Daniel v. Tootsie Roll Industries, LLC

Filing 29

MEMORANDUM AND ORDER: granting 18 Motion to Dismiss. For the foregoing reasons, defendant's motion to dismiss plaintiffs' First Amended Class Action Complaint (Dkt. No. 18) is granted. The Clerk of the Court is respectfully directed to enter judgment for defendant, and close this case. (Signed by Judge Naomi Reice Buchwald on 8/01/2018) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------X
BIOLA
DANIEL,
ABEL
DURAN,
and
TREKEELA
PERKINS,
on
behalf
of
themselves and all others similarly
situated,
MEMORANDUM AND ORDER
Plaintiffs,
17 Civ. 7541 (NRB)
-against TOOTSIE ROLL INDUSTRIES, LLC,
Defendant.
-------------------------------------X
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
Plaintiffs Biola Daniel (“Daniel”), Abel Duran (“Duran”),
and Trekeela Perkins (“Perkins”), on behalf of themselves and
all

others

similarly

situated,

bring

this

action

against

defendant Tootsie Roll Industries, LLC (“defendant”), asserting
violations of the Federal Food Drug & Cosmetic Act, the New York
General Business Law, and the Mississippi Consumer Protection
Act.

Plaintiffs allege that defendant’s opaque boxes of Junior

Mints candies contain “non-functional slack-fill,” essentially
wasted, empty air, which mislead consumers as to the amount of
product contained therein.
Federal

Rules

of

Civil

Defendant now moves, pursuant to

Procedure

9(b),

12(b)(1),

12(b)(2),

12(b)(6), and 12(f), to dismiss plaintiffs’ First Amended Class
Action

Complaint,

and/or

to

strike

plaintiffs’

class

claims.

For

the

following

reasons,

defendant’s

motion

to

dismiss

is

granted, and its motion to strike is denied as moot.
BACKGROUND
I.

Factual Background
Based

package[s],

in

Chicago,

Illinois,

distribute[s],

defendant

advertise[s],

“manufacture[s],
market[s]

and

s[e]l[ls]” Junior Mints, a 0.5” wide “ovoid chocolate coated
mint cand[y],” to “millions of consumers nationwide.”

First

Amended Class Action Complaint (“Am. Compl.”) ¶¶ 20, 49, Jan. 2,
2018, Dkt. No. 12.
On September 23, 2016, Daniel, a New York City resident,
purchased a 3.5 oz. box of Junior Mints for $1.49 from a Duane
Reade location in Manhattan.

Id. ¶ 37.

On December 28, 2017,

Duran, who also resides in New York City, purchased a 4.13 oz.
box of Junior Mints for $4.49 at an AMC Theatre location in
Garden City, New York.1

Id. ¶ 43.

Perkins, who resides in

Jackson County, Mississippi, purchased “boxes” of Junior Mints,
“including the 3.5 oz. size,” “on several occasions at Walmart
and grocery stores” for about $1.00 to $1.29.

Id. ¶ 46.

In

addition to the varieties of Junior Mints plaintiffs purchased,
defendant also produces 1.84 oz. and 10.5 oz. boxes, along with
“other Junior Mints product[s] that [are] packaged in a box with

1 It has not gone unnoticed that Duran purchased the allegedly offending
box of Junior Mints only five days before plaintiffs’ counsel filed the
operative First Amended Class Action Complaint.

2

more than one quarter of the box containing air,” (collectively,
the “Products”).

Id. ¶ 1.

All of the Products, which are “mass produced and packaged
in

non-transparent

boxes

of

standardized

certain amount of empty air or “slack-fill.”

sizes,”
Id. ¶ 2.

contain

a

The 1.84

oz. box is 1.88” wide and 0.75” long, with 3” out of its 4.75”
vertical capacity filled with candy, meaning 37% is slack-fill;
the 3.5 oz. box is 3.25” wide and 0.75” long, with 3.125” out of
its 5.5” vertical capacity filled with candy, meaning 43% is
slack-fill; the 4.13 oz. box is 3.25” wide and 0.75” long, with
3.5625” out of its 5.5” vertical capacity filled with candy,
meaning 35% is slack-fill; and the 10.5 oz. box is 4.5” wide and
1” long, with 4.25” out of its 7” vertical capacity filled with
candy, meaning 39% is slack-fill.

Id. ¶¶ 5-8, 57-60.

According to plaintiffs, the size of the Product boxes in
comparison to the volume of candy contained therein makes it
appear that consumers

are buying more than what is actually

being sold, thereby denying them the benefit of their bargain.
See

id.

¶¶

2,

4.

In

other

words,

consumers

receive

fewer

candies than defendant represents that they are getting, such
that consumers pay more money for each quantity of candy than
had been bargained for.

See id. ¶¶ 10-11.

Plaintiffs allegedly

“paid . . . for the Product[s] on the reasonable assumption that
[the] box was filled to functional capacity . . . and would not
3

have paid this sum had [they] known that the box was more than
one third full of air or had the box been proportioned to its
actual contents.”
II.

Id. ¶ 38; see id. ¶¶ 44, 47.

Procedural Background
Plaintiffs filed the operative First Amended Class Action

Complaint on January 2, 2018.
a

putative

nationwide

class2

Plaintiffs allege, on behalf of
and

certain

subclasses

in

the

alternative,3 that defendant “manufactures, markets and sells the
Products

with

non-functional

slack-fill”

in

violation

of

the

Federal Food, Drug, and Cosmetic Act (“FDCA”), 21 U.S.C. § 301
et seq.

Am. Compl. ¶ 9.

However, as the FDCA does not provide

a private right of action, plaintiffs bring claims pursuant to
New

York’s

prohibition

on

(1)

deceptive

and

unfair

trade

practices, N.Y. Gen. Bus. Law § 349 (“GBL § 349”), and (2) false
advertising, id. §§ 350, 350-a (“GBL §§ 350, 350-a”), see Am.
Compl.

¶¶

126-43,

as

well

as

(3)

the

Mississippi

Consumer

Protection Act (“MPCA”), Miss. Code Ann. § 75-24-1 et seq., see
Am. Compl. ¶¶ 144-53.
claim.

Plaintiffs also assert a common law fraud

See id. ¶¶ 154-60.

2
Plaintiffs define the nationwide class they seek to represent as
consisting of “[a]ll persons or entities in the United States who made retail
purchases of the Products during the applicable limitations period, and/or
such subclasses as the Court may deem appropriate.” Am. Compl. ¶ 99.
3
Plaintiffs outline two subclasses in the alternative: (1) “[a]ll
persons or entities in New York who made retail purchases of the Products
during the applicable limitations period, and/or such subclasses as the Court
may deem appropriate;” and (2) “[a]ll persons or entities in Mississippi who
made retail purchases of the Products during the applicable limitations
period, and/or such subclasses as the Court may deem appropriate.” Id.

4

On February 16, 2018, defendant moved to dismiss the First
Amended Class Action Complaint.

See Dkt. No. 18.

Defendant

argues that: (1) plaintiffs do not have standing with respect to
claims under laws of states in which they did not reside, the
Products they did not purchase, and/or to the extent they seek
injunctive

relief;

jurisdiction

with

(2)

this

respect

to

Court

may

Perkins’

not

exercise

claims;

(3)

personal

plaintiffs

have not plausibly pleaded that the slack-fill in the Products
is “non-functional,” in violation of the FDCA; (4) no reasonable
consumer would be misled by the Products; (5) plaintiffs have
not alleged an injury under GBL §§ 349, 350, and/or 350-a; (6)
plaintiffs’

fraud

claims

fail

under

Rule

9(b);

and

(7)

plaintiffs’ class claims should be dismissed or stricken.

We

proceed to consider each argument seriatim and ultimately grant
defendant’s motion to dismiss and deny its motion to strike as
moot.

Before doing so, however, we first review the applicable

federal

and

state

regulatory

schemes

governing

food

product

the

Federal

labeling.
DISCUSSION
I. Federal and State Regulatory Schemes
a. Federal Regulatory Scheme
By
Food

enacting

and

health”

Drug

by

the

FDCA,

Administration

“ensuring

that

.

Congress
(“FDA”)
.
5

.

established
to

foods

“promote
are

safe,

the

public

wholesome,

sanitary, and properly labeled.”
enforces

the

FDCA

and

21 U.S.C. § 393(b).

the

accompanying

The FDA

regulations

it

promulgates; there is no private right of action under the FDCA.
PDK Labs, Inc. v. Friedlander, 103 F.3d 1105, 1113 (2d Cir.
1997).
Congress

amended

the

FDCA

by

enacting

the

Nutrition

Labeling and Education Act of 1990 (“NLEA”), which “sought ‘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.’”

N.Y.

State Rest. Ass’n v. N.Y.C. Bd. of Health, 556 F.3d 114, 118 (2d
Cir.

2009)

reprinted

(quoting
in

1990

H.R.

Rep.

U.S.C.C.A.N.

No.

101-538,

3336,

at

3337).

7

(1990),

Among

other

requirements, the NLEA provides that “[a] food shall be deemed
to

be

misbranded”

if

“its

container

filled as to be misleading.”

is

so

made,

formed,

or

21 U.S.C. § 343(d).

One category of misleading products are those that contain
“slack-fill,”

defined

as

“the

difference

between

the

actual

capacity of a container and the volume of product contained
therein.”
misleading;

21 C.F.R. § 100.100(a).
rather,

slack-fill

is

Yet not all slack-fill is
only

misleading

if

(1)

consumers are unable to fully view the contents of the package,
and (2) the slack-fill is non-functional.
is,

in

turn,

non-functional

only
6

if

See id.

none

of

the

Slack-fill
following

raisons d’être apply: (1) protection of the contents of the
package; (2) requirements of the machines used to enclose the
contents

in

the

package;

(3)

unavoidable

settling

during

shipping and handling; (4) the need for the package to perform a
specific

function;

(5)

the

food

is

packaged

in

a

reusable

container with empty space as part of the presentation of the
food; and/or (6) the inability to increase the fill level or
reduce

the

necessary

package
to

size

because,

accommodate

discourage theft.

food

for

example,

labeling

the

size

requirements

is

or

to

See id. § 100.100(a)(1)-(6).

b. State Regulatory Schemes
New York law provides that “[f]ood shall be deemed to be
misbranded . . . [i]f its container is so made, formed, colored
or

filled

as

§ 201(4).
provides

to

be

misleading.”

N.Y.

Agric.

&

Mkts.

Law

“Like its federal counterpart, New York law also
remedies,

including

private

rights

of

misbranding food under consumer protection laws.”

action,

for

Izquierdo v.

Mondelez Int’l, Inc., No. 16-cv-04697 (CM), 2016 WL 6459832, at
*3 (S.D.N.Y. Oct. 10, 2016).

GBL Sections 349, 350 and 350-a in

particular have been interpreted to provide a private right of
action for excessive slack-fill.
Co.,

565

F.

Supp.

648,

655

See Mennen Co. v. Gillette

(S.D.N.Y.

1983),

aff’d

sub

nom.

Mennen v. Gillette, 742 F.2d 1437 (Table) (2d Cir. 1984); see

7

also Waldman v. New Chapter, Inc., 714 F. Supp. 2d 398, 406
(E.D.N.Y. 2010).
Mississippi

law,

and

specifically

the

MCPA,

prohibits

“unfair or deceptive trade practices in or affecting commerce.”
Miss.

Code

Chrysler

Ann.

Jeep,

§

75-24-5(1);

Inc.,

972

So.2d

see

Holman

564,

v.

571

Howard

(Miss.

Wilson

2008)

(The

purpose of the MCPA “is to protect the citizens of Mississippi
from deceptive and unfair trade practices.”).
unfair

or

deceptive

trade

practices

The MCPA defines

as,

inter

alia,

“[r]epresenting that goods or services have . . . quantities
that they do not have,” and “[a]dvertising goods or services
with the intent not to sell them as advertised.”

Miss. Code

Ann. § 75-24-5(2)(e), (i).
In

addition

to

enforcement

rights

reserved

for

the

Attorney General of the State of Mississippi, the MCPA “creates
a private right of action in favor of any person who purchases
or leases goods or services primarily for personal, family or
household purposes and thereby suffers any ascertainable loss of
money or property, real or personal, as a result of the use of
or employment by the seller, lessor, manufacturer or producer”
of

such

unfair

Citibank NA, No.
Miss.

Sept.

25,

or

deceptive

trade

practices.

Humphrey

v.

2:12CV148M-V, 2013 WL 5407195, at *6 (N.D.
2013)

(internal

quotation

(quoting Miss. Code Ann. § 75-24-15(1)).
8

marks

omitted)

c. Preemption
“Consistent with the NLEA’s purpose of promoting uniform
national

labeling

standards,

the

statute

includes

an

express

preemption provision that forbids the states from ‘directly or
indirectly establish[ing] . . . any requirement . . . made in
the

labeling

labeling

of

food

requirements

that

is

not

identical

established

enumerated sections of the FDCA.”

by

to’

certain

the

federal

specifically

Izquierdo, 2016 WL 6459832,

at *4 (quoting 21 U.S.C. § 343-1(a)).

“The effect of the NLEA’s

preemption provision is to ensure that the states only enact
food

to,

and

consistent with, the federal food labeling requirements.”

Id.

“State

labeling

laws

requirements

that

impose

that

are

equivalent

affirmatively

different

labeling

requirements from federal law in these areas are preempted.”
Id.

However,

“state

laws

that

seek

to

impose

labeling

requirements identical to those required by federal regulations
are not preempted.”

Id. (citing Koenig v. Boulder Brands, Inc.,

995 F. Supp. 2d 274, 284 (S.D.N.Y. 2014)).

The consequence is

that if a product’s packaging does not run afoul of federal law
governing

food

labeling,

deception will lie.

no

state

law

claim

for

consumer

See Daniel v. Mondelez Int’l, Inc., 287 F.

Supp. 3d 177, 187 n.7 (E.D.N.Y. 2018); cf. Martin v. Wm. Wrigley
Jr. Co., No. 4:17-cv-00541-NKL, 2017 WL 4797530, at *2 (W.D. Mo.
Oct.

24,

2017)

(“[T]he

Court
9

must

construe

the

[Missouri

Merchandising
claims,

Practices

which

slack-fill,

Act]

purport

as

being

to
no

provisions

concern
broader

governing

misleading
than

Plaintiff’s

containers

corresponding

and

federal

law.”); Bautista v. CytoSport, Inc., 223 F. Supp. 3d 182, 192
(S.D.N.Y. 2016); Izquierdo, 2016 WL 6459832, at *4.
II. Subject Matter Jurisdiction: Article III Standing
Defendant

first

moves

under

Federal

Rule

of

Civil

Procedure 12(b)(1) to dismiss the First Amended Class Action
Complaint

for

lack

of

subject

matter

jurisdiction,

namely,

plaintiffs’ purported failure to establish Article III standing.
To

defeat

a

Rule

12(b)(1)

motion,

a

plaintiff

must

establish subject matter jurisdiction by a preponderance of the
evidence.
2000).

Makarova v. United States, 201 F.3d 110, 113 (2d Cir.

In considering such a motion, the Court must accept as

true all material facts alleged in the complaint and draw all
reasonable

inferences

in

the

plaintiff’s

favor.

Rossides, 558 F.3d 137, 143 (2d Cir. 2009).

Conyers

v.

Nevertheless, “even

on a motion to dismiss, courts are not bound to accept as true a
legal

conclusion

(internal

couched

quotation

marks

as

a

factual

omitted)

allegation.”

(quoting

Sharkey

Id.
v.

Quarantillo, 541 F.3d 75, 83 (2d Cir. 2008)).
Defendant raises three different standing arguments: (1)
that plaintiffs lack standing to bring claims on behalf of a
class under the laws of states where the named plaintiffs have
10

never lived or resided; (2) that plaintiffs were not injured,
and thus do not have standing, with respect to the Products they
did not personally purchase; and (3) that Daniel and Duran, who
seek injunctive relief under GBL § 349, have not demonstrated
that

defendant’s

allegedly

misleading

packaging

is

likely

to

injure them in the future.
In order to bring a suit in federal court, a plaintiff
must demonstrate that he possesses standing to do so.

Under

well settled Supreme Court precedent, in order to demonstrate
standing, a plaintiff must show three elements: (1) an injury in
fact, (2) that is fairly traceable to the defendant’s allegedly
unlawful conduct, and (3) that is likely to be redressed by a
favorable judicial decision.
1540, 1547 (2016).

Spokeo, Inc. v. Robins, 136 S. Ct.

The “injury in fact” must be a “concrete and

particularized” harm to a “legally protected interest” that is
“actual or imminent not conjectural or hypothetical.”
Defenders

of

Wildlife,

quotation marks omitted).

504

U.S.

555,

560

(1992)

Lujan v.
(internal

A “particularized” injury is one that

“affect[s] the plaintiff in a personal and individual way.”

Id.

at 560 n.1.
“That a suit may be a class action . . . adds nothing to
the

question

of

standing,

for

even

named

plaintiffs

who

represent a class must allege and show that they personally have
been

injured.”

Lewis

v.

Casey,
11

518

U.S.

343,

357

(1996)

(internal

quotation

marks

omitted)

(quoting

Simon

Welfare Rights Org., 426 U.S. 26, 40 n.20 (1976)).

v.

E.

Ky.

Thus, “[f]or

each claim asserted in a class action, there must be at least
one class representative . . . with standing to assert that
claim.”

Fort Worth Emps.’ Ret. Fund v. J.P. Morgan Chase & Co.,

862 F. Supp. 2d 322, 331-32 (S.D.N.Y. 2012) (citing Cent. States
Se. & Sw. Areas Health & Welfare Fund v. Merck-Medco Managed
Care, L.L.C., 504 F.3d 229, 241 (2d Cir. 2007)).
a. Standing for Class Claims Under Other States’ Laws
Plaintiffs purport to bring their claims “in conjunction
with the substantively similar common law of other states and
the District of Columbia to the extent New York common law is
inapplicable to out-of-state Class members.”
46, 47, 51.

Am. Compl. at 43,

Defendant, pointing to several district court cases

within this Circuit, argues that “named plaintiffs lack standing
to bring claims on behalf of a class under the laws of states
where the named plaintiffs have never lived or resided.”

Def.’s

Supp. at 27 (citing In re HSBC BANK, USA, N.A., Debit Card
Overdraft Fee Litig., 1 F. Supp. 3d 34, 50 (E.D.N.Y. 2014)).
Thus, defendant contends that Daniel and Duran would only have
Article III standing to assert claims under New York law, and
Perkins under Mississippi law.
After

this

motion

had

been

fully

briefed,

the

Second

Circuit decided Langan v. Johnson & Johnson Consumer Cos., No.
12

17-1605, 2018 WL 3542624 (2d Cir. July 24, 2018).

Contrary to

defendant’s position in this case, Langan explained that “as
long as the named plaintiffs have standing to sue the named
defendants, any concern about whether it is proper for a class
to

include

out-of-state,

nonparty

class

members

with

claims

subject to different state laws is a question of predominance
under [Federal Rule of Civil Procedure] 23(b)(3),” and “not a
question of ‘adjudicatory competence’ under Article III.”

Id.

at *3 (citing Morrison v. YTB Int’l, Inc., 649 F.3d 533, 536
(7th Cir. 2011)).
Accordingly,

defendant’s

motion

with

respect

to

plaintiff’s ability to assert Article III standing on behalf of
“nonparty class members with claims subject to different state
laws” is denied.
b. Standing for Unpurchased Products
Daniel, Duran, and Perkins, who seek to lead a putative
class of purchasers of all of the Products, are alleged to have
purchased, and thus been injured by, only some of the Products,
viz., the 3.5 oz. box (Daniel), the 4.13 oz. box (Duran), and
“boxes . . . including the 3.5 oz. size” (Perkins).
¶¶ 37, 43, 46.

Am. Compl.

According to defendant, plaintiffs lack standing

with respect to the Products they did not purchase, viz., the
1.84 oz. box, the 10.5 oz. box, and “[a]ny other Junior Mints

13

[P]roduct that is packaged in a box with more than one quarter
of the box containing air.”
“[C]ourts
further

in

inquiry

this

at

Circuit

the

class

have

held

that,

certification

subject

stage,

a

to

named

plaintiff has standing to bring class action claims under state
consumer protection laws for products that he did not purchase,
so long as those products, and the false or deceptive manner in
which

they

products

were

that

Vitalize

marketed,

the

Labs,

named

LLC,

are

‘sufficiently

plaintiff

Nos.

13

did

CV

similar’

purchase.”

to

the

Mosley

2470(RJD)(RLM),

14

v.
CV

4474(RJD)(RLM), 2015 WL 5022635, at *7 (E.D.N.Y. Aug. 24, 2015);
see

Bautista,

223

F.

Supp.

3d

at

188-89;

Kacocha

v.

Nestle

Purina Petcare Co., No. 15-CV-5489 (KMK), 2016 WL 4367991, at
*9-10 (S.D.N.Y. Aug. 12, 2016); Quinn v. Walgreen Co., 958 F.
Supp. 2d 533, 541-42 (S.D.N.Y. 2013).
Here,

the

purchased

and

unpurchased

Products

are

sufficiently similar for plaintiffs to satisfy standing at the
motion to dismiss stage: all of the Products are (1) Junior
Mints;

(2)

marketed,

manufactured,

and

sold

by

packaged,
defendant;

distributed,
(3)

packaged

advertised,
in

a

non-

transparent thin cardboard box; and (4) alleged to contain at
least 25% slack fill.

Am. Compl. ¶¶ 1-2, 5-8, 57-60; see Alce

v. Wise Foods, Inc., No. 17 Civ. 2402 (NRB), 2018 WL 1737750, at
*5

(S.D.N.Y.

Mar.

27,

2018)

(the
14

purchased

and

unpurchased

products

are

all

potato

chips,

produced

by

the

same

manufacturer, within a 4.25 oz. range, and alleged to contain
between 58 and 75% slack-fill);
188

(plaintiff

alleges

that

Bautista, 223 F. Supp. 3d at

all

of

defendant’s

products

are

packaged in “large, opaque containers that contain approximately
30% or more of empty space”); Buonasera v. Honest Co., 208 F.
Supp. 3d 555, 563 (S.D.N.Y. 2016) (“Although the unpurchased
products

may

purchased

contain

products

.

different

ingredients

.

Amended

.

the

compared

Complaint

to

the

adequately

alleges that the misrepresentation claimed with respect to the
unpurchased

products

misrepresentation
Health,

Inc.,

for

No.

is
the

packaging

purchased

12-CV-5614

(E.D.N.Y. Sept. 27, 2013)
alia,

sufficiently

and

(JG),

similar

products.”);
2013

WL

to

Jovel

5437065,

the
v.

at

i*10

(sufficient similarities in, inter

labeling

of

products

and

unpurchased

products to survive motion to dismiss for lack of standing).
c. Standing for Injunctive Relief
Daniel and Duran4 seek to enjoin defendant from violating
GBL

§

349

in

the

future

by

refraining

Product[s] with non-functional slack-fill.”

from

“packaging

its

Am. Compl. ¶ 120.

Defendant argues that even if Daniel and Duran were injured by
4
Technically, Daniel, Duran, and Perkins seek injunctive relief under
GBL § 349. However, GBL § 349 does not afford a cause of action to Perkins,
a Mississippian who is not alleged to have purchased any Products in New
York.
See Szymczak v. Nissan N. Am., Inc., No. 10 CV 7493(VB), 2011 WL
7095432, at *12-13 (S.D.N.Y. Dec. 16, 2011); Weaver v. Chrysler Corp., 172
F.R.D. 96, 100 (S.D.N.Y. 1997).

15

overpaying for the Products that they purchased, there is no
likelihood they will purchase additional Products, and thus be
injured again, depriving them of standing to seek injunctive
relief.
As

with

claims

for

damages,

a

plaintiff

seeking

an

injunction “must show the three familiar elements of standing:
injury in fact, causation, and redressability.”

Cacchillo v.

Insmed, Inc., 638 F.3d 401, 404 (2d Cir. 2011) (citing Summers
v. Earth Island Inst., 555 U.S. 488, 493 (2009)).

“Plaintiffs

lack standing to pursue injunctive relief where they are unable
to establish a ‘real or immediate threat’ of injury.”

Nicosia

v. Amazon.com, Inc., 834 F.3d 220, 239 (2d Cir. 2016) (quoting
City of Los Angeles v. Lyons, 461 U.S. 95, 111-12 (1983)).

“The

Supreme Court has repeatedly reiterated that threatened injury
must be certainly impending to constitute injury in fact, and
that allegations of possible future injury are not sufficient.”
Am. Civil Liberties Union v. Clapper, 785 F.3d 787, 800 (2d Cir.
2015) (alterations and internal quotation marks omitted).
Plaintiffs suggest that they are “at risk of several types
of future injury, each of which justifies the imposition of an
injunction.”
misleadingly
with

Am. Compl. ¶ 121.
manufactured

non-functional

many

First, because defendant “has
different

slack-fill,”

sizes

plaintiffs

of

“may

[P]roducts
be

deceived

into purchasing a slack-filled . . . Product again (whether the
16

exact same size and flavor as before or not), causing the same
type of economic injury” as they experienced from their prior
purchases.
on

Id.

Defendant’s

representations
plaintiffs

Second, plaintiffs are “no longer able to rely
representations,
are

“might

true

or

hesitate

regardless

false.”

to

Id.

purchase

of
¶

whether
122.

Defendant’s

the

Third,
Products,

even if it ceases its unlawful labeling practices and begins
packaging

its

Products

without

slack-fill.”

Id.

“If

the

[P]roducts are no longer sold with non-functional slack-fill,
then Plaintiffs could not take advantage of those [P]roducts
because they have been misled into believing that the [P]roducts
have non-functional slack-fill.”

Id.

These allegations are plainly insufficient to “establish a
‘real or immediate threat’ of injury.”

Nicosia, 834 F.3d at

239.
First,

Daniel

and

Duran’s

professed

intention

to

re-

purchase Products as they are currently packaged is belied by
their own allegations, namely, that they “paid . . . for the
Product on the reasonable assumption that the box was filled to
functional

capacity”

and

“would

not

have

paid

this

sum

had

[they] known that the box was more than one third full of air or
had the box been proportioned to its actual contents.”
Compl. ¶ 38 (emphasis added), see id. ¶ 44.

Am.

Having learned that

the Products contain slack-fill, there is no likelihood that
17

Daniel and Duran will subject themselves to future injury by repurchasing defendant’s allegedly deceptive Products.

See Davis

v. Hain Celestial Grp., Inc., 297 F. Supp. 3d 327, 339 (E.D.N.Y.
2018) (“To the extent that plaintiff was deceived by defendants’
products, he is now aware of the truth and will not be harmed
again in the same way.

He therefore lacks standing to seek an

injunction.”); Alce, 2018 WL 1737750, at *6 (“Consumers who were
misled by deceptive food labels lack standing for injunctive
relief because there is no danger that they will be misled in
the future.”); Elkind v. Revlon Consumer Prods. Corp., No. 14CV-2484(JS)(AKT),

2015

WL

2344134,

at

*3

(E.D.N.Y.

May

14,

2015); Tomasino v. Estee Lauder Cos., 44 F. Supp. 3d 251, 256
(E.D.N.Y.

2014).

We

recognize

that,

as

plaintiffs

argue,

plaintiffs are likely “the best conceivable” parties to assert
injunctive standing, and that their inability to do so means no
party may have standing to enjoin defendants’ practices.

Yet

the “assumption that if [plaintiffs] have no standing to sue, no
one would have standing, is not a reason to find standing.”
Clapper

v.

(quoting

Amnesty

Valley

Int’l

Forge

USA,

568

Christian

U.S.

Coll.

398,
v.

420-21

Ams.

(2013)

United

for

Separation of Church & State, Inc., 454 U.S. 464, 489 (1982)).
Daniel and Duran’s proffered second and third injuries—
that

they

defendant’s

will

no

longer

representations,

be
and
18

able
that

to

confidently

they

will

rely

refrain

on
from

purchasing Products in the future even if they conform to their
expectations—are also meritless.
Duran’s

inability

representations,
defendant’s

to

and

Products,

The consequence of Daniel and

“confidently

their
is

intent
that

rely”

to

on

refrain

defendant

defendant’s

from

purchasing

be

concretely

will

injured through lost sales, not plaintiffs.
Further, “although non-pecuniary harm such as emotional
distress is cognizable” under GBL § 349, the type of injury
plaintiffs

allege—annoyance

at

being

unable

to

confidently

purchase the Products—“does not appear to rise to the level of
harms already recognized.”
cf.

Bose

v.

Interclick,

Daniel, 287 F. Supp. 3d at 185-86;
Inc.,

No.

10-CV-9183(DAB),

2011

WL

4343517, at *9 (S.D.N.Y. Aug. 17, 2011) (privacy violations);
Wood

v.

(N.D.N.Y.
distress,

Capital

One

2010)
fear,

Servs.,

LLC,

(humiliation,
frustration,

718

F.

anger,

Supp.

2d

286,

anxiety,

embarrassment);

292

emotional

Midland

Funding,

LLC v. Giraldo, 961 N.Y.S.2d 743, 749 (Dist. Ct. 2013) (sleep
deprivation, anxiety, nervousness, fear, worry, fright, shock,
marital strain, humiliation, intimidation).
Accordingly,

Daniel

and

Duran’s

claims

for

injunctive

relief under GBL § 349 are dismissed for lack of subject matter
jurisdiction.

19

III. Personal Jurisdiction
Defendant
personal

next

challenges

jurisdiction

with

this

respect

to

Court’s

exercise

Perkins’

claims

of

under

Federal Rule of Civil Procedure 12(b)(2).
It

is

district

a

court

plaintiff’s
has

personal

burden

to

demonstrate

jurisdiction

over

the

that

the

defendant.

Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 208 (2d Cir.
2001).

“In order to survive a motion to dismiss for lack of

personal

jurisdiction,

a

plaintiff

showing that jurisdiction exists.”

must

make

a

prima

facie

Penguin Grp. (USA) Inc. v.

Am. Buddha, 609 F.3d 30, 34-35 (2d Cir. 2010) (quoting Thomas v.
Ashcroft, 470 F.3d 491, 495 (2d Cir. 2006)). Such a showing
“entails

making

jurisdiction,’
credited,

including

would

defendant.’”

‘legally

suffice

‘an
to

sufficient
averment
establish

of

allegations

of

facts

that,

if

over

the

jurisdiction

Id. (alterations omitted) (quoting In re Magnetic

Audiotape Antitrust Litig., 334 F.3d 204, 206 (2d Cir. 2003)
(per curiam)).
“The lawful exercise of personal jurisdiction by a federal
court requires satisfaction of three primary requirements”: (1)
the defendant must have been properly served, (2) the court must
have a statutory basis for exercising personal jurisdiction, and
(3) the exercise of personal jurisdictional must comport with
constitutional due process principles.
20

Licci ex rel. Licci v.

Lebanese Canadian Bank, SAL, 673 F.3d 50, 59-60 (2d Cir. 2012).
“When

the

personal

action

is

jurisdiction

brought
over

as

each

a

purported

defendant

is

class

action,

assessed

respect to the named plaintiffs’ causes of action.”

with

Famular v.

Whirlpool Corp., No. 16 CV 944 (VB), 2017 WL 2470844, at *2
(S.D.N.Y. June 7, 2017) (citing Beach v. Citigroup Alt. Invs.
LLC, No. 12 Civ. 7717(PKC), 2014 WL 904650, at *6 (S.D.N.Y. Mar.
7, 2014)).

Defendant only challenges this Court’s exercise of

personal jurisdiction with respect to Perkins’ claims, and only
to the extent that such jurisdiction would not comport with
constitutional due process.

Cf. Famular, 2017 WL 2470844, at

*3.
To establish personal jurisdiction over a defendant, due
process requires, inter alia, a plaintiff to allege “certain
minimum contacts” with the relevant forum, here New York.

In re

Terrorist Attacks on September 11, 2011, 714 F.3d 659, 673 (2d
Cir. 2013) (citing Int’l Shoe Co. v. Washington, 326 U.S. 310,
316

(1945)).

necessary

“To

‘minimum

determine

whether

contacts,’

‘specific’ and ‘general’

a

a

defendant

distinction

has

the

is

made

between

personal jurisdiction.”

Id.

(citing

Metro. Life. Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 56768 (2d Cir. 1996)).
Where
jurisdiction

it

applies,

permits

suit

the
in

theory
a

21

of

given

forum

general

personal

on

and

“any

all

claims.”

Goodyear Dunlop Tires Operations, S.A. v. Brown, 564

U.S. 915, 919 (2011).

“Aside from ‘an exceptional case,’” a

corporation is subject to general jurisdiction “only in a state
that is [its] formal place of incorporation or its principal
place of business.”

Gucci Am., Inc. v. Li, 768 F.3d 122, 135

(2d Cir. 2014) (quoting Daimler AG v. Bauman, 571 U.S. 117, 138
& n.19 (2014)).

Defendant is a corporation whose formal place

of incorporation and principal place of business is Illinois,
not New York.

As plaintiffs have offered no reason why this

should be an “exceptional case,” defendant is not subject to
general personal jurisdiction in New York.
In

contrast

to

general

personal

jurisdiction,

specific

personal jurisdiction “depends on an affiliatio[n] between the
forum and the underlying controversy.”
564

U.S.

at

919

(internal

particular,

specific

defendant’s

suit-related

quotation

personal

jurisdiction

“must

marks

jurisdiction

conduct

[to

substantial connection with the forum.”
U.S. 277, 284 (2014).

Goodyear Dunlop Tires,

have]

omitted).
requires

In
“the

create[d]

a

Walden v. Fiore, 571

A plaintiff asserting specific personal

establish

the

respect to each claim asserted.”

court’s

jurisdiction

with

Charles Schwab Corp. v. Bank

of Am. Corp., 883 F.3d 68, 83 (2d Cir. 2018) (quoting Sunward
Elecs., Inc. v. McDonald, 362 F.3d 17, 24 (2d Cir. 2004)).

22

Unlike Daniel and Duran’s claims, which arise out of their
purchase

of

Products

in

the

forum

state

of

New

York

(in

Manhattan and Garden City, respectively), there is no indication
that the claims asserted by Perkins, who resides in Jackson
County,

Mississippi

and

purchased

the

Products

“on

several

occasions at Walmart and grocery stores,” have any connection to
New York, substantial or otherwise.
46.

Asserting

specific

personal

See Am. Compl. ¶¶ 37, 43,
jurisdiction

over

Perkins’

claims is therefore unwarranted.
Plaintiffs
should

exercise

claims.

imply,

in

pendent

“Pendent

the

alternative,

personal

jurisdiction

that

jurisdiction
traditionally

this

over

Court

Perkins’

refers

to

the

joinder of a state-law claim by a party already presenting a
federal question claim against the same defendant.”

Bayliss v.

Marriott Corp., 843 F.2d 658, 663-64 (2d Cir. 1988).

Plaintiffs

cite no authority approving of the non-traditional application
of pendent personal jurisdiction sought here, where a foreign
defendant,

subject

to

specific

personal

jurisdiction

with

respect to state law claims brought pursuant to the law of the
forum state, contests pendent personal jurisdiction with respect
to state law claims brought by other plaintiffs pursuant to the
laws

of

non-forum

circumstances

of

states.

this

case,

To

the

where

contrary,

each

“[u]nder

plaintiff’s

claim

the
is

predicated on the law of the particular state where he or she
23

purchased [Products] and the claims of the other plaintiff[] as
alleged remain unrelated to anything that transpired in [New
York],

imposing

personal

jurisdiction

for

all

of

the

claims

because specific jurisdiction may lie as to [Daniel and Duran’s]
claims would run afoul of the traditional notions of fair play
and substantial justice that form the bedrock of any court’s
personal jurisdiction analysis.”

Famular, 2017 WL 2470844, at

*6 (quoting DeMaria v. Nissan N. Am., Inc., No. 15 C 3321, 2016
WL 374145, at *8 (N.D. Ill. Feb. 1, 2016)); see Spratley v. FCA
US LLC, No. 3:17-CV-0062, 2017 WL 4023348, at *7-8 (N.D.N.Y.
Sept. 12, 2017); Tulsa Cancer Inst., PLLC v. Genentech Inc., No.
15-CV-157-TCK-TLW, 2016 WL 141859, at *4 (N.D. Okla. Jan. 12,
2016).
Finally,

plaintiffs

“submit,

in

the

alternative,

that

implicit in the Class Action Fairness Act of 2005 [(“CAFA”)] is
a grant of personal jurisdiction to the federal courts over the
claims of a nationwide class so long as diversity is met and the
court in question has specific jurisdiction over some of the
claims.”

Pls.’ Opp’n at 27.

We disagree.

CAFA vests federal

district courts with subject matter jurisdiction, not personal
jurisdiction.

See Wurtz v. Rawlings Co., 761 F.3d 232, 240 (2d

Cir. 2014) (“CAFA supplies a basis for federal subject-matter
jurisdiction.”);

Kevin

Lampone,

Class

Certification

as

a

Prerequisite for CAFA Jurisdiction, 96 Minn. L. Rev. 1151, 1154
24

n.19

(2012)

(“CAFA

does

not

implicate

jurisdiction

over

the

parties—personal jurisdiction.”).
Accordingly,

Perkins’

claims

are

dismissed

pursuant

to

Rule 12(b)(2) for want of personal jurisdiction.5
IV. Stating a Claim for Which Relief Could Be Granted
Defendant argues that the remaining plaintiffs, Daniel and
Duran, have failed to state a claim under GBL §§ 349, 350, and
350-a, or for common law fraud, such that their claims should be
dismissed under Federal Rule of Civil Procedure 12(b)(6).
The standard of review for a motion to dismiss under Rule
12(b)(6)

is

“substantively

12(b)(1), supra.

identical”

to

that

under

Rule

Andrews v. Ford, No. 08 Cv. 3938(LAP), 2009 WL

2870086, at *2 (S.D.N.Y. Sept. 3, 2009) (quoting Lerner v. Fleet
Bank, N.A., 318 F.3d 113, 128 (2d Cir. 2003)).

“In deciding

both

all

types

of

motions,

the

Court

must

accept

factual

allegations in the complaint as true, and draw inferences from
those allegations in the light most favorable to the plaintiff.”
Pearl River Union Free Sch. Dist. v. Duncan, 56 F. Supp. 3d 339,

Even if this Court were to exercise personal jurisdiction with respect
to Perkins’ MCPA claim, it would nevertheless fail.
As a prerequisite to
bringing suit under the MCPA, a “plaintiff ‘must have first made a reasonable
attempt to resolve any claim through an informal dispute settlement program
approved by the [Mississippi] Attorney General.’”
Lockey v. CMRE Fin.
Servs., Inc., No. 1:11CV70 LG-RHW, 2011 WL 2971085, at *2 (S.D. Miss. July
20, 2011) (quoting Miss. Code Ann. § 75-24-15(2)). Perkins’ failure to plead
compliance with this requirement is fatal to her MCPA claim. See, e.g., BC’s
Heating & Air & Sheet Metal Works, Inc. v. Vermeer Mfg. Co., 2:11-CV-136-KSMTP, 2012 WL 642304, at *5 (S.D. Miss. Feb. 27, 2012), reconsideration
denied, 2012 WL 1067100 (S.D. Miss. Mar. 28, 2012).
5

25

351

(S.D.N.Y.

2015)

(quoting

Gonzalez

v.

Option

One

Mortg.

Corp., No. 3:12-CV-1470 (CSH), 2014 WL 2475893, at *2 (D. Conn.
June 3, 2014)).
To survive a motion to dismiss, a complaint must include
“enough facts to state a claim to relief that is plausible on
its face.”
“A

claim

Bell Atl. Corp. v. Twombly, 550 U.S 544, 570 (2007).
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).

a. Functionality of Slack-Fill
Given

the

FDCA’s

preemption

requirement,

to

state

an

actionable claim under the GBL, plaintiffs must allege at the
threshold that the slack-fill in the Products is non-functional.6
Plaintiffs

seek

to

do

so

first

by

offering

conclusory

allegations and then by making comparisons to other products
with varying levels of slack-fill.
According
“[t]he

real

under-filled
mislead

the

First

explanation
packaging

consumers

purchasing,
profits.

to

about

thereby

for
lies
how

cutting

Amended

Class

Defendants’
in

[sic]

Defendants’

much
costs

product
and

Action

oversized

[sic]
they

Complaint,

desire

are

increasing

and
to

actually

sales

and

Defendant uses non-functional slack-fill to mislead

There is no dispute that the Products “do[] not allow the consumer to
fully view [their] contents.” 21 C.F.R. § 100.100(a).
6

26

consumers into believing that they are receiving more candy than
they are actually receiving.”

Am. Compl. ¶ 63; see id. ¶ 12

(“Some of the Product’s slack-fill maybe [sic] functional, but
most

is

definitely

non-functional.”).

Courts

have

routinely

found similar allegations insufficient to state a claim.

See,

e.g., Alce, 2018 WL 1737750, at *7; Bautista, 223 F. Supp. 3d at
190-91;

O’Connor

v.

Henkel

Corp.,

No.

14-CV-5547

(ARR)(MDG),

2015 WL 5922183, at *9 (E.D.N.Y. Sept. 22, 2015) (plaintiffs’
claims included only “nake[d] assertions” that product labeling
was “deceptive and misleading . . . and designed to increase
sales”).
There,

Bautista is particularly instructive on this point.

plaintiff

alleged

that

defendant’s

package

of

protein

powder was misleading in that it contained 30% non-functional
slack-fill.
alleged
product,

“that

the

30%

empty

necessary

for

enclosing

settling.”
wholly

223 F. Supp. 3d at 190.

Id.

conclusory

(internal

space

Specifically, plaintiff
was

the

quotation

allegations,”

the

not

used

product,
marks
court

or

to

protect

because

omitted).

of

“Such

concluded,

“are

insufficient to state a nonfunctional slackfill claim.”

Id.

“It may be challenging for a plaintiff to present such facts
before discovery . . . , but where a claim is valid it is not
impossible; for example, experts in the relevant field can be
consulted or comparisons to similar products can be made.

In

any event, the law is clear that ‘the doors of discovery’ are
27

not

unlocked

‘for

conclusions.’”

a

plaintiff

armed

with

nothing

more

than

Id. at 191 (quoting Iqbal, 556 U.S. at 678-79).

Plaintiffs’ First Amended Class Action Complaint presents
the same infirmities.

As in Bautista, plaintiffs have failed to

plead any facts to support their allegation that the slack-fill
in the Products is nonfunctional with respect to the relevant
criteria.

Plaintiffs

have

not

demonstrated,

with

factual

assertions, that the slack-fill in the Products is unnecessary
to

protect

the

Junior

Mints,

or

does

not

the

reflect

the

requirements of the machines used for enclosing the packages, or
is not the result of unavoidable product settling, or is not the
consequence of an inability to increase the level of fill or to
further

reduce

the

size

of

the

package.

See

21

C.F.R.

§ 100.100(a).
Plaintiffs also attempt to establish functionality, or lack
thereof, indirectly.

They assert that “[b]y comparing the box

of Defendant’s Products to the boxes of comparable candies, it
is easy to see that the Product contains non-functional slackfill.”

Am. Compl. ¶ 22.

Plaintiffs make two different types of

comparisons, which we consider in turn.
Plaintiffs

initially

compare

Junior

Mints

to

Milk

Duds,

“ovoid chocolate coated caramel candies,” roughly 0.5” in width.
Id. In particular, while the 3.5 oz. Product box (0.75” long,
3.25” wide, 5.5” high) is only 57% full, leaving 43% slack-fill,
28

a 5.0 oz. box of Milk Duds (0.9375” long, 2.625” wide, 6.125”
high) is 77% full, leaving 23% slack-fill, suggesting that (at
least)

some

functional.

of

the

difference

Id. ¶¶ 18-22.

in

slack-fill

must

be

non-

This effort fails for two reasons.

First, as we explained in Alce v. Wise Foods, “FDA guidance
is inconsistent with this approach.”

2018 WL 1737750, at *8.

The FDA, in promulgating slack-fill regulations, recognized that
“differences in the physical characteristics of a given product,
including the need to protect the product from breakage, and
precision

of

variability

filling
in

the

commodity classes.”

equipment
level

result

of

in

functional

a

high

degree

slack-fill

of

within

Misleading Containers; Nonfunctional Slack-

Fill, 58 Fed. Reg. 2957-01, 2959, 1993 WL 1564 (Jan. 6, 1993)
(emphasis

added);

see

Misleading

Containers;

Nonfunctional

Slack-Fill, 58 Fed. Reg. 64123-01, 64135, 1993 WL 498605 (Dec.
6, 1993) (“FDA recognizes that there is significant variability
in

the

amount

commodity

of

classes.”

the

slack-fill

(emphasis

in

packages

added)).

The

.
FDA

.

.

within

“collected

sufficient data to determine that it is possible to distinguish
between functional and nonfunctional slack-fill on a plant-byplant basis for specific products in given container sizes.”
Fed. Reg. at 2959.

58

Consistent with those variations, the FDA

rejected the idea of a specific volume threshold after which
slack-fill in a particular product, such as potato chips in Alce
29

and

chocolate

covered

candy

here,

would

be

deemed

non-

functional.

See 58 Fed. Reg. at 64135 (“[N]o specific numerical

value

adequately

could

describe

the

amount

of

nonfunctional

slack-fill that would be significant.”).
Second, even assuming, arguendo, comparisons between rival
products

were

functional

a

permissible

slack-fill,

means

plaintiffs’

for

establishing

efforts

would

still

nonfail.

Plaintiffs demonstrate that both Junior Mints and Milk Duds are
ovoid, chocolate covered candies of roughly 0.5” in width, but
even

a

cursory

inspection

of

the

graphics

in

the

complaint

demonstrate that there are significant differences between them.
Among

other

things,

the

proportions

and

volumes

of

the

comparator boxes are different; the products are manufactured by
different

corporations;

and

the

ingredients

are

different

(caramel versus mint filled).
Plaintiffs

also

make

intra-Product

comparisons,

between the 3.5 oz. and 4.13 oz. Products.
3.5

oz.

“identical

and

4.13

oz.

dimensions”

Products
yet

the

namely,

Specifically, the

are

packaged

in

latter

contains

an

boxes

additional

0.4375 vertical inches of fill when both are held upright.
Am. Compl. ¶¶ 23-24.

of

See

According to plaintiffs, this difference

must be “entirely comprised of non-functional slack-fill.”
¶ 23.

30

Id.

There is some support for the proposition that such intraProduct

comparisons

functional

are

slack-fill.

sufficient
See

Daniel,

to

adequately

287

F.

allege

Supp.

3d

at

non189

(“Plaintiff persuasively argues that because the only difference
between the Product and the Assorted Box is in the color and
number of candies enclosed, the Product must have

some non-

functional slackfill.”); White v. Just Born, Inc., No. 2:17-cv04025-C-NKL, 2017 WL 3130333, at *8 (W.D. Mo. July 21, 2017)
(finding significant the fact that defendant had “packaged and
sold the same size boxes” of product “for promotional purposes,
with

less

slack-fill.”).

On

the

other

hand,

the

FDA

has

recognized that, in addition to comparisons “between and within
commodity

classes,”

there

is

“significant

variability

in

the

amount of slack-fill in packages . . . even within a singleproduct

line.”

58

Fed.

Reg.

at

64135

(emphasis

added).

Moreover, defendant proffers, citing to a declaration from its
“Director of Research & Development and Quality Assurance,” that
the boxes are not truly identical in size, i.e., the 4.13 oz.
box is 0.0625 inches deeper than the 3.5 oz. box, creating over
9% more volume in the box.

Declaration of Gordon Brown (“Brown

Decl.”) ¶¶ 1, 4-5 & Ex H, Dkt. No. 21; see In re Bristol-Myers
Squibb Sec. Litig., 312 F. Supp. 2d 549, 555 (S.D.N.Y. 2004) (on
a motion to dismiss, “[t]he court need not accept as true an

31

allegation

that

is

contradicted

by

documents

on

which

the

complaint relies”).
We ultimately need not decide whether such sui generis
comparisons are sufficient to establish that slack-fill is nonfunctional.

As we describe infra, plaintiffs’ claims fail on

the merits under New York law.
b. GBL §§ 349, 350, and 350-a
A cause of action under GBL § 349 has three elements: (1)
“the challenged act or practice was consumer-oriented”; (2) “it
was

misleading

in

a

material

way”;

and

(3)

“the

suffered injury as a result of the deceptive act.”

plaintiff

Crawford v.

Franklin Credit Mgmt. Corp., 758 F.3d 473, 490 (2d Cir. 2014)
(citing Stutman v. Chem. Bank, 95 N.Y.2d 24, 29, 731 N.E.2d 608
(2000)).

Claims under GBL §§ 350 and 350-a “must meet all of

the same elements as a claim under GBL § 349.”

Wurtzburger v.

Ky. Fried Chicken, No. 16-CV-08186 (NSR), 2017 WL 6416296, at *2
(S.D.N.Y. Dec. 13, 2017) (citing Goshen v. Mut. Life Ins. Co. of
N.Y., 98 N.Y.2d 314, 324 n.1, 774 N.E.2d 1190 (2002)).
The New York Court of Appeals has adopted an “objective
definition of ‘misleading,’ under which the alleged act must be
‘likely to mislead a reasonable consumer acting reasonably under
the circumstances.’”

Cohen v. JP Morgan Chase & Co., 498 F.3d

111,

2007)

126

(2d

Cir.

(emphasis

added)

(quoting

Oswego

Laborers’ Local 214 Pension Fund v. Marine Midland Bank, 85
32

N.Y.2d 20, 26, 647 N.E.2d 741 (1995)); see In re Frito Lay N.
Am., Inc. All Nat. Litig., No. 12-MD-2413 (RRM)(RLM), 2013 WL
4647512, at *16 (E.D.N.Y. Aug. 29, 2013) (“[I]n resolving the
reasonable

consumer

inquiry,

one

must

consider

the

entire

context of the label.”); Ackerman v. Coca-Cola Co., No. CV-090395 (JG)(RML), 2010 WL 2925955, at *15 (E.D.N.Y. July 21, 2010)
(determining the likelihood that reasonable consumers would be
misled entails “[v]iewing each allegedly misleading statement in
light of its context on the label and in connection with the
marketing of [the product] as a whole”).

Therefore, GBL §§ 349,

350 and 350-a, “require more than a determination as to whether
the slack-fill, standing alone, constitutes a misrepresentation.
Rather, [these provisions] require an additional finding that a
reasonable

consumer

in

like

circumstances

misrepresentation material.”

would

consider

the

See Daniel, 287 F. Supp. 3d at

189-90 (citing Kommer v. Bayer Consumer Health, 252 F. Supp. 3d
304,

312

(S.D.N.Y.

2017),

aff’d

sub

nom.

Kommer

v.

Bayer

Consumer Health, a Div. of Bayer AG, 710 F. App’x 43 (2d Cir.
2018) (summary order)).

Further, “[i]t is well settled that a

court

a

may

deceptive
consumer.”

determine

as

advertisement

matter

would

not

of

law

have

that

misled

an
a

allegedly
reasonable

Fink v. Time Warner Cable, 714 F.3d 739, 741 (2d

Cir. 2013) (per curiam).

33

We can easily conclude, as a matter of law, that the slackfill enclosed in the Products would not mislead a reasonable
consumer,

as

the

Product

boxes

provide

more

than

adequate

information for a consumer to determine the amount of Product
contained therein.
First, both the standard (ounces) and metric (grams) weight
of the candy enclosed is prominently displayed on the front of
each Product box, in large sized font and a color differentiated
from the package background.7

Am. Compl. ¶¶ 5-8; see Alce, 2018

WL 1737750, at *10 (concluding that no reasonable consumer would
be deceived by slack-fill in potato chip bags that prominently
feature the net weight of the contents on the front of the
package); United States v. 174 Cases, More or Less, Delson Thin
Mints Chocolate Covered, 195 F. Supp. 326, 328 (D.N.J. 1961)
(noting, in granting motion to dismiss, that “[t]he Correct net
weight of the candy is disclosed on the wrapper of the accused

7 Plaintiffs argue that we must disregard the printed net weight on the
front of the Product boxes in light of FDA guidance to the contrary. See 58
Fed. Reg. at 64128-29 (“FDA finds that the presence of an accurate net weight
statement does not eliminate the misbranding that occurs when a container is
made, formed, or filled so as to be misleading. . . .
To rule that an
accurate net weight statement protects against misleading fill would render
the prohibition against misleading fill in [the FDCA] redundant.” (emphasis
added)).
As demonstrated supra, such guidance is relevant to whether the
Products are misleading for purposes of federal law.
However, “New York
courts, as described above, have adopted an objective definition of what
constitutes a ‘material misrepresentation’ under sections 349 and 350,”
which, unlike federal law, “takes context into account.”
Daniel, 287 F.
Supp. 3d at 177; see also Bush v. Mondelez Int’l, Inc., No. 16-cv-02460-RS,
2016 WL 7324990, at *3 (N.D. Cal. Dec. 16, 2016) (“Courts, not the FDA,
determine whether a product is misleading under [state consumer protection]
laws.”).

34

package”), aff’d, 302 F.2d 724 (3d Cir. 1962); cf. Bowring v.
Sapporo U.S.A., Inc., 234 F. Supp. 3d 386, 390-92 (E.D.N.Y.
2017) (no reasonable consumer would believe that Sapporo beer
was brewed in Japan, despite the use of Japanese imagery, a
trademarked symbol representing Japan, and the word “imported”
on the label, where the label also bore a disclosure, in small
font, that the beer was “[b]rewed and canned . . . [in] Ontario,
Canada” (internal quotation marks omitted)).
Second, with the exception of the 1.84 oz. box, consumers
can easily calculate the number of candies contained
Product boxes

in the

simply by multiplying the serving size by the

number of servings in each box, information displayed in the
nutritional facts section on the back of each box. See Brown
Decl. Exs. B, D, G, J;8 Daniel, 287 F. Supp. 3d at 192 (“[A]bsent
exceptional

circumstances,

a

reasonable

consumer

acting

reasonably would find accurate, clearly visible representations
of net weight, serving size, and number of servings to offset
any

misrepresentations

arising

from

non-functional

slack-

fill.”); Wurtzburger, 2017 WL 6416296, at *1, 3 (no reasonable
8
Although the First Amended Class Action Complaint only includes
depictions of the front of the Products’ packaging, Brown’s declaration
provides images of the back corresponding to each box, which we may consider
on a motion to dismiss. See Chambers v. Time Warner, Inc., 282 F.3d 147, 153
(2d Cir. 2002); Kacocha, 2016 WL 4367991, at *12; Bronson v. Johnson &
Johnson, Inc., No. C 12-04184 CRB, 2013 WL 1629191, at *1 n.1 (N.D. Cal. Apr.
16, 2013); Rooney v. Cumberland Packing Corp., No. 12-CV-0033-H (DHB), 2012
WL 1512106, at *2 (S.D. Cal. Apr. 16, 2012); McKinniss v. Sunny Delight
Beverages Co., No. CV 07-02034-RGK(JCx), 2007 WL 4766525, at *4 n.1 (C.D.
Cal. Sept. 4, 2007).

35

consumer would believe that a bucket of chicken would be “filled
to

the

rim”

when

advertisements

explained

that

consisted of an “eight piece bucket of chicken”);
Pfizer,

Inc.,

215

F.

Supp.

3d

209,

212

the

bucket

Fermin v.

(E.D.N.Y.

2016)

(“Plaintiffs’ own exhibits show that the labels plainly negate
any supposed ‘reliance’ on the size of [an Advil bottle] as it
is impossible to view the products without also reading the
total number of pills contained in each package. . . .

It

defies logic to accept that the reasonable consumer would not
rely upon the stated pill count.”).
There is no suggestion that the displayed weight, serving
size, or number of servings per box do not accurately reflect
the amount of Product the customer actually receives.9
Third, consumers are not operating on a tabula rasa with
respect to their expectations of product fill.
“[b]ecause

of

the

widespread

nature

of

To the contrary,

this

practice,

no

reasonable consumer expects the weight or overall size of the

9 Defendant suggests that a consumer’s ability to manipulate
(e.g.,
shake) an opaque container as a means of judging the amount of Product
therein renders slack-fill not misleading as a matter of law.
See also
Hawkins v. UGI Corp., No. CV 14-08461 DDP (JCx), 2016 WL 2595990, at *4 (C.D.
Cal. May 4, 2016) (“[A] consumer can determine whether product remains by
audibly sloshing remaining liquid around in the cylinder, or by feeling the
heft of a partially full cylinder.”).
While that may be so in some
circumstances, at least one plaintiff, Duran, alleges that because he
purchased the Product from a movie theatre concession stand, “it was not
logistically possible to manipulate packages before purchase.”
Am. Compl.
¶ 79; see Escobar v. Just Born Inc., No. CV 17-01826 BRO (PJWx), 2017 WL
5125740, at *10 (C.D. Cal. June 12, 2017) (distinguishing Hawkins as, inter
alia, plaintiff purchased the product from a movie theater concession stand
and was therefore unable to manipulate the product prior to purchase).

36

packaging to reflect directly the quantity of product contained
therein.”

Ebner v. Fresh, Inc., 838 F.3d 958, 967 (9th Cir.

2016); see Alce, 2018 WL 1737750, at *11 (“[C]onsumers may have
come to expect significant slack-fill in potato chips and other
snack products.”); Daniel, 287 F. Supp. 3d at 191 (“[B]ecause
consumers have come to expect at least some slack-fill, context,
including

labels,

are

likely

important

considerations

in

assessing product amount or quantity.”); Bush, 2016 WL 7324990,
at *2 (“[C]onsumers expect there to be some slack-fill in opaque
snack containers.”); United States v. 116 Boxes, etc., Arden
Assorted

Candy

Drops,

80

F.

Supp.

911,

913

(D.

Mass.

1948)

(“[F]rom buying various types of five-cent candies, cough drops,
and

lozenges

packed

by

machine

in

standard

rectangular

containers, [consumers] ha[ve] come to expect some slack or air
space.”).
It is perhaps for these reasons that plaintiffs themselves
acknowledge they did not solely rely on the package size in
making

purchasing

decisions:

“Plaintiffs

and

Class

members

viewed Defendant’s misleading Product packaging, and reasonably
relied in substantial part on its implicit representations of
quantity, size, and volume when purchasing the Products.”
Compl.

¶

27

(emphasis

acknowledgement,

added).

plaintiffs

make

Yet,
two

notwithstanding

arguments

for

how

Am.
this
the

abundant information provided to consumers is insufficient to
37

prevent consumers from being misled about the amount of candy
contained in the Product boxes.
First, plaintiffs suggest that only an “unusually diligent
consumer could derive the [Product] count by multiplying the
number of servings by the number of pieces per serving.”
¶ 88.

We disagree.

Id.

The law simply does not provide the level

of coddling plaintiffs seek.

See Kommer, 252 F. Supp. 3d at 312

(“Assuming that a reasonable consumer might ignore the evidence
plainly before him ‘attributes to consumers a level of stupidity
that the Court cannot countenance and that is not actionable
under G.B.L. § 349.’” (quoting Chiste v. Hotels.com L.P., 756 F.
Supp. 2d 382, 404 (S.D.N.Y. 2010))); Weinstein v. eBay, Inc.,
819 F. Supp. 2d 219, 228 (S.D.N.Y. 2011) (“[T]he applicable
legal standard is whether a reasonable consumer, not the least
sophisticated
actions.”);

consumer,
116

Boxes,

would
80

F.

anticipation is not the test.”).

be

misled

Supp.

at

by

Defendants’

913

(“Infantile

The Court declines to enshrine

into the law an embarrassing level of mathematical illiteracy.
A reasonable consumer is capable of multiplying 3.5 by 12 (42),
4 by 12 (48), and 10 by 12 (120), the number of Junior Mints in
the 3.5 oz., 4.13 oz., and 10.5 oz. boxes, respectively.

See

Brown Decl. Exs. D, G, J.
Second, plaintiffs allege and argue that, even assuming
consumers are “excessively diligent” and calculate the number of
38

candies contained in the Product boxes, they will also rely on
the

size

of

the

candies

as

depicted

on

the

front

of

the

packages, and will be “misled into believing that the Product
has far more candy than it does due to the falsely sized images,
which are larger than the actual candy pieces.”
¶ 90.

Am. Compl.

“In other words, even if a consumer calculated the number

of pieces of candy from the nutrition label, such a consumer
would still be misled into believing that the Product package
contained

no

non-functional

slack-fill

because

that

consumer

would falsely believe that the Products contain a small number
of relatively large pieces of candy.”
This argument is unpersuasive.

Id. ¶ 91.
As plaintiffs themselves

acknowledge, consumers care about the density or volume of a
product only as it relates to the amount or quantity of food.
See id. ¶ 10 (“When consumers purchase a package of Defendants’
[sic] product, they are getting less candy than they bargained
for.”).

“Where consumers only care about the amount or quantity

of food, the actual size of the candies is immaterial whe[re, as
here] the Product affirmatively discloses how much food the box
contains.

Consumers receive the same amount or

quantity or

food, as provided on the label, regardless of the density of the
candy

and

whether

the

container

is

larger

than

necessary.”

Daniel, 287 F. Supp. 3d at 193-94 (first citing Wurtzburger,

39

2017 WL 6416296, at *3; then citing Waldman, 714 F. Supp. 2d at
403; and then citing Bautista, 223 F. Supp. 3d at 192 n.8).
Accordingly, given the prominence with which the Products’
weight appears on the front of the package, the ease with which
consumers can calculate the number of candies contained therein,
consumers’ expectations of slack-fill, as well as plaintiffs’
conceded reliance on factors other than the Products’ packaging,
we conclude as a matter of law that no reasonable consumer would
be misled by the presence of slack-fill, even assuming it were
non-functional,
plaintiffs’

in

the

claims

Products’

under

GBL

§§

packaging.10
349,

350,

Accordingly,
and

350-a

are

dismissed.
c. Common Law Fraud
Daniel and Duran’s final claim is for common law fraud.
See

Am.

Products’

Compl.

¶¶

154-60.

packaging,

They

defendant

allege

that

intentionally

“[t]hrough
made

its

materially

false and misleading representations regarding the quantity of
candy that purchasers were actually receiving,” that they “were
induced by, and relied upon” these representations, and that
“[d]efendant knew of its false and misleading representations”
but “nevertheless continued to promote and encourage customers

10
Because we have concluded that, under New York law, no reasonable
consumer would be materially misled by the Products’ packaging, we need not
consider defendant’s contention that plaintiffs were not injured as GBL
§§ 349, 350, and 350-a require.

40

to purchase the Product[s] in a misleading and deceptive manner,
intending

that

Plaintiffs

.

.

.

rely”

thereon.

Am.

Compl.

¶¶ 155-57.
To
plaintiff

state
must

a

claim

allege:

for
“(1)

fraud
a

under

material

New

York

law,11

misrepresentation

a
or

omission of fact; (2) which the defendant knew to be false; (3)
which the defendant made with the intent to defraud; (4) upon
which

the

injury

to

plaintiff
the

reasonably

plaintiff.”

relied;

Fin.

and

Guar.

(5)

Ins.

which

Co.

v.

caused
Putnam

Advisory Co., 783 F.3d 395, 402 (2d Cir. 2015) (citing Crigger
v. Fahnestock & Co., 443 F.3d 230, 234 (2d Cir. 2006)).12
“In New York, it is well settled that a plaintiff cannot
establish

justifiable

reliance

when,

‘by

the

exercise

of

ordinary intelligence, it could have learned of the information
it asserts was withheld.’”

Transnational Mgmt. Sys. II, LLC v.

Carcione, No. 14-cv-2151 (KBF), 2016 WL 7077040, at *8 (S.D.N.Y.
Dec. 5, 2016) (quoting PPI Enters. (U.S.), Inc. v. Del Monte
11 While the First Amended Class Action Complaint does not specify under
which law plaintiffs assert their fraud claims, “under New York conflict of
law principles, fraud claims are governed by the state in which the injury is
deemed to have occurred, which is usually where the plaintiff is located.”
Nat’l W. Life Ins. Co. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 89 F.
App’x 287, 288 (2d Cir. 2004) (summary order) (citing Sack v. Low, 478 F.2d
360, 366 (2d Cir. 1973)); Dhir v. Carlyle Grp. Empl. Co., No. 16-cv06378(RJS), 2017 WL 4402566, at *4 (S.D.N.Y. Sept. 29, 2017). Daniel and
Duran reside and purchased the Products in New York, such that we apply New
York law to their fraud claims.
12
Although defendant moves to dismiss plaintiffs’ fraud claims for
failure to plead with particularity (i.e., pursuant to Federal Rule of Civil
Procedure 9(b)), we dismiss plaintiffs’ claims for failure to state a claim
for which relief could be granted (i.e., pursuant to Federal Rule of Civil
Procedure 12(b)(6)).

41

Foods

Co.,

(S.D.N.Y.

No.

99

Sept.

Civ.

11,

3794(BJS),

2003),

2003

WL

22118977,

reconsideration

22439647 (S.D.N.Y. Oct. 23, 2003)).

denied,

at

*20

2003

WL

Put somewhat differently,

where “facts represented are not matters peculiarly within the
party’s knowledge, and the other party has the means available
to him of knowing . . . the truth or the real quality of the
subject of the representation, he must make use of those means,
or he will not be heard to complain that he was induced to enter
into

the

Corp.

v.

transaction
Harris,

5

by

misrepresentations.”

N.Y.2d

317,

322,

157

Danann

N.E.2d

597

Realty
(1959)

(quoting Schumaker v. Mather, 133 N.Y. 590, 596, 30 N.E. 755
(1892)).
For essentially the same reasons as we concluded that the
slack-fill

in

the

Products

did

not

constitute

a

“material

misrepresentation” for purposes of GBL §§ 349, 350, and 350-a,
plaintiffs
“ordinary

fail

to

plead

intelligence”

reasonable

could

easily

reliance.

A

person

of

ascertain

the

amount

of

candy contained in the Product boxes by (1) inspecting the net
weight printed on the front, and (2) multiplying the serving
size by the number of servings in the box, as provided on the
back.

Moreover,

justified
significant

given

as

discussed

that

slack-fill

supra,

“consumers
in

[Junior

42

may

reliance
have

Mints]

is

come
and

even
to

other

less

expect
snack

products."

Alce,

2018 WL 1737750,

at

*11.

Plaintiffs'

fraud

claims are therefore dismissed.
V.

Motion to Strike

The

foregoing

plaintiffs'
need

not

claims

address

plaintiffs'

Memorandum
as

the

a

and

matter of

merits

of

Order

law.

dismisses

Therefore,

defendant's

motion

the
to

class claims under Federal Rule of Civil

12(f), which is denied as moot.

Cf.

Izquierdo,

all

of

Court
strike

Procedure

2016 WL 6459832,

at *10.
CONCLUSION

For

the

plaintiffs'
is granted.

foregoing

reasons,

defendant's motion to dismiss

First Amended Class Action Complaint

(Dkt.

No.

18)

The Clerk of the Court is respectfully directed to

enter judgment for defendant, and close this case.

Dated:

New York, New York
August _L, 2018

/_<;J)~(JJ
~

~E~CHWALD
UNITED STATES DISTRICT JUDGE

43

Counsel for plaintiffs:

C.K. Lee
Anne M. Seelig
Lee Litigation Group, LLC

Counsel for defendant:

David W. Haller
Covington & Burling LLP

44