argues that if Congress determined that restaurants should not have to
label their food, McDonalds cannot be made to do so indirectly, pursuant
to a New York State statute.
State law that conflicts with federal law is without effect. Cipollone
v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 2617, 120
L.Ed.2d 407 (1992) (citing Maryland v. Louisiana, 451 U.S. 725, 746, 101
S.Ct. 2114, 68 L.Ed.2d 576 (1981)). However, "the historic police powers of
the States [are] not to be superseded by . . . Federal Act unless that [is]
the clear and manifest purpose of Congress." Id. (brackets in original)
(quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct.
1146, 1152, 91 L.Ed. 1447 (1947)).
Section 343-1, the NLEA's pre-emptive provision, provides that no state
may require nutrition labeling for food in interstate commerce that is
not identical to that prescribed by the NLEA. 21 U.S.C. § 343-1(a)(4);
see also Morelli v. Weider Nutrition Group, Inc., 275 A.D.2d 607, 607,
712 N.Y.S.2d 551 (1st Dep't 2000). This provision would seem to support
McDonalds' argument. However, subsection (4) of the pre-emptive provision
specifically permits states to require nutrition labeling of food that is
exempt under subclause (i) or (ii) of 21 U.S.C. § 343(q)(5)(A).
21 U.S.C. § 343-1(a)(4). As noted above, § 343(q)(5)(A)(i) is the
very provision on which McDonalds relies to state that it has "complied"
with federal regulations and that the State of New York cannot make it do
Therefore, § 343-1(a)(4) does not expressly bar nutrition labeling on
restaurant foods either directly or, as plaintiffs seek to do in this
action based on a New York state statute, indirectly. A finding that a lack
of nutritional labeling on McDonalds' products violates §§ 349 and 350
therefore is explicitly not pre-empted by the NLEA. In fact, in discussing
its rules and regulations implementing the NLEA, the Food and Drug
Administration recognized that states could protect their consumers in this
manner. FDA, Food Labeling; General Requirements for Health Claims for
Food, 58 FR 2478, 2517, 1993 WL 1547 (1993) ("States remain free, however,
to ensure under their own consumer protection laws that menus do not
provide false or misleading information."). McDonalds' late-breaking
arguments are accordingly rejected.
2. Requirements of §§ 349 and 350
McDonalds argues that plaintiffs' claims under §§ 349 and 350 fail
because (1) they are not plead with sufficient specificity, and (2) acts or
practices cannot be deceptive if the consuming public is already aware of
the "concealed" characteristics and therefore is not deceived.
A plaintiff must plead with specificity the allegedly deceptive acts or
practices that form the basis of a claim under the Consumer Protection Act.
E.g., Weaver v. Chrysler Corp., 172 F.R.D. 96, 100 (S.D.N.Y. 1997) ("In
pleading a claim under the Consumer Protection Act, a plaintiff is required
to set forth specific details regarding the allegedly deceptive acts or
practices."); Moses v. Citicorp Mortg. Inc., 982 F. Supp. 897, 903
(E.D.N.Y. 1997) ("Conclusory allegations have been held insufficient to
state a claim under section 349."); Grand Gen. Store, Inc. v. Royal Indem.
Co., No. 93 Civ. 3741, 1994 WL 163973, at *4 (S.D.N.Y. April 22, 1994)
(discussing violation of Insurance Law alleged to be deceptive practice
under § 349). See also Small v. Lorillard Tobacco Co., 252 A.D.2d 1,
9, 679 N.Y.S.2d 593, 600 (1st Dep't 1998) ("plaintiffs do not point to any
specific advertisement or public pronouncement").
For instance, one of the cases on which plaintiffs rely, Blue Cross and
Blue Shield of New Jersey, 178 F. Supp.2d at 269-70,
provides examples of
such specific statements. The case involved a claim under § 349 against
cigarette manufacturers, alleging deceptive practices. In the 175-page
complaint, filed on April 29, 1998, the plaintiffs included a number of
specific allegations of deceptive acts and practices, including the
• a statement that "no causal link between smoking
and disease has been established" (Blue Cross
Complaint, ¶ 112);
• a letter to a grade school principal stating
that "scientists don't know the cause or causes of
the chronic diseases reported to be associated with
smoking" (Id., ¶ 113);
• testimony under oath by a tobacco executive that he
did not believe that people die from smoking (Id.,
• Congressional testimony by tobacco executives
stating that tobacco companies did not manipulate,
add, control or restore nicotine during the
manufacturing process (Id., ¶ 219);
• advertisements denying that tobacco companies
believed cigarette smoking was addictive (Id., ¶
220); and ! statements in newspaper advertisements
that claimed "Phillip Morris does not believe that
cigarette smoking is addictive" (Id., ¶ 221).
Many of the practices were found to have supported liability in the opinion
on which the plaintiffs rely. Blue Cross and Blue Shield of New Jersey,
178 F. Supp.2d at 269-70. Because such statements are necessarily
"consumer-oriented" and thus in the public domain, plaintiffs should be
able similarly to point to the specific statements that form the basis of
their claims pursuant to §§ 349 and 350.
a. Count I
In Count I, plaintiffs allege that McDonalds violated the act both by
commission (e.g., stating that its products were nutritious, encouraging
consumers to "supersize" their meals without disclosing the negative health
effects) and by omission (e.g., failing to provide nutritional information
i. Deceptive Acts
Because the Complaint does not identify a single instance of deceptive
acts, Count I shall be dismissed to the extent it alleges deceptive
practices of commission in violation of §§ 349 and 350.
Although the Court is limited to allegations in the Complaint for the
purposes of deciding this motion, Kramer, 937 F.2d at 773, it is worth
noting that, even in their opposition papers, the plaintiffs only cite to
two advertising campaigns ("McChicken Everyday!" and "Big N' Tasty
Everyday") and to a statement on the McDonalds' website that "McDonalds
can be part of any balanced diet and lifestyle." These are specific
examples of practices, act or advertisements and would survive a motion
to dismiss based on lack of specificity. Whether they would survive a
motion to dismiss on the substantive issue of whether such practices, act
and advertisements are deceptive is less clear. The two campaigns
encouraging daily forays to McDonalds and the statement regarding making
McDonalds a part of a balanced diet, if read together, may be seen as
contradictory — a balanced diet likely does not permit eating at
McDonalds everyday.*fn13 However, the advertisements encouraging
persons to eat at McDonalds "everyday!" do not include any indication
that doing so is part of a well-balanced diet, and the plaintiffs fail to
cite any advertisement where McDonalds asserts that its products may be
eaten for every meal of every day without any ill consequences. Merely
encouraging consumers to eat its products "everyday" is mere puffery,*fn14
at most, in the absence of a claim that to do so will result in a
specific effect on health.*fn15 As a result, the claims likely would not
be actionable if alleged. See Cytyc Corp. v. Neuromedical Sys. Inc.,
12 F. Supp.2d 296, 301 (S.D.N.Y. 1998) ("the sort of subjective claims of
product quality at issue here are nonactionable"); Lipton v. Nature Co.,
71 F.3d 464, 474 (2d Cir. 1995) (finding claim of "thorough" research to
be "mere puffery" and not actionable as false advertising under §
43(a) of Lanham Act); Chevy's Int'l Inc. v. Sal De Enters., Inc.,
697 F. Supp. 110, 112 (E.D.N.Y. 1988) ("that characterization, even if
factually incorrect, was standard industry puffing that does not rise to
the level of consumer deception").
On December 11, 2002, the Court accepted from plaintiffs a number of
documents concerning actions taken against McDonalds' advertising
practices in the late 1980's by the state attorneys general from several
states, including New York State. While any claim based on the
advertisements at issue likely would be time barred, Morelli v. Weider
Nutrition Group, Inc., 275 A.D.2d 607, 608, 712 N.Y.S.2d 551 (1st Dep't
2000) (three-year limitations period for deceptive practices actions), a
review of those advertisements and the state attorney generals' analysis
of them may assist plaintiffs in shaping a claim under the Consumer
Protection Act. For instance, by letter dated April 24, 1987 (the "Abrams
Letter"), Robert Abrams, the then-Attorney General of the State of New
York, addressed several specific allegedly deceptive claims in McDonalds
1. The advertisement discussing salt (sodium) content
in foods says, "Our sodium is down across the menu."
(emphasis added) This is not true. That same
advertisement lists four products (regular fries,
regular cheeseburger, 6-piece McNuggets, and vanilla
milkshake), none of which have had their sodium
content lowered in the past year.
2. The advertisement touting the "real" milk in
McDonald's shakes says that they contain "Wholesome
milk, natural sweeteners, a fluid ounce of flavoring,
and stabilizers for consistency. And that's all." In
fact, that's not really all. McDonald's own ingredient
booklet shows that a typical shake, such as vanilla or
strawberry, actually contains artificial flavor and
sodium benzoate and sodium hexametaphosphate, two
chemical preservatives. This advertisements tells only
part of the story.
3. The cholesterol advertisement emphasizes the
relatively low (29 milligrams) cholesterol content of the
regular hamburger, but does not even mention the
saturated fat content, a fact much more relevant to those
with cause for concern about heart disease.
Abrams Letter, at 1-2.