Podpeskar v. Dannon Company, Inc.
OPINION AND ORDER re: 32 MOTION to Dismiss Notice of Motion of The Dannon Company, Inc. To Dismiss Or, In The Alternative, For A Stay. filed by Dannon Company, Inc. For the reasons stated above, the defendant's motion to dismiss plaintiff's claims is GRANTED. The Clerk of Court is directed to terminate the motion at ECF No. 32 and terminate this action. SO ORDERED. (Signed by Judge Katherine B. Forrest on 12/3/2017) (rj)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
POLLY PODPESKAR, individually on behalf of :
herself and all others similarly situated,
DANNON COMPANY, INC.,
DOC #: _________________
DATE FILED: December 3, 2017
OPINION & ORDER
KATHERINE B. FORREST, District Judge:
In this case, plaintiff alleges that she was deceived by defendant’s yogurt
labels—which proclaimed its products to be “natural.” She alleges that where the
cows that produced the milk that produced the yogurt, may, at some point, have
eaten feed made from corn that was genetically modified, or been raised using
hormones and certain milk production methods, the word “natural” is deceptive.
On October 31, 2016, plaintiff Polly Podpeskar, a Minnesota resident and
yogurt consumer, filed suit against defendant Dannon Company, Inc. (“Dannon”),
seeking to certify a class action on behalf of herself and putative Minnesota, multistate, and national classes. (ECF No. 1.) Her complaint alleges violations of
various Minnesota and other state-law claims. She challenges the “Natural” label
on twelve different varieties of yogurt products (the “Products”), claiming that a
reasonable consumer would not deem the Products to be All Natural if he or she
knew that the Products contained ingredients ‘derived’ either from cows that are fed
crops made from genetically modified organisms (“GMOs”) or cows raised using
hormones and certain milk production methods. Accordingly, she seeks injunctive
relief; restitution; compensatory and punitive damages; attorneys’ fees and costs;
and prejudgment interest.
On April 10, 2017, Dannon filed a motion to dismiss, or in the alternative a
motion to stay the case pending relevant FDA regulations. (ECF No. 32.) This
matter was transferred to the undersigned on September 26, 2017. The Court finds
that plaintiff fails to state a plausible claim to relief. Accordingly, the Court
GRANTS the defendant’s motion.
The factual allegations discussed below are drawn from the Second Amended
Complaint (ECF No. 24, Second Am. Compl. (“SAC”)) and assumed true for the
purposes of this decision. 1
Plaintiff is a citizen of Minnesota who has purchased various Dannon
Products believing they were “All Natural” based upon their labeling. (SAC, ¶ 9–
Defendant is a Delaware corporation, headquartered in New York, that
makes and manufactures yogurt products, including products under the brandname “Dannon.” (Id. ¶ 11.)
As a preliminary matter, very little of plaintiff’s complaint is specific to Dannon and its alleged
practices; rather her complaint broadly describes animal husbandry practices and the use of GMOS
nationwide. The Court will first describe the allegations specific to defendant.
Plaintiff alleges that Dannon markets its Products as “All Natural,” stating,
for example: “Dannon plain yogurt is made with only natural ingredients and is
delicious to enjoy by itself, with toppings, or as a cooking substitute . . . .” (Id.
¶¶ 15–17.) Plaintiff alleges that this is a misrepresentation, but that Dannon
nevertheless “consistently and systematically markets[s] and advertis[es] the
Products as All Natural.” (Id. ¶ 18.)
Plaintiff alleges that reasonable consumers, including herself, “purchased the
Products based upon their belief that the Products were All Natural.” (Id. ¶ 33.)
But, according to plaintiff, “a reasonable consumer would not deem the Products All
Natural if he or she knew that they contained ingredients derived from animals fed
GMO crops, subjected to non-natural processes used to increase milk yield, or given
hormones . . . or antibiotics.” (Id.)
In support for this theory, she relies upon three surveys: the first from 2017
(and not cited), in which 74% of consumers answered “yes” to whether they believe
the end product of an animal is affected by the food the animal eats; second, a
consumer survey from 2014 in which 64% of consumers said they thought that the
“natural” label on meat or poultry meant that the animals’ feed had not contained
GMOs; and third, a 2010 survey in which 86% of consumers surveyed said that they
had expected food labeled natural to contain no artificial ingredients.
Plaintiff points to a brochure released by Dannon on April 27, 2016, in which
it pledged “naturality” and stated that it was “working with feed suppliers and [its]
farmer partners to start planting non-GMO feed as soon as possible to fulfill [its]
needs.” (Id. ¶ 39 (citing Dannon Pledge, the Dannon Company, Inc., Apr. 27, 2016,
available at www.dannonpledge.com/assets/pdf/ Dannon%20Pledge.pdf.)).
Plaintiff claims that she and the other putative class members reasonably
relied on defendant’s alleged misrepresentations to their detriment. (Id. ¶ 44.) She
therefore claims that they did not obtain the full value of the Products she
purchased. (Id. ¶ 47.) She claims that, but for the defendant’s misrepresentations,
she and the other class members “would not have been willing to pay the same
amount for the Products they purchased, and consequently . . . [they] would not
have been willing to purchase the Products.” (Id. ¶ 49.) She states, without
support, that “[c]onsumers equate the word ‘natural’ with ‘organic.’” (Id. ¶ 30.) She
also asserts that if defendant’s labeling were truthful, she would continue
purchasing the products. (Id. ¶ 10.)
The remainder of plaintiff’s complaint recites facts and statistics about the
use of GMOs and animal husbandry practices more generally, relying on articles
from a variety of publications dating as far back as 2001. She relies on a few of the
following alleged facts: 1) as of 2012, 88% of corn planted in the United States was
grown from a genetically modified seed (Id. ¶ 19); 2) as of 2009, corn accounted for
91% of the feed grains used to feed cows (Id.); and 3) dairy cows in the United States
are forced into “unnatural continuous birthing” through inter alia, antibiotics and
hormones such as bovine growth hormone (“rBGH”) (Id. ¶ 29). She spends several
paragraphs of her complaint defining GMOs, then concluding that they are “not
natural because they do not naturally occur.” (Id. ¶ 27.)
Plaintiff asserts seven causes of action. The first four are statutory claims for
relief brought under Minnesota Statutes §§ 325D.13, 325D.44 (Minnesota Uniform
Deceptive Trade Practices Act (“MUDTPA”)), 325F.67 (Minnesota False Statement
in Advertising (“MFSA”)), and 325F.69 (Minnesota Consumer Fraud Act (“MCFA”)).
The fifth cause of action is for common law fraud under New York law. The sixth
cause of action is a breach of express warranty, and the seventh is a statutory claim
under more than 40 different state laws. Plaintiff also seeks injunctive relief
barring Dannon from maintaining its existing labeling practices.
A. Motion to Dismiss
On a motion to dismiss, this Court accepts as true all well-pleaded factual
allegations. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949–50 (2009). This means
that the Court must accept plaintiff's factual allegations in its complaint as true
and draw all reasonable inferences in plaintiff's favor. See Famous Horse Inc. v.
5th Ave. Photo Inc., 624 F.3d 106, 108 (2d Cir. 2010). To withstand dismissal, “a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’” Iqbal, 129 S. Ct. at 1949 (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
In applying this standard, the Court accepts as true all well-pled factual
allegations, but does not credit “mere conclusory statements” or “[t]hreadbare
recitals of the elements of a cause of action.” Id. at 1940. The Court will give “no
effect to legal conclusions couched as factual allegations.” Port Dock & Stone Corp.
v. Oldcastle Ne., Inc., 507 F.3d 117, 121 (2d Cir. 2007) (citing Twombly, 550 U.S. at
555). If the Court can infer no more than the mere possibility of misconduct from
the factual averments—in other words, if the well-pled allegations of the complaint
have not “nudged [plaintiff's] claims across the line from conceivable to plausible”—
dismissal is appropriate. Twombly, 550 U.S. at 570.
Additionally, when a plaintiff alleges fraud, the pleading standard is
heightened. “Rule 9(b) requires that ‘[i]n all averments of fraud or mistake, the
circumstances constituting fraud or mistake shall be stated with particularity.’”
Rombach v. Chang, 355 F.3d 164, 170 (2d Cir. 2004) (quoting Fed. R. Civ. P. 9(b)
(alteration in original)). The Second Circuit reads Rule 9(b) to “require that a
complaint ‘(1) specify the statements that the plaintiff contends were fraudulent, (2)
identify the speaker, (3) state where and when the statements were made, and (4)
explain why the statements were fraudulent.’ ” Id. (quoting Mills v. Polar Molecular
Corp., 12 F.3d 1170, 1175 (2d Cir. 1993)); see also L.S. v. Webloyalty.com, Inc., 673
Fed. App’x 100, 104 (2d Cir. 2016) (laying out the same standard); Wexner v. First
Manhattan Co., 902 F.2d 169, 172 (2d Cir. 1990) (requiring plaintiffs to “plead the
factual basis which gives rise to a ‘strong inference’ of fraudulent intent” (quoting
Beck v. Manufacturers Hanover Trust Co., 820 F.2d 46, 50 (2d Cir. 1987)).
B. Reasonable Consumer Test
Consumer protection claims in Minnesota and New York are governed by the
“reasonable consumer” standard. See Grp. Health Plan, Inc. v. Phillip Morris Inc.,
621 N.W.2d 2, 12 (Minn. 2001); Orlander v. Staples, Inc., 802 F.3d 289, 300 (2d Cir.
2015) (stating that under a New York consumer protection statute, a plaintiff must
allege that the deceptive act is “likely to mislead a reasonable consumer acting
reasonably under the circumstances”) (internal quotation marks omitted). This
reasonable consumer inquiry is factual and in most instances, not resolved at the
motion to dismiss stage. However, in “rare situation[s],” courts may resolve the
issue at the motion-to-dismiss stage, where the pleading does not plausibly allege
that a reasonable consumer would be deceived. Williams v. Gerber Prods. Co., 552
F.3d 934, 939 (9th Cir. 2008).
C. “Natural” Food Products
The FDA is currently reviewing the proper regulation of the term “natural,”
and, more specifically, whether that term will encompass foods that have been
genetically engineered, or should otherwise take into account the “manner in which
an ingredient is produced or sourced.” Use of the Term ‘Natural’ in the Labeling of
Human Food Products; Request for Information and Comments, 80 Fed. Reg. 69905,
69908 (Nov. 12, 2015). The current FDA policy is informal and defines “natural” as
meaning “nothing artificial or synthetic . . . is included in, or has been added to, the
product that would not normally be expected to be there.” Food Labeling: Nutrient
Content Claims, General Principles, Petitions, Definition of Terms, 56 Fed. Reg.
60421, 60466 (Nov. 27, 1991).
Current federal law does not require that, in cases where animals have been
fed with GMO feed, that their end product should be labeled “GMO.” See 7 U.S.C.A.
§ 1639b (prohibiting “a food derived from an animal to be considered a
bioengineered food solely because the animal consumed feed produced from,
containing, or consisting of a bioengineered substance”).
Defendant argues: 1) that plaintiff’s claim should be dismissed for failure to
state a plausible claim; 2) that plaintiff lacks standing to pursue injunctive relief; 2
and 3) that plaintiff’s claim should be stayed pending upcoming FDA regulations
about the use of the word “natural” on food labels.
For her part, plaintiff counters that she can show standing for injunctive
relief, that she has plausibly stated a claim for relief, and that the Court should not
stay the case. The Court agrees with the defendant; plaintiff has stated no
plausible claim for relief. 3
The Court need not decide the issue of standing for injunctive relief here. Courts in this district
have differed as to whether plaintiffs seeking injunctive relief for consumer deception will be able to
demonstrate standing where, as here, they allege they would buy the products in the future if not
mislabeled. See, e.g., Buonasera v. Honest Co., Inc., 208 F. Supp. 3d 555, 563–64 (S.D.N.Y. 2016) (no
standing where plaintiff would “consider” buying products if defendants’ representations were
truthful); Izquierdo v. Mondelez Int’l, Inc., 2016 WL 6459832, at *5 (S.D.N.Y. Oct, 26, 2016) (no
standing where plaintiff alleged that he would buy candy again were the defendant to modify its
labeling). But see Goldemberg v. Johnson & Johnson Consumer Cos., Inc., 317 F.R.D. 374, 397–98
(S.D.N.Y. 2016) (finding plaintiffs’ statements that they would buy products again if they were
properly labeled sufficient for standing); Belfiore v. Procter & Gamble Co., 94 F. Supp. 3d 440, 445
(E.D.N.Y. 2015) (“Federal courts have held that plaintiffs have standing to seek injunctive relief
based on the allegation that a product’s labeling or marketing is misleading to a reasonable
consumer, because to hold otherwise would effectively bar any consumer who avoids the offending
product from seeking injunctive relief.”) (citing Ackerman v. Coca Cola Co., 2013 WL 7044866, at
*13–15 (E.D.N.Y. July 18, 2013)).
The Court notes that many courts in this district have stayed similar actions pending the upcoming
FDA regulations on the word “natural.” See, e.g., Forsher v. J.M. Smucker Co., 2016 WL 6236603, at
*1 (E.D.N.Y. Oct. 18, 2016); In re Kind LLC “Healthy & Natural” Litig., 209 F. Supp. 3d 689, 693–97
(S.D.N.Y. 2016). Since the Court finds that there is ample basis for dismissal regardless of any new
FDA rules, it does not find a stay necessary.
The nub of plaintiff’s claim is simply that yogurt is made from milk, and
that—today—most milk is made from cows that consume feed of a particular type,
and who are subjected to certain animal husbandry practices. She alleges very
little about Dannon’s specific practices; she does not allege that a single ingredient
in the yogurt is not natural. Rather, her argument is predicated on her own
speculation that if the cows that produced the milk that Dannon used to make its
yogurt ate food with GMOs or were fed antibiotics, that their milk is necessarily not
natural, nor is the yogurt that is made from it.
Her arguments are conclusory, based on both her own feelings (“[plaintiff]
believes GMOs and GMO crops are not natural,” (SAC ¶¶ 9–10)) and on a variety of
surveys she has found that span the past decade. Such a conclusory argument
cannot meet Twombly’s insistence that claims be nudged over the line from
conceivable to plausible. 550 U.S. at 570.
Dannon’s statement that it is moving towards planting more GMO-free crops,
undermines plaintiff’s own argument that she purchased the Products based on the
misapprehension that they were made from a GMO-free food chain. Rather, it
seems as if plaintiff herself should have been on notice as of April 27, 2016, based
both on the myriad of articles dating back to 2001, and on Dannon’s press release,
that its Products were not, in fact, wholly protected from GMO-influence at any part
of the food chain. 4 There are no allegations that plaintiff did not know these facts.
The Dannon Naturality pledge discusses frankly that it will “start planting non-GMO feed as soon
as possible.” Dannon Pledge, the Dannon Company, Inc., Apr.27, 2016, available at
www.dannonpledge.com/assets/pdf/ Dannon%20Pledge.pdf (emphasis added).
Plaintiff cites several cases in support of her claim, stating that she is on
solid legal footing. However, these cases don’t present the same speculative
arguments plaintiff attempts to make here. In Buonasera v. Honest Company, Inc.,
208 F. Supp. 3d 555 (S.D.N.Y. 2016), the plaintiff alleged that defendant deceptively
labeled its products “natural” when they in fact contained toxic ingredients, and in
Goldemberg v. Johnson & Johnson Consumer Cos., Inc., 8 F. Supp. 3d 467 (S.D.N.Y.
2014), the plaintiff alleged that defendant labeled its hair and body products as “All
Natural” when in fact they contained many synthetic ingredients, all of which were
listed in small print on the back of the bottles.
Here, in contrast, plaintiff does not allege that any ingredient used in the
Products is unnatural; her claim is that, several steps back in the food chain, there
may have been something unnatural ingested by a cow. Even in the sole case
plaintiff cites that is related to GMOs, Reilly v. Chipotle Mexican Grill, Inc., No. 15cv-23425-MGC (S.D. Fla. Nov. 17, 2016), the allegation was that defendants were
specifically advertising “GMO free” meat when the very meat they were serving had
been served GMOs. 5
In contrast, in Gallagher v. Chipotle Mexican Grill, Inc., 2016 WL 454083, at
*1 (N.D. Cal. Feb. 5, 2016), the court rejected a similar claim where “[p]laintiff ha[d]
not alleged that any of the ingredients used by Defendant . . . ha[d] been altered
using . . . genetic engineering techniques” nor was there any allegation “that the
5 While this claim did survive the motion to dismiss stage, at summary judgment it was found
insufficient as a matter of law.
animals from which Defendant’s meat and dairy ingredients were produced were
genetically modified” (internal quotation marks omitted). Accordingly, the court
granted defendant’s motion to dismiss, since no ingredients in plaintiff’s complaint
fit her definition of GMO, nor were there any allegations that the animals were
As in Gallagher, plaintiff’s claims here should be dismissed. There is no legal
support for the idea that a cow that eats GMO feed or is subjected to hormones or
various animal husbandry practices produces “unnatural” products; furthermore
Dannon does not specifically represent that its products are either GMO-free or not
given hormones or antibiotics. The Court therefore finds plaintiff’s argument too
speculative to state a plausible claim and GRANTS defendant’s motion to dismiss.
For the reasons stated above, the defendant’s motion to dismiss plaintiff’s
claims is GRANTED. The Clerk of Court is directed to terminate the motion at
ECF No. 32 and terminate this action.
New York, New York
December 3, 2017
KATHERINE B. FORREST
United States District Judge
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