Hernandez v. The Wonderful Company LLC et al

Filing 48

OPINION AND ORDER re: 42 MOTION to Dismiss / Notice of Motion and Motion to Dismiss Plaintiffs' Second Amended Class Action Complaint. filed by POM Wonderful LLC, The Wonderful Company LLC. For the reasons set forth above, De fendants motion is GRANTED in part and DENIED in part. The GBL §§ 349 and 350 (Claims I & II) and negligence per se (Claim III) claims are not dismissed, but the unjust enrichment claim (Claim IV) is dismissed. The parties are directed to a ppear for a telephonic conference on December 12, 2024, at 3:30 PM. The parties are directed to call [phone] at that time and enter access code 3029857#. The Clerk of Court is respectfully directed to terminate the motion, Doc. 42. ( Telephone Conference set for 12/12/2024 at 03:30 PM before Judge Edgardo Ramos.) (Signed by Judge Edgardo Ramos on 11/25/2024) (jjc)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
BERTHA HERNANDEZ and
WAYNE CATALANO, individually
and on behalf of all others similarly
situated,
Plainti?s,

OPINION & ORDER
23-cv-1242 (ER)

– against –
THE WONDERFUL COMPANY LLC
and POM WONDERFUL LLC,
Defendants.
RAMOS, D.J.:

Bertha Hernandez and Wayne Catalano (together, “Plainti?s”) brought this
putative class action against ?e Wonderful Company LLC and its wholly owned
subsidiary POM Wonderful LLC (“POM”) (together, “Defendants”) alleging violations of
consumer protection laws based on the presence of certain synthetic chemicals in
pomegranate juice produced, marketed, and sold by Defendants. Doc. 1. Before the
Court is Defendant’s motion to dismiss the Second Amended Complaint (“SAC”)
pursuant to Federal Rule of Civil Procedure 12(b)(6). Doc. 42. For the reasons set forth
below, the motion is GRANTED in part and DENIED in part.
I.

BACKGROUND
A. Factual Background.
?e Court presumes the Parties' familiarity with the relevant facts as set forth in

the Court's prior opinion granting dismissal without prejudice. See Hernandez v.
Wonderful Company LLC, No. 23-cv-1242 (ER), 2023 WL 9022844, at *1–2 (S.D.N.Y.
Dec. 29, 2023). ?e Court recounts here only those facts necessary to resolve the instant
motion.

The Parties
Hernandez and Catalano are both citizens and residents of New York. Doc. 36
¶¶ 12–13. ?e Wonderful Company is a privately held $5 billion company that is
“committed to o?ering high-quality, healthy brands and helping consumers make better
choices, every day.” Id. ¶¶ 15, 19. POM is a wholly owned subsidiary of ?e Wonderful
Company. Id. ¶ 20. Defendants manufacture and sell POM 100% Pomegranate Juice
(“the Product”) at mass market retailers and grocery stores throughout the United States.
Id. ¶¶ 5, 24.
The Product’s Labeling, Packaging, and Advertising
?e Product is a ready-to-drink juice which is uniformly represented as a “healthy,
All Natural beverage.” Id. ¶ 25. Plainti?s allege that the Product’s packaging is replete
with representations designed to convince consumers of its health bene?ts. Id. ¶ 26.
Such representations include:
?

?e front label of the Product describes it as an “Antioxidant Superpower.”
Id. ¶ 27.

?

?e cap on the Product reads “100% POMEGRANATE JUICE” and bears the
slogan “Drink It Daily. Feel It Forever.” Id. ¶ 28.

?

?e back label states the Product includes “4 California Pomegranates,” “No
Sugar Added,” and “100% Juice From 4 California Pomegranates All
Natural.” Id. ¶ 29.

?

?e only ingredient listed on the Product's packaging is “100% pomegranate
juice from concentrate.” Id.

In addition, Plainti?s claim that Defendants’ website represents that the Product is
“Tree to Table” and links to scienti?c studies purporting to demonstrate that the Product
is a healthy choice for consumers; further, Defendants’ social media campaigns also
emphasize that the Product is a source of antioxidants, describing the Product as “Home
of the Antioxidant Superpowers.” Id. ¶ 30–32.
Contrary to Defendants’ representations that the Product is “All Natural,”
Plainti?s allege that it actually contains per– and poly?uoroalkyl substances (“PFAS”),

2

and the Product does not disclose the presence of PFAS—or any other synthetic
chemical—in its ingredients. Id. ¶¶ 2, 8.
PFAS
PFAS are synthetic chemicals harmful to humans and the environment. Id. ¶ 36.
PFAS are also sometimes referred to as “forever chemicals” because they bioaccumulate,
or build up in the body over time, and are harmful even in small doses. Id. ¶ 38. Because
PFAS are, by de?nition, man-made, they are not “natural.” Id. ¶ 37.
PFOA—a speci?c type of PFAS—is widely thought to be the most dangerous
PFAS. Id. ¶ 45. ?e International Agency for Research on Cancer of the World Health
Organization has determined that “PFOA is carcinogenic to humans . . . on the basis of
su?cient evidence for cancer in experimental animals and strong mechanistic evidence
(for epigenetic alterations and immunosuppression) in exposed humans.” Id. ¶ 46.
Plainti?s’ Claims
Plainti?s allege that they purchased and consumed the Product on numerous
occasions at various retail stores in New York. Id. ¶¶ 93–94. Hernandez claims she
purchased the Product numerous times within the class period at retail stores in New
York, and speci?cally, in July 2022, purchased the Product at a Stop & Shop in New
York. Id. at 93. ?e July purchase took place at approximately the “same time the same
Product was collected for independent testing” conducted prior to ?ling this matter. Id.
Hernandez claims that, “since independent testing conducted on these samples . . .
revealed the presence of harmful levels of PFAS, it is more than likely that contamination
of [the] Product is widespread, especially given the results of the testing conducted on
Plainti? Catalano’s purchased [P]roduct.” Id.
Catalano alleges that he also purchased and consumed the Product in 2023 at a
Stop & Shop in Poughkeepsie New York. Id. ¶ 94. Catalano then conducted independent

3

third-party testing 1 on the Product that he purchased, allegedly revealing very high levels
of PFOA, speci?cally .192 parts per trillion (ppt) of PFOA. Id. ¶¶ 55, 94. Catalano
claims that this number is forty-eight (48) times the lifetime advisory levels identi?ed by
the Environmental Protection Agency’s (“EPA”) health advisory for drinking water. Id.
¶ 57.
Plainti?s together claim that testing performed on the “other sample Products
similar to the products purchased by [them] also detected material levels of PFAS in the
Product, including: 2.5 [ppt] of 1H, 1H, 2H, 2H–per?uorooctane sulfonic acid
(‘6:2FTS’)[,] and 6.5 ppt of Per?uoron–pentanoic acid (‘PFPeA’).” Id. ¶ 58. From this
testing, the Plainti?s conclude that the amount of PFAS in the Product is signi?cant and
not limited to just one bottle, thus “expos[ing] hundreds of thousands of unsuspecting
consumers to toxic synthetic chemicals in direct contradiction to their uniform ‘All
Natural’ and healthy label claims.” Id. ¶¶ 58–59.
Plainti?s claim that they reasonably relied on the “All Natural” and healthy label
claims in deciding to purchase the Product, and that they would not have purchased the
Product, or would not have purchased it on the same terms, if the true facts had been
known. Id. ¶ 95. ?us, as a direct result of Defendants’ material misrepresentations and
omissions, Plainti?s claim to have su?ered, and continue to su?er, economic injuries. Id.
¶ 96.
B. Procedural Posture.
Hernandez initially ?led the Complaint as the sole plainti? on February 14, 2023,
and ?led the First Amended Complaint (“FAC”) on June 9, 2023. Doc. 1; Doc. 24.
Defendants ?led a motion to dismiss the FAC on June 30, 2023 pursuant to Federal Rule
of Civil Procedure 12(b)(1) for lack of standing, and Rule 12(b)(6) for failure to state a

Catalano’s testing was conducted by Enalytic Analytical Testing Laboratory using LCMSMS (liquid
chromatography tandem mass spectrometry) in accordance with accepted industry standards for detecting
the presence of PFAS. Id. ¶ 54.
1

4

claim. Doc. 27. In their motion, Defendants requested the Court to take judicial notice of
certain exhibits, which Hernandez opposed. Doc. 29; Doc. 31. In deciding the motion,
the Court determined that it could take notice of the documents proposed by Defendants
for the existence of agency regulatory guidance on PFAS. Hernandez, 2023 WL
9022844, at *4. On December 29, 2023, the Court granted the Defendants’ motion
pursuant to Rule 12(b)(1) and allowed Hernandez leave to ?le the SAC. Id. at *7.
Because the Court granted the motion pursuant to Rule 12(b)(1), it did not decide
Defendants’ arguments with respect to Rule 12(b)(6). Id.
On January 24, 2024, Hernandez ?led the SAC, adding Catalano as a plainti?.
Doc 36. ?e SAC alleges (1) violations of the New York Deceptive Trade Practice Act
(New York General Business Law §§ 349 and 350) (“GBL”); (2) negligence per se due to
violations of the Food Drug and Cosmetics Act (“FDCA”) (21 U.S.C. §§ 342 and 343)
and Section 199–a of the New York Agriculture and Markets Law (“N.Y. Agric. & Mkts.
Law”); and (3) unjust enrichment. Doc. 36 ¶¶ 130–68. Defendants now move to dismiss
the SAC, arguing that Plainti?s have failed to state a claim pursuant to Rule 12(b)(6). 2
II.

LEGAL STANDARDS
A. Failure to State a Claim Pursuant to Rule 12(b)(6).
To survive a motion to dismiss pursuant to Rule 12(b)(6), “a complaint must

contain su?cient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible “when the
While Defendants do not formally move to dismiss Hernandez’s claims for lack of standing—and concede
that the “[SAC] arguably addresses the standing de?ciency identi?ed in . . . the [FAC],” Doc. 43 at 4—they
state in a footnote that, “Plainti?s have not added or amended any allegations to cure the standing
de?ciencies this Court found in . . . Hernandez’s claims, and therefore [her] claims should be dismissed
with prejudice,” Doc. 43 at 4, n.5. ?e Court need not evaluate arguments that are “so drastically
underdeveloped, particularly when they are raised only in a footnote.” See Bruninger v. Williams, No. 20
Civ. 7033 (JPC), 2023 WL 4211030 at *5, n.3 (S.D.N.Y. June 27, 2023); see also Niagra Mohawk Power
Corp. v. Hudson River-Black River Regulating Dist., 673 F.3d 84, 107 (2d Cir. 2012) (“An argument
mentioned only in a footnote is not adequately raised and need not be considered.”). Because Defendants
have failed to advance any non-perfunctory argument regarding Hernandez’s standing, the Court deems this
issue waived.
2

5

plainti? pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at
556). ?e plainti? must allege su?cient facts to show “more than a sheer possibility that
a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556). However, this
“?exible plausibility standard” is not a heightened pleading standard, In re Elevator
Antitrust Litiation., 502 F.3d 47, 50 n.3 (2d Cir. 2007) (internal quotation marks and
citation omitted), and “a complaint . . . does not need detailed factual allegations” to
survive a motion to dismiss, Twombly, 550 U.S. at 555.
?e question on a motion to dismiss “is not whether a plainti? will ultimately
prevail but whether the claimant is entitled to o?er evidence to support the claims.” Sikhs
for Justice v. Nath, 893 F. Supp. 2d 598, 615 (S.D.N.Y 2012) (quoting Villager Pond, Inc.
v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995)). Indeed, “the purpose of Federal
Rule of Civil Procedure 12(b)(6) is to test, in a streamlined fashion, the formal
su?ciency of the plainti?'s statement of a claim for relief without resolving a contest
regarding its substantive merits” or “weigh[ing] the evidence that might be o?ered to
support it.” Halebian v. Berv, 644 F.3d 122, 130 (2d Cir. 2011) (internal quotation marks
and citation omitted). ?us, when ruling on a motion to dismiss pursuant to Rule
12(b)(6), the Court accepts all factual allegations in the complaint as true and draws all
reasonable inferences in the plainti?'s favor. Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir.
2014).
In considering a Rule 12(b)(6) motion, a district court may also consider
“documents attached to the complaint as exhibits[ ] and documents incorporated by
reference in the complaint.” Doe v. N.Y. Univ., No. 20 Civ. 1343 (GHW), 2021 WL
1226384, at *10 (S.D.N.Y. Mar. 31, 2021) (quoting DiFolco v. MSNBC Cable LLC, 622
F.3d 104, 111 (2d Cir. 2010)).

6

III.

DISCUSSION
A. Defendants’ Request for Judicial Notice is Granted
In support of their motion to dismiss, Defendants submit as exhibits: (1) a

webpage from healthline.com titled “How to Reduce Your Exposure to PFAS: the
Hidden Toxic ‘Forever Chemicals,’” which Hernandez cited in the FAC; (2) a webpage
from the EPA titled “Our Current Understanding of the Human Health and Environmental
Risks of PFAS”; (3) a webpage from the Agency for Toxic Substances and Disease
Registry (“ATSDR”) titled “Per– and Poly?uoroalkyl Substances (PFAS) and Your
Health; What are PFAS?”; (4) a webpage from the U.S. Food and Drug Administration
titled “Per– and Poly?uoroalkyl Substances (PFAS)”; (5) a webpage from the EPA titled
“Questions and Answers: Drinking Water Health Advisories for PFOA, PFOS, GenX
Chemicals and PFBS”; and (6) a webpage from the EPA titled “PFAS Explained.” Doc.
44 at 2–3.
?e Court previously granted Defendant’s request for judicial notice of Exhibits
1–4, and 6. Hernandez, 2023 WL 9022844, at *3–4. Defendants now request that the
Court take judicial notice of Exhibit 5 as well. See Doc. 44. ?is request for judicial
notice was not contested by Plainti?s in their memorandum in opposition. See Doc. 45.
Accordingly, the Court will take judicial notice of the six exhibits for the fact of their
existence (i.e., for the fact that the three agencies have issued regulatory guidance on
PFAS) but not for the truth of information contained therein. See Kramer v. Time Warner,
937 F.2d 767, 774 (2d Cir. 1991) (“[A] district court may take judicial notice of the
contents of relevant public disclosure documents . . . as facts capable of accurate and
ready determination by resort to sources whose accuracy cannot reasonably be
questioned.” (internal quotations omitted)); Cali v. E. Coast Aviation Servs., 178 F. Supp.
2d 276, 287 n.6 (E.D.N.Y. 2001).

7

B. ?e Wonderful Company LLC is not a Proper Defendant
Defendants argue that Plainti?s’ claims against ?e Wonderful Company should
be dismissed because the claims against it are insu?cient. ?e Court ?nds that the SAC
fails to allege su?cient facts to support a claim against ?e Wonderful Company.
Plainti?s contend that ?e Wonderful Company is directly liable for the claims
alleged in the SAC because it “had authority and control over [POM] . . . by providing
advertising services to create and implement [POM’s] marketing and advertising
campaigns.” Doc. 36 ¶ 15. Plainti?s point to ?e Wonderful Company’s website where
it explains how, “with regard to the Product, it ‘obsessively review[s] every step of the
production process’ and ‘designed [its] own proprietary pressing equipment in order to
extract maximum ?avor and nutrients.’” Doc. 45 at 11 (quoting Doc. 36 ¶ 63).
Additionally, the SAC alleges that Adam Cooper, the vice president of marketing for ?e
Wonderful Company, was quoted as saying that POM’s success is due in part to
Defendants’ “tireless marketing e?orts to let people know that we’re THE Antioxidant
Superpower, and we can help you get crazy healthy by drinking [the Product].” Doc. 36
¶ 33.
Defendants contend that Plainti?s have failed to allege that “?e Wonderful
Company reviewed, considered, or approved any speci?c representation on which
Plainti?s’ claims are based. Nor do Plainti?s allege that ?e Wonderful Company
directly sold the . . . Product.” Doc. 43 at 14. Defendants rely on Magnus v. Fortune
Brands, Inc., which held that plainti?s failed to allege speci?c facts to establish the
parent companies’ direct liability because the parent companies did not manufacture the
product at issue, 41 F. Supp. 2d 217, 224 (E.D.N.Y. 1999), and In re Frito-Lay North
America, Inc. All Natural Litigation, which found that plainti?’s allegations that the
parent company markets, advertises, and distributes the product were insu?cient to
establish direct liability, No. 12-MD-2413 (RRM), 2013 WL 4647512, at *5 (E.D.N.Y.

8

Aug. 29, 2019). Doc. 43 at 14. ?e Court ?nds the analysis in Frito-Lay in particular to
be persuasive.
None of the allegations against ?e Wonderful Company indicate that it had any
role in the decision to label the Product “All Natural” or exclude the presence of PFAS
from the label. ?e facts laid out in the SAC do not speci?cally relate to any marketing
decisions that ?e Wonderful Company “controlled,” but rather the fact that they
provided marketing resources to their subsidiary and created a uniform message across all
advertising platforms. While ?e Wonderful Company might “review every step of the
production process” (emphasis added), as the SAC alleges, it is not alleged to have
reviewed or have had any control over the alleged deceptive marketing. See Doc. 36.
?e SAC does not allege that ?e Wonderful Company itself, during the “review” of
production, had any role in marketing decisions. See Doc. 36; see, e.g., In re Frito-Lay,
2013 WL 4647512, at *5.
Finally, the statement by ?e Wonderful Company’s vice president of marketing is
not dispositive of direct liability since the context makes it clear that “we’re” in the
phrase attributed to him (“we’re THE Antioxidant Superpower”) is referring to POM and
the Product, and “such representations may result from public relations motives or an
attempt at simpli?cation.” In re Frito-Lay, 2013 WL 4647512, at *5 (quoting Japan
Petroleum Co. (Nigeria) Ltd. v. Ashland Oil, Inc., 456 F. Supp. 831, 846 (D. Del. 1978)).
Moreover, the Court is “not persuaded that a failure to distinguish between parent and
subsidiary [. . .] is su?cient to show that the parent controls the subsidiary's marketing
and operational policies.” Id. at *5 (internal quotation marks omitted) (quoting J.L.B.
Equities, Inc. v. Ocwen Fin. Corp., 131 F. Supp. 2d 544, 550 (S.D.N.Y. 2001)). ?us,
Plainti?s’ allegations that the “uniform marketing representations” across ?e Wonderful
Company’s platforms give rise to direct liability are not su?cient because Plainti?s still
fail to show that ?e Wonderful Company is in “control” of POM’s marketing decisions.

9

?erefore, the allegations in the SAC are not su?cient to establish that ?e
Wonderful Company actively participated in the marketing and advertising decision to
label the Product as “All Natural,” or failing to disclose the presence of PFAS. All that
these allegations show, rather, is that ?e Wonderful Company was acting as a parent
company that “necessarily exercise[s] a considerable degree of control over the
subsidiary corporation,” but “the discharge of that supervision alone” is not enough to
give rise to direct liability. Volkswagenwerk Aktiengesellschaft v. Beech Aircraft Corp.,
751 F.2d 117, 120 (2d Cir. 1984). Accordingly, ?e Wonderful Company is dismissed.
C. Defendant’s Motion to Dismiss Plainti?s’ Second Amended Complaint is
Granted in Part and Denied in Part
Counts I & II: Violation of the New York Deceptive Trade Practices Act (N.Y.
Gen. Bus. Law §§ 349 and 350)
?e SAC alleges that POM violated GBL §§ 349 and 350 by (1) misleadingly,
inaccurately, and deceptively advertising and marketing the Product to consumers as “All
Natural” in order to induce consumers to pay a premium; and (2) omitting from their
labeling the fact that the Product contains dangerous levels of PFAS, even though POM
maintained exclusive control—and knowledge of—the contents of the Product. Doc. 36
¶¶ 130–51.
GBL § 349(a) prohibits “[d]eceptive acts or practices in the conduct of any
business, trade or commerce or in the furnishing of any service in [New York].” GBL
§ 350 prohibits “[f]alse advertising in the conduct of any business, trade or commerce or
in the furnishing of any service in [New York].” False advertising is de?ned as
“advertising, including labeling, of a commodity, or of the kind, character, terms or
conditions of any employment opportunity if such advertising is misleading in a material
respect.” GBL § 350–a(1). “While the standard for recovery under [§] 350 is speci?c to
false advertising, it is otherwise identical to [§] 349.” Yu v. Dreyer's Grand Ice Cream,
Inc., 592 F. Supp. 3d 146, 154 (S.D.N.Y. 2022). ?erefore, the Court will analyze the two
claims together.
10

To state a claim under either section, “a plainti? must allege that a defendant has
engaged in (1) consumer–oriented conduct that is (2) materially misleading and that (3)
plainti? su?ered injury as a result of the allegedly deceptive act or practice.” Hofmann v.
Long Island Univ., No. 22-393-CV, 2024 WL 3262819, at *2 (2d Cir. July 2, 2024)
(citing Orlander v. Staples, Inc., 802 F.3d 289, 300 (2d Cir. 2015)). Claims brought
under GBL §§ 349 and 350 are not required to meet the heightened pleading
requirements of Rule 9(b). See Cosgrove v. Oregon Chai, Inc., 520 F. Supp. 3d 562, 575–
76 (S.D.N.Y. 2021). ?e parties do not contest the ?rst or third elements, i.e., that the
conduct was consumer–oriented or that Plainti?s su?ered an injury. 3 Doc. 36 ¶ 135; see
Doc. 43; see also Segedie v. Hain Celestial Grp., Inc., No. 14 Civ. 5029 (NSR), 2015 WL
2168374, at *12 (S.D.N.Y. May 7, 2015) (“Plainti?s have also adequately alleged injury
by claiming that they paid a price premium that they would not have paid if the products
were not labeled ‘natural’ or ‘all natural.’”). ?e parties do contest the second element—
that Wonderful Company’s conduct is materially misleading. POM argues that the Court
should dismiss Plainti?s’ GBL §§ 349 and 350 claims because the SAC failed to
su?ciently allege that POM’s labeling is materially misleading to a reasonable consumer.
Doc. 43 at 4.
To determine whether the act is materially misleading, the act must be “likely to
mislead a reasonable consumer acting reasonably under the circumstances.” Quinn v.
Walgreen Co., 958 F. Supp. 2d 533, 543 (S.D.N.Y. 2013); see also New World Solutions,
Inc. v. NameMedia Inc., 150 F. Supp. 3d 287, 328 (S.D.N.Y. 2015) (“To aid in the
interpretation of the second element, the New York Court of Appeals has instructed that a
deceptive act or practice has an objective de?nition, whereby deceptive acts or
practices—which may be acts or omissions—are limited to those likely to mislead a

However, in response to Plainti?s’ Negligence claim, Defendants do contest that Plainti?s su?ered injury.
Doc. 43 at 12 (“Plainti?s have not alleged that they were injured by the Products, or that consumers face a
‘reasonable possibility of injury’ given that Plainti?s have failed to allege even a plausible risk of harm.”).
3

11

reasonable consumer acting reasonably under the circumstances.”). ?e Court agrees
with Plainti?s that “materiality is not a separate element; rather, to state a GBL claim, the
plainti? must plead the existence of a material misrepresentation that is likely to mislead
a reasonable consumer.” Doc. 45 at 8; see Winans v. Oruna Foods North America Inc.,
No. 23 Civ. 01198 (FB) (RML), 2024 WL 1741079, at *4 (E.D.N.Y. 2024) (citing Cooper
v. Anheuser-Busch, LLC, 553 F. Supp. 3d 83, 108 (S.D.N.Y. 2021)).
To survive a motion to dismiss, “Plainti?s must do more than plausibly allege that
a label might conceivably be misunderstood by some few consumers.” Cooper, 553 F.
Supp. 3d at 94–95 (internal quotation marks omitted) (citing Twohig v. Shop-Rite
Supermarkets, Inc., 519 F. Supp. 3d 154, 160 (S.D.N.Y. 2021)). Rather, they must
“plausibly allege that a signi?cant portion of the general consuming public or of targeted
customers, acting reasonably in the circumstances, could be misled.” Id. (citation
omitted). In evaluating the instant motion, the Court considers whether the SAC
plausibly alleges that a “reasonable consumer would ascribe the meaning that [P]lainti?s
allege they ascribed to it.” Fishon v. Peloton Interactive, Inc., No. 19 Civ. 11711 (LJL),
2020 WL 6564755, at *7 (S.D.N.Y. Nov. 9, 2020). ?e Court may determine, as a matter
of law, that an allegedly deceptive advertisement would not mislead a reasonable
consumer, see Fink v. Time Warner Cable, 714 F.3d 739, 741 (2d Cir. 2013), although the
reasonable-customer inquiry is “generally a question of fact not suited for resolution at
the motion to dismiss stage,” Duran v. Henkel of Am., Inc., 450 F. Supp. 3d 337, 346
(S.D.N.Y. 2020).
POM argues that Plainti?s’ theory of deception should be rejected because,
“nothing about the challenged representations promises the absolute absence of PFAS,
which are not an ingredient, and which are recognized to be ubiquitous
microcontaminants in our food and environment.” Doc. 43 at 6. Additionally, POM
argues that “cases that have challenged ‘natural’ labeling claims based on the alleged
presence of unintended microcontaminants have routinely been dismissed as a matter of
12

law at the pleadings stage.” Doc. 46 at 3. POM mainly relies on the “glyphosate cases”
to ?nd analogy to the case at bar. See id. (quoting Axon v. Citrus World, Inc., 813 F.
App'x 701 (2d Cir. 2020) and Parks v. Ainsworth Pet Nutrition, LLC, 377 F. Supp. 3d 241
(S.D.N.Y. 2021)). In Axon, the Second Circuit held that:
?e presence of glyphosate as a contaminant . . . rather than an intentionally-added ingredient, bolsters the conclusion that a reasonable consumer, viewing the brand name “Florida's Natural,” would
not make assumptions regarding the presence or absence of trace
amounts of glyphosate.
813 F. App'x at 705. Similarly, the district court in Parks dismissed the case, ?nding that
the presence of glyphosate did not render the term “natural” misleading, as “a reasonable
consumer would not be so absolutist as to require that ‘natural’ means there is no
glyphosate, even an accidental and innocuous amount, in the [p]roducts.” 377 F. Supp.
3d at 247. ?e Court does not ?nd these cases persuasive in light of the recent authority
discussing the presence of PFAS in products, and the many particular health risks
associated with PFAS. See Doc. 36 ¶¶ 36–52. ?us, the Court “presumes that the
presence of PFAS would be concerning to many consumers.” Winans, 2024 WL
1741079, at *4 (?nding that, even if materiality were a separate element, the court cannot
conclude, as a matter of law, that the presence of PFAS in butter is immaterial to a
reasonable consumer).
First, the SAC alleges that consumers prefer all-natural products and are wellaware that consumers are increasingly demanding healthier options for beverages that
support their wellness goals, and that consumers prioritize products that are free of
certain toxic chemicals. Doc. 36 ¶¶ 66–69. Second, the SAC further alleges that
Plainti?s would not have purchased the Product, or would have paid less for it, had they
known the Product contained PFAS. Id. at ¶¶ 95, 135, 145. Drawing all reasonable
inferences in Plainti?s’ favor, the Court ?nds that they have su?ciently pleaded that a
reasonable consumer could be misled. See Colpitts v. Blue Diamond Growers, 527 F.

13

Supp. 3d 562, 583–84 (S.D.N.Y. 2021); see also Petrosino v. Stearn's Prods., Inc., No. 16
Civ. 7735 (NSR), 2018 WL 1614349, at *7 (S.D.N.Y. Mar. 30, 2018) (denying
defendant’s motion to dismiss GBL §§ 349 and 350 claims, ?nding that it is not
“unreasonable as a matter of law for a person to expect that the product labeled ‘natural’
contain only non-synthetic ingredients”).
At this juncture, the question is whether “no reasonable consumer would believe”
that the Products did not contain PFAS. Hicks v. L'Oreal U.S.A., Inc., No. 22 CIV. 1989
(JPC), 2024 WL 4252498 at *17 (S.D.N.Y. Sept. 19, 2024) (citing Colpitts, 527 F. Supp.
3d at 583). Given the allegedly known serious health conditions associated with PFAS
exposure—and PFAO exposure in particular—as well as the tension between various
representations on the packaging of the Product and the alleged health risks posed by
PFAS, Plainti?s su?ciently allege the expectations of a reasonable consumer at this
stage. See id.
In response to Plainti?s’ omissions-based theory, POM argues that they “have no
obligation to a?rmatively disclose the presence of varying levels and types of ubiquitous
microcontaminants that might exist, if at all, in concentrations that Plainti?s have not
plausibly alleged present any risk to health.” Doc. 43 at 9–10 (citations omitted). ?is
argument fails because the SAC repeatedly alleges that POM knew that PFAS were in the
Product and that PFAS had harmful e?ects. See Doc. 36 ¶¶ 63, 65, 74, 86, 101, 105, 114.
Even if this argument was successful, it would not result in dismissal of the GBL claims
given the misrepresentation/deception theory pleaded. See Hicks, 2024 WL 4252498, at
* 17 (?nding that L’Oréal’s omission-based argument fails because plainti?s alleged that
L’Oréal knew or should have known that PFAS were in the products and had harmful
e?ects).
At this juncture, given the allegedly known serious health issues associated with
PFAS exposure, as well as the tension between those health issues and the various
representations on the packaging of the Product, the SAC su?ciently pleads allegations
14

that support an objective expectation that the Product did not contain a detectable level of
PFAS.
Count III: Negligence Per Se
?e SAC alleges a negligence per se claim based on POM’s violations of the
FDCA and N.Y. Agric. & Mkts. Law Section 199–a. Doc. 36 ¶¶ 152–61. Since the state
and federal laws are parallel, the Court will analyze both together.
“[T]he mere ‘[v]iolation of a statute [. . .] does not automatically constitute
negligence per se. Only statutes designed to protect a de?nite class of persons from a
particular hazard, which persons within the class are incapable of avoiding, can give rise
to negligence per se for violation of the statute.’” Timperio v. Bronx-Lebanon Hospital
Center, 384 F. Supp. 3d 425, 434 (S.D.N.Y. 2019) (quoting German ex rel. German v.
Fed. Home Loan Mortg. Corp., 896 F. Supp. 1385, 1396 (S.D.N.Y. 1995)). Violations of
consumer protection laws are generally treated as negligence per se. See Gencarelli v.
Coca–Cola Co., No. 20 Civ. 85 (TJM) (CFH), 2020 WL 2561258 (N.D.N.Y. Apr. 13,
2020), report and recommendation adopted, 2020 WL 2559914 (N.D.N.Y. May 20,
2020). ?e Second Circuit has expressly recognized that “a private cause of action for
per se negligence arises under New York State law upon violation of the FDCA.” Doc.
36 ¶ 161; see also Ezagui v. Dow Chemical Corp., 598 F.2d 727, 733 (2d Cir. 1979). ?is
doctrine relieves the plainti? of establishing speci?c common law negligence elements
that the defendant owed a duty to the plainti? and that the defendant breached that duty.
See Gencarelli, 2020 WL 2561258, at *5.
According to the SAC, POM violated the FDCA and N.Y. Agric. & Mkts. Law
§ 199–a because (1) the Product is “adulterated,” as it contains PFAS (including PFOA)
which is undisputedly a deleterious substance and a “known carcinogen”; and (2) the
Product is “misbranded” because its labeling is false or misleading in that it (a) represents
that the product is “All Natural” and “100% Pomegranate Juice” when it actually
contains dangerous synthetic PFAS, and (b) fails to identify the fact that it contains or is
15

at risk of containing PFAS. Doc. 36 ¶¶ 152–61. POM asserts that Plainti?s’ negligence
per se claim fails because they have not su?ciently alleged POM has violated the
predicate statutes. Doc. 43 at 12–13.
i. Adulterated
Food is considered “adulterated” if it “contains any poisonous or deleterious
substance which may render it injurious to health; but if the substance is not an added
substance such food shall not be considered adulterated . . . if the quantity of such
substance in such food does not ordinarily render it injurious to health.” FDCA
§ 342(a)(1); N.Y. Agric. & Mkts. Law § 200 (emphasis added).
POM argues that Plainti?s failed to su?ciently allege that “they were injured by
the Products, or that consumers face a ‘reasonable possibility of injury,’ given that
Plainti?s have failed to allege even a plausible risk of harm.” Doc. 43 at 12. However,
the SAC alleges that the EPA “recently con?rmed that the levels at which negative health
e?ects could occur . . . from exposure to certain PFAS chemicals is [sic] much lower than
previously understood– including near zero in some cases.” Doc. 36 ¶ 60 (emphasis
omitted). Additionally, Plainti?s argue that PFOA is a “known carcinogen,” which
necessarily “may render” the Product injurious to health. Doc. 36 ¶¶ 36–49; Doc. 45 at 9.
At this juncture, Plainti?s have adequately pleaded that the presence of PFAS “may
render” the Product injurious to health.
ii. Misbranded
Food is deemed “misbranded” if its “labeling is false or misleading in any
particular.” FDCA § 343(a); N.Y. Agric. & Mkts. Law § 201. ?e Code of Federal
Regulations (“CFR”) § 101.100(a) sets out an exemption for misbranded foods,
excluding from labeling requirements “incidental additives that are present in a food at
insigni?cant levels and do not have any technical or functional e?ect in that food.” 21
CFR § 101.100(a)(3) (emphasis added). Section 101.100(a)(3)(iii) de?nes incidental

16

additives as, “substances migrating to food from equipment or packaging or otherwise
a?ecting food that are not food additives.”
POM argues that the SAC “fail[s] to identify a misrepresentation on the Product
labels or a basis to require disclosure of the alleged presence of PFAS in trace and
inconsistent amounts,” since, pursuant to 21 CFR § 101.100(a)(3)(iii), “incidental PFAS
microcontaminants . . . fall within the FDA’s exemption of migratory substances and need
not be included on the mandated list of ‘ingredients’ on food packaging.” Doc. 43 at 12–
13. Consequently, POM argues that the presence of PFAS was incidental and should
therefore fall under the FDA’s migratory substance exception pursuant to 21 CFR
§ 101.100(a)(3)(iii). Id. at 13.
Plainti?s allege that POM’s argument is ?awed because POM assumes “that
PFAS in the Product were added incidentally.” Doc. 45 at 10 (internal citation marks
omitted). However, Plainti?s do not allege that POM intentionally used or added PFAS
in the manufacturing process, nor do they claim that POM intentionally added PFAS in
the Product. See Doc. 36. ?e SAC simply states that POM knew of the presence of
PFAS. Doc. 36 ¶¶ 63, 65, 74, 86, 101, 105, 114. ?us, there is a question of fact
remaining regarding whether the PFAS were intentionally or incidentally added to the
Product.
Even if the PFAS were not intentionally added, Plainti?s argue that incidental
food additives are only exempt from traditional labeling requirements if they are present
“at insigni?cant levels” and are “used in conformity with regulations,” 21 CFR
§ 101.100(a)(3) and (a)(3)(iii), which Plainti?s claim they are not. Doc. 45 at 10. ?us,
Plainti?s allege that questions of fact remain regarding (a) whether PFAS are present “at
insigni?cant levels” in the Product; and (b) whether PFAS were “used in conformity with
regulations.” Id.
?e Court agrees that there remain questions of fact concerning whether the
Product was misbranded that cannot be decided at this juncture. ?e amount of PFAS in
17

the product and whether these levels are signi?cant or not is not a question that the Court
can decide on a motion to dismiss. ?erefore, the motion to dismiss Count III is denied
with respect to both the adulterated and misbranded allegations.
Count IV: Unjust Enrichment
In New York, an unjust enrichment claim requires a plainti? to establish (1) that
the defendant bene?tted, (2) at the plainti?'s expense, and (3) that equity and good
conscience require restitution. Zakheim v. Curb Mobility LLC, No. 22 Civ. 4594 (GAM),
2023 WL 3898867, at *7 (E.D. Pa. June 8, 2023) (citing Beth Israel Medical Center v.
Horizon Blue Cross & Blue Shield of N.J., Inc., 448 F.3d 573, 586 (2d Cir. 2006)). A
claim for unjust enrichment lies “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 plainti?.” Cooper, 553 F. Supp.
3d at 116 (quoting Corsello v. Verizon N.Y., Inc., 967 N.E.2d 1177, 1185 (2012)). A claim
for unjust enrichment does not lie under New York law “where it simply duplicates, or
replaces, a conventional contract or tort claim.” Id. at 115; see also Corsello, 967 N.E.2d
at 1185 (stating that “unjust enrichment is not a catchall cause of action to be used when
others fail”).
Courts analyzing such issues under New York law routinely dismiss unjust
enrichment claims which are based upon “the same facts giving rise to . . . claims under
the New York [GBL] and . . . fraud.” Zakheim, 2023 WL 3898867, at *7; see, e.g.,
Barton v. Pret A Manger (USA) Ltd., 535 F. Supp. 3d 225, 249 (S.D.N.Y. 2021)
(dismissing an unjust enrichment claim where the plainti? “relie[d] on the same . . .
theory of liability” and injury as their GBL claim (quoting Hesse v. Godiva Chocolatier,
Inc., 463 F. Supp. 3d 453, 474 (S.D.N.Y. 2020))); see also Borenko? v. Bu?alo Wild
Wings, Inc., No. 16-cv-8532 (KBF), 2018 WL 502680, at *5 (S.D.N.Y. Jan. 19, 2018)
(?nding plainti?s’ allegations entirely duplicative of their GBL § 349 claim, and therefore
dismissing the unjust enrichment claim under New York law).
18

?e case law clearly establishes that unjust enrichment claims are duplicative of
GBL claims where they are premised on the same “factual allegations and the same
theory of liability.” Ham v. Lenovo (United States) Inc., No. 22 Civ. 05131 (ALC), 2024
WL 1348707 *8 (S.D.N.Y. Mar. 29, 2024) (citing Hesse, 463 F. Supp. 3d at 474). Here,
Plainti?s' unjust enrichment claim is predicated upon the very same price premium and
bene?t of the bargain theories of injury advanced for their GBL claims. See Doc. 36
¶ 167 (“Defendants have been unjustly enriched in retaining the revenues derived from
the purchases of the Product by Plainti?s and the other members of the Class. Retention
of those monies under these circumstances is unjust and inequitable because [POM’s]
representations regarding the quality or value of the Product were misleading to
consumers, which caused injuries to Plainti?s and the other members of the Class,
because they would have not purchased the Product had they known the truth or would
only have purchased the Product for a lower price.”).
Plainti?s' unjust enrichment claim must therefore be dismissed because it merely
duplicates their other claims.
IV.

CONCLUSION
For the reasons set forth above, Defendants’ motion is GRANTED in part and

DENIED in part. ?e GBL §§ 349 and 350 (Claims I & II) and negligence per se (Claim
III) claims are not dismissed, but the unjust enrichment claim (Claim IV) is dismissed.
?e parties are directed to appear for a telephonic conference on December 12, 2024, at
3:30 PM. ?e parties are directed to call [phone] at that time and enter access

19

code 3029857#. ?e Clerk of Court is respectfully directed to terminate the motion, Doc.
42.
It is SO ORDERED.
Dated:

November 25, 2024
New York, New York
EDGARDO RAMOS, U.S.D.J.

20