The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MICHAEL SCIORTINO and JOSH
SAWYER, on behalf of themselves and all
others similarly situated,
MEMORANDUM & ORDER
Plaintiffs, 25-CV-3126 (HG)
v.
DRINK LMNT, INC.,
Defendant.
HECTOR GONZALEZ, United States District Judge:
Plaintiffs Michael Sciortino and Josh Sawyer, individually and on behalf of all others
similarly situated, bring this action against Defendant Drink LMNT, Inc., alleging violations of
the New York General Business Law (“GBL”) that stem from Defendant’s purported
misrepresentations concerning and related to the presence of maltodextrin in its product and the
product’s suitability for certain diets. See ECF No. 18 (Amended Complaint; “AC”).1
Defendant moves to dismiss the Amended Complaint for lack of subject matter jurisdiction
under Rule 12(b)(1) and for failure to state a claim under Rule 12(b)(6).2 See ECF No. 24
(Defendant’s Motion to Dismiss). For the reasons that follow, Defendant’s motion is
GRANTED IN PART and DENIED IN PART.
1 Unless otherwise indicated, when quoting cases and the parties’ papers, the Court omits
all internal quotation marks, alteration marks, emphases, footnotes, and citations. The Court
refers to the pages assigned by the Electronic Case Files system (“ECF”). For the purposes of
this Order, this Court uses internal quotation marks in citations to the Amended Complaint to
indicate that Plaintiffs are quoting directly from Defendant’s website or publications.
2 Plaintiffs initially sought injunctive relief, see AC at 51 ¶ E, but withdrew the request in
response to Defendant’s motion, see ECF No. 26 at 31 n.5 (Plaintiffs’ Opposition; “Opp.”).
Therefore, the Court need not address Defendant’s Rule 12(b)(1) motion related to that claim.
BACKGROUND3
I. Relevant Facts
Defendant manufactures, markets, and sells electrolyte drink mixes (“LMNT”) through
its website and major retailers, targeting health-conscious consumers who are “looking to
support their electrolyte needs.” AC ¶¶ 1, 16, 21–22. Plaintiffs Sciortino and Sawyer are former
customers of Defendant. Sciortino purchased LMNT from Defendant’s website in July 2024, id.
¶ 14, and Sawyer purchased LMNT from Defendant’s website and from Amazon in August 2024
and January 2025, respectively, id. ¶ 15. Before making their purchases, Plaintiffs each
reviewed Defendant’s claims about LMNT on its website and relied on those representations in
making their purchasing decisions. Id. ¶¶ 14–15.
LMNT is marketed as “consistent with a ‘whole food’ diet,” as well as being “‘keto’ and
‘paleo’ friendly.” AC ¶¶ 23–24. On its website, Defendant explains what it means to be
consistent with the whole food diet or “friendly” to the keto diet. See id. ¶¶ 39–44. The “whole
foods diet” requires that “‘[p]rocessed foods . . . get the boot’” and sits in contrast with “‘[t]he
Standard American Diet . . . which is ‘high in heavily processed foods that are full of refined
carbs, sugar, vegetable oils, and food additives.’” Id. ¶¶ 39–40. Those following a “keto diet”
should eat “‘whole foods that have a lesser effect on blood glucose’” because “foods high on the
glycemic index are particularly bad for those on the keto diet[.]” Id. ¶¶ 43–44. While Plaintiffs
say that to adhere to a “paleo diet,” “‘processed foods, grains, legumes, and dairy products’ are
to be avoided.” Id. ¶ 48.
3 The Court “recite[s] the substance of the allegations as if they represented true facts, with
the understanding that these are not findings of the [C]ourt, as [I] have no way of knowing at this
stage what are the true facts.” In re Hain Celestial Grp., Inc. Sec. Litig., 20 F.4th 131, 133 (2d
Cir. 2021).
Defendant further represents that LMNT “contains ‘[e]verything you need and nothing
you don’t,’ and assure[s] consumers that the formulation includes ‘no dodgy ingredients.’” AC
425. Each box and individual packet of LMNT “prominently highlights what are ostensibly the
three primary ingredients in LMNT: sodium (1000 mg), potassium (200 mg), and magnesium
(60 mg).”* Id. § 26. The front of the product is pictured below.
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49. This, according to Plaintiffs, “reinforces the impression” that LMNT contains mostly
electrolytes and no highly processed fillers or additives. /d. § 27. But, in fact, LMNT does
4 Defendant argues that “Plaintiffs improperly dub [sodium, potassium, and magnesium]
‘ingredients.’” Mem. at 18. The Court acknowledges that sodium, magnesium, and potassium
are “the electrolyte components of sodium chloride, magnesium malate, and potassium chloride,”
respectively. See Mem. at 18-19; AC § 24. For clarity, the Court generally refers to the
“ingredients” and their electrolyte components interchangeably but distinguishes between them
where the predominance analysis requires the distinction. See infra Part II.B.1.3. Specifically,
for purposes of the predominance analysis, the Court refers to sodium, potassium, and
magnesium as the “Electrolytes” and to sodium chloride, magnesium malate, and potassium
chloride as the “Ingredients.”
contain such fillers and additives, which Plaintiffs allege those following “whole foods,” “keto,”
or “paleo” diets “don’t [need].”
LMNT contains “between 300 to 450 milligrams of maltodextrin per serving,” which is a
“highly processed carbohydrate” that is disclosed on LMNT’s label only as part of the term
“natural flavors.” Id. ¶¶ 30–33. To be precise, maltodextrin is a “refined, high-glycemic
sweetener and filler commonly used in processed foods,” which “has a higher glycemic index
than table sugar and can spike blood glucose and insulin levels.” Id. ¶ 32. It has “no nutritional
value, and research indicates that consumption . . . leads to the promotion of intestinal
inflammation’ and ‘could be a risk factor for chronic inflammatory diseases.” AC ¶ 50. The
amount of maltodextrin contained in each packet of LMNT exceeds that of potassium and
magnesium combined, see id. ¶ 33, even though the latter two elements are conspicuously
advertised on LMNT’s packaging, see, e.g., id. ¶ 26.
LMNT’s use of maltodextrin first came to light on October 19, 2024, when Luis
Villasenor, one of Defendant’s co-founders, stated on social media that “LMNT doesn’t have
maltodextrin.” Id. ¶ 34. The next day, Robb Wolf, another co-founder, admitted that LMNT
does indeed contain maltodextrin, characterized Villasenor’s statement as a “mistake,” and later
disclosed in a blog post on Defendant’s website that each LMNT packet contains approximately
“300 mg of maltodextrin.” Id. ¶¶ 35–36.
Plaintiffs allege that the strategy of “marketing LMNT as a clean, whole-food nutritional
supplement free from highly processed food additives” permitted Defendant to “charge a
significant price premium” for LMNT. AC ¶ 52. Plaintiffs allege that, had they known about the
quantity of maltodextrin in LMNT, “they would not have purchased LMNT or would have paid
significantly less for it.” Id. ¶ 53.
II. Procedural History
Plaintiffs commenced this action on June 4, 2025. See ECF No. 1 (Complaint).
Approximately two months later, Plaintiffs sought leave to amend their Complaint and filed the
amended pleading on August 12, 2025. See AC. The Amended Complaint asserts that
Defendant engaged in materially misleading and deceptive practices concerning LMNT, in
violation of GBL Section 349 (Claim One), and that Defendant’s advertising of LMNT was
materially misleading and deceptive, in violation of GBL Section 350 (Claim Two). See id. On
September 11, 2025, Defendant filed its motion to dismiss, see Mot., and a memorandum in
support of its motion to dismiss, see ECF No. 24-1 (Defendant’s Memorandum in Support of
Motion to Dismiss; “Mem.”). About one month later, Plaintiffs filed their opposition. See Opp.
On October 28, 2025, Defendant filed its reply. See ECF No. 28 (Defendant’s Reply; “Reply”).
LEGAL STANDARD
To survive a motion to dismiss under Rule 12(b)(6), a “complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Sacerdote
v. N.Y. Univ., 9 F.4th 95, 106 (2d Cir. 2021) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). “A claim is plausibly alleged ‘when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’”
Matzell v. Annucci, 64 F.4th 425, 433 (2d Cir. 2023) (quoting Iqbal, 556 U.S. at 678). In making
this assessment, the Court “must accept as true all of the factual allegations set out in plaintiff’s
complaint, draw inferences from those allegations in the light most favorable to plaintiff, and
construe the complaint liberally.” Roth v. Jennings, 489 F.3d 499, 510 (2d Cir. 2007). The
Court must, however, disregard any “conclusory allegations, such as formulaic recitals of the
elements of a cause of action.” Iqbal, 556 U.S. at 678. A pleading that only “tenders naked
assertions devoid of further factual enhancement” will not suffice. Id.
DISCUSSION
Sections 349 and 350 of the GBL prohibit “deceptive acts or practices” and “false
advertising,” respectively, “in the conduct of any business, trade or commerce or in the
furnishing of any service in [New York].” Orlander v. Staples, Inc., 802 F. 3d 289, 300 (2d Cir.
2015). Plaintiffs allege that Defendant violated both sections through (1) its representation that
LMNT is keto and paleo diet friendly; (2) its representation that LMNT is consistent with the
whole foods diet; (3) its assertions that LMNT is free from “dodgy ingredients” and “contains
everything you need and nothing you don’t”; and (4) LMNT’s allegedly misleading packaging.
See AC ¶¶ 14–15. Defendant argues that Plaintiffs’ claims fail for two reasons: (1) they are
preempted by federal law and (2) they fail to state a claim. See Mem. at 14. The Court
addresses Defendant’s preemption argument before turning to its argument that Plaintiffs fail to
state a GBL claim. Ultimately, only Plaintiffs’ claims concerning the representations that LMNT
is keto and paleo friendly, and consistent with the whole foods diet, survive.
I. Plaintiffs’ Claims are not Preempted by Federal Law
Defendant first argues that the Amended Complaint should be dismissed “because
Plaintiffs’ claims are preempted by federal law[.]” Mem. at 9, 14–17. “[O]nce a district court
determines that a state law claim has been completely preempted . . . the court must then dismiss
the claim for failing to state a cause of action.” Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc.,
373 F.3d 296, 309 (2d Cir. 2004). Here, however, the claims are not preempted by federal law.
The Federal Nutrition Labeling and Education Act (“NLEA”), a 1990 amendment to the
Federal Food, Drug, and Cosmetic Act (“FDCA”), expressly “forbids the states from ‘directly or
indirectly establish[ing] . . . any requirement . . . made in the labeling of food that is not identical
to’ the federal labeling requirements established by certain specifically enumerated sections of
the FDCA.” Koenig v. Boulder Brands, Inc., 995 F. Supp. 2d 274, 280 (S.D.N.Y. 2014) (quoting
21 U.S.C. § 343-1(a)). Under the FDCA, a state-law requirement is
‘not identical to’ a federal labeling requirement if ‘the State requirement directly or
indirectly imposes obligations or contains provisions concerning the composition
or labeling of food’ that ‘[a]re not imposed by or contained in,’ or that ‘[d]iffer
from those specifically imposed by or contained in,’ the FDCA and its
implementing regulations.
Jackson-Mau v. Walgreen Co., 115 F.4th 121, 128 (2d Cir. 2024) (quoting 21 C.F.R.
§ 100.1(c)(4)).
Defendant frames Plaintiffs’ claims as an allegation that it concealed the presence of
maltodextrin in LMNT and, in turn, an attempt to require that Defendant disclose its use of
maltodextrin in the product. See Mem. at 15–17. Such claims, Defendant argues, are preempted
by federal law because they attempt to “impose[] obligations” that “[d]iffer from those
specifically imposed by or contained in the [FDCA].”5 See Mem. at 14 (citing 21 C.F.R.
§ 100.1(c)(4)). Although the Amended Complaint does allege that Defendant concealed the
presence of maltodextrin, see AC ¶ 33, contrary to Defendant’s contention, Plaintiffs do not seek
to impose a requirement that Defendant disclose maltodextrin, nor do they otherwise challenge
LMNT’s ingredient disclosures, see Reply at 6–7. Rather, they assert that (1) the front of
LMNT’s packaging is misleading because its highlighting of magnesium, potassium, and sodium
improperly implies that those components predominate over others, see AC ¶¶ 26–27, and
(2) Defendant cannot advertise or promote LMNT as being keto or paleo friendly, or consistent
5 Defendant argues, and Plaintiffs do not contest, that Food and Drug Administration
(“FDA”) regulations permit Defendant to disclose maltodextrin under the general “natural
flavors” label on LMNT. See Mem. at 15–17; Opp. at 22.
with the whole foods diet, given the presence of maltodextrin in the product, see id. ¶ 30; Opp. at
15.
First, the claims arising out of Plaintiffs’ allegations that LMNT’s label misleadingly
implies the predominance of potassium, magnesium, and sodium in LMNT are not preempted
because “the NLEA preemption provision does not apply to § 343(a), the prohibition on false or
misleading labeling.” Parks v. Ainsworth Pet Nutrition, LLC, 377 F. Supp. 3d 241, 246
(S.D.N.Y. 2019). But even if it did, Plaintiffs’ claims would not be preempted because the
alleged deception, that the label misleadingly implies that certain components predominate over
others, is parallel to the FDCA’s prohibition on food labeling that is “false or misleading in any
particular.” 21 U.S.C. § 343(a)(1); see also Ackerman v. Coca-Cola Co., No. 09-cv-0395, 2010
WL 2925955, at *6 (E.D.N.Y. July 21, 2010) (“[C]laims under state laws that parallel the
FDCA’s requirements are not preempted.”).
Second, Plaintiffs’ claims based on Defendant’s non-packaging related representations—
that LMNT is suitable for those following keto, paleo, or whole foods diets; is free from “dodgy
ingredients”; and “contains everything you need and nothing you don’t”—stem from the
allegation that “Defendant’s representations about LMNT convey to a reasonable consumer that
the product is a clean, whole-food nutritional supplement free from highly processed food
additives.” AC ¶¶ 105, 115. Here, Plaintiffs are not predicating their claims on Defendant’s
failure to disclose maltodextrin, but rather on its advertising that LMNT is keto and paleo
friendly, and consistent with the whole foods diet. See Axon v. Citrus World, Inc., 354 F. Supp.
3d 170, 180 (E.D.N.Y. 2018) (finding that plaintiff’s claims against “Florida’s Natural” brand
orange juice were not preempted because plaintiff was “not seeking the mandatory disclosure of
glyphosate” but rather the removal of the “natural label”); see also Jovel v. i-Health, Inc.,
No. 12-cv-5614, 2013 WL 5437065, at *5 (E.D.N.Y. Sept. 27, 2013) (holding that “consumer
protection claims founded on the[] falsity [of statements made in advertising] are not preempted”
by the FDCA).
Because Plaintiffs do not attempt to impose additional requirements that contradict the
FDCA, their claims are not preempted, and the Amended Complaint survives this part of
Defendant’s motion to dismiss.
II. Plaintiffs Sufficiently State Some of Their GBL Claims
Defendant next argues that the Amended Complaint should be dismissed pursuant to
Rule 12(b)(6) because Plaintiffs “fail to plausibly allege LMNT’s challenged representations
would mislead a reasonable consumer” and “fail to adequately plead essential elements” of GBL
Section 349 and 350 claims. See Mem. at 14. The essential elements of GBL Sections 349 and
350 are “substantively identical,” permitting the Court to analyze the claims together. See
Gristede’s Foods, Inc. v. Unkechauge Nation, 532 F. Supp. 2d 439, 451 (E.D.N.Y. 2007). To
state a prima facie claim under the GBL, Plaintiffs must allege that Defendant “has engaged in
(1) consumer-oriented conduct that is (2) materially misleading and that (3) [P]laintiff[s] suffered
injury as a result of the allegedly deceptive act or practice.” Orlander, 802 F.3d at 300.6
The parties do not dispute that “Defendant engaged in consumer-oriented conduct by
marketing and selling LMNT to consumers, including Plaintiffs . . . through its website and other
retail channels.” AC ¶ 104. Therefore, the Court’s analysis turns on the remaining two
elements.
6 Although Plaintiffs’ claims are based on allegedly deceptive practices, “[c]laims under
GBL sections 349 and 350 are not subject to the pleading-with-particularity requirements of Rule
9(b).” Daniel v. Mondelez Int’l, Inc., 287 F. Supp. 3d 177, 186 (E.D.N.Y. 2018).
A. Injury Resulting from the Deceptive Act or Practice
i. Causation
Defendant argues that Plaintiffs do not adequately plead causation. See Mem. at 31–32.
To plead causation under GBL Sections 349 and 350, Plaintiffs must allege that they “saw the
misleading statements of which they complain before they purchased or came into possession of
Defendant’s [product].” Lugones v. Pete & Gerry’s Organic, LLC, 440 F. Supp. 3d 226, 240
(S.D.N.Y. 2020); see also Gale v. Int’l Bus. Machs. Corp., 781 N.Y.S.2d 45, 47 (App. Div.
2004) (affirming dismissal of Section 349 claim because “[i]f the plaintiff did not see any of
these statements, they could not have been the cause of his injury, there being no connection
between the deceptive act and the plaintiff’s injury”).7 Here, Plaintiffs challenge several of
Defendant’s representations, but only those that Plaintiffs allege to have viewed can form the
basis of their GBL claims.
Relying on Goldemberg v. Johnson & Johnson Consumer Companies, Inc., 8 F. Supp. 3d
467 (S.D.N.Y. 2014), Plaintiffs argue they need only allege that they viewed Defendant’s
website to satisfy the causation requirement. See Opp. at 31. But in Goldemberg, the court
found the requisite causation where the plaintiff saw the “website and Facebook page described
previously in the Complaint.” Id. (emphasis added). The plaintiff in Goldemberg “describe[d] in
particular the allegedly misleading advertising and other statements” that he viewed on the
defendant’s website and Facebook page, id., and did not merely rely on vague assertions that he
viewed the website generally, as Plaintiffs do here. Plaintiffs cannot simply assert that they
7 Although “reliance is not a required element of a claim under [GBL] Sections 349 and
350, causation is.” Polvay v. FCTI, Inc., 713 F. Supp. 3d 1, 6 (S.D.N.Y. 2024); see also Koch v.
Acker, Merrall & Condit Co., 18 N.Y.3d 940, 941–42 (2012) (“To the extent that the Appellate
Division order imposed a reliance requirement on [GBL] §§ 349 and 350 claims, it was error.
Justifiable reliance by the plaintiff is not an element of the statutory claim.”).
“reviewed Defendant’s claims on the website” or “saw Defendant’s claims about LMNT [on the
website],” AC ¶¶ 14–15, as a way to avoid specifying which allegedly misleading statements
caused them to make their purchasing decisions. See Goldemberg, 8 F. Supp. 3d at 480; see also
Dash v. Seagate Tech. (U.S.) Holdings, Inc., 27 F. Supp. 3d 357, 361 (E.D.N.Y. 2014).
Therefore, Plaintiffs’ claims can be based only on the following statements, which
Plaintiffs specifically allege they viewed: “that [LMNT] was paleo and keto friendly, contained
no ‘dodgy ingredients’, and was consistent with a whole-foods diet” and, with respect only to
Sciortino, the “advertising on the website showing what [he] believed were LMNT’s three
primary ingredients: Sodium, Potassium, and Magnesium.” AC ¶¶ 14–15.8 Any other
advertisements, statements, or representations discussed in the Amended Complaint, but not
specifically identified as viewed by Plaintiffs, do not give rise to a claim.9 With respect to the
actionable representations, both Plaintiffs sufficiently allege causation by asserting that they
“relied on Defendant’s false and misleading advertisements and would not have purchased
LMNT or would have paid significantly less for the product had [they] known about the
deceptive advertising.” AC ¶¶ 14–15; see Wise v. Combe Inc., 724 F. Supp. 3d 225, 237
8 While Sciortino alleges that he “reviewed advertising on the website,” the Court
understands him to have viewed images of LMNT’s labels and packaging as displayed on the
website. See AC ¶¶ 9, 23–24, 26. In discussing what Sciortino viewed, the Court simply refers
to LMNT’s label or packaging.
9 Plaintiffs also allege that Defendant’s statement that LMNT “contains everything you
need and nothing you don’t” is misleading. See AC ¶ 50. But neither Sciortino nor Sawyer
alleges to have viewed this statement and therefore it may not form the basis of their GBL
claims. See Lugones, 440 F. Supp. 3d at 240.
(S.D.N.Y. 2024) (finding plaintiffs’ allegations that “they saw the challenged representations . . .
prior to and at the time of purchase” sufficient to plead causation).10
ii. Injury
Defendant next contends the Amended Complaint fails because Plaintiffs do not plead an
actual injury resulting from Defendant’s alleged deceptive practices. See Mem. at 29–31. Under
GBL Sections 349 and 350, injury “typically requires a plaintiff to allege that, on account of a
materially misleading practice, [he] purchased a product and did not receive the full value of
[his] purchase.” Duran v. Henkel of Am., Inc., 450 F. Supp. 3d 337, 350 (S.D.N.Y. 2020). This
can be shown “by alleging an overpayment, or ‘price premium,’ whereby a plaintiff pays more
than she would have but for the deceptive practice.” Id. But merely “[c]laiming that the plaintiff
would not have bought the product absent the defendant’s deception is not enough.” Kyszenia v.
Ricoh USA, Inc., 583 F. Supp. 3d 350, 363 (E.D.N.Y. 2022).
Plaintiffs advance a standard price premium claim: that Defendant’s alleged deception
caused them to pay a price premium for LMNT. To sufficiently plead a price premium theory, a
“plaintiff must allege not only that defendants charged a price premium, but also that there is a
connection between the misrepresentation and any harm from, or failure of, the product.”
Duran, 450 F. Supp. 3d at 350. To allege a sufficient connection, a plaintiff must show “either
that because of a misrepresentation the plaintiff received a good worth less than what he paid for,
10 Defendant further argues that causation requires that a “reasonably objective person
would be deceived by the allegedly misleading statements” and therefore Plaintiffs fail to
establish causation. See Mem. at 31–32 (citing Ackerman v. Coca-Cola Co., No. 09-cv-395,
2013 WL 7044866, at *19 (E.D.N.Y. July 18, 2013)). But that argument improperly conflates
the second and third elements of GBL Section 349 and 350 claims. See Ackerman, 2013 WL
7044866, at *19 (“[W]hile materiality and reliance under GBL § 349 are determined based on
the objective ‘reasonable consumer’ standard, loss causation must be addressed individually.”)
(collecting cases). The Court examines whether Defendant’s representations were materially
misleading infra Part II.B.
i.e., a good of inferior quality, or that because of a misrepresentation the plaintiff paid an inflated
price.” Belcastro v. Burberry Ltd., No. 16-cv-1080, 2017 WL 5991782, at *4 (S.D.N.Y. Dec. 1,
2017). With respect to the “inferior goods” basis, courts in this Circuit have found price-
premium injury based on inferior goods when “a company marketed a product as having a
‘unique quality,’ that the marketing allowed the company to charge a price premium for the
product, and that the plaintiff paid the premium and later learned that the product did not, in fact,
have the marketed quality.” See, e.g., Duran, 450 F. Supp. 3d at 350 (price premium based on
hair gel labeling that promised “no flakes” and collecting cases).
Plaintiffs allege just that. Specifically, Plaintiffs assert that “[b]y marketing LMNT as a
clean, whole-food nutritional supplement free from highly processed food additives, all while
concealing LMNT’s high amount of maltodextrin, Defendant is able to charge a significant price
premium” based on “attributes the product does not have.” AC ¶¶ 52, 58. Plaintiffs further
assert that had they “known that LMNT contained more maltodextrin than two of LMNT’s
supposed primary ingredients combined, they would not have purchased the product or would
have paid significantly less.” Id. ¶¶ 106, 116. Defendant attempts to paint these assertions as
“purely subjective dissatisfaction with the products [Plaintiffs] received.” Mem. at 30 (quoting
Wright v. Publ’rs Clearing House, Inc., 439 F. Supp. 3d 102, 114 (E.D.N.Y. 2020)). The Court
disagrees. Drawing all inferences in Plaintiffs’ favor, the Court concludes that Plaintiffs have
adequately pled that Defendant was able to charge an inflated price because of LMNT’s
purportedly unique keto and paleo friendly, and whole foods consistent, qualities, which are
valued by consumers, and which Plaintiffs did not discover were absent from the product until
after they made their purchases. See AC ¶ 58; Duran, 450 F. Supp. 3d at 350. The Court, as it
has previously, see Watts v. Beiersdorf Inc., No. 24-cv-0527, 2024 WL 5168765, at *3
(E.D.N.Y. Dec. 19, 2024), continues to join “[n]umerous courts in this Circuit [which] have
found sufficient a plaintiff’s general allegation that [he] would not have paid a price premium but
for the defendant’s misrepresentations,” see Colpitts v. Blue Diamond Growers, 527 F. Supp. 3d
562, 578 (S.D.N.Y. 2021) (collecting cases).
B. Materially Misleading Conduct
Defendant also argues that Plaintiffs fail to state a claim because they have not alleged
that its representations were materially misleading given that, in relevant part, “LMNT’s
advertising would not deceive a reasonable consumer” and “[e]ach of the challenged
advertisements are non-actionable ‘puffery.’” See Mem. at 18–29.
As a reminder, the misleading representations at issue are Defendant’s statements that
LMNT (1) is keto and paleo diet friendly; (2) is consistent with the whole foods diet; (3) contains
“no dodgy ingredients”; and, with respect to Sciortino only, (4) the information on the front of
LMNT’s packaging. See AC ¶¶ 14–15. Defendant argues that claims concerning the first and
fourth representations should be dismissed because a reasonable consumer could not possibly be
misled by them. See Mem. at 18–23. Defendant further contends that the claims related to the
first, second, and third representations should be dismissed as non-actionable puffery. See id. at
23–26. The Court addresses each of Defendant’s arguments in turn and finds that Plaintiffs
sufficiently plead that only Defendant’s first and second statements, concerning LMNT’s
suitability for keto, paleo, or whole foods diets, are materially misleading.11
11 Defendant lastly argues that “to the extent Plaintiffs assert omission-based claims, they
also fail,” Mem. at 28, but the Court does not read the Amended Complaint to bring such a
claim, nor do Plaintiffs purport to bring one, see Opp. at 28 n.4.
i. The Reasonable Consumer
An act is materially misleading if it is “likely to mislead a reasonable consumer acting
reasonably under the circumstances.” Orlander, 802 F.3d at 300. In making this evaluation, the
Court must determine “whether a significant portion of the general consuming public or of
targeted consumers, acting reasonably in the circumstances, could be misled.” Mogull v. Pete &
Gerry’s Organics, LLC, 588 F. Supp. 3d 448, 453 (S.D.N.Y. 2022). Statements or acts should
not be viewed in isolation; rather, the Court “assess[es] ‘each allegedly misleading statement in
light of its context on the product label or advertisement as a whole,’ contemplating ‘[t]he entire
mosaic . . . rather than each tile separately.’” Id. (quoting Belfiore v. Procter & Gamble Co., 311
F.R.D. 29, 53 (E.D.N.Y. 2015)). Ordinarily, this inquiry is a question of fact inappropriate for
the motion to dismiss stage. See Lugones, 440 F. Supp. 3d at 241. Only where “it is impossible
for the plaintiff to prove that a reasonable consumer was likely to be deceived” is dismissal
appropriate. McCabe v. Nat’l Presto Indus., Inc., No. 24-cv-6552, 2025 WL 2371080, at *4
(E.D.N.Y. Aug. 14, 2025) (quoting Hesse v. Godiva Chocolatier, Inc., 463 F. Supp. 3d 453, 467
(S.D.N.Y. 2020)); see also Goetz v. Ainsworth Pet Nutrition, LLC, 768 F. Supp. 3d 645, 655
(S.D.N.Y. 2025) (“Typically, determining reasonableness as a matter of law is appropriate only
where a plaintiff’s claims are patently implausible or unrealistic.”).
To demonstrate that they satisfy the reasonable consumer standard, Plaintiffs provide
anecdotes from third parties as evidence that reasonable consumers would be misled by
Defendant’s representations. See AC ¶¶ 59–85. Defendant argues that Plaintiffs’ reliance on
these anecdotal statements is insufficient to satisfy the reasonable consumer standard for a GBL
claim. See Mem. at 27–28. In response, Plaintiffs maintain that the expression of outrage by
“[t]housands of LMNT’s target consumer base,” acknowledged by Defendant, is sufficient to
establish that “targeted consumers for LMNT . . . ‘acting reasonably in the circumstances, could
be’ and were ‘misled.’” Opp. at 19 (quoting Cobovic v. Mars Petcare US, Inc., 793 F. Supp. 3d
438, 444 (E.D.N.Y. 2025)). But contrary to Plaintiffs’ assertions, “[t]he reasonable consumer
standard is an objective standard.” In re Kind LLC “Healthy & All Natural” Litig., 627 F. Supp.
3d 269, 282 (S.D.N.Y. 2022), aff’d sub nom. Bustamante v. Kind, LLC, 100 F.4th 419 (2d Cir.
2024). And “[w]hat is objectively reasonable depends on the facts and context of the alleged
misrepresentations[.]” Himmelstein, McConnell, Gribben, Donoghue & Joseph, LLP v. Matthew
Bender & Co., Inc., 150 N.Y.S.3d 79, 85 (N.Y. 2021). Because the reasonable consumer inquiry
is objective and assesses the challenged representation in its full context, the reactions of non-
party consumers, without more, do not establish a probability that a significant portion of
reasonable consumers would be misled. The Court’s analysis on whether a reasonable consumer
would be misled by Defendant’s representations thus turns on the representations themselves.
1. Keto and Paleo Diet Friendly
Defendant first argues that “Plaintiffs fail to plausibly allege that the inclusion of
maltodextrin as an incidental additive under the ‘natural flavors’ ingredient causes [LMNT] not
to be keto or paleo friendly.” Mem. at 22. Defendant grounds its argument in the holding in
Walcoff v. Innofoods USA, Inc., No. 22-cv-1485, 2023 WL 3262940, at *7–9 (S.D. Cal. May 4,
2023), where the Southern District of California dismissed claims alleging that a product
inaccurately represented itself as “keto-friendly” because the packaging clarified any ambiguity
as to the amount of carbohydrates and sugar in the product, see Mem. at 22. Plaintiffs counter
that they do not base their claims on “the mere presence of carbohydrates” but rather allege that
LMNT is not keto friendly because “foods high on the glycemic index,” in Defendant’s words,
“‘slam[] the door on ketosis,’” and because “maltodextrin is higher on the glycemic index than
sugar . . . [it] is fundamentally incompatible with the keto diet, regardless of carbohydrate
content.” AC ¶¶ 44–46; see also Opp. at 24. Plaintiffs further assert that “because maltodextrin
is highly processed—again, independent of its carbohydrate content—it is not paleo ‘friendly.’”
AC ¶¶ 48–49; Opp. at 24. Although Defendant is legally permitted to disclose the use of
“natural flavors” rather than specifying maltodextrin, see supra note 5, Plaintiffs had no way of
knowing that LMNT contained maltodextrin to inform their analysis of whether the product was
keto and paleo diet friendly, see Opp. at 24. Contemplating the “entire mosaic” of Defendant’s
representations and advertising, a reasonable consumer acting reasonably under the
circumstances could be misled by Defendant’s representations to believe that LMNT was keto
and paleo diet friendly when, in fact, it is not.
2. Disclosure of Maltodextrin
More generally, Defendant also argues that no reasonable consumer could be misled
because it “publicly disclosed the presence of maltodextrin as a ‘flavor carrier’ in [LMNT].”
Mem. at 23. Defendant initially denied its use of maltodextrin through a social media post on
October 19, 2024, stating that “LMNT doesn’t have maltodextrin.” AC ¶ 34. In a “subsequent
blog post,” however, Defendant disclosed on its website that LMNT does, in fact, contain
maltodextrin. See id. ¶ 35. Although the date of that blog post is unclear, from the Amended
Complaint’s use of the word “subsequent,” the Court can infer that the post was made some time
after October 19, 2024. Id. ¶¶ 36–37. Plaintiffs concede that “a practice is not deceptive when a
business provides conspicuous notice of that practice to consumers before purchase.”
Carovillano v. Sirius XM Radio, Inc., 715 F. Supp. 3d 562, 576 (S.D.N.Y. 2024); see Opp. at 24.
Here, however, Defendant did not provide such notice to Plaintiffs before their purchases
because it was either not timely or not sufficiently conspicuous. Sciortino purchased LMNT in
July 2024, and Sawyer purchased it in August 2024 and January 2025, AC ¶¶ 14–15, while
Defendant disclosed its use of maltodextrin in October 2024, see id. ¶¶ 36–37, indisputably after
at least some of Plaintiffs’ purchases. Moreover, as discussed below, although Defendant’s
notice may have been timely with respect to Sawyer’s January 2025 purchase, it was not
sufficiently conspicuous because finding the notice would require a reasonable consumer to
comb through Defendant’s website to identify a single blog post bearing the title, “WHAT’S
THE DEAL WITH NATURAL FLAVORS,” that does not make clear it disclosed the use of
maltodextrin in LMNT. There was thus no conspicuous notice on which Plaintiffs could rely
prior to making their purchases. See Carovillano, 715 F. Supp. 3d at 576.
Defendant counters that it disclosed the use of maltodextrin in LMNT as early as June 6,
2024, predating Plaintiffs’ purchases, and seeks the Court’s judicial notice of prior versions of
the same blog post referenced in the Amended Complaint. See Mem. at 13; ECF Nos. 24-2
(Request for Judicial Notice), 24-5 (Exhibit B – June 2024 Natural Flavors Blog Post; “Ex. B”),
24-6 (Exhibit C – June 2024 Wayback Machine Natural Flavors Blog Post; “Ex. C”). Plaintiffs
do not object to Defendant’s request that the Court take judicial notice of Exhibit C, see Opp. at
12, but object to the Court taking judicial notice of Exhibit B on the grounds that, despite
Defendant representing that Exhibits B and C are identical, “a comparison of the language
between the two documents indicates they are not the same,” id. at 13. Plaintiffs further contend
that “it is unclear whether Exhibit B was ever posted on the LMNT website.” Id. Although
Defendant represents that Exhibit C was “[t]he June 6, 2024, version of the blog post from
Exhibit B,” ECF No. 24-2 at 2, it is evident that this is not the case. As Plaintiffs note,
“Exhibit C contains a bullet point list of various facts on maltodextrin, including the claim that
LMNT contains a ‘miniscule amount’ of maltodextrin” whereas Exhibit B contains no such text.
Opp. at 13. There is thus a “reasonable dispute” as to whether Exhibit B was ever posted on
Defendant’s website, a fact that cannot “be accurately and readily determined from sources
whose accuracy cannot reasonably be questioned.” See Fed. R. Evid. 201(b). The Court
therefore declines to take judicial notice of Exhibit B. The Court does, however, take judicial
notice of Exhibit C because Plaintiffs do not object, see Opp. at 12, and “the contents of web
pages available through the Wayback Machine [are] facts that can be accurately and readily
determined from sources whose accuracy cannot reasonably be questioned,” Lee v. Springer
Nature America, Inc., 769 F. Supp. 3d 234, 249 (S.D.N.Y. 2025); see also Patsy’s Italian Rest.,
Inc. v. Banas, 575 F. Supp. 2d 427, 443 (E.D.N.Y. 2008), aff’d, 658 F.3d 254 (2d Cir. 2011) (“It
is generally proper to take judicial notice of articles and Web sites published on the Internet.”).
The Court therefore concludes that July 20, 2024, the date provided by the Wayback Machine,
see Ex. C at 2, is the earliest date on which the blog post is shown to have appeared.
Although Defendant may have disclosed its use of maltodextrin prior to Plaintiffs’
purchases,12 the Court cannot conclude that such disclosure is conspicuous. A reasonable
consumer is not “expected to look beyond misleading representations” in one part of an
advertisement “to discover the truth from the ingredient list in small print on the side of the box”
or on a website. See Mantikas v. Kellogg Co., 910 F.3d 633, 637 (2d Cir. 2018). Here, a single
blog post—whose title, “WHAT’S THE DEAL WITH NATURAL FLAVORS,” gives no
indication of LMNT’s use of maltodextrin—is akin to the fine print that, as Mantikas cautions, a
reasonable consumer cannot be expected to scrutinize when evaluating a product. Consequently,
despite Defendant publicizing the presence of maltodextrin in LMNT, that disclosure does not
rise to the level of conspicuous notice because it forces a reasonable consumer to “look beyond
[the] misleading representations” concerning the product’s suitability with keto, paleo, and
12 Sciortino alleges only that he “purchased LMNT from Defendant’s website in July
2024,” but does not provide a specific date. See AC ¶ 14.
whole foods diets that are present in Defendant’s advertising “to discover the truth” in a single
blog post online. See Mantikas, 910 F.3d at 637; Carovillano, 715 F. Supp. 3d at 576.
3. The Front of LMNT’s Packaging
Defendant next argues that the prominent advertising of potassium and magnesium on the
front of LMNT’s packaging could not mislead a reasonable consumer, despite the fact that
maltodextrin is present in a higher quantity than both of those components combined. See Mem.
at 21–22. Among other reasons, Defendant asserts that “because Plaintiffs fail to identify any
affirmative misrepresentations on [LMNT’s] front label, there is no misleading statement to
correct or clarify,” and that, in any event, LMNT’s ingredient list and nutrition facts panel dispel
any alleged deception. See id. Plaintiffs rely on Mantikas to support their argument that
LMNT’s packaging is misleading because it prominently and improperly implies that LMNT
consists primarily of sodium, potassium, and magnesium and, “unlike in Mantikas, a reasonable
consumer cannot simply flip the package over to dispel the misrepresentation[.]” See Opp. at
20–21. The Court disagrees with Plaintiffs and concludes that the packaging was not misleading.
In Mantikas, the Second Circuit found that the statements “WHOLE GRAIN” and
“MADE WITH WHOLE GRAIN” on the front of a Cheez-It box were “misleading because they
communicate[d] to the reasonable consumer that the grain in the product [was] predominantly, if
not entirely, whole grain” when it was instead “predominantly enriched white flour,” as
confirmed by the product’s nutrition facts panel and ingredients list. 910 F.3d at 637. Courts in
this Circuit, applying Mantikas, “have concluded that a plaintiff has plausibly alleged a deceptive
statement where packaging falsely states or implies that a prominently mentioned ingredient
predominates, when, in fact, that ingredient is secondary.” Kamara v. Pepperidge Farm, Inc.,
570 F. Supp. 3d 69, 78 (S.D.N.Y. 2021) (collecting cases). But, importantly, “[w]hen the
ingredients list confirms that the prominently mentioned ingredient does in fact predominate,
courts have concluded that the complaint does not plausibly allege a deceptive statement.” Id.
(collecting cases). And similarly, where the nutrition facts panel of a product clarifies a
product’s front-label claims, there is no misleading statement under GBL Sections 349 and 350.
See Melendez v. ONE Brands, LLC, No. 18-cv-06650, 2020 WL 1283793, at *7 (E.D.N.Y. Mar.
16, 2020) (finding the front-label statement “1g sugar” on a protein bar was not misleading
because the back-label nutrition facts panel clarified and accurately disclosed the bars’
carbohydrate and caloric content).
Here, Plaintiffs make a contention akin to that in Mantikas, arguing that “LMNT’s
prominent claim on the front label that [LMNT] consists of natural electrolytes—Sodium,
Potassium, and Magnesium—plausibly leads[s] a reasonable consumer to conclude that natural
electrolytes are the predominant ingredients in [LMNT].” Opp. at 20–21. But the “entire
mosaic” of LMNT’s packaging makes clear that this argument is implausible. Although
LMNT’s packaging does imply that natural electrolytes predominate, see Vazquez v. Walmart,
Inc., 704 F. Supp. 3d 417, 426 (S.D.N.Y. 2023), the nutrition facts and ingredients list confirm
that such an implication is not misleading, see Kamara, 570 F. Supp. 3d at 78; Melendez, 2020
WL 1283793, at *7.
As an initial matter, and as discussed above, see supra note 4, there is a distinction
between Electrolytes (sodium, magnesium, and potassium) and Ingredients from which those
Electrolytes are derived (sodium chloride, magnesium malate, and potassium chloride). But this
distinction has no impact on the Court’s predominance analysis because both Electrolytes and
Ingredients predominate over maltodextrin in LMNT, as revealed by the “entire mosaic” of the
labels pictured below.
Nutrition Facts
30 servings per container 1,000 mg
———
P Amount Per Serving
| om Pr
> Total Fat Og 0% POTASSIUM
hd | oD Saturated Fat Og 0%
= □□ Gaal 0%
if ed 7 fy 60mg
ae (| hey Dietary Fiber 0g %
se Total Sugars 0g
a ry pea au a 0g Added Sugars 0%
eee Yh ae Protein Og 0%
, tans Toeeooe rm
an ae i Potassium 200mg wh be hceileads
Ceneorthm S48
Nae sia, vr 2) ( (aN □
i ® © ® © @®
" No Sugar No Gluten No Dodgy Ingredients Vegan Friendly Paleo-Keto Friendly
AC 99 9, 24.
To begin, the Court looks to the back of LMNT’s packaging and analyzes predominance
through Defendant’s preferred measurement—Ingredients. Doing so clearly shows that
Plaintiffs’ claims are implausible. FDA regulations require that ingredients “be listed by
common or usual name in descending order of predominance by weight on either the principal
display panel or the information panel.” 21 C.F.R. § 101.4(a)(1). In accordance with that
regulation, and uncontested by Plaintiffs, the LMNT ingredients list indicates that the amount of
sodium chloride, magnesium malate, or potassium chloride—both individually and
collectively—in each packet is greater than the amount of natural flavors (the ingredient
containing maltodextrin). See AC § 24. It is therefore indisputable that the Ingredients
predominate over the amount of maltodextrin in LMNT and thus there is no misleading
statement as to their predominance. See Kamara, 570 F. Supp. 3d, at 78.
22
Even looking through Plaintiffs’ preferred lens of Electrolytes, their predominance
argument remains implausible. As a threshold matter, Plaintiffs’ choice of comparison is flawed.
Plaintiffs base their comparison on Mantikas, but that decision is inapposite to the facts of this
case. Mantikas specifically contemplated misleading claims regarding the predominance of
certain ingredients in crackers, as defined by federal regulation. See 910 F.3d at 635 (citing 21
C.F.R. § 101.4). Here, however, Plaintiffs do not seek to compare ingredients against
ingredients; rather, they compare the components of certain ingredients against the components
of other ingredients. But even accepting this framing, their claims still fail.
The Electrolytes in LMNT—sodium, magnesium, and potassium—total 1,260 mg,
whereas the most maltodextrin alleged to be in the product is 450 mg. See AC ¶¶ 9, 30. Rather
than looking to all the Electrolytes displayed on LMNT’s packaging, Plaintiffs attempt to cherry-
pick what they measure against maltodextrin for the purposes of evaluating predominance. They
repeatedly make the point that “[t]he amount of maltodextrin in LMNT exceeds the amount of
potassium and magnesium—two of LMNT’s key electrolytes—combined.” See, e.g., id. ¶ 33
(emphasis in original). But this omits the amount of sodium in the product, which is prominently
highlighted on the packaging next to potassium and magnesium. See id. ¶ 9. As Plaintiffs
themselves note, see Opp. at 20, the Court must look to the “entire mosaic” of Defendant’s
marketing, Mogull, 588 F. Supp. 3d at 453. The Court therefore looks to all three Electrolytes
listed on the front—not merely the two that suit Plaintiffs’ argument. The Amended Complaint’s
own figures thus indisputably establish that Electrolytes predominate over maltodextrin in
LMNT.
Next, Plaintiffs argue, relying on Mantikas, that they could not “simply flip the package
over to dispel the misrepresentation” because LMNT’s back label does not mention
maltodextrin. See Opp. at 21. While this may be true, the back of LMNT’s packaging still
makes indisputably clear that Electrolytes predominate over maltodextrin. The nutrition facts
found on LMNT’s back label indicate that in each packet there is “<1 g” of carbohydrates. See
AC ¶ 24. Plaintiffs themselves allege that “[m]altodextrin is a highly processed carbohydrate.”
Id. ¶ 30. Even taking the label to its logical extreme and assuming that each LMNT packet
contains 999 mg of maltodextrin (constituting the entire carbohydrate content of the product), the
1,260 mg of Electrolytes would still predominate. By Plaintiffs’ own theory, then, the
Electrolytes in LMNT do, in fact, predominate over maltodextrin and there is thus no misleading
statement upon which Plaintiffs can base a claim. See Melendez, 2020 WL 1283793, at *7.
LMNT’s nutrition facts and ingredients list thus confirms that the prominently mentioned
components—potassium, sodium, and magnesium—do, in fact, predominate, and, therefore,
Plaintiffs fail to plausibly allege a deceptive statement. See Kamara, 570 F. Supp. 3d at 78; see
also Davis v. Hain Celestial Grp., Inc., 297 F. Supp. 3d 327, 331–33, 337 (E.D.N.Y. 2018)
(dismissing GBL Sections 349 and 350 claims because the back label’s ingredients list clarified
any confusion caused by the front label “in exactly the spot consumers are trained to look,” such
that “no reasonable consumer could have been misled”); Melendez, 2020 WL 1283793, at *7.
Accordingly, any claims arising from this alleged misrepresentation are dismissed.
ii. Puffery
Next, Defendant asserts that its representations that LMNT is keto and paleo diet
friendly, consistent with the whole foods diet, and contains “no dodgy ingredients” are puffery
and that claims predicated on those statements must be dismissed. See Mem. at 23–26.
“Statements and practices that are mere puffery are not actionable.” Fink v. Time Warner Cable,
810 F. Supp. 2d 633, 644 (S.D.N.Y. 2011). The Second Circuit has identified “two types” of
puffery: “(1) subjective statements that cannot be proven true or false . . . and (2) objective
statements that can be proven true or false but are so exaggerated that no reasonable buyer could
justifiably rely on them.” MacNaughton v. Young Living Essential Oils, LC, 67 F.4th 89, 96 (2d
Cir. 2023). Statements of the former type are often “exaggerations or overstatements that
mention nothing specific, but rather amount to general claims of superiority expressed in broad,
vague, and commendatory language that are considered to be offered and understood as an
expression of the seller’s opinion only.” Id. The second category “involves exaggerated,
blustering, and boasting statement[s]” that are “technically provable[,] but upon which no
reasonable buyer would be justified in relying.” Id. Defendant’s assertion that LMNT contains
“no dodgy ingredients” constitutes the first type of puffery, while the representations that LMNT
is keto and paleo diet friendly, and consistent with the whole foods diet do not fit either category
and are thus not puffery.13
1. “No Dodgy Ingredients”
Defendant first argues that its representations that LMNT contains “no dodgy
ingredients” is non-actionable puffery because it uses “confidence as a marketing tool while
making subjective representations on which no reasonable consumer would rely.” Mem. at 24.
The Court agrees. Statements of corporate optimism are non-actionable puffery. See Lin v.
Canada Goose US, Inc., 640 F. Supp. 3d 349, 359 (S.D.N.Y. 2022) (Defendant’s representation
13 The parties also dispute whether the statement “everything you need and nothing you
don’t” is puffery. See Mem. at 24–25; Opp. at 26. But, as discussed above, the only allegedly
misleading representations that Plaintiffs claim to have viewed are (1) that LMNT is keto and
paleo diet friendly; (2) that LMNT is consistent with the whole foods diet; (3) that LMNT
contains “no dodgy ingredients”; and (4) the front of LMNT’s packaging. See supra Part II.A;
AC ¶¶ 14–15. Accordingly, Plaintiffs may not rely on Defendant’s assertion that LMNT
contains “everything you need and nothing you don’t” as a basis for their claims and the Court
therefore does not address it.
that its product was “among the highest quality Canadian down available” was non-actionable
puffery); see also Doe v. Uber Techs., Inc., 551 F. Supp. 3d 341, 367 (S.D.N.Y. 2021) (“The
claim that a product is safe generally . . . is puffery because it conveys only a general term[] of
quality, not specific characteristics.”); Matter of Sundial Growers, Inc. Sec. Litig., 138 N.Y.S.3d
330, 330 (1st Dep’t 2021) (concluding that statements in offering materials related to “high
quality” and “premium” products were non-actionable puffery or, in the alterative, nonactionable
opinion). The representation at issue—that LMNT contains “no dodgy ingredients”—similarly
constitutes only a vague expression of corporate optimism about LMNT, nothing more.
Courts outside of the Second Circuit have also held that similar representations are non-
actionable puffery. In Walcoff, which both parties discuss extensively in their analysis of the
keto diet, the Southern District of California found that “no funny stuff” was non-actionable
puffery because it did not describe specific or absolute characteristics of a product but rather
involved “generalized, vague, and unspecified assertions.” 2023 WL 3262940, at *9 n.11. Here,
“no dodgy ingredients” is no different. It provides a “generalized, vague, and unspecified
assertion” about LMNT on which no reasonable consumer could rely.
To support their argument that “no dodgy ingredients” is, in fact, actionable, Plaintiffs
argue that courts within the Second Circuit consult dictionary definitions when evaluating how a
reasonable consumer would interpret a term, see Washington v. Coca Cola Co., No. 25-cv-1916,
2025 WL 2720463, at *3 (S.D.N.Y. Sept. 24, 2025), and cite to the Merriam Webster Dictionary
to define “dodgy,” see Opp. at 26–27 (defining “dodgy” as “not sound, good, or reliable” and
“questionable, suspicious”). In Washington, the court looked to definitions of “soda water” and
“flavors” in determining that a reasonable consumer would understand that achieving the latter
necessarily requires adding ingredients to the former. See Washington, 2025 WL 2720463, at *4.
But those words have definite and ascertainable meanings against which a label can be tested.
Here, Plaintiffs argue that the definition of “dodgy”—“not sound, good, or reliable” and
“questionable, suspicious”—provides the same clarity. See Opp. at 26–27. It does not. Rather,
these definitions reinforce the vagueness of the term. Unlike “flavors,” which denotes
identifiable ingredients added to change the taste of “soda water,” here, the term “dodgy” does
not identify any ingredient, quality, or characteristic that can be objectively verified. Instead, it
constitutes a “[s]ubjective claim[] about [LMNT], which cannot be proven either true or false.”
See Int’l Code Council, Inc. v. UpCodes Inc., 43 F.4th 46, 59 (2d Cir. 2022). A reasonable
consumer therefore could not determine from the phrase “no dodgy ingredients” which
ingredients qualify as “dodgy” or how that statement could be objectively verified.
Plaintiffs also rely on In re Lindt & Sprungli (USA), Inc., Dark Chocolate Litig., No. 23-
cv-1186, 2024 WL 4107244, at *6 (E.D.N.Y. Sept. 6, 2024), to support their argument that “no
dodgy ingredients” is not puffery. See Opp. at 27. There, the court held that the phrase “expertly
crafted with the finest ingredients” and the word “excellence” were not puffery because, viewed
in the context of the packaging as a whole, “a reasonable consumer could interpret Lindt’s
statements as representations about the quality of the chocolate’s ingredients, and, more
specifically, an absence of lead.” Id. No comparable representation exists here. As discussed
above, “dodgy” is a subjective characterization that names no ingredient and implies no
ascertainable condition against which its truth could be tested, and nothing in the packaging
supplies one. Unlike the lead contamination at issue in Lindt, Plaintiffs identify no contaminant
or unsafe substance that “no dodgy ingredients” could plausibly be read to exclude. Nor does the
phrase “no dodgy ingredients” imply the absence of maltodextrin. And Plaintiffs likewise do not
plausibly allege that maltodextrin is itself “dodgy,” as opposed to a permitted natural flavoring
component. Unlike Lindt, no reasonable consumer could interpret “no dodgy ingredients” to be
a representation about LMNT’s quality or safety.
Plaintiffs’ allegations about Defendant’s representation that LMNT contains “no dodgy
ingredients” amount only to puffery, and the claims arising thereunder are dismissed.
2. Keto and Paleo Diet Friendly; Consistent with a Whole Foods Diet
The parties’ next arguments center around the use of the “friendly” and “consistent”
qualifiers and whether keto, paleo, and whole foods diets are quantifiable. See Mem. at 25–26;
Opp. at 27–28. Defendant argues that the “friendly” modifier constitutes non-actionable puffery
insofar as it relates to keto and paleo diets because it is “a subjective assessment of [LMNT] not
tied to any objective standard.” See Mem. at 25. Defendant further argues that “[b]ecause the
‘friendly’ claims are ‘[g]eneral statements about compliance with . . . quality standards’ and ‘fail
to identify specific requirements or standards,’ they constitute ‘non-actionable puffery.’” Id.
(quoting Leonard v. Abbott Labs, Inc., No. 10-cv-4676, 2012 WL 764199, at *22 (E.D.N.Y. Mar.
5, 2012)). Defendant makes a similar argument that being “consistent” with a whole foods diet
is not measurable. See Mem. at 26. Plaintiffs dispute this characterization, arguing that where
the term “‘friendly’ modifies terms with specific criteria, the phrase does not constitute puffery.”
Opp. at 27 (citing White v. Kroger Co., No. 21-cv-08004, 2022 WL 888657, at *2 (N.D. Cal.
Mar. 25, 2022) (“Where a reasonable inference exists that consumers may be looking for
sunscreen products that are not damaging to reefs, however, ‘reef friendly’ may reasonably be
understood as implying defendants’ products meet those criteria.”) and Valentine v. Crocs, Inc.,
No. 22-cv-07463, 2023 WL 12015530, at *5 (N.D. Cal. Apr. 28, 2023)).
As in White, here, the Court concludes that consumers following keto, paleo, and whole
foods diets may be looking for products that comport with their particular choice of diet and,
therefore, keto and paleo diet “friendly” and “consistent” with a whole foods diet may
reasonably be understood to imply that LMNT meets the relevant criteria. See 2022 WL 888657,
at *2. To that end, Plaintiffs have identified the following criteria: (1) substances high on the
glycemic index, such as maltodextrin, are fundamentally incompatible with the keto diet because
they spike blood sugar levels, see AC ¶¶ 42–46; (2) a paleo diet requires an avoidance of highly
processed food, which maltodextrin is considered to be, see id. ¶¶ 48–49; and (3) whole foods
diets are those that exclude processed foods, of which maltodextrin is a variety, see id. ¶ 39–41.
Unlike in Washington, each criterion above is anchored to readily ascertainable measurements or
concepts: for the keto diet, blood sugar levels are measurable, and for the paleo and whole foods
diets, processed foods are identifiable. These “standards” are sufficient at the motion to dismiss
stage to establish that Defendant’s representations with respect to LMNT’s alignment with keto,
paleo, and whole foods diets are actionable under the GBL.
With respect to LMNT’s purported consistency with the whole foods diet, Defendant
further argues that such a representation is puffery because Defendant never represented that
LMNT is strictly compatible with such a diet, and reasonable consumers would understand that
powdered, single use packets do not constitute a “whole food.” See Mem. at 26. But nowhere in
the Amended Complaint do Plaintiffs assert that LMNT is “strictly compatible” with a whole
foods diet. As to the second part of the argument, Defendant is effectively maintaining that its
representation constitutes the second type of puffery—an “objective statement[] that can be
proven true or false but [is] so exaggerated that no reasonable buyer could justifiably rely on
[it].” See MacNaughton, 67 F.4th at 96. Defendant’s own words belie this argument. As
Plaintiffs note, Defendant’s advertising explains that to be consistent with a whole foods diet
requires that “[p]rocessed foods . . . get the boot.” Opp. at 28; AC ¶ 39. To be “consistent”
means to be “free from variation or contradiction.” Consistent, Merriam-Webster Dictionary,
https://www.merriam-webster.com/dictionary/consistent [https://perma.cc/7QZY-BTDF] (last
visited August 14, 2026). By describing a whole foods diet as one that eschews processed foods
and subsequently representing LMNT as “consistent” with such a diet, Defendant represents that
LMNT is “free from variation or contradiction” with a whole foods diet. The presence of
maltodextrin, a highly processed component, in LMNT is clearly a “variation or contradiction”
from the whole food diet, meaning that LMNT is inconsistent with the diet’s principles. Given
this, a reasonable consumer could understand Defendant’s representations to mean that LMNT
does not contain processed ingredients. Although Defendant’s argument that a reasonable
consumer would understand that a powdered, flavored electrolyte drink mix served in single-use
packets to not be a “whole food,” see Mem. at 26, is well taken, it is not “patently implausible or
unrealistic” for a reasonable consumer to understand Defendant’s whole-foods-diet-consistent
representation in that way, see Goetz, 768 F. Supp. 3d at 655, in part because Defendant
produces an unflavored version of its drink mix that does not contain maltodextrin, see AC ¶ 37.
Defendant’s representation concerning LMNT’s consistency with a whole foods diet is therefore
actionable under the GBL.
* * *
Only Plaintiffs’ claims based on two of the challenged representations survive
Defendant’s motion to dismiss: (1) that LMNT is keto and paleo friendly and (2) that LMNT is
consistent with the whole foods diet. The remainder of Defendant’s representations are non-
actionable, and any claims based upon them are dismissed. Specifically, the claims based on
Defendant’s statement that LMNT contains “no dodgy ingredients” are dismissed as that
statement is non-actionable puffery, and the claims based on allegations that the front of
LMNT’s label is misleading are dismissed because no reasonable consumer could be misled by
such representations. Claims based on the other representations—those stemming from
Plaintiffs’ general review of Defendant’s website, including that LMNT has “everything you
need and nothing you don’t”—are dismissed because Plaintiffs fail to allege that they viewed
them before making their purchasing decisions. Plaintiffs’ GBL claims therefore partially
survive Defendant’s motion to dismiss. See Colpitts, 527 F. Supp. 3d at 581 n.9 (sustaining GBL
Sections 349 and 350 claims based on one alleged misrepresentation without reaching plaintiff’s
separate theory based on a separate misrepresentation).
III. Leave to Amend
In the final line of their Opposition, Plaintiffs seek leave to file a second amended
complaint to “address[] any deficiencies identified by the Court.” See Opp. at 31 n.6. Defendant
opposes Plaintiffs’ request, arguing that doing so in a footnote is improper and that Plaintiffs
“offer[] no proposed amendment to cure the Amended Complaint’s deficiencies.” Reply at 17
n.6. The Second Circuit has held that courts may deny leave to amend where, as here, “the
request was made only in a footnote of [P]laintiff[s’] opposition to [D]efendant[’s] motion to
dismiss and where [P]laintiff[s] provided no explanation regarding how the complaint’s defects
would be cured.” Food Holdings Ltd. v. Bank of America Corp., 423 F. App’x 73, 76 (2d Cir.
2011); see also Harris v. Mondelēz Global LLC, No. 19-cv-2249, 2020 WL 4336390, at *3
(E.D.N.Y. July 28, 2020) (denying leave to amend GBL claims because plaintiff “offer[ed] no
explanation of what new allegations might be added”). This alone is sufficient to deny leave to
amend.
In any event, the Court finds that leave to amend would be futile. While leave to amend
“shall be freely given when justice so requires,” Fed.R. Civ. P. 15(a), it “should be denied if it
would be futile,” Thompson v. Racette, 519 F. App’x 32, 34 (2d Cir. 2013). Leave to amend is
futile where the “problem with [Plaintiffs’] causes of action is substantive [and] better pleading
will not cure it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). Because the Amended
Complaint already sets forth Plaintiffs’ factual allegations and claims based on Defendant’s
representations that LMNT contains “no dodgy ingredients” and the front of LMNT’s label in
detail, and the papers do not suggest that Plaintiffs could plead new facts to overcome the
deficiencies identified above, leave to amend is futile. See Thompson, 519 F. App’x at 34.
Moreover, Plaintiffs “ha[ve] had multiple opportunities to allege sufficient specific facts to
render [their] claims plausible, including in [their original complaint and] the Amended
Complaint.”14 See Williams v. Calderoni, No. 11-cv-3020, 2012 WL 691832, at *8 (S.D.N.Y.
Mar. 1, 2012). “[L]eave to amend would be futile because [P]laintiff[s] ha[ve] already had two
bites at the apple and they have proven fruitless.” Harris v. Westchester Cnty. Med. Ctr., No. 08-
cv-1128, 2011 WL 2637429, at *4 (S.D.N.Y. July 6, 2011). The Court therefore denies
Plaintiffs leave to amend.
CONCLUSION
For the reasons set forth above, Defendant’s motion to dismiss Plaintiffs’ Amended
Complaint is GRANTED IN PART and DENIED IN PART. The Court DENIES Defendant’s
motion as to Plaintiffs’ claims insofar as they rest on representations that LMNT is suitable for
those following keto, paleo, and whole foods diets and GRANTS the motion as to Plaintiffs’
claims insofar as they rely on the remaining representations. See Colpitts, 527 F. Supp. 3d at 581
14 The Court granted Plaintiffs leave to file the Amended Complaint “to address the issues
raised in Defendant’s pre-motion letter,” July 29, 2025, Text Order, which included that the
challenged statements (1) would not mislead a reasonable consumer and (2) are non-actionable
“puffery,” see ECF No. 15 at 2–3. Despite the “opportunity [to amend the Complaint],
Plaintifff[s] ha[ve] failed to cure any deficiencies identified by . . . Defendant[].” Trisvan v.
Heyman, 305 F. Supp. 3d 381, 408 n.26 (E.D.N.Y. 2018).
n.9. Specifically, the Court dismisses the following with prejudice pursuant to Rule 12(b)(6) for
failure to state a claim: the portion of Plaintiffs’ claims based on Defendant’s representation that
LMNT contains “no dodgy ingredients” because it is non-actionable puffery; the portion of the
claims based on allegations that the front of LMNT’s packaging is misleading because no
reasonable consumer could be misled; and the portion of Plaintiffs’ claims based on the
remainder of the challenged representations because Plaintiffs fail to allege that they viewed
them prior to making their purchasing decisions. Defendant’s Rule 12(b)(1) motion is DENIED
as moot because Plaintiffs withdrew their request for injunctive relief. See Opp. at 31 n.5.
In light of the limited nature of the claims that remain as a result of this Order, the Court
refers this case to the District’s Court-Annexed Mediation Program. The parties shall select a
mediator by September 14, 2026, and complete their mediation by October 13, 2026.15 The
parties shall file a letter with the Court on or before September 15, 2026, confirming that they
have selected a mediator and shall file another letter with the Court on or before October 14,
2025, confirming that they have completed mediation. If mediation is unsuccessful, the Court
15 The Court reminds the parties that once it “determine[s] that a case is appropriate for
mediation,” it may “order that case to mediation, with or without the consent of the parties.” See
Local Civil Rule 83.9(e)(3). For the reasons set forth above, the Court concludes that this case is
appropriate for mediation, and it will not entertain requests to avoid those provisions of this
Order. In the event any party is unable or unwilling to pay the mediator’s fee, that party may
apply for a fee waiver, pursuant to Local Civil Rule 83.8(f)(1). Any party requesting such
waiver shall provide information and supporting documentation to show the financial hardship
associated with paying for mediation services by August 31, 2026.
will likely refer the case to the Honorable James R. Cho for a settlement conference and,
thereafter, lift the discovery stay if necessary.
SO ORDERED.
/s/ Hector Gonzalez
HECTOR GONZALEZ
United States District Judge
Dated: Brooklyn, New York
August 14, 2026