase.” Orlander., 802 F.3d at 302. Courts
have found that paying a premium price for a product is sufficient injury to state a claim under
Sections 349 and 350. See, e.g., Axon, 813 F. App’x at 703-04; Ackerman v. Coca-Cola Co., No.
09-cv-0395 (JG), 2010 WL 2925955, at *23 (E.D.N.Y. July 21, 2010) (“Injury is adequately
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alleged under GBL §§ 349 or 350 by a claim that a plaintiff paid a premium for a product based
on defendants’ inaccurate representations”).
In sum, plaintiff has plausibly alleged that Sioux Honey engaged in consumer-oriented
activity that was materially misleading and caused him a cognizable injury. Accordingly,
defendant’s motion to dismiss plaintiffs’ New York General Business Law claims is denied.
(2) Breach of Express Warranty
In order to assert a breach of express warranty claim under New York law, “a plaintiff
must show an affirmation of fact or promise by the seller, the natural tendency of which was to
induce the buyer to purchase and that the warranty was relied upon.” Factory Assocs. &
Exporters, Inc. v. Lehigh Safety Shoes Co., 382 F. App’x 110, 111-12 (2d Cir. 2010) (quoting
Schimmenti v. Ply Gem Indus., Inc., 549 N.Y.S.2d 152, 154 (1989) (internal quotation marks
omitted)). However, to maintain a claim of breach of express warranty, “the buyer must within a
reasonable time after he discovers or should have discovered any breach notify the seller of [the]
breach or be barred from any remedy.” Tomasino v. Estee Lauder Cos., 44 F. Supp. 3d 251, 260
(E.D.N.Y. 2014) (quoting N.Y. U.C.C.§ 2-607(3)(a)) (internal quotation marks omitted). In
order to satisfy the notice requirement, plaintiff must “alert defendant that the transaction was
troublesome,” but need not “include a claim for damages or threat of future litigation.”
Grossman, 516 F. Supp. 3d at 282 (internal quotation marks and citations omitted). “[R]equiring
notice is designed to defeat commercial bad faith, not to deprive a good faith consumer of his
remedy.” N.Y. U.C.C.§ 2-607 cmt. 4. Although “[t]he sufficiency and timeliness of the notice is
generally a question for the jury,” Tomasino, 44 F. Supp. 3d at 260, to sufficiently satisfy the
pre-suit notice requirement, “plaintiff must provide factual allegations – such as the date and
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method plaintiff sent a pre-suit notice – supporting the contention that [he] notified defendant of
the alleged breach within a reasonable time,” Grossman, 516 F. Supp. 3d at 283.
Inasmuch as the complaint does not contain any allegations or specific facts that plaintiff
notified defendant of a breach within a reasonable time after his discovery, he has failed to
satisfy the pre-suit notice requirement. DE 41; see Grossman, 516 F. Supp. 3d at 283
(concluding plaintiff failed to allege pre-suit notice where complaint merely stated that plaintiff
“placed defendants of notice of their breach giving defendants an opportunity to cure their
breach, which they refused to do” without additional factual allegations); see Colella v. Atkins
Nutritionals, Inc., 348 F. Supp. 3d 120, 144 (E.D.N.Y. 2018) (holding that plaintiff failed to set
forth a breach of warranty claim where complaint made “no allegations and state[d] no facts
showing that notice was provided to defendant”); see also Budhani v. Monster Energy Co., 20cv-1409 (LJL), 2021 WL 1104988, at *11 (S.D.N.Y. Mar. 22, 2021) (dismissing breach of
express warranty claims for failure to provide timely notice to defendant); Colpitts v. Blue
Diamond Growers, 20 Civ. 2487 (JPC), 2021 WL 981455, at *17 (S.D.N.Y. Mar. 16, 2021)
(dismissing breach of warranty claim because plaintiff’s “failure to satisfy the pre-suit notice
requirement [was] fatal”); Cosgrove v. Or. Chai. Inc., 19 Civ. 10686 (KPF), 2021 WL 706227, at
*15 (S.D.N.Y. Feb. 21, 2021) (dismissing breach of warranty claim where plaintiffs failed to
give defendant any notice); Singleton v. Fifth Gen., Inc., No. 5:15-CV-474 (BKS)(TWD), 2016
WL 406295, at *12 (N.D.N.Y. Jan. 12, 2016) (“Plaintiff’s express warranty claim must fail
because there is no allegation that he made a timely notification to [d]efendant of any breach of
warranty.”).
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Accordingly, because plaintiff failed to allege pre-suit notice as required for a breach of
express warranty claim, defendant’s motion to dismiss the breach of express warranty claim is
granted.
(3) Unjust Enrichment
“Under New York law, a plaintiff may prevail on a claim for unjust enrichment by
demonstrating (1) that the defendant benefitted; (2) at the plaintiff’s expense; and (3) that equity
and good conscience require restitution.” Nordwind v. Rowland, 584 F.3d 420, 434 (2d Cir.
2009) (internal quotation marks and citation omitted). Unjust enrichment “lies as a quasicontract claim” that “contemplates an obligation imposed by equity to prevent injustice, in the
absence of an actual agreement between the parties.” Georgia Malone & Co. v. Rieder, 19
N.Y.3d 511, 516 (2012) (internal quotation marks and citation omitted). However, “unjust
enrichment is not a catchall cause of action to be used when others fail.” Corsello v. Verizon
N.Y., Inc., 18 N.Y.3d 777, 790 (2012). Rather, the claim “is available only in unusual situations
when, though the defendant has not breached a contract nor committed a recognized tort,
circumstances create an equitable obligation running from the defendant to the plaintiff.” Id.
“[A]n unjust enrichment claim is not available where it simply duplicates, or replaces, a
conventional contract or tort claim.” Id. Nevertheless, Rule 8(d)(3) of the Federal Rules of Civil
Procedure permits a party to state “as many separate claims or defenses as it has, regardless of
consistency.” Fed. R. Civ. P. 8(d)(3). Recently, the Second Circuit noted that “a plaintiff may
plead unjust enrichment in the alternative to a breach of warranty claim[.]” Axon, 813 F. App’x
at 706.
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Plaintiff has alleged that (i) defendant benefited at plaintiff’s expense in that plaintiff
purchased the honey at a premium price; and (ii) equity and good conscience require restitution
because defendant’s profit was due to allegedly fraudulent and misleading representations that
the honey was “100% Pure.” DE 41 ¶¶ 106-08. Defendant argues that this claim should be
dismissed because “there is no plausible allegation of fraud that would render [Sioux Honey’s]
enrichment unjust.” DE 46 at 11. As discussed supra, because the Court finds that plaintiff has
plausibly alleged that defendant may have engaged in materially misleading conduct, defendant’s
argument fails. Moreover, whether plaintiff can recover will turn on issues of fact that cannot be
determined on the motion to dismiss. Finally, although the unjust enrichment claim may
ultimately be deemed duplicative of plaintiff’s other theories of recovery, at this stage of the
proceedings, plaintiff’s allegations are sufficient. See, e.g., Mason v. Reed’s Inc., 515 F. Supp.
3d 135, 147 (S.D.N.Y. 2021) (denying motion to dismiss unjust enrichment claim pleaded in the
alternative to other theories of liability). Accordingly, defendant’s motion to dismiss this claim
is denied.
(4) Injunctive Relief
Plaintiff seeks an injunction directing Sioux Honey to correct its allegedly misleading and
unfair business practices and refrain from using deceptive labels on its products. DE 41 ¶¶ 19,
46. In addition, plaintiff seeks class-wide injunctive relief. Id. ¶ 81. Defendant argues that
plaintiff lacks standing to seek injunctive relief on behalf of himself or a putative class because
he cannot allege imminent future harm. DE 46 at 11-12. The Court agrees.
To establish Article III standing, a plaintiff must demonstrate “(1) an injury in fact, (2) a
sufficient causal connection between the injury and the conduct complained of, and (3) a
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likelihood that the injury will be redressed by a favorable decision.” Knife Rights, Inc. v. Vance,
802 F.3d 377, 383 (2d Cir. 2015) (internal quotation marks and citations omitted). “Plaintiffs
seeking injunctive relief must also prove that the identified injury in fact presents a real and
immediate threat of repeated injury.” Kreisler v. Second Ave. Diner Corp., 731 F.3d 184, 187
(2d Cir. 2013) (internal quotation marks and citations omitted). “The prospective-orientation of
the analysis is critical: to maintain an action for injunctive relief, a plaintiff cannot rely on past
injury . . . but must show a likelihood that he . . . will be injured in the future.” Berni v. Barilla
S.p.A., 964 F.3d 141, 147 (2d Cir. 2020) (internal quotation marks and citations omitted).
“Although past injuries may provide a basis to seek money damages, they do not confer standing
to seek injunctive relief unless the plaintiff can demonstrate that [h]e is likely to be harmed again
in the future in a similar way.” Nicosia v. Amazon.com, Inc., 834 F.3d 220, 239 (2d Cir. 2016).
The Second Circuit has made clear that “past purchasers of a consumer product who claim to be
deceived by that product’s packaging . . . have, at most, alleged a past harm.” Berni, 964 F.3d at
147. Thus, “past purchasers of a product . . . are not likely to encounter future harm of the kind
that makes injunctive relief appropriate.” Id.
Plaintiff’s allegations are insufficient to establish standing to obtain injunctive relief for
himself or a putative class as he has failed to allege any imminent threat of continued injury. To
the contrary, plaintiff alleges that he plans to purchase the product in the future if he can rely on
nondeceptive marketing representations. That is to say, plaintiff would purchase the SueBee
honey if he could rely on the representation on the label that the honey was “Pure” or “100%
Pure.” In such a circumstance, Sioux Honey would either have to change the label or ingredients
in its honey. Therefore, Scholder would not purchase defendant’s product with the current state
of ingredients or label because as set forth in the complaint, the product is allegedly deceptive.
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Inasmuch as plaintiff knows the honey purportedly contains glyphosate, he would not purchase
the product in the current state and thus cannot show an imminent risk of future deception and
injury. Cf. Hesse v. Godiva Chocolatier, Inc., 463 F. Supp. 3d 453, 465-66 (S.D.N.Y. 2020)
(noting that because plaintiffs in a false advertisement case have necessarily become aware of the
alleged misrepresentations, “there is no danger that they will again be deceived by them”).
Hence, any “future injury is merely conjectural or hypothetical” because even if plaintiff
purchased the honey, he would do so “with exactly the level of information” he had from the
outset of this lawsuit. Berni, 964 F.3d at 147-48; see Silva v. Hornell Brewing Co., No. 20-cv756 (ARR) (PL), 2020 WL 4586394, at *7 (E.D.N.Y. Aug. 10, 2020) (“To the extent that
plaintiff was deceived by the appearance of the phrase ‘All Natural’ on the Product label, the
existence of this lawsuit shows that he is now aware that the Product contains synthetic
ingredients. Thus, he will not be harmed again in the same way, and he lacks standing to seek an
injunction.”). Accordingly, plaintiff’s claims for injunctive relief are dismissed for lack of
standing.
CONCLUSION
Based on the foregoing, defendant’s motion to dismiss is granted as to the express
warranty claim and requests for injunctive relief, but denied as to plaintiff’s GBL and
unjust enrichment claims. The parties are directed to proceed with discovery with the
assigned Magistrate Judge.
Dated: Central Islip, New York
January 13, 2022
/s/ Gary R. Brown
HON. GARY R. BROWN
United States District Judge
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