Grossman v. Simply Nourish Pet Food Company LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

----------------------------------X

ALEXA GROSSMAN, individually and

on behalf of others similarly

situated,

Plaintiff, MEMORANDUM & ORDER

20-CV-1603 (KAM)(ST)

-against-

SIMPLY NOURISH PET FOOD COMPANY

LLC, PETSMART, INC.,

Defendants.

----------------------------------X

KIYO A. MATSUMOTO, United States District Judge:

Plaintiff Alexa Grossman, individually and on behalf

of others similarly situated, commenced this action against

Simply Nourish Pet Food Company LLC (“Simply Nourish”) and

Petsmart, Inc. (collectively, “defendants”), alleging that

defendants falsely and deceptively represent that their pet food

products are made from “Natural Ingredients” or “Natural

Wholesome Ingredients,” when in fact they contain synthetic

ingredients, in violation of New York General Business Law §§

349 and 350, state warranty laws, the Magnuson-Moss Warranty

Act, and common law. (ECF No. 1, Complaint (“Compl.”) ¶¶ 2-4,

7.) Plaintiff seeks to represent a class of New York residents

who purchased Simply Nourish’s pet products during the class

period, and requests declaratory and injunctive relief, monetary

damages, punitive damages, and attorney’s fees. (Compl. ¶¶ 34-

38.)

Presently before the Court is defendants’ motion to

dismiss plaintiff’s class action complaint pursuant to Federal

Rule of Civil Procedure 12(b)(1) and (6). (See ECF No. 12,

Notice of Motion to Dismiss; ECF No. 12-1, Defendants’

Memorandum of Law in Support of the Motion to Dismiss (“Def.

Mem.”).) For the reasons set forth below, defendants’ motion to

dismiss is GRANTED in part and DENIED in part.

BACKGROUND

The following facts -- drawn from the complaint and

documents that are incorporated by reference in, or integral to,

the complaint -- are assumed to be true for purposes of this

motion. See, e.g., DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104,

111 (2d Cir. 2010).

I. Factual Background

This putative class action seeks to remedy defendants’

alleged deceptive and misleading business practices with respect

to the marketing and sales of Simply Nourish’s pet foods and

treats (the “Products”).1

Defendant Simply Nourish Pet Food Company LLC (“Simply

Nourish”) is a corporation with its principal place of business

in Phoenix, Arizona. (Compl. ¶ 32.) Simply Nourish

manufactures, markets, advertises and distributes the Products

1 A list of the Simply Nourish pet food and treats is provided in the

complaint. (See Compl. ¶ 1.)

throughout the United States. (Id.) Defendant Petsmart, Inc.

is a corporation with its principal place of business in

Phoenix, Arizona. (Id. ¶ 33.) Plaintiff alleges that

defendants “created and/or authorized the false, misleading and

deceptive advertisements, packaging and labeling for the

Products.” (Id. ¶¶ 32-33.)

Plaintiff is an individual consumer and resident of

the State of New York. (Compl. ¶ 30.) Plaintiff purchased two

Simply Nourish products: large breed dog foods and Simply

Nourish dog treats from PetSmart in Commack, Long Island during

the class period. (Id.) Plaintiff purchased the Products

because she believed they did not contain synthetic ingredients.

(Id.) Plaintiff alleges that had she known that defendants’

representations she relied upon in purchasing the Products were

false, misleading, and deceptive, she would not have purchased

the Products. (Id. ¶ 31.) As a result of defendants’ alleged

misrepresentations, the Products which plaintiff and the

putative class members received were worth less than the

Products for which they paid, and they were injured and lost

money as a result of defendants’ conduct. (Id. ¶¶ 25, 31.)

Based on defendants’ purported false and misleading

representations on the Products’ packaging, plaintiff brought

this class action on behalf of herself and those similarly

situated alleging the following five causes of action: (1)

deceptive practices in violation of New York General Business

Law § 349 (“GBL”); (2) false advertising in violation of GBL §

350; (3) breach of express warranty in violation of state

warranty laws; (4) breach of written warranties in violation of

the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq. (the

“MMWA”); and (5) unjust enrichment based on the financial

benefits plaintiff conferred to defendants. (Compl. ¶¶ 49-95.)

A. Deceptive Product Labeling

Plaintiff alleges that defendants used a deceptive

marketing and advertising campaign centered around claims that

appeal to health-conscious consumers, i.e., that its Products

are made from “Natural Ingredients” or “Natural Wholesome

Ingredients.” (Compl. ¶¶ 2, 7.) Defendants’ “Natural” label

was generally followed by the statement, “with Added Vitamins

and Minerals.” (Id. ¶ 7.) In the complaint, plaintiff provides

several photos of the Products and identifies the alleged

misrepresentations:

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(See Compl. 4 7 (Simply Nourish Adult Dog Food Lamb & Oatmeal,

which states, in the bottom right corner, “Natural Food for Dogs

with Added Vitamins, Minerals & Trace Nutrients”).)

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(See Compl. 4 7 (Simply Nourish Limited Ingredient Diet Dog Food

Venison & Sweet Potato, which states “Natural Wholesome

Ingredients with Added Essential Vitamins & Minerals”).)

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REAL DEBONED CHICKEN

“pos ance Sate

(See Compl. 4 7 (Simply Nourish Grain Free Large Breed Adult Dog

Food Chicken with Peas & Potatoes, which states “Natural

Wholesome Ingredients with Added Essential Vitamins &

Minerals”). )

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(See Compl. 4 7 (Simply Nourish Grain Free Gluten Free Chewy

Chicken Jerky Fillets Dog Treat, which states “Naturally

Wholesome Ingredients”)

Plaintiff alleges that defendants’ representations

that its Products are “Natural” is false, misleading, and

deceptive because the Products contain synthetic ingredients

including: niacin, thiamine mononitrate, riboflavin, citric

acid, tocopherol, calcium carbonate, folic acid, manganese

sulfate, ascorbic acid, xantham gum, potassium chloride,

tricalcium phosphate, dicalcium phosphate, zinc oxide, glycerin

(vegetable). (Compl. 4 8.) According to plaintiffs, the above

ingredients are synthetic as defined by the United States

Department of Agriculture (“USDA”) and Congress. (See id. ¶¶

10-11.)

B. USDA’s Decision Tree for Classification of Materials

as Synthetic or Nonsynthetic

In support of the complaint’s allegations, plaintiff

attaches “Draft Guidance” from the USDA, highlighting the USDA’s

“Decision Tree for Classification of Materials as Synthetic of

Nonsynthetic,” under USA regulations for organic human foods.

(See Compl. ¶ 10, Ex. A.) Following the decision tree, the USDA

provides definitions for synthetic ingredients and classifies a

number of substances as “synthetic” or “nonsynthetic” and

provides an explanation justifying each classification. (See

Ex. A, at 3-4.) The decision tree issued by the USDA does not

appear to apply directly to pet foods. Plaintiff argues that

the USDA decision tree provides some guidance as to what a

reasonable consumer may deem “natural.” (ECF No. 13,

Plaintiff’s Memorandum of Law in Opposition to Defendants’

Motion to Dismiss (“Pl. Mem.”), at 8.)

C. The Association of American Feed Control Officials’

Guidelines for “Natural” Claims

In support of its motion to dismiss, defendants argue

that its product labeling is not deceptive because its use of

the term “Natural” is consistent with guidelines issued by the

Association of American Feed Control Officials (“AAFCO”). (Def.

Mem. at 3, 6; see also ECF No. 12-2, Declaration of Keri E.

Borders, Esq. (“Borders Decl.”), Ex. B, AAFCO Guidelines for

“Natural” Claims, at 6-7.). “Natural,” according to AAFCO

includes feed ingredients “derived solely from plant, animal or

mined sources” that have been subjected to “physical processing,

heat processing, rendering, purification, extraction,

hydrolysis, enzymolysis or fermentation.” See Acquard v. Big

Heart Pet Brands, 2020 U.S. Dist. LEXIS 224712, *8 (W.D.N.Y.

Nov. 30, 2020), report and recommendation adopted, Acquard v.

Big Heart Pet Brands, 2021 U.S. Dist. LEXIS 2393 (W.D.N.Y. Jan.

4, 2021). In addition, under AAFCO guidelines, a pet food

product may be labeled as “natural,” while containing chemically

synthesized vitamins, minerals, and other trace nutrients, so

long as the “natural” claim appears with qualifying disclaimer

language such as “Natural with added vitamins, minerals or other

trace nutrients.” (Borders Decl., Ex. B, at 6-7.) More

specifically:

[T]he use of the term ‘natural’ is false and

misleading if any chemically synthesized

ingredients are present in the product;

however, AAFCO recommends that exceptions be

made in the cases when chemically synthesized

vitamins, minerals, or other trace nutrients

are present as ingredients in the product,

provided that the product is not a dietary

supplement and that a disclaimer is used to

inform the consumer that the vitamins,

minerals or other trace nutrients are not

natural.

(Borders Decl., Ex. B, at 6-7.) According to its website, AAFCO

is a “private non-profit corporation” and “voluntary membership

association of local, state, and federal agencies,” charged with

regulating the “sale and distribution of animal feeds and animal

drug remedies.”2 Defendants assert that AAFCO regulations are

incorporated into New York law, but cite no statutory authority

supporting such proposition.3

II. Procedural History

On March 30, 2020, plaintiff commenced the instant

action seeking declaratory and injunctive relief, monetary

damages, punitive damages, and attorney’s fees. (See ECF No.

1.) On June 5, 2020, defendants filed a pre-motion letter

2 See “Welcome to AAFCO,” Association of American Feed Control Officials

(available at: https://www.aafco.org/) (last visited Jan. 25, 2021). The

Court may take judicial notice of statements made on the AAFCO website and

the New York Department of Agriculture and Markets website, as discussed

below. See Volpe v. Am. Language Commc'n Ctr., Inc., 15-cv-06854, 2016 WL

4131294, at *2 (S.D.N.Y. July 29, 2016) (court can take judicial notice of

information publicly available on website where authenticity is not in

dispute); Wells Fargo Bank, N.A. v. Wrights Mill Holdings, LLC, 127 F. Supp.

3d 156, 166 (S.D.N.Y. 2015) (courts “routinely” take judicial notice of

documents from official government websites).

3 Article 8 of the Agriculture and Markets Law Relating to the

Manufacture and Distribution of Commercial Feed regulates the sale of pet

food and treats and large animal feed in New York State. According to the

New York Department of Agriculture and Markets, “New York’s commercial feed

laws reference[] and permit[] those ingredients that are defined by the

AAFCO.” See Pet Food, New York Department of Agriculture and Markets

(available at: https://agriculture.ny.gov/food-safety/pet-

food#:~:text=Registration%20Process) (last visited Jan. 25, 2021).

Nonetheless, the parties have not identified, and the Court has not located,

any statutory authority indicating that New York has adopted the AAFCO

guidelines pertaining to “natural” representations. Furthermore, for the

reasons explained below, defendants’ purported compliance with the AAFCO

standard is still insufficient to support dismissal of plaintiff’s claims at

this stage in the litigation.

requesting leave to file a motion to dismiss plaintiff’s

complaint for failure to state a claim upon which relief could

be granted. (ECF No. 8.) Plaintiff opposed defendants’ request

for a pre-motion conference. (ECF No. 10.) On June 10, 2020,

the Court set a briefing schedule for defendants’ motion to

dismiss on June 16, 2020. (See June 10, 2020 and June 16, 2020

Docket Orders.)

Presently before the Court is defendants’ motion to

dismiss plaintiff’s complaint pursuant to Federal Rule of Civil

Procedure 12(b)(1) for lack of subject matter jurisdiction, and

12(b)(6) for failure to state a claim. (See ECF No. 12.)

Specifically, defendants move to dismiss plaintiffs’ complaint

on the grounds that (1) plaintiff fails to plausibly allege that

she was, or that a reasonable consumer would be, deceived; (2)

plaintiff lacks standing to pursue her claims; and (3) plaintiff

fails to adequately plead her additional state-law claims.

(Def. Mem. at 1-4.)

LEGAL STANDARD

In evaluating defendants’ motion to dismiss, the Court

must accept all well-pleaded facts in the complaint as true and

draw all reasonable inferences in plaintiff’s favor. See,

e.g., Burch v. Pioneer Credit Recovery, Inc., 551 F.3d 122, 124

(2d Cir. 2008) (per curiam). A claim survives a Rule 12(b)(6)

motion, however, only if the plaintiff alleges facts sufficient

“to state a claim to relief that is plausible on its face.”

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

is facially plausible “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) (citing Twombly, 550 U.S. at

556). A plaintiff must show “more than a sheer possibility that

a defendant has acted unlawfully,” id., and cannot rely on mere

“labels and conclusions” to support a claim, Twombly, 550 U.S.

at 555. If the plaintiff’s pleadings “have not nudged [his or

her] claims across the line from conceivable to plausible, [the]

complaint must be dismissed.” Id. at 570.

District courts “must consider the complaint in its

entirety, as well as other sources courts ordinarily examine

when ruling on Rule 12(b)(6) motions to dismiss, in particular,

documents incorporated into the complaint by reference, and

matters of which a court may take judicial notice.” Tellabs,

Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).

The court may also consider documents the plaintiff relied on in

bringing suit, and which are either in the plaintiff’s

possession, or that the plaintiff knew of when bringing suit.

Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002);

Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir.

1993); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47–

48 (2d Cir. 1991), cert. denied, 503 U.S. 960 (1992); McKevitt

v. Mueller, 689 F. Supp. 2d 661, 665 (S.D.N.Y. 2010).

DISCUSSION

Plaintiff seeks relief for defendants’ alleged

deceptive and misleading business practices in violation of New

York state law, federal law, and common law. Defendants move to

dismiss plaintiff’s complaint under Federal Rules of Civil

Procedure 12(b)(1) and (6). (See Def. Mem. at 10-11.) For the

reasons set forth below, the Court grants in part and denies in

part defendants’ motion to dismiss.

I. Standing

Defendants argue that plaintiff lacks standing to seek

prospective injunctive relief because she cannot allege an

imminent future harm and similarly lacks standing to bring a

class action suit with respect to Products she did not purchase.

(Def. Mem. at 4, 19.) The Court will first consider defendants’

motion to dismiss for lack of standing pursuant to Rule 12(b)(1)

“[b]ecause standing is a jurisdictional matter.” See Elkind v.

Revlon Consumer Prods. Corp., No. 14-cv-2484(JS)(AKT), 2015 WL

2344134, at *3 (E.D.N.Y. May 14, 2015) (citing Warth v. Seldin,

422 U.S. 490, 498 (1975)); see also Rhulen Agency, Inc. v.

Alabama Ins. Guar. Ass’n, 896 F.2d 674, 678 (2d Cir. 1990).

A. Standing to Seek Injunctive Relief

“To establish Article III standing, a plaintiff must

show (1) an injury in fact, (2) a sufficient causal connection

between the injury and the conduct complained of, and (3) a

likelihood that the injury will be redressed by a favorable

decision.” Knife Rights, Inc. v. Vance, 802 F.3d 377, 383 (2d

Cir. 2015). “Plaintiffs seeking injunctive relief must also

prove that the identified injury in fact presents a real and

immediate threat of repeated injury.” Kreisler v. Second Ave.

Diner Corp., 731 F.3d 184, 187 (2d Cir. 2013). “The

prospective-orientation of the analysis is critical: to maintain

an action for injunctive relief, a plaintiff cannot rely on past

injury . . . but must show a likelihood that he . . . will be

injured in the future.” Berni v. Barilla S.p.A., 964 F.3d 141,

147 (2d Cir. 2020). “Although past injuries may provide a basis

to seek money damages, they do not confer standing to seek

injunctive relief unless the plaintiff can demonstrate that she

is likely to be harmed again in the future in a similar way.”

Nicosia v. Amazon.com, Inc., 834 F.3d 220, 239 (2d Cir. 2016).

After reviewing the binding Second Circuit precedent,

the Court concludes that plaintiff lacks standing to seek

injunctive relief.4 The Second Circuit has explained that “past

4 Plaintiff’s reliance on out-of-Circuit precedent to support her request

for injunctive relief is unpersuasive. This Court is bound to apply Second

Circuit precedent. See J & J Sports Prod., Inc. v. Leon, No. 18-cv-2103

purchasers of a consumer product who claim to be deceived by

that product’s packaging . . . have, at most, alleged a past

harm.” Berni, 964 F.3d at 147. Accordingly, “past purchasers

of a product . . . are not likely to encounter future harm of

the kind that makes injunctive relief appropriate.” Id. Here,

plaintiff alleges that if the Products were actually “natural,”

as represented on the labels, she “would purchase the Products

again in the immediate future.” (Compl. ¶ 30.) In other words,

by her own admission, plaintiff would purchase defendants’

Products only if defendants either changed the labeling or

ingredients in the Products. Thus, there is no risk that

plaintiff would purchase defendants’ Products with the current

state of ingredients or labels because, by plaintiff’s own

allegations, these Products are purportedly deceptive.

Because plaintiff knows that the vitamins and minerals

in the Simply Nourish Products are allegedly synthetic and that

she will not purchase the Products in their current state, she

cannot show an imminent risk of future deception and injury.

Indeed, district courts in this Circuit have held that a

plaintiff in a false advertisement case has necessarily become

aware of the alleged misrepresentations, “there is no danger

(PKC) (RML), 2019 WL 1320277, at *6 (E.D.N.Y. Mar. 22, 2019) (noting that the

district court is “not bound by the decisions of any other district court in

the nation, nor by the decisions of any circuit court other than the Second.”

(internal quotations and citation omitted)).

that they will again be deceived by them.” Hesse v. Godiva

Chocolatier, Inc., 463 F. Supp. 3d 453, 465–66 (S.D.N.Y. 2020)

(quoting Elkind, 2015 WL 2344134, at *3). Thus, any potential

“future injury is merely conjectural or hypothetical” because

even if plaintiff purchased the Products again, she would do so

“with exactly the level of information” that she possessed from

the outset of this suit, and accordingly would not be deceived

or harmed. Berni, 2020 WL 3815523, at *6; Silva v. Hornell

Brewing Co., No. 20-cv-756 (ARR) (PL), 2020 WL 4586394, at *7

(E.D.N.Y. Aug. 10, 2020) (“To the extent that plaintiff was

deceived by the appearance of the phrase ‘All Natural’ on the

Product label, the existence of this lawsuit shows that he is

now aware that the Product contains synthetic ingredients. Thus,

he will not be harmed again in the same way, and he lacks

standing to seek an injunction”); Kennedy v. Mondelez Glob. LLC,

No. 19-cv-302 (ENV) (SJB), 2020 WL 4006197, at *5 (E.D.N.Y. July

10, 2020) (recommending dismissal of claim seeking injunctive

relief for lack of standing due to plaintiff’s conjectural

future harm based on false advertising claims on Graham cracker

labels). Because plaintiff failed to allege any imminent future

harm, the Court concludes that plaintiff lacks standing to seek

injunctive relief.5

5 Furthermore, the Court rejects plaintiff’s attempt to distinguish

Berni as applying only to Federal Rule of Civil Procedure 23(b)(2) because

The Court also rejects plaintiff’s contention that an

“inability to rely on” the Products’ labeling and advertising

constitutes an “imminent future injury” justifying injunctive

relief. (Pl. Mem. at 21-23.) Even crediting plaintiff’s

argument that her injury is a future confusion regarding the

the Second Circuit’s analysis broadly addressed the district court’s

authority to provide injunctive relief in equity and relied on constitutional

requirements for standing that all plaintiffs must satisfy. See Berni, 964

F.3d at 146-47 (“Our analysis starts with the familiar principle that

injunctive relief is only proper when a plaintiff, lacking an adequate remedy

at law, is likely to suffer from injury at the hands of the defendant if the

court does not act in equity . . . . If the injury occurred in the past -- or

if some future injury is merely conjectural or hypothetical -- then

plaintiffs will lack the kind of injury necessary to sustain a case or

controversy, and necessary to establish standing, under Article III.”). The

Second Circuit also warned that “[w]here there is no likelihood of future

harm, there is no standing to seek an injunction, and so no possibility of

being certified as a Rule 23(b)(2) class.” Id. at 149. Thus, plaintiff’s

attempt to minimize the scope of the Second Circuit’s holding and reasoning

is unpersuasive and district courts in this Circuit have relied on Berni in

assessing challenges to standing to seek injunctive relief under Federal Rule

of Civil Procedure 12. See Rivera v. Navient Sols., LLC, No. 20-cv-1284

(LJL), 2020 WL 4895698, at *14 (S.D.N.Y. Aug. 19, 2020); Kennedy, 2020 WL

4006197, at *5.

Indeed, even before Berni, district courts in this Circuit would

dismiss requests for injunctive relief where, as here, the future harm

alleged was speculative. See, e.g., Holve v. McCormick & Co., Inc., 334 F.

Supp. 3d 535, 552 (W.D.N.Y. 2018) (concluding that plaintiff failed to

demonstrate real or immediate injury and denying standing for injunctive

relief where, by plaintiff’s own admission, she would purchase products in

the future only if the Product “was not misbranded”); Gonzalez v. Costco

Wholesale Corp., No. 16-cv-2590, 2018 WL 4783962, at *6 (E.D.N.Y. Sept. 29,

2018) (plaintiff lacked standing to seek injunctive relief because her claim

that she would resume purchasing the offending products in the future if the

misleading conduct was remedied was insufficient to establish likelihood of

future injury); Atik v. Welch Foods, Inc., No. 15-cv-5405 (MKB) (VMS), 2016

WL 5678474, at *6 (E.D.N.Y. Sept. 30, 2016) (“Plaintiffs also allege that

they would resume purchasing the Products in the future but only if the

representations on the Products' labels were ‘truthful and non-deceptive.’

These allegations are insufficient to establish a likelihood of future injury

because Plaintiffs cannot rely on past injury.” (internal citation omitted));

Tomasino v. Estee Lauder Cos. Inc., 44 F. Supp. 3d 251, 256 (E.D.N.Y. 2014)

(holding that the plaintiffs did not have standing to seek injunctive relief

because the plaintiffs alleged that the products at issue had been

deceptively advertised and that they would not have bought the products

“absent the allegedly misleading advertisements”).

Products’ labels, this allegation is not pled in her complaint

and therefore is an inadequate basis for standing. Moreover,

such allegation regarding plaintiff’s inability to “rely on”

defendants’ label has similarly been rejected by district courts

in this Circuit as insufficient to establish future injury for

standing. See Barreto v. Westbrae Nat., Inc., No. 19-cv-9677

(PKC), 2021 WL 76331, at *9 (S.D.N.Y. Jan. 7, 2021) (collecting

cases and rejecting plaintiff’s argument that she would purchase

that product if she “could trust the label”); Ashour v. Arizona

Beverages USA LLC, No. 19-cv-7081 (AT), 2020 WL 5603382, at *4

(S.D.N.Y. Sept. 18, 2020) (denying standing for injunctive

relief where plaintiff alleged that he would purchase the

products if he “could rely upon the truthfulness of Defendants’

labeling”). For these reasons, the Court finds that plaintiff

failed to demonstrate any imminent future injury and thus lacks

standing to seek injunctive relief.

B. Standing as to Unpurchased Products

Defendants further argue that plaintiff lacks standing

to bring a class action with respect to the Products she did not

purchase. (Def. Mem. at 19.) Specifically, defendants contend

that plaintiff’s complaint “challenges 99 varieties of Simply

Nourish products” but does not indicate which Product plaintiff

purchased. (Id.) In response, plaintiff contends that she has

standing to challenge any unpurchased Products because the

“natural” labeling of such unpurchased Products are

substantially similar to that of the Products she did purchase.

(Pl. Mem. at 15; see also Compl. ¶ 68 (“Defendants’ material

misrepresentations were substantially uniform in content,

presentation, and impact upon consumers at large. Moreover, all

consumers purchasing the Products were and continue to be

exposed to Defendants’ material misrepresentations.”)

A plaintiff in a putative class action has class

standing if “he plausibly alleges (1) that he personally has

suffered some actual ... injury as a result of the putatively

illegal conduct of the defendant ... and (2) that such conduct

implicates the same set of concerns as the conduct alleged to

have caused injury to other members of the putative class by the

same defendants[.]” NECA-IBEW Health & Welfare Fund v. Goldman

Sachs & Co., 693 F.3d 145, 162 (2d Cir. 2012) (internal

citations and quotations omitted). District courts in this

Circuit are divided over whether class standing should be

resolved at the pleading stage or the class certification stage.

See Buonasera v. Honest Co., 208 F. Supp. 3d 555, 562-63

(S.D.N.Y. 2016) (collecting cases that have and have not

resolved class standing at the motion to dismiss stage).

Several courts “have held that, subject to further inquiry at

the class certification stage, a 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 were

marketed, are ‘sufficiently similar’ to the products that the

named plaintiff did purchase.” Daniel v. Tootsie Roll Indus.,

LLC, 2018 WL 3650015, at *5 (S.D.N.Y. Aug. 1, 2018) (quoting

Mosley v. Vitalize Labs, LLC, 2015 WL 5022635, at *7 (E.D.N.Y.

Aug. 24, 2015) (citations omitted)).

Here, to the extent class standing must be addressed

at this stage, the Products (both purchased and unpurchased) are

sufficiently similar to support plaintiff’s class standing at

this time. Specifically, the “nature and content of the

specific misrepresentation alleged,” NECA–IBEW Health & Welfare

Fund, 693 F.3d at 162, is similar because the Products were all

sold and marketed by defendants and possessed the same allegedly

deceptive representation that the underlying ingredients were

“natural.” (See Compl. ¶ 68 (“Defendants’ material

misrepresentations were substantially uniform in content,

presentation, and impact upon consumers at large.”); see, e.g.,

Suarez v. California Nat. Living, Inc., No. 17-cv-9847 (VB),

2019 WL 1046662, at *5 (S.D.N.Y. Mar. 5, 2019) (finding

plaintiff had class standing to challenge unpurchased products

where the products were “sold and marketed by defendant,”

“labeled and marketed as ‘natural’ (or, in one instance,

“naturally perfect for the whole family,” and “plaintiff alleges

each product contains one or more synthetic ingredients”);

Buonasera, 208 F. Supp. 3d at 559, 563 (finding plaintiff had

class standing as to thirty-nine unpurchased cosmetics products

allegedly mislabeled as “ ‘natural,’ ‘all natural,’ ‘naturally

derived,’ ‘plant-based,’ and/or containing ‘no harsh chemicals

ever!,’ ” even where “the unpurchased products may contain

different ingredients compared to the purchased products”).

Thus, defendant’s motion to dismiss for lack of

standing for unpurchased Products is denied without prejudice,

and “any specific concerns regarding the [Products’] differences

can be addressed at the class certification stage.” Wai Chu v.

Samsung Elecs. Am., Inc., No. 18-cv-11742 (GHW), 2020 WL

1330662, at *3 (S.D.N.Y. Mar. 23, 2020) (quotation marks

omitted); see also Segedie v. Hain Celestial Group, Inc., No.

14-cv-5029 (NSR), 2015 WL 2168374, at *11 (S.D.N.Y. May 7, 2015)

(declining to address class standing at the motion to dismiss

stage and noting that the Court would address the issue at a

later time); Moses v. Apple Hospitality REIT Inc., 14-cv-3131

(DLI)(SMG), 2016 WL 8711089, at *4 (E.D.N.Y. Sept. 30, 2016)

(holding that “[s]ince Plaintiff has Article III standing, the

more prudent approach is to analyze class standing at the class

certification stage because the Plaintiff has already

established a case or controversy between the parties”).6

Accordingly, the Court denies without prejudice defendants’

motion to dismiss for lack of class standing plaintiff’s claims

arising from unpurchased Products. Defendants may renew this

argument at the class certification stage.

II. New York GBL §§ 349 and 350

Plaintiff’s first and second cause of action assert

that defendants’ conduct violated New York law because the

representations were deceptive acts and practices in violation

of GBL § 349 and false and misleading advertising in violation

of GBL § 350. (Compl. ¶¶ 51, 53, 60-63.) In relevant part,

plaintiff alleges that:

Defendants’ improper consumer-oriented

conduct -- including labeling and advertising

the Products as being “Natural” -- is

misleading in a material way in that it, inter

alia, induced Plaintiff and the New York

Subclass Members to purchase and pay a premium

for Defendants’ Products and to use the

Products when they otherwise would not have.

Defendants made their untrue and/or misleading

statements and representations willfully,

wantonly, and with reckless disregard for the

truth.

6 Defendants’ reliance on DiMuro v. Clinique Labs., LLC, 572 Fed. App’x

27 (2d Cir. 2014) (summary order) in unavailing because there, the Second

Circuit denied standing for unpurchased products after holding that “each of

the seven different products have different ingredients, and Clinique made

different advertising claims for each product. Entirely unique evidence

will, therefore, be required to prove that the 35–some advertising statements

for each of the seven different Repairwear products are false and

misleading.” Id. at 29. Thus, DiMuro is distinguishable because, for the

reasons noted above, the Products here contain substantially similar

“advertising claims” and raise “nearly identical” concerns regarding the

validity of defendants’ “natural” representation. DiMuro, 572 Fed. App’x at

29 (quoting NECA–IBEW Health & Welfare Fund, 693 F.3d at 163).

(Compl. ¶ 54.) Plaintiffs allege that she and the New York

subclass members were “injured inasmuch as they relied upon the

labeling, packaging and advertising and paid a premium for the

Products which were -- contrary to Defendants’ representations -

- not ‘Natural.’” (Compl. ¶ 54.) In response, defendants argue

that plaintiffs failed to plausibly allege that the Simply

Nourish label is deceptive because: (i) the label on the

Products is “AAFCO-compliant” and “specifically qualified and

within the context of nutritionally complete pet food;” (ii) the

label does not “represent[] that the ‘added vitamins and

minerals’ are ‘natural,’” (iii) “the challenged ingredients are

not compatible with a qualified natural claim,” and (iv) “in any

event, the ingredient list on all of the products specifically

identifies the ‘added vitamins and minerals’ ingredients that

are the subject of the qualification.” (Def. Mem. at 11-12.)

Section 349 of the GBL provides a cause of action for

any person injured by “[d]eceptive acts or practices in the

conduct of any business, trade or commerce or in the furnishing

or any service.” N.Y. Gen. Bus. Law § 349(a), (h). “Deceptive

acts” are acts that are “likely to mislead a reasonable consumer

acting reasonably under the circumstances.” Fink v. Time Warner

Cable, 714 F.3d 739, 741 (2d Cir. 2013). “To make out a prima

facie case under Section 349, a plaintiff must demonstrate that

(1) the defendant’s deceptive acts were directed at consumers,

(2) the acts are misleading in a material way, and (3) the

plaintiff has been injured as a result.” Maurizio v. Goldsmith,

230 F.3d 518, 521 (2d Cir. 2000).

Section 350 of the GBL prohibits “[f]alse advertising

in the conduct of any business, trade or commerce,” and is

analyzed under the same “reasonable consumer” standard as

Section 349. Id. at 521. To establish a claim under GBL § 350,

which prohibits false advertising, “a plaintiff must demonstrate

that the advertisement (1) had an impact on consumers at large,

(2) was deceptive or misleading in a material way, and (3)

resulted in injury.” Horowitz v. Stryker Corp., 613 F. Supp. 2d

271, 287 (E.D.N.Y. 2009) (quoting Andre Strishak & Assocs., P.C.

v. Hewlett Packard Co., 752 N.Y.S.2d 400, 403 (2d Dep't 2002))

(alteration omitted).

Whether a representation is likely to deceive a

reasonable consumer is usually a question of fact that should

not be resolved on a motion to dismiss. Goldemberg v. Johnson &

Johnson Consumer Cos., Inc., 8 F. Supp. 3d 467, 478 (S.D.N.Y.

2014). Given that the reasonable consumer inquiry is, in most

instances, a factual one, a party seeking to dismiss a false

labeling claim must "extinguish . . . the possibility" that a

reasonable consumer could be misled into believing the Products

contained no synthetic materials. 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) (declining to dismiss plaintiffs’

claims that the statement “made with all natural ingredients” on

the product labels would mislead a reasonable consumer).

Nonetheless, under both GBL §§ 349 and 350, “[i]t is well

settled that a court may determine as a matter of law that an

allegedly deceptive advertisement would not have misled a

reasonable consumer.” Fink, 714 F.3d at 741.

Having reviewed the complaint and supporting

documents, the Court concludes that plaintiff plausibly alleged

that a reasonable consumer may be deceived by the statements

regarding “Natural” ingredients provided on defendants’

Products’ labels. Thus, for the reasons set forth below, the

Court denies defendants’ motion to dismiss with respect to

plaintiff’s claims under GBL §§ 349 and 350 relating to the

alleged deceptive and false advertising.

As an initial matter, the Court notes that its

conclusion today is consistent with recent district court

decisions in this Circuit and outside of this Circuit addressing

similar claims challenging “Natural” advertising representations

on pet food products. See Scandore v. Nylabone Corp., No. 20-

cv-0254 (GRB)(ARL), at 38-39 (E.D.N.Y. 2020) (denying motion to

dismiss after concluding that plaintiff plausibly alleged a

claim under GBL §§ 349 and 350 and stating that discovery was

needed to determine whether a “reasonable consumer” would likely

be deceived by defendants’ labeling); Acquard v. Big Heart Pet

Brands, No. 19-cv-50 (JLS), 2020 U.S. Dist. LEXIS 224712

(W.D.N.Y. Nov. 30, 2020) (denying motion to dismiss after

finding that plaintiffs sufficiently pleaded their claims under

GBL §§ 349 and 350 and noting that, at a minimum, the case

presented a “question of whether the language ‘with added

vitamins, minerals & nutrients’ would cure the otherwise

misleading statement that the Product was ‘All Natural’”),

report and recommendation adopted, Acquard v. Big Heart Pet

Brands, 2021 U.S. Dist. LEXIS 2393 (W.D.N.Y. Jan. 4, 2021);

Roper v. Big Heart Pet Brands, Inc., No. 19-cv-406 (DAD)(BAM),

2020 WL 7769819, at *5 (E.D. Cal. Dec. 30, 2020) (denying motion

to dismiss after finding that “plaintiff’s claim that a

reasonable consumer would find the label ‘natural’ to be

misleading, even with the qualifying language ‘with added

vitamins, minerals & nutrients,’ to be plausible”).7 Consistent

with these district court decisions, this Court denies

defendants’ motion to dismiss and concludes that plaintiff

7 In Scandore v. Nylabone Corp., No. 20-cv-0254 (GRB)(ARL) (E.D.N.Y.

2020), the district court denied defendants’ motion to dismiss in part, on

the record at a pre-motion conference. Defendants provided the court a true

and accurate copy of the transcript from the July 7, 2020 hearing. (See ECF

No. 13-2, Transcript from July 7, 2020 Hearing before Judge Gary Brown,

Exhibit A.) Accordingly, citations to Scandore in this Memorandum & Order

will refer to the pagination provided in the transcript attached as Exhibit

A.

plausibly alleged a claim under GBL §§ 349 and 350 for the

reasons set forth below.

First, the Court concludes that plaintiff plausibly

alleged a claim under GBL §§ 349 and 350. Viewing the complaint

in context and in the light most favorable to the plaintiff, a

reasonable consumer could plausibly construe the Products’

labeling to suggest that the “added vitamins and minerals,” like

the rest of the “natural ingredients,” are also “natural.” (See

Compl. ¶ 7 at 10 (“Natural Wholesome Ingredients with Added

Essential Vitamins & Minerals”); at 11 (same); at 12 (same); at

13 (“Natural Ingredients with Added Vitamins, Minerals & Trace

Nutrients”).) In other words, plaintiff plausibly alleged that

a reasonable consumer viewing the Products’ label may interpret

the “natural” claim to mean that the Products do not contain

synthetic ingredients and that all of the Products’ ingredients

-- including the “added vitamins and minerals” -- are natural.

It is not unreasonable as a matter of law for a consumer to

expect that a product labeled “natural” to contain only natural,

and not synthetic ingredients. See, e.g., Petrosino v. Stearn's

Prod., Inc., No. 16-cv-7735 (NSR), 2018 WL 1614349, at *7

(S.D.N.Y. Mar. 30, 2018) (“[A] reasonable consumer acting

reasonably very well could be misled because they could conclude

that the ‘natural’ label on the cosmetics means that they are

made with all natural products”); Langan v. Johnson & Johnson

Consumer Cos., Inc., 95 F. Supp. 3d 284, 289 (D. Conn. 2015)

(“[I]t seems perfectly reasonable . . . that a typical consumer

might interpret the phrase ‘100% naturally-sourced sunscreen

ingredients’ on a sunscreen product label to mean that the whole

product was natural”); Wilson v. Frito–Lay N. Am., Inc., No. 12–

1586, 2013 WL 1320468, at *13 (N.D. Cal. Apr. 1, 2013) (“[A]

reasonable consumer could interpret a bag of chips claiming to

have been ‘Made with ALL NATURAL Ingredients' to consist

exclusively of natural ingredients, contrary to the reality

described in the nutrition box.”).

Second, this Court declines to adopt the AAFCO

guidelines discussing “natural” claims in this instant case, and

thus, the defendants’ contention that its Products are “AAFCO-

compliant” bears no dispositive weight in deciding this motion.

(Def. Mem. at 12-14.) Several district courts have declined to

adopt the AAFCO’s guidelines on “natural” representations, and

this Court similarly finds no authority requiring it to follow

these standards. See Roper, 2020 WL 7769819, at *5 (“AAFCO’s

guidelines are not an enforceable provision of California law”);

Blue Buffalo Co. v. Nestle Purina Petcare Co., No. 15-cv-384

(RWS), 2015 WL 3645262, at *5 (E.D. Mo. June 10, 2015) (“[T]here

is no legal authority for the proposition that no reasonable

consumer could be misled by labeling that complies with FDA and

AAFCO regulations.”).8 Moreover, at this stage in the

litigation, the Court need not determine whether defendants’

products are “natural” “within any given definition” because GBL

§§ 349 and 350 employ “an objective standard under which a fact

finder must find if the ‘natural’ label, is misleading to a

reasonable consumer acting reasonably.” Petrosino, 2018 WL

1614349, at *7; see also Ault v. J.M. Smucker Co., No. 13-cv-

3409 (PAC), 2014 WL 1998235, at *5 (S.D.N.Y. May 15, 2014)

(“While the Court would welcome the FDA’s guidance on the

definition of ‘natural,’ this case is far less about science

than it is about whether a label is misleading. The issue is

whether the use of the phrase ‘All Natural’ was likely to

mislead a reasonable consumer acting reasonably under the

circumstances.” (internal quotationn marks, citations, and

alterations omitted)). Thus, discovery is needed to determine

whether a reasonable consumer would be deceived and this Court

cannot conclude, as a matter of law, that plaintiff failed to

state a claim under GBL §§ 349 and 350.9 Scandore, No. 20-cv-

0254, at 39.

8 To be clear, the Court is not holding, as a rule of law, that pet foods

labeled “natural” may not contain synthetic ingredients. Instead, the Court

concludes only that “[t]he alleged presence of synthetic ingredients merely

brings the claim of deception into the realm of plausibility.” Segedie v.

Hain Celestial Grp., Inc., No. 14-cv-5029 (NSR), 2015 WL 2168374, at *12

(S.D.N.Y. May 7, 2015).

9 Even assuming the AAFCO guidelines applied, however, the Court would

still deny defendants’ motion to dismiss because it is unclear from the

guidelines whether the Products’ labels are compliant. For instance, the

Third, defendants’ contention that the “qualified

statement” on the Products’ label prevents any consumer

misconception is also unpersuasive. Notably, one Simply Nourish

Product identified by plaintiff, “Simply Nourish Grain Free

Gluten Free Chewy Chicken Jerky Fillets Dog Treat,” does not

contain the qualified statement and instead simply represents

that the Product is made of “Naturally Wholesome Ingredients.”

(See Compl. ¶ 7 at 14); see also Scandore, No. 20-cv-0254, at 38

(noting that some of defendants’ products did not include the

disclaimer language referring to “added vitamins and minerals”).

Accepting plaintiff’s allegations that the ingredients contained

in the Products are synthetic and non-natural (see Compl. ¶ 8),

AAFCO guidelines recommend that “exceptions be made” in cases when synthetic

ingredients are present in the product, provided “that a disclaimer is used

to inform the consumer that the vitamins, minerals or other trace nutrients

are not natural.” (Borders Decl., Ex. B, at 6-7.) Applying this standard,

for the Products to be “AAFCO-compliant” as represented by defendants, the

disclaimer “with added vitamins and minerals” would necessarily have “to

inform the consumer that the vitamins, minerals or other trace nutrients are

not natural.” (Borders Decl., Ex. B, at 6-7.) Here, defendants argue that

the Products’ “natural claim is not deceptive because it is expressly

qualified (i.e., a statement that the food is natural and contains added

vitamins and minerals).” (Def. Mem. at 2, 12-13 (emphasis in original).)

Viewing this “qualified statement” in context, the Court concludes that

defendants’ disclaimer is inadequate because it does not indicate to

consumers that the vitamins and nutrients added to the Products are “not

natural,” as required under AAFCO guidelines. Instead, as explained above, a

reasonable consumer may read the “natural” claim as applying to both the

ingredients and the added vitamins and minerals. Although the AAFCO

guidelines do provide an example disclaimer, there appears to be a

contradiction in the AAFCO guidelines, which require a disclaimer but provide

an example disclaimer without language indicating that the ingredients are

“not natural.” Accordingly, even if the AAFCO guidelines were controlling

here, the Court would still deny defendants’ motion to dismiss because it is

unclear whether the Products’ labels are compliant. In any event, as

explained above, the AAFCO guidelines are not determinative of the issues

here.

the Court concludes that the presence of an ingredient list

provides no basis for dismissal of plaintiff’s claims.

Fourth, although some courts have found that an

ingredient statement may clarify a consumer’s understanding of

what is being advertised, the mere presence of an ingredient

list on a product “does not eliminate the possibility that

reasonable consumers may be misled.” Ackerman v. Coca–Cola Co.,

No. 09-cv-0395 (JG), 2010 WL 2925955, at *16–17 (E.D.N.Y. July

21, 2010). Thus, although the ingredient list provided on the

Products is relevant to whether a reasonable consumer would be

misled by the labels, the effect that such list may have on a

reasonable consumer’s understanding of the Products’ label is a

factual inquiry. See Sitt v. Nature’s Bounty, Inc., No. 15-cv-

4199 (MKB) (E.D.N.Y. Sept. 26, 2016); Goldemberg, 8 F. Supp. 3d

at 478 (rejecting motion and holding that a reasonable consumer

could interpret “Active Naturals” to mean the product was

completely natural). Furthermore, although defendants argue

that the allegedly synthetic ingredients are properly

characterized as natural (see Def. Mem. at 8-9, 11-12), “that

question of fact is improperly resolved on a motion to dismiss,

when the Court must accept plaintiff’s well-pleaded allegations

as true and draw all reasonable inferences in plaintiff’s

favor.” Suarez, 2019 WL 1046662, at *8; In re Frito-Lay N. Am.,

Inc. All Nat. Litig., 2013 WL 4647512, at *16 (noting that while

an ingredient list is relevant, it does not, as a matter of law,

“extinguish the possibility that reasonable consumers could be

misled by [defendant’s] labeling and marketing”). Accordingly,

although a jury may ultimately find that the appearance of

ingredients that are obviously synthetic on an ingredient list

undercuts plaintiff’s theory of deception, this Court cannot

make this determination as a matter of law at this stage.

Finally, plaintiff sufficiently alleged causation and

injury at this stage in the litigation to survive dismissal. As

noted above, the complaint alleges facts that, if true,

establish that the “natural” representations were plausibly

misleading to a reasonable consumer, misled plaintiff, and

caused plaintiff harm in the form of economic injury. (See

Compl. ¶ 54 (“Defendants’ improper consumer-oriented conduct --

including labeling and advertising the Products as being

“Natural” -- is misleading in a material way in that it, inter

alia, induced Plaintiff and the New York Subclass Members to

purchase and pay a premium for Defendants’ Products and to use

the Products when they otherwise would not have”)); see

Ackerman, 2010 WL 2925955, at *23 (“Injury is adequately alleged

under GBL §§ 349 or 350 by a claim that a plaintiff paid a

premium for a product based on defendants' inaccurate

representations.” (citations omitted)); Greene v. Gerber Prod.

Co., 262 F. Supp. 3d 38, 68 (E.D.N.Y. 2017) (finding a

sufficiently pled section 349 and 350 injury where plaintiff

alleged that she would not have paid the price charged if not

for the purported allergy benefits in the Infant Formula);

Koenig v. Boulder Brands, Inc., 995 F. Supp. 2d 274, 288-89

(S.D.N.Y. 2014) (finding a sufficiently pled section 349 injury

where the plaintiff alleged that he would not have paid the

price charged for “fat-free” milk had he known it contained

fat). For the foregoing reasons, the Court denies defendants’

motion to dismiss plaintiffs’ claims for deceptive practices and

false advertising under GBL §§ 349 and 350.

III. Breach of Express Warranty

Plaintiff’s third cause of action asserts that

defendants breached an express warranty under state warranty

laws by providing a “written affirmation of fact” promising that

the Products are “Natural.” (Compl. ¶¶ 70-78.)

To properly plead breach of an express warranty under

New York law, plaintiff must allege “an affirmation of fact or

promise by the seller, the natural tendency of which was to

induce the buyer to purchase....” Sitt, 2016 WL 5372794, at *15

(quoting Factory Assocs. & Exporters, Inc. v. Lehigh Safety

Shoes Co. LLC, 382 Fed. App'x 110, 111–12 (2d Cir. 2010)

(summary order)). “Any affirmation of fact or promise made by

the seller to the buyer which relates to the goods and becomes

part of the basis of the bargain creates an express warranty

that the goods shall conform to the affirmation or promise.”

N.Y. U.C.C. § 2-313(1)(a). Further, “[a]ny description of the

goods which is made part of the basis of the bargain creates an

express warranty that the goods shall conform to the

description.” Id. § 2-313(1)(b).

To recover on a breach of warranty claim under New

York law, the buyer of the allegedly mislabeled product “must

within a reasonable time after [s]he discovers or should have

discovered any breach notify the seller of breach or be barred

from any remedy.” N.Y. U.C.C. § 2-607(3)(a). To satisfy the

pre-suit notice requirement “the notice given by plaintiff had

only to ‘alert [defendant] that the transaction [was]

troublesome and [did] not need to include a claim for damages or

threat of future litigation.’” Cliffstar Corp. v. Elmar

Industries, Inc., 678 N.Y.S.2d 222, 223 (4th Dep’t 1998) (citing

Computer Strategies v. Commodore Bus. Machs., 483 N.Y.S.2d 716,

723 (2d Dep’t 1984)). “[R]equiring notice is designed to defeat

commercial bad faith, not to deprive a good faith consumer of

his remedy.” N.Y. U.C.C. § 2-607 cmt. 4. “[T]he sufficiency

and timeliness of the notice is generally a question for the

jury.” Sullivan v. Aventis, Inc., No. 14-cv-2939 (NSR), 2015 WL

4879112, at *8 (S.D.N.Y. Aug. 13, 2015) (citing Tomasino v.

Estee Lauder Cos. Inc., 44 F. Supp. 3d 251, 260 (E.D.N.Y.

2014)).

Plaintiff alleges that defendants promised that the

Products were “natural,” yet the Products contained synthetic

ingredients. (Compl. ¶¶ 71-76, 85-88.) Defendants argue that a

“natural” label “in the context of a qualified claim” is not an

express warranty because the term “natural” is not an

“affirmation of fact or written promise” that the Products do

not contain synthetic ingredients. (Def. Mem. at 19-20.)

Further, defendants assert that plaintiff failed to provide pre-

suit notice with respect to the alleged breach of express

warranty as required under New York law. (Id. at 20.)

Here, the Court concludes that plaintiff adequately

stated a claim that the “natural” label on the Products

warranted, through its description of the Products, a statement

of fact about the Products that was allegedly breached by the

inclusion of synthetic ingredients. See In re Frito-Lay N. Am.,

2013 WL 4647512, at *27; Acquard, 2020 U.S. Dist. LEXIS 224712,

*14 (declining to dismiss plaintiff’s express warranty claim

challenging an “All Natural” label on pet food products);

Goldemberg, 8 F. Supp. 3d at 483 (declining to dismiss

plaintiff’s express warranty claim challenging the “Active

Naturals” labeling on Aveeno skin care products). The Court

also finds that plaintiff sufficiently alleged that she relied

on the “natural” claim, which was the basis for the bargain, and

was damaged due to the price paid for the Products. (Compl. ¶¶

73-74, 78.)

Nonetheless, the Court concludes that plaintiff failed

to allege pre-suit notice as required for a breach of express

warranty claim. Plaintiff’s complaint states that “[w]ithin a

reasonable time after they knew or should have known of

Defendants’ breach, Plaintiff, on behalf of herself and Class

Members, placed Defendants on notice of their breach, giving

Defendants an opportunity to cure their breach, which they

refused to do.” (Compl. ¶ 75.) This allegation, by itself, is

insufficient to plead pre-suit notice. Instead, plaintiff must

provide factual allegations -- such as the date and method

plaintiff sent a pre-suit notice -- supporting the contention

that she notified defendant of the alleged breach within a

reasonable time. See Suarez, 2019 WL 1046662, at *9 (noting

that the amended complaint specifically alleged that plaintiff

mailed a “pre-suit notice” on a specific date, asserting that

defendant breached an express warranty under New York law).

Although plaintiff states in her opposition to defendants’

motion to dismiss that “Plaintiff mailed Defendants a pre-suit

notice letter on September 5, 2018, prior to filing the original

complaint in this case,” such allegation is absent from the

complaint. (Pl. Mem. at 18.) Consequently, because plaintiff

failed to allege any facts supporting the allegation that she

notified defendant of the alleged breach within a reasonable

time after its discovery, defendants’ motion to dismiss is

granted, without prejudice. Plaintiff is granted leave to amend

in order to correct this deficiency. See, e.g., Petrosino, 2018

WL 1614349, at *5 (dismissing express warranty claim for lack of

pre-suit notice but permitting plaintiff to amend complaint).

IV. The Magnuson-Moss Warranty Act

Plaintiff’s fourth cause of action asserts that

defendants violated the MMWA by providing a “written warranty”

promising that the Products are “Natural.” (Compl. ¶¶ 79-88.)

Defendants argue that a “natural” label “in the context of a

qualified claim” is not a written warranty that the Products

“will meet a specified level of performance over a specified

period of time.” (Def. Mem. at 21.)

“The [Magnuson-Moss Warranty Act] grants relief to a

consumer ‘who is damaged by the failure of a ... warrantor ...

to comply with any obligation ... under a written warranty.’ ”

Wilbur v. Toyota Motor Sales, U.S.A., Inc., 86 F.3d 23, 26 (2d

Cir. 1996) (quoting 15 U.S.C. § 2310(d)(1)). The statute

defines a “written warranty” as:

any written affirmation of fact or written

promise made in connection with the sale of a

consumer product by a supplier to a buyer

which relates to the nature of the material or

workmanship and affirms or promises that such

material or workmanship is defect free or will

meet a specified level of performance over a

specified period of time[.]

15 U.S.C. § 2301(6)(A). The MMWA “makes a warrantor directly

liable to a consumer for breach of a written warranty.” Diaz v.

Paragon Motors of Woodside, Inc., 424 F. Supp. 2d 519, 540

(E.D.N.Y. 2006). The MMWA “merely incorporates and federalizes

state-law breach of warranty claims, including state-law

standards for liability and damages.” Sitt, 2016 WL 5372794, at

*17.

The Court concludes that plaintiff failed to allege a

violation of a written warranty as defined under the MMWA

because the “natural” representation on defendants’ Products

relates to the nature of the material in the product, but does

not “affirm[] or promise[] that such material or workmanship is

defect free or will meet a specified level of performance over a

specified period of time.” 15 U.S.C. § 2301(6)(A). Although

some district courts in this Circuit have declined to dismiss

MMWA claims under the reasoning that “express warranty and MMWA

claims stand or fall together,” see Scandore, No. 20-cv-0254, at

36 (noting that the law surrounding the MMWA is “very unclear”

and declining to dismiss MMWA claim where express warranty claim

survived); Suarez, 2019 WL 1046662, at *9 (declining to dismiss

MMWA claim where plaintiff’s underlying warranty claims survive

dismissal); Sitt, 2016 WL 5372794, at *18 (same), the Court

concludes that the “natural” representation on defendants’

Products cannot satisfy the statutory definition of a written

warranty under the MMWA. In reaching this conclusion, the Court

agrees with other district courts in this Circuit in finding

that the “natural” label constitutes a product description and

does not warrant any specified level of performance or promise

that the product to which the label is affixed will be defect

free. See Newton v. Kraft Heinz Foods Co., No. 16-cv-04578

(RJD)(RLM), 2018 WL 11235517, at *6 (E.D.N.Y. Dec. 18, 2018)

(“[L]ooking solely at the language of the MMWA, Plaintiff’s

suggestion that Defendants’ “natural” or “all natural” labels

could be construed to “promise” or “affirm” a “defect free” sour

cream or a sour cream that “will meet a specified level of

performance over a specified period of time” strains virtually

any possible interpretation or definition of the term

“natural.”); In re Frito-Lay N. Am., Inc. All Nat. Litig., 2013

WL 4647512, at *17 (“An ‘All Natural’ label does not warrant a

product free from defect . . . Nor does it constitute a promise

that the product ‘will meet a specified level of performance

over a specified period of time.’”). For these reasons, the

Court dismisses plaintiff’s MMWA claim.

V. Unjust Enrichment

Finally, plaintiff’s fifth cause of action alleges

that defendants’ “unlawful conduct as described in this

Complaint allowed Defendants to knowingly realize substantial

revenues from selling their Products at the expense of, and to

the detriment or impoverishment of, Plaintiff and Class Members,

and to Defendants’ benefit and enrichment.” (Compl. ¶ 92.)

Defendants argue that plaintiff’s unjust enrichment claim is

duplicative of their other claims, and should therefore be

dismissed. (Def. Mem. at 22-23.)

“Under New York law, a plaintiff may prevail on a

claim for unjust enrichment by demonstrating ‘(1) that the

defendant benefitted; (2) at the plaintiff's expense; and (3)

that equity and good conscience require restitution.’” Nordwind

v. Rowland, 584 F.3d 420, 434 (2d Cir. 2009) (quoting Beth Isr.

Med. Ctr. v. Horizon Blue Cross & Blue Shield of N.J., Inc., 448

F.3d 573, 586 (2d Cir. 2006)). Unjust enrichment is an

equitable remedy, available “only in unusual situations when,

though the defendant has not breached a contract nor committed a

recognized tort, circumstances create an equitable obligation

running from the defendant to the plaintiff.” Corsello v.

Verizon N.Y., Inc., 967 N.E.2d 1177, 1185 (N.Y. 2012). Notably,

“[u]njust enrichment claims should be dismissed ‘where the

violative conduct alleged is conterminous with a conventional

tort or contract claim, regardless of whether the tort or

contract claim is dismissed.’” Hughes v. Ester C Co., 330 F.

Supp. 3d 862, 877 (E.D.N.Y. 2018) (quoting Obeid on behalf of

Gemini Real Estate Advisors LLC v. La Mack, No. 14-cv-6498 (LTS)

(HBP), 2018 WL 2059653, at *29 (S.D.N.Y. May 1, 2018)); see also

Bowring v. Sapporo U.S.A., Inc., 234 F. Supp. 3d 386, 392

(E.D.N.Y. 2017) (dismissing unjust enrichment claim because it

was duplicative of plaintiff’s other dismissed claims).

Here, the unjust enrichment claim duplicates the

plaintiff’s other claims, which arise out identical facts: the

defendants’ alleged misrepresentation on the Product packaging.

Because plaintiff’s unjust enrichment claim under New York law

is based on the same allegations as her claims of violations of

GBL §§ 349 and 350 and breach of express warranty under New York

law, and because plaintiff has not shown how her unjust

enrichment claim differs from her other New York claims, the

Court dismisses plaintiff’s unjust enrichment claim as

duplicative of her other New York claims. See, e.g., Silva,

2020 WL 4586394, at *7 (dismissing unjust enrichment claim as

duplicative); Scandore, No. 20-cv-0254, at 35 (same).

CONCLUSION

For the foregoing reasons, defendants’ motion to

dismiss is denied in part and granted in part without prejudice,

and with leave to amend the breach of express warranty claim in

conformity with this Memorandum and Order. The Court grants

defendants’ motion to dismiss plaintiff’s claims for injunctive

relief, breach of a written warranty under the MMWA, breach of

express warranty, and unjust enrichment, and denies defendants’

motion to dismiss plaintiff’s claims under GBL §§ 349 and 350.

Plaintiffs are granted leave to file an amended complaint within

fourteen (14) days of entry of this Memorandum and Order to

amend the breach of express warranty claim in conformity with

this Memorandum and Order.

SO ORDERED.

/s/

KIYO A. MATSUMOTO

United States District Judge

Eastern District of New York

Dated: January 27, 2021

Brooklyn, New York