Stewart v. New World Pasta Company

Filing 22

OPINION AND ORDER. For the foregoing reasons, the Court GRANTS Defendant's motion to dismiss. The Clerk of the Court is respectfully directed to terminate the motion at ECF No. 15 and to close the case. So ordered. re: 15 MOTION to Dismiss Pursuant to Fed. R. Civ. P. 12(B)(6) filed by Riviana Foods Inc. (Signed by Judge Nelson Stephen Roman on 9/11/2017) (rjm)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
MELISSA STEWART, on behalf of herself and all
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No. 16-CV-6157 (NSR)
OPINION & ORDER

RIVIANA FOODS INC.,
Defendant.

NELSONS. ROMAN, United States District Judge
Plaintiff Melissa Stewart ("Stewart"), a resident and citizen of New York State, filed this
purported class action, alleging that Defendant Riviana Foods, Inc. ("Riviana") violated Sections
349 and 350 of the New York General Business Law ("N.Y. GBL") by engaging in deceptive
marketing practices.

Defendant Riviana 1 is a Texas corporation2 that adve1tises, distributes,

markets, and sells its pasta products throughout New York State. 3 Stewait contends that Riviana
has engaged in a deceptive packaging scheme that misleads consumers into believing its healthy
pasta boxes contain the same net weight of product contained in "traditional" pasta boxes.
Specifically, Defendant allegedly packages only 12 ounces of healthy pasta in "the same iconic
boxes" traditionally sized and priced to contain 16 ounces (i.e., one pound) of product, as to induce
consumers into paying a premium for healthy pasta without realizing that they are purchasing less

1

On January 13, 2017, the parties filed a joint stipulation agreeing to amend the caption of the instant
action "to reflect the change in corporate status and the nan1e of defendant fro1n Ne\v Wor1d Pasta Co1npany to
Riviana Foods, Inc." (See ECF No. 12.)
·
2
Based in Houston, Texas, Riviana "is a wholly·owned subsidiary of Spanish food giant, Ebro Foods, S.A.
("Ebro"), a multinational food group operating in the rice, pasta, and sauces sector." (Compl. (ECF No. l) 1[ 16.)
"Ebro is the global sales leader in the rice sector and is the second largest pasta manufacturer in the world." (fd.)
3
These facts are drawn from Plaintiffs complaint, and the Comt assumes their accuracy for the purpose of
considering dismissal under Fed. R. Civ. P. l2(b)(6). Lafaro v. N. Y. Cardiothoracic Gip., PLLC, 570 F.3d 47 l, 475
(2d Cir. 2009).

product. Riviana now moves to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6) for
failure to state a claim. (ECF No. 16.) For the reasons stated below, Defendant’s motion is
GRANTED .
BACKGROUND
In considering a Rule 12(b)(6) motion, a court is limited to the facts alleged in the
complaint and is required to accept those facts as true. See LaFaro v. N.Y. Cardiothoracic Grp.,
PLLC, 570 F.3d 471, 475 (2d Cir. 2009). A court may, however, consider documents attached to
the complaint; statements or documents incorporated into the complaint by reference; matters of
which judicial notice may be taken, such as public records; and documents that the plaintiff either
possessed or knew about, and relied upon, in bringing the suit. See, e.g., Kleinman v. Elan Corp.,
PLC, 706 F.3d 145, 152 (2d Cir. 2013); Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d
Cir. 2002) (applying that rule to district courts); accord Wechsler v. HSBC Bank USA, N.A, No.
15-CV-5907 (JMF), 2016 WL 1688012, at *1 (S.D.N.Y. Apr. 26, 2016), aff’d 674 F. App’x 73
(2d Cir. 2017). Accordingly, the following facts are taken from the complaint and exhibits attached
thereto or incorporated by reference therein.
Defendant Riviana Foods, Inc. is “a leading manufacturer and distributor of dry pasta in
the United States,” including Ronzoni®, one of the company’s flagship brands. (Compl. (ECF
No. 1) ¶¶ 3, 16-17.) Ronzoni pasta is “an iconic American brand,” and at one point was the
“number one pasta in the New York market, the largest pasta market in the United States.” (Id. ¶¶
4, 2). Ronzoni has been sold to multiple generations of consumers – for more than 100 years –
and at one point was the “number one pasta in the New York market.” (Id. ¶¶ 4, 18.) “Ronzoni
pastas continue to have a major industry market share.” (Id. ¶ 4.)

2

According to the Complaint, Ronzoni pasta – specifically the processed white flour variety
– has been sold “for decades” in the same “iconic” boxes. (Id. ¶¶ 5, 15.) The hallmark packaging
consists of “thin blue and yellow,” (id. ¶ 26), “cardboard boxes of a uniform dimension” 4 (id. ¶ 6),
filled with “approximately 16 ounces net weight of pasta” (id. ¶¶ 6, 15). The front panel of these
long rectangular boxes features a small transparent window above the net weight, which is printed
in small white text on the bottom right-hand corner. (Id. ¶ 6; Pl.’s Mem. Law Opp’n Def.’s Mot.
To Dismiss (ECF No. 18) (“Pl.’s Mem.”) 17.)

Figure 1: FRONT PANEL

Plaintiff alleges that, “[t]hese Ronzoni boxes have become ubiquitous in the marketplace
over the past century as competitors have marketed their own dry pasta products in substantially
the same size rectangular box filled with the same volume of dry pasta.” (Id. ¶ 7) (emphasis added).
While Ronzoni® Thin Spaghetti (referred as “traditional pasta” or “white flour pasta”) is a
“hallmark product” (meaning “instantly recognizable to millions of American consumers”) (id. ¶
5), Ronzoni sells a wide variety of other white flour pasta styles besides spaghetti including, but

4

The “standard dimension box is approximately 10 5/8 inches long, 2 ¾ inches wide, and 1 ¼ inches
deep.” (Compl. ¶ 5.) Though Defendant offers image of the box allegedly at issue in this case, even assuming the
boxes are nearly identical except for the differences alleged by Plaintiff, the claims still fail as discussed herein.

3

not limited to, large shells, penne, rotelli, and elbows. (Id. ¶ 6.) No matter the style, Ronzoni
processed white flour products are “generally packaged in cardboard boxes of a uniform
dimension,” (id. ¶ 6), and “[t]hese packages historically had been filled with 16 ounces (net weight)
of Ronzoni pasta product” (id. ¶ 23; see also Pl.’s Opp’n at 3). “Consequently, consumers have
come to rely upon the ‘standard size and standard volume’ packaging when making purchasing
decisions, particularly because the contents were and are not fully visible in the non-transparent
cardboard packaging.” (Id. ¶ 7.) Stated differently, as alleged by Plaintiff, consumers of Ronzoni
pasta “have long been accustomed to receiving” 16 ounces of white flour pasta per box. (Id. ¶¶
10, 12, 14; Pl.’s Opp’n at 4-5.)
Because consumers have “become more nutritionally conscious,” demand for pasta “has
dropped severely” in recent years. (Compl. ¶ 8.) “[F]aced with declining consumer demand for
its traditional white dry pasta products, including its Ronzoni brand,” Defendant “introduced to
the market a line of Ronzoni products “featuring healthier ingredients.” (Id. ¶ 23.) Ronzoni’s new
brands include: Garden Delight®, Smart Taste®, Healthy Harvest®, Gluten Free®, and Super
Greens® (collectively, the purportedly “healthy pastas”). (Id. ¶ 8.) Plaintiff claims these new
healthy pastas are packaged in the “same dimension boxes as the traditional” wheat pastas,” (id. ¶
10), but with “substantially less pasta than before” (id. ¶ 24). More specifically, Defendant filled
iconic-sized Ronzoni boxes “with [] approximately 25% less pasta than Plaintiff and consumers
had previously received” when it introduced its healthier product line. (Id. ¶ 28.) For example,
Ronzoni® Smart Taste Thin Spaghetti (“Smart Taste”) boxes are packaged within a box that is the
same size and price 5 as the Ronzoni® Thin Spaghetti No. 9. (Id. ¶ 26.) Nonetheless, Smart Taste
contains only 12 ounces of pasta. Plaintiff alleges Defendant “misled [her] into believing [she]

5

Plaintiff states ShopRite, for example, is selling Smart Taste and Spaghetti No. 9 “for the same price,
$1.69.” (Compl. ¶ 26.)

4

was buying the same volume of spaghetti regardless of which [variety] [she] purchased,” (id. ¶
27), because both healthy and white wheat products are sold on the same grocery store shelf.
Though Plaintiff admits that the boxes containing the healthy pastas “do set forth the actual net
weight on the product in small print on the bottom of the box,” Plaintiff still claims that because
consumers are not “carefully study[ing] the net weight number set forth in small print on the front
of the box – and somehow realiz[ing] that they are no longer receiving the same quantity of
Ronzoni pasta as before – consumers are being misled.” (Id. ¶ 27.)
Plaintiff filed this lawsuit on behalf of herself and others similarly situated on August 3,
2016. (ECF No. 1.) Put simply, Plaintiff alleges that Defendant misleads consumers into paying
a premium price for healthy pasta in violation of New York State consumer protection laws by
relying “on consumers’ familiarity with its traditional-sized [white flour] pasta boxes, garnered
over many decades of marketing, to deceive consumers into thinking that they are purchasing the
same quantity of pasta as they always have” often “at exactly the same price,” when they purchase
healthy pasta boxes. (Id. ¶ 14; see also ¶¶ 38, 40, 44, 46.)) Defendant moves to dismiss the
Complaint in its entirety.
DISCUSSION
As noted, Defendant moves to dismiss on several grounds. First, it argues that Plaintiff’s
state law claims are preempted by federal law and regulations. (Def.’s Mem. Law Supp. Mot. To
Dismiss (ECF No. 16) (“Def.’s Mem.”) 8-10.) Second, it moves, pursuant to N.Y. GBL § 349(d)
(i.e., a safe harbor for defendants), which provides “a complete defense” whenever a challenged
act or practice “complies with federal rules and regulations.” (Def.’s Mem. 9.) Finally, Defendant
moves pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss all counts for
failure to state a claim. (Id. 10-13.) The Court will address each argument in turn.
5

A. Preemption
Defendant argues first that it is entitled to dismiss all of Plaintiff’s claims because
Plaintiff’s claims are precluded by the Food, Drug, and Cosmetic Act of 1938 (“FDCA”).
Defendant reasons that because its label complies with federal law and regulations, Plaintiff’s
“apparent claim that the net weight statements were too small to overcome her purported
‘expectation’ … that all pasta sold in similarly-sized boxes necessarily must contain the same
volume of pasta” is “precluded.” (Def.’s Mem. 9.)
Plaintiff contends “[t]his argument wholly overstates the scope of the Federal law pursuant
to which the regulations at issue were promulgated.” (Pl.’s Opp’n 9.) Moreover, Plaintiff clarifies
that she is not “contend[ing] that Riviana has failed to comply with the applicable regulations
governing the display of the net weight of product in its ‘healthy’ pastas packaging.” (Id.) Instead
Plaintiff argues “that [when] the packaging as a whole is misleading in a material way,” (Pl.’s
Opp’n 9), “it creates the impression that the customer is receiving more product than they really
are,” (id. at 9), which is a practice that is “not preempted by the FDCA’s labeling requirements”
(id. at 10). Moreover, Plaintiff relies on POM Wonderful LLC v. Coca-Cola Co., 134 S. Ct. 2228
(2014), for the proposition that a deceptive practice claim may proceed even when Defendant has
complied with the FDCA’s applicable labeling requirements. (Pl.’s Opp’n 10.)
Plaintiff is correct in so far as N.Y. GBL claims may survive even when manufacturers
comply with the labeling laws. (See Pl.’s Opp’n 12.) It is well-established that “even if … the
labeling meets the floor established by federal regulations, there is nothing to indicate that it could
not still be misleading and therefore actionable under the state consumer protection laws.” In re
Bayer Corp. Combination Aspirin Prods. Mktg. & Sales Practices Litig., 701 F. Supp. 2d 356,
375-76 (E.D.N.Y. 2016). More to the point, nothing in the applicable federal laws “expressly

6

preempts state law claims for deceptive practices premised on an alleged failure to follow federal
food labeling requirements.” Koenig v. Boulder Brands, Inc., 995 F. Supp. 2d 274, 284 (S.D.N.Y.
2014).

Therefore, the Court finds that Plaintiff’s claims are not precluded by the FDCA.

Accordingly, Defendant’s motion for dismissal on this grounds is denied for the reasons discussed
below.
1. Regulatory Scheme
The Food and Drug Administration (the “FDA”) derives its authority to regulate food labels
from two primary sources: the FDCA and the Nutrition Labeling and Education Act (“NLEA”).
Under the FDCA, Congress granted the FDA power to ensure “foods are safe, wholesome,
sanitary, and properly labeled.” 21 U.S.C. § 393(b)(2)(A) (emphasis added); Ackerman v. CocaCola Co., No. 09-CIV-0395 (JG) (RML), 2010 WL 2925955, at *2 (E.D.N.Y. July 21, 2010)).
The FDCA expressly forbids the misbranding of food in interstate commerce. 21 U.S.C. § 331(a)(c), (k). Section 343 of the FDCA sets forth circumstances under which food is considered
“misbranded.” 21 U.S.C. § 343. In general, a food 6 is “misbranded” if “any particular” of its
labeling is “false or misleading.” 21 U.S.C. § 343(a)(1).
In 1990, Congress amended the FDCA with the 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 Restaurant
Ass’n v. New York City Bd. of Health, 556 F.3d 114, 118 (2d Cir. 2009); Pub. L. No. 101-535, 104
Stat. 2353 (1990) (codified at 21 U.S.C. § 343 et. seq.). These statutes do not provide for a private
right of action. See 21 U.S.C. § 337 (all proceedings “for the enforcement, or to restrain violations,

6

For the purposes of the FDCA, “food” includes any “article [] used for food or drink for [a] [hu]man
…and articles used for components of any such article.” 21 U.S.C. § 321(f).

7

of this chapter shall be by and in the name of the United States” or, under limited circumstances,
brought by a state); Merrell Dow Pharms., Inc. v. Thompson, 478 U.S. 804, 810 (1986).
The NLEA includes a lengthy express preemption clause with five subparts. 21 U.S.C.
§343-1(a). All five subparts, however, impose the same preemptive standard: states are prohibited
from imposing “requirements” relating to food that subject to exceptions and exemptions are not
“identical” to an applicable federal food labeling standard. 7

For preemption purposes, “not

identical to” “does not refer to the specific words” but instead to state obligations that either
“differ” from or are “not imposed” by federal law. 21 C.F.R. §100.1(c)(4); see also, State
Standards of Identity, Quality or Fill Regulations, 58 Fed. Reg. 3, 2463 (Jan. 6, 1993) (codified in
21 CFR Ch. 1) (“Preemption would occur only if the detailed information included in the State
requirements imposes different or stricter requirements than provided for in § 101.105.”).
Therefore, the proper inquiry calls for determining whether any of Plaintiff’s claims seek to impose
requirements that are affirmatively different from an applicable federal requirement. See, e.g., In
re Pepsico Inc., 588 F. Supp. 2d 527, 532 (S.D.N.Y. 2008) (“Stated differently, “the only state
requirements that are subject to preemption are those that are affirmatively different from the
Federal requirements.”).
2. Preemption Analysis
Turning to the merits, the Court notes that Defendant did not explain whether Plaintiff’s
claims were expressly preempted by federal law, or in the alternative, whether they are barred by
implied conflict preemption. A defendant asserting preemption bears the burden of proving that
it applies. Bruesewitz v. Wyeth LLC, 562 U.S. 223, 251 n.2 (2011) (“Federal preemption is an

7

In the “FDA’s view, as reflected in [21 C.F.R.] § 100.1(c)(4), [] the fact that the State requirements
contain more detail than found in the Federal regulation does not necessarily mean that the State requirements would
be subject to preemption.” State Standards of Identity, Quality or Fill Regulations, 58 Fed. Reg. 3, 2463 (Jan. 6,
1993) (codified in 21 C.F.R. Ch. 1).

8

affirmative defense upon which the defendants bear the burden of proof”) (citations omitted).
Instead, Defendant argues that Plaintiff’s claims are preempted because the label at issue discloses
the net quantity of contents in the exact manner required by FDA regulations: namely, the net
quantity8 is displayed on the principal display panel, 9 21 C.F.R. §§ 101.3(a), 101.105(a), the net
quantity statement is placed as a distinct item in the bottom 30 percent of the principal display
panel, it lines generally parallel with the base of the container, id. §§ 101.105(e), 101.105(f), and
the minimum type size complies with the calculations outlined in 21 CFR 101.105(h) and (i). 10
(Def.’s Mem. 8-9.) This argument presumes that any state-law claim requiring Defendant to
include supplemental statements about product quantity or to avoid misleading packaging tactics
is preempted by the FDCA and, consequently, misconstrues Plaintiff’s claims.
Drawing all reasonable inferences in Plaintiff’s favor – as the Court must – the Complaint
appears to challenge either Defendant’s omission of supplemental statements about the product
weight or the use of the same size box. In other words, Plaintiff contends that Defendants should
either supplement the label as to alert consumers that the healthy pasta boxes contain less product
or use a smaller box. The new healthy pastas are allegedly packaged in a box that has contained
16 ounces “for decades.” (Compl. ¶ 5.) “Unless consumers carefully study the net weight number

8
The net quantity of contents is the statement on the label which provides the amount of food in the
container or package. It must be expressed in weight, measure or numeric count. Generally, if the food is solid, it
should be expressed in terms of weight. 21 C.F.R. 101.105(a)(b)(c).
9
Manufacturers can either (1) place all required label statements on the front label panel (the “principal
display panel”) or (2) place certain specified label statements of the principal display panel and other labeling on the
information panel (i.e., the label panel immediately to the right of the principal display panel, as seen by the
consumer facing the product). See 21 C.F.R. §§ 101.1 – 101.5, 101.9, and 101.105
10
For the net quantity of statements, the minimum type size is the smallest type size that is permitted based
on the space available for labeling on the principal display panel. Manufacturers must determine the height of the
type by measuring the height of the lower case letter “o” or its equivalent when mixed upper and lower case letters
are used, or the height of the upper case letters when only upper case letters are used. See 21 C.F.R. 101.105(h) and
(i). Plaintiff alleges that the boxes in question are “approximately 10 5/8 inches long, 2 ¾ inches wide, and 1 ¼
inches deep” (Compl. ¶ 5), “for a total of 29.2 square inches on the face containing the weight disclosures.” (Def.’s
Mem. 9.) When the area of the principal display panel is between 25 and 100 square inches, the minimum type size
must be 3/16 inches (3.2 mm). See 21 C.F.R. 101.105(h) and (i).

9

set forth in small print on the front of the box – and somehow realize that they are no longer
receiving the same quantity of Ronzoni pasta as before – consumers are being misled by Riviana’s
deceptive practice of under filling its ‘healthy’ pasta boxes into paying a price premium for the
alternatives.” (Pl.’s Opp’n 6.)
Considering the first issue, in challenging Defendant’s omission of supplemental
statements about product weight, Plaintiff seeks to enforce Sections 349 and 350 of the N.Y. GBL.
Here, state law declares unlawful “[d]eceptive acts or practices in the conduct of any business,
trade or commerce,” N.Y. Gen. Bus. Law § 349, and prohibits the “[f]alse advertising in the
conduct of any business, trade or commerce …,” N.Y. Gen. Bus. Law § 350. “New York Law
expressly incorporated the standard imposed by the FDCA,” and “provides that anything that
complies with federal law and regulations per se complies with state law.” Izquierdo v. Mondelez
Int’l, Inc., No. 16-CV-04697 (CM), 2016 WL 6459832, at *4 (S.D.N.Y. Oct. 26, 2016); see also
Goldemberg v. Johnson & Johnson Consumer Companies, Inc., 8 F. Supp. 3d 467, 474 (S.D.N.Y.
2014) (persuaded by Plaintiff’s reasoning that, inter alia, the N.Y. GBL § 349 is a statute of general
applicability prohibiting deceptive practices and does not add any new requirements because the
FDCA seeks to prohibit misbranding).

Moreover, the NLEA states food shall be deemed

misbranded “[i]f (1) its labeling is false or misleading in any particular, or (2) … its advertising is
false or misleading in a material respect ….” 21 U.S.C.A. § 343 (West); see, e.g., U.S. v. 24 Bottles
Sterling Vinegar and Honey Aged in Wood Cider, 338 F.2d 157, 159 (2d Cir. 1964) (“The
distinguishing characteristic of a label is that, in some manner or another, it is presented to the

10

customer in immediate connection with his view and his purchase of the product.”). In other
words, the federal and state laws at issue prohibit the false or misleading labeling of food items. 11
Viewed in this light, the state-law duty Plaintiff seeks to enforce under N.Y. GBL is
identical to Defendant’s federal duty under the FDCA and NLEA: the duty to avoid misleading or
false labeling. The FDCA defines labeling to include “all labels and other written, printed, or
graphic matter (1) upon any article or any of its containers or wrappers, or (2) accompanying such
article.” 21 U.S.C. § 321(m); Ackerman v. Coca-Cola Co., No. 09-CV-0395 (JG), 2010 WL
2925955, at *7 fn.12 (E.D.N.Y. July 21, 2010). 12 Whether or not the omission of a supplemental
statement, or choosing a larger box, rendered the accurate net weight label deceptive goes to the
merits of the claim, not the question of federal preemption. See, e.g., Astiana v. Hain Celestial
Grp., Inc., 783 F.3d 753, 758 (9th Cir. 2015) (“To the extent [the defendant] claims that no
consumer would be deceived ... this argument goes to the merits of [plaintiff’s] assertion that she
was deceived by the allegedly false or misleading label, not the question of federal preemption.”);
see also Ebner v. Fresh, Inc., 838 F.3d 958, 964 (9th Cir. 2016) (with respect to net weight claims
and omission of a clarifying statement regarding amount of product that is actually usable);
Krommenhock v. Post Foods, LLC, No. 16-CV-04958 (WHO), 2017 WL 2378029, at *12 (N.D.
Cal. June 1, 2017) (stating that “a ‘failure to warn’ type of claim suggested by plaintiffs is not

11
As for the second issue, regarding the intentionally misleading packaging, the Court declines to apply
any of the relevant “slack fill” case law because Plaintiff expressly told the Court at a conference held on November
10, 2016, that she would not plead “slack fill” claims in her Complaint.
12
The definition of “accompanying” has been interpreted broadly to include statements not attached to the
product itself. See, e.g., Kordel v. U.S., 335 U.S. 345, 350 (1948) (no physical attachment between the label and
product is necessary); U.S. v. 24 Bottles Sterling Vinegar and Honey Aged in Wood Cider, 338 F.2d 157, 159 (2d
Cir. 1964) (“The distinguishing characteristic of a label is that, in some manner or another, it is presented to the
customer in immediate connection with his view and his purchase of the product.”); see generally Louis Altman and
Malla Pollack, 1A Callmann on Unfair Comp., Trademarks & Monopolies § 5:9 (4th Ed. 2009) (“The original
distinction between labels and other advertising matter has ... been blurred.”); Sarah E. Taylor, and Harold J. Feld,
Promoting Functional Foods and Nutraceuticals on the Internet, 54 Food & Drug L.J. 423, 446 (1999) (surveying
case law and concluding “[i]f the matter is part of an integrated scheme to promote the product, with a readily
discernible nexus between product sales and the matter, the representation will constitute labeling.”)

11

expressly preempted, absent evidence that consideration of this type of affirmative warning was
the focus of the FDA’s rulemaking.”). Because the N.Y. GBL does not amount to something
“different from or in addition to” what federal law already requires regarding weight labeling in
general, under 21 U.S.C. § 101.105, preemption does not bar Plaintiff’s claim. 13 See, e.g., Kanfer
v. Pharmacare US, Inc., 142 F. Supp. 3d 1091, 1100-1102 (S.D. Cal. 2015).
B. The Adequacy of Plaintiff’s N.Y. GBL Claims
Although the Court concludes that federal preemption does not bar Plaintiff’s state claims,
this suit ultimately fails on the merits because Plaintiff cannot plausibly state that the alleged
practice rendered Ronzoni’s label “false or misleading” to the reasonable consumer.
1. Judicial Notice
Before considering Defendant’s specific arguments regarding Plaintiff’s N.Y. GBL claims,
the Court must first consider whether it may take judicial notice of the documents and
advertisements Defendant submitted at the same time as its Memorandum of Law. None of these
documents were attached to the Complaint. While a court must generally treat a 12(b)(6) as one
for summary judgment under Rule 56 when it relies on matters outside the pleadings, 14 the court
may consider documents beyond the pleadings in deciding a motion to dismiss. See Int’l Audiotext
Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995) (“In circumstances where ‘a
plaintiff chooses not to attach to the complaint or incorporate by reference a document upon which
it solely relies and which is integral to the complaint,’ the court may nevertheless take the
document into consideration …, without converting the proceeding to one for summary
judgment.”).

13

This is not the case of a N.Y. State statute requiring the net weight be displayed in 24-point font on the box if the
product is sold in New York. Nor does it seek to add a warning about an unregulated aspect of the product. See,
e.g., Sciortino v. Pepsico, Inc., 108 F. Supp. 3d 780, 786 (N.D. Cal. 2015).
14
Fed. R. Civ. P. 12(d).

12

Generally, a court may incorporate documents referenced where (1) plaintiff relies on the
materials in framing the complaint, (2) the complaint clearly and substantially references the
documents, and (3) the document’s authenticity or accuracy is undisputed. See DeLuca v.
AccessIT Grp., Inc., 695 F. Supp. 2d 54, 60 (S.D.N.Y. 2010) (“A document is “integral,” if the
plaintiff has “(1) ‘actual notice’ of the extraneous information and (2) ‘relied upon the documents
in framing the complaint.’”); accord Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.
2002) (“Because this standard has been misinterpreted on occasion, we reiterate [] that a plaintiff’s
reliance on the terms and effect of a document in drafting the complaint is a necessary prerequisite
to the court’s consideration of the document on a dismissal motion; mere notice or possession is
not enough.”) (emphasis in the original); see also McLennon v. City of New York, ___ F. Supp. 3d
____, 2016 WL 1089258, at *9 (E.D.N.Y. Mar. 18, 2016) (“To be incorporated by reference, the
complaint must make ‘a clear, definite and substantial reference to the documents.’”); DiFolco v.
MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010) (“[E]ven if a document is ‘integral’ to the
complaint, it must be clear on the record that no dispute exists regarding the authenticity or
accuracy of the document,” and “[i]t must also be clear that there exist no material disputed issues
of fact regarding the relevance of the document.”).
By the Court’s count, Defendant requests that judicial notice be taken of several sources of
extraneous information, comprising the following:
Packaging
(White Flour Pasta Line)
1. The principal display panel (the “front view”) of the Ronzoni® Thin Spaghetti No. 9 (16
OZ) package (See Def.’s Mem. 3; see also Decl. Robert Shane Faucett Supp. Def.’s Mot.
To Dismiss (ECF No. 17) (“Faucett Decl.”) ¶ 5.)
2. The front view of the Ronzoni® Thin Spaghetti No. 9 (8 OZ) package (See Def.’s Mem. 3;
see also Faucett Decl. ¶ 6.)
13

(Healthy Pasta Line)
3. The front view of the Ronzoni Smart Taste® Thin Spaghetti package (See Def.’s Mem. 2;
see also Faucett Decl. ¶ 7.)
4. The front view of the Ronzoni Healthy Harvest® Ancient Grains Thin Spaghetti package
(See Def.’s Mem. 5; see also Faucett Decl. ¶ 12.)
5. The front view of the Ronzoni Garden Delight® Spaghetti package (See Def.’s Mem. 6;
see also Faucett Decl. ¶ 9.)
6. The front view of the Ronzoni Gluten Free® Thin Spaghetti package (See Def.’s Mem. 6;
see also Faucett Decl. ¶ 10.)
7. The front view of the Ronzoni® SuperGreens™ Thin Spaghetti package (See Def.’s Mem.
6; see also Faucett Decl. ¶ 13.)
8. The front view of the Ronzoni Healthy Harvest® Whole Grain Thin Spaghetti package
(See Def.’s Mem. 7; see also Faucett Decl. ¶ 11.)
Display
9. Examples of shelf tags used for Ronzoni® pasta products in Shop Rite Stores (See Def.’s
Mem. 4; see also Faucett Decl. ¶¶ 14-15.)
Other Information
10. Declaration of Robert Shane Faucett in Support of Defendant’s Motion to Dismiss For
Failure to State a Claim Pursuant to Fed. R. Civ. P. 12(b)(6) (ECF No. 17.)
Of these, the Court concludes that it can consider the first, third and fourth packaging
submissions – that is the (1) Ronzoni® Thin Spaghetti No. 9 (16 OZ), 15 (3) Ronzoni Smart Taste®
Thin Spaghetti package, 16 and (4) Ronzoni Healthy Harvest® Ancient Grains Thin Spaghetti 17 –
as all are “incorporated by reference” in the Complaint, in that the Complaint discusses each at
length, (see Compl. ¶¶ 5, 9-10, 12, 14-15, 23-24, 26), “mak[ing] ‘a clear, definite and substantial

15

See Compl. ¶¶ 5, 10, 12, 14, 23, 26; see also Pl.’s Opp’n 17.
See Compl. ¶¶ 9, 14, 15, 24, 26.
17
See Compl. ¶ 9, 14, 24, 26.
16

14

reference to the [information],’” McLennon, 2016 WL 1089258, at *9 (internal quotation marks
omitted). 18 Lastly, the authenticity of the packages are not in dispute. However, the Court cannot
consider Defendant’s other packages or declaration. 19 This is so because, far from incorporating
them by reference, see McLennon, 2016 WL 1089258, at *9, or being integral to the complaint
through Plaintiff’s actual notice of and reliance upon the ads in framing her complaint, DeLuca,
695 F. Supp. 2d at 60, Plaintiff discusses – and more importantly bases the allegations on – only
three of the packages. With this issue resolved, the Court now turns to the merits of Defendant’s
motion.
2. The Merits of Plaintiff’s Claims
Finally, as noted, Defendant moves to dismiss all of Plaintiff’s claims, pursuant to Rule
12(b)(6) for failure to state a claim. A Rule 12(b)(6) motion challenges the sufficiency of the
allegations in the complaint. See Weisblum v. Prophase Labs, Inc., 88 F. Supp. 3d 283, 292
(S.D.N.Y. 2015) (citing ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007).
To survive a Rule 12(b)(6) motion to dismiss, “a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “The

18

The Court concludes that there is no need to consider the last two classes of exhibits and so does not
analyze whether the Court can take judicial notice of them. Even if Defendant’s packaging may have complied with
federal, state, and model regulations, (see Def.’s Mem. 9-10), that does not prove the conclusion that a reasonable
consumer could not have been misled by Defendant’s representations. Cf. Kacocha v. Nestle Purina Petcare Co.,
No. 15-CV-5489 (KMK), 2016 WL 4367991, at *11–12 (S.D.N.Y. Aug. 12, 2016) (quoting Koenig v. Boulder
Brands, Inc., 995 F. Supp. 2d 274, 288 (S.D.N.Y. 2014) (“[A] reasonable consumer might … focus on the more
prominent portion of the product label that touts the product as ‘Fat Free Milk and Omega-3s,’ and overlook the
smaller text that discloses the fat content on the front of the carton or the nutrition label.”). Ackerman v. Coca-Cola,
Co., No. 09-CV-0395, 2010 WL 2925955, at *16, 22-23 (E.D.N.Y. July 21, 2010) (“The fact that the actual sugar
content of vitaminwater was accurately stated in an FDA-mandated label on the product does not eliminate the
possibility that reasonable consumers may be misled.”). The Court also does not consider the content of the shelf
tags because Plaintiff does not mention or cite the tags in the Complaint.
19
Defendant submits a declaration from Robert Shane Faucett, Senior Vice President of the Sales and
Marketing Department, in support of its motion to dismiss. (See generally Faucett Decl., ECF No. 17.) Although
Defendant argues that it is within the scope of the materials that the Court may consider, (see Def.’s Mem. 2-4), the
Court gives it no consideration.

15

purpose of Rule 12(b)(6) is to test, in a streamlined fashion, the formal sufficiency of the plaintiff’s
statement of a claim for relief without resolving a contest regarding its substantive merits.” Glob.
Network Commc’ns, Inc. v. City of New York, 458 F.3d 150, 155 (2d Cir. 2006) (emphasis in
original); Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998) (“At the 12(b)(6) stage, [t]he
issue is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled
to offer evidence to support the claims.” (internal quotation marks omitted)). Accordingly, in
conducting that test, the Court accepts all well-pleaded factual allegations as true and draws all
reasonable inferences in favor of the plaintiff. Casper Sleep, Inc. v. Mitcham, 204 F. Supp. 3d
632, 637 (S.D.N.Y. 2016), reconsideration denied, No. 16 CIV. 3224 (JSR), 2016 WL 7188788
(S.D.N.Y. Nov. 17, 2016) (citing Duffey v. Twentieth Century Fox Film Corp., 14 F. Supp. 3d 120,
126 (S.D.N.Y. 2014)). The Court need not credit, however, “mere conclusory statements” or
“threadbare recitals of the elements of a cause of action.” Iqbal, 556 U.S. at 678. “[L]egal
conclusions masquerading as factual conclusions will not suffice.” Achtman v. Kirby, McInerney
& Squire, LLP, 464 F.3d 328, 337 (2d Cir. 2006).
When there are well-pleaded factual allegations in the complaint, “a court should assume
their veracity and then determine whether they plausibly give rise to an entitlement to relief.”
Iqbal, 556 U.S. at 679. A claim is facially plausible when the factual content pleaded allows a
court “to draw a reasonable inference that the defendant is liable for the misconduct alleged.” Id.
at 678. Ultimately, determining whether a complaint states a facially plausible claim upon which
relief may be granted must be “a context-specific task that requires the reviewing court to draw on
its judicial experience and common sense.” Id. at 679.
Here, Defendant seeks to dismiss Plaintiff’s claims under N.Y. GBL Sections 349 and 350,
which prohibit deceptive business practices and false advertising, (Def.’s Mem. 10-15), on the

16

ground that the conduct alleged is not materially misleading as a matter of law, and rather,
Plaintiff’s claims are objectively unreasonable. (Def.’s Opp’n 10.) The Court will address each
argument in turn.
To state a prima facie claim under either Section, a plaintiff must allege that the defendant
(1) engaged in consumer-oriented conduct; (2) that the conduct was materially misleading; and (3)
that the plaintiff suffered injury as a result of the allegedly deceptive act or practice. See, e.g., City
of N.Y. v. Smokes-Spirits.Com, Inc., 12 N.Y.3d 616, 621, 883 N.Y.S.2d 772, 911 N.E.2d 834
(2009) (Section 349); see also Gristede’s Foods, Inc. v. Unkechauge Nation, 532 F. Supp. 2d 439,
450-51 (E.D.N.Y. 2007) (stating that the standards under Sections 349 and 350 are “substantively
identical”).

Claims brought under GBL § 349 are not subject to the heightened pleading

requirements set forth in Rule 9(b). Pelman ex. rel. Pelman v. McDonald’s Corp., 396 F.3d 508,
511 (2d Cir. 2005).
It is undisputed that Plaintiff has met the first prong of her N.Y. GBL claims: there is no
question that the sale of Ronzoni pasta constituted “consumer-oriented conduct.” 20 This element
“may be satisfied by showing that the conduct at issue potentially affects similarly situated
consumers.” Sykes v. Mel S. Harris & Associates LLC, 780 F.3d 70, 84 (2d Cir. 2015) (citation
omitted). “[E]ven the sale of high-end wine has been held sufficiently ‘consumer-oriented’ to

20
As a threshold matter, the New York Court of Appeals has emphasized that “section 349 is a broad,
remedial statute and that the provision creating a private right of action employs expansive language.” Casper
Sleep, Inc. v. Mitcham, 204 F. Supp. 3d 632, 643 (S.D.N.Y. 2016), reconsideration denied, No. 16 CIV. 3224 (JSR),
2016 WL 7188788 (S.D.N.Y. Nov. 17, 2016) (citing Blue Cross & Blue Shield of N.J., Inc., 785 N.Y.S.2d 399, 818
N.E.2d at 1144). As such, § 349 “appl[ies] to virtually all economic activity, and [its] application has been
correspondingly broad,” as “[t]he reach of [this] statute [ ] provide[s] needed authority to cope with the numerous,
ever-changing types of false and deceptive business practices which plague consumers in [New York].” Karlin v.
IVF Am., Inc., 93 N.Y.2d 282, 690 N.Y.S.2d 495, 712 N.E.2d 662, 665 (1999) (internal quotation marks omitted);
see also Aghaeepour v. N. Leasing Sys., Inc., 2015 WL 7758894, at *14 (S.D.N.Y. Dec. 1, 2015) (“[T]he
requirement that defendants engage in consumer-oriented conduct has been construed liberally.”). In other words,
the “statute seeks to secure an honest market place where trust, and not deception, prevails.” Goshen v. Mut. Life
Ins. Co. of N.Y., 98 N.Y.2d 314, 746 N.Y.S.2d 858,774 N.E.2d 1190, 1195 (2002) (internal quotation marks
omitted).

17

support a claim under § 349.” Casper Sleep, Inc. v. Mitcham, 204 F. Supp. 3d 632, 643 (S.D.N.Y.
2016), reconsideration denied, No. 16-CV-3224 (JSR), 2016 WL 7188788 (S.D.N.Y. Nov. 17,
2016) (citing Koch v. Greenberg, 626 F. App’x. 335, 340 (2d Cir. 2015) (“[G]iven that the
defendant provided wine to be sold at auction to other consumers similarly situated to [plaintiff],
the consumer-oriented conduct requirement has been met.”)).
As for the “materially misleading” prong, “[t]he New York Court of Appeal has adopted
an objective decision 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, 126 (2d Cir. 2007) (quoting Oswego Laborers’ Local 214 Pension Fund v.
Marine Midland Bank, N.A., 85 N.Y. 2d 20, 26 (1995)). Courts “view each allegedly misleading
statement in light of its context on the product label or advertisement as a whole.” Delgado v.
Ocwen Loan Servicing, LLC, 2014 WL 4773991, at *8 (E.D.N.Y. Sept. 24, 2014) (citation and
quotation marks omitted). “The entire mosaic” is “viewed rather than each tile separately.” Time
Warner Cable, Inc. v. DIRECTV, Inc., 2007 WL 1138879, at *4 (S.D.N.Y. Apr. 16, 2007) (citation
omitted). The “issue may be a question of law or of fact as individual cases require.” Delgado,
2014 WL 4773991, at *8 (citing Oswego Laborers' Local 214 Pension Fund v. Marine Midland
Bank, N.A., 85 N.Y.2d 20, 623 N.Y.S.2d 529, 647 N.E.2d 741, 745 (1995)).
In asserting the product labels are misleading, Plaintiff argues that it is not appropriate for
courts to resolve the claims where there are too many questions of how a reasonable consumer
may perceive the label. (Pl.’s Opp’n 18.) She relies on two recent cases in the Eastern District of
New York holding that “context is critical,” “in determining whether a reasonable consumer would
have been misled by a particular advertisement.” Sitt v. Nature’s Bounty, Inc., No. 15-CV-4199
(MKB), 2016 WL 5372794, at *1 (E.D.N.Y. Sept. 26, 2016); see also Belfiore v. Procter &

18

Gamble Co., 311 F.R.D. 29, 49 (E.D.N.Y.), reconsideration denied, 140 F. Supp. 3d 241
(E.D.N.Y. 2015) (“Courts typically view each allegedly misleading statement in light of its context
on the product label or advertising as a whole. The entire mosaic is viewed rather than each tile
separately.”).
Defendant’s counter-argument is two-fold: the label on the front of the package is
accurately described and New York State requires products to be sold over shelf tags stating a unit
price. (Def.’s Mem. 15). So that argument goes, because both the label and the shelf tag over
which the box is was sold clearly disclose a 12-ounce net weight, Plaintiff is not a “rational
consumer” if she was misled. (Def.’s Mem. 10, 13.) “A ‘rational consumer,’ would not ‘simply
assume’ something about the product that a cursory inspection would show not to be true.” (Def.’s
Mem. 13) (quoting Ebner v. Fresh, Inc., 838 F.3d 958, 966 (9th Cir. 2016)). While Defendant
avers “that a ‘reasonable consumer” is only one who “read[s] the [product’s] label” when assessing
the net weight of a product, the Court will still evaluate Plaintiff’s claim in light of its context as a
whole.
“The primary evidence in a consumer-fraud case arising out of allegedly false advertising
is, of course, the advertising itself.” Fink v. Time Warner Cable, 714 F.3d 739, 742 (2d Cir. 2013).
The Court agrees with Plaintiff that “in determining whether a reasonable consumer would have
been misled by a particular advertisement, context is crucial.” Id. For example, under certain
circumstances, the presence of a disclaimer or similar clarifying language may defeat a claim of
deception. See, e.g., Freeman, 68 F.3d at 289-90 (upholding the dismissal of a challenge to a
sweepstakes mailer where the mailer explicitly stated that the plaintiff would win only if he had
the winning number); Broder v. MBNA Corp., 281 A.D.2d 369, 371, 722 N.Y.S.2d 524 (1st Dep’t
2001) (“[T]here can be no section 349(a) claim when the allegedly deceptive practice was fully

19

disclosed....”). But the Court finds that a “reasonable consumer” would not be misled by a net
weight disclosed in on such a contrasting label. 21
According to Plaintiff the traditional box is so “ubiquitous” on the market, (Pl.’s Opp’n 3.),
– meaning the same package since 1915 (id.) – there is a reasonable expectation that all Ronzoni
dry pasta products, including “healthy” pastas, contain 16 net-ounces of product. (Pl.’s Opp’n 4.)
But the Court agrees with Defendant that consumers who expect to receive 16 ounces of healthy
pasta “solely because she has purchased different Ronzoni pasta products in similarly-sized
boxes,” is not reasonable. (Id. 1.) Considering the information of which the Court took judicial
notice, the healthy box label sports several features that distinguish it from the alleged “traditional”
line. The healthy pasta labels indicate that pasta contains different ingredients (e.g., “now with
natural oat fiber”), the net weight is listed on a corner different than the traditional spaghetti, and
the healthy boxes are tinted in a variety of vibrant colors that are visually quite distinct from the
traditional yellow and blue colored-box. (Def.’s Mem. 3.) Moreover, all the pastas, whether
healthy or white flour, are sold in a range of net-weight ounces. For example, the Ronzoni®
Healthy Harvest Thin Spaghetti is sold both in 12-ounce and 16-ounce versions, “with the 16ounce box prominently noting that it contains ‘33% more free’ ‘than [the] former 12 oz. package.’”
(Def.’s Mem. 6-7.) The disclaimer appears in red font and is highlighted in yellow. (Id. 7.) Thus,
there are sufficient differences between the boxes, and within the healthy line of pastas, that the
practice, as alleged, is unlikely to mislead consumers. 22 But even assuming nearly identical boxes,

21

The Court dismisses the Complaint on grounds that the Defendant has not engaged in actionable
misrepresentation. Therefore, it does not need to address Defendant’s additional arguments regarding the safe
harbor provision of the N.Y. GBL.
22
Satisfying the reasonable consumer standard “requires more than a mere possibility that [the defendant’s]
label ‘might conceivably be misunderstood by some few consumers viewing it in an unreasonable manner.’” Ebner
v. Fresh, Inc., 818 F.3d 799, 806 (9th Cir. 2016) (quoting Lavie v. Procter & Gamble Co., 105 Cal. App. 4th 496,
508, 129 Cal. Rptr. 2d 486, 495 (2003)); see also Lavie, 105 Cal. App. 4th at 508, 129 Cal. Rptr. 2d at 495 (holding
that the phrase “likely to deceive” “indicates that the ad [or conduct] is such that it is probable that a significant
portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be

20

the weight and price of the dry good are clearly the most material aspect of this type of product.

See, e.g., Forouzesh v. Starbucks Corp., No. 16-CV-3830 (PA) (AGRX), 2016 WL 4443203, at
*3 (C.D. Cal. Aug. 19, 2016). Having considered the content of the label in context, the Court
finds that Plaintiffs N.Y. GBL claims fail.

CONCLUSION

For the foregoing reasons, the Comt GRANTS Defendant's motion to dismiss. The Clerk
of the Court is respectfully directed to terminate the motion at ECF No. 15 and to close the case.

Dated:

JL

SO ORDERED:

September
2017
White Plains, New York

NELS

1

1nisled"). "A nu1nber of cases have analyzed the 'reasonable consu1ner under[] California statutes at the san1e tin1e
and in the same manner as [N.Y. GBL] § 349" claims. Kacocha v. Nestle Purina Pe/care Co., No. 15-CV-5489
(KMK), 2016 WL 4367991, at *14 n. 22 (S.D.N.Y. Aug. 12, 2016) (collecting cases) (internal citations omitted).
"Therefore, the weight of authority see1ns to suggest that Califon1ia's 'reasonable consun1er inquiry can properly
inform New York's." Id.
1

21