United States District Court, S.D. New York
MARY LA VIGNE, KRISTEN HESSLER, and KATHLEEN HOGAN on behalf of themselves and all others similarly situated, Plaintiffs,
COSTCO WHOLESALE CORPORATION, Defendant.
OPINION & ORDER
S. ROMAN, UNITED STATES DISTRICT JUDGE.
Mary La Vigne ("Plaintiff La Vigne"), Kristen
Hessler ("Plaintiff Hessler"), and Kathleen Hogan
("Plaintiff Hogan") (collectively,
"Plaintiffs") filed this proposed class action
against the Costco Wholesale Corporation
("Defendant") alleging violations of New York,
Pennsylvania, and Massachusetts statutes that prohibit
deceptive marketing practices in the sale of consumer goods.
Plaintiffs contend that Defendant has engaged in deceptive
acts in connection with the marketing and sale of its
Kirkland Signature Premium Chunk Chicken Breast
("Kirkland Canned Chicken"). Defendant now moves to
dismiss Plaintiffs amended class action complaint
("Amended Complaint") pursuant to Fed.R.Civ.P.
12(b)(6) for failure to state a claim upon which relief may
be granted. Defendant argues that the Amended Complaint must
be dismissed because (1) Plaintiffs' claims are preempted
by federal law; (2) Plaintiffs cannot utilize a state law
claim as a vehicle to privately enforce a federal statute
that lacks a private right of action; and (3) no reasonable
consumer would be misled by the plain language of the
packaging and label of Kirkland Canned Chicken. For the
reasons stated below, Defendant's motion is GRANTED.
considering a Rule 12(b)(6) motion, a court is limited to the
facts alleged in the complaint and is required to accept
those facts as true. See LaFaro v. N.Y.Cardiothoracic
Grp., PLLC, 570 F.3d 471, 475 (2d Cir. 2009). A court
may, however, consider documents attached to the complaint;
statements or documents incorporated into the complaint by
reference; matters of which judicial notice may be taken,
such as public records; and documents that the plaintiff
either possessed or knew about, and relied upon, in bringing
the suit. See, e.g., Kleinman v. Elan Corp., PLC,
706 F.3d 145, 152 (2d Cir. 2013); Chambers v. Time
Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (applying
that rule to district courts); accord Wechsler v. HSBC
Bank USA, N.A, No. 15-CV-5907 (JMF), 2016 WL 1688012, at
*1 (S.D.N.Y. Apr. 26, 2016), affd 674 Fed.Appx. 73
(2d Cir. 2017). Accordingly, the following facts are taken
from the Amended Complaint and exhibits attached thereto or
incorporated by reference therein.
is a Washington corporation that, together with its
subsidiaries, operates membership warehouses throughout the
country offering a range of branded and private-label
products, including its house brand, Kirkland Signature.
Defendant sells Kirkland Canned Chicken in its membership
warehouse stores. (Am. Compl. (ECF No. 1) ¶¶ 9,
12.) The cans are grouped for sale in packages of six 12.5
ounce cans, each slightly more than two inches tall and four
inches in diameter. (Id. ¶¶ 12, 14.) Each
package is covered by an opaque plastic wrapper.
(Id. ¶ 12.) The front of the bulk packaging
reads, in large font, "Premium Chunk CHICKEN
BREAST." (Id.) Below, in smaller font, are the
phrases "Packed in Water" and "Extra
Lean." (Id.) At the very bottom of this side of
the packaging the net weight of the cans is listed as
"NET WT 6-12.5 OZ (354g) CANS TOTAL 4.6 LB
(2.1kg)." (Id.) On the reverse side, the bulk
packaging includes a Nutrition Facts panel and suggested
recipes for the canned chicken. (Id. ¶ 13.) The
Nutrition Facts panel includes, in bolded font, the phrase
"Nutrition Facts" and immediately below, in
smaller, non-bolded font the phrases "Serving Size 2 oz
drained (56g)" and "Servings Per Container About
21." (Id.) The individual labels on each can
are not visible in the bulk package prior to purchase, but
each can is covered with a front label containing the product
name in large font, and immediately to left of the name in
smaller font the terms "Packed in Water" and
"Extra Lean." (Id. ¶ 14.) At the
bottom of each front label the net weight of the individual
can is listed as "NET WT 12.5 OZ (354g)."
(Id.) Each can also has a back label listing
Nutrition Facts. (Id.) Immediately beneath the
bolded phrase "Nutrition Facts, " in smaller,
non-bolded font are the phrases "Serving Size 2 oz
drained (56g)" and "Servings Per Container About
provides members of its warehouse stores with a calculation
of the unit price for its Kirkland Canned Chicken, which
allegedly "allows customers to compare the price of its
product with a competitor's chicken on a per pound
basis...[T]he unit price provided by [Defendant] is
calculated using the gross weight of the contents, which
includes chicken and water." (Id. ¶21.)
opened can of Kirkland Canned Chicken reveals chicken covered
by a layer of water. (Id. ¶ 15.) If the
consumer drains the 2/3 of a cup of water that the can
contains, she is left with between seven and eight ounces of
meat, meaning that as much as 44% of the weight of the
can's contents is water. (Id. ¶¶
16-17.) According to the Amended Complaint, the consumer
receives little benefit from the water in the can and
Defendant does not intend for consumers to use the water, as
evidenced by the recipes Defendant includes with each bulk
package, which direct consumers to drain the chicken before
using it in a dish. (Id. ¶ 20.)
La Vigne, Plaintiff Hessler, and Plaintiff Hogan purchased
Kirkland Canned Chicken from Defendant at warehouse locations
in New York, Pennsylvania, and Massachusetts, respectively,
for between $10.99 and $11.99 per bulk package. (Id.
¶¶ 22, 23, 25.) They allege that they
"reasonably believed that they were purchasing a package
that contained an adequate amount of chicken in each can
because of the misrepresentations on the label, the
packaging, the price label on the shelf, the unit pricing,
the other materials included with the package, and the size
of the can." (Id. ¶27.) However, upon
using the chicken to prepare meals, each Plaintiff allegedly
came to learn that she had received a product with
"substantially less chicken than should have been in the
can." (Id.) Plaintiffs admit that they received
the amount of chicken indicated under the Nutrition Facts
label on the back of the bulk packaging and on the back label
of each can, i.e., 42 ounces divided among six cans.
(Id. ¶ 1.)
support their claim that Kirkland Canned Chicken, as labeled,
contains too much water and not enough chicken largely
through their invocation of federal standards for the
marketing of chicken products. Specifically, the Poultry
Products Inspection Act ("PPIA"), 21 U.S.C.
§§ 451-72, authorizes regulations relating to the
disclosure of the amount of water in canned chicken products.
See 9 C.F.R. § 381.157. According to
Plaintiffs, these regulations state that "if the poultry
meat is only between 50% and 80% with 20% to 50% water or
broth, then the product name must disclose the percentage of
water or broth." (Am. Compl. ¶ 18.) They further
claim that Kirkland Canned Chicken does not comply with this
requirement since each can, when opened subsequent to
purchase, contains less than 80% chicken, even though the
product name does not disclose the percentage of water in the
simply, Plaintiffs allege, on behalf of themselves and all
others similarly situated, that Defendant's conduct
violates the PPIA and misleads consumers into believing that
they are being charged "a reasonable price to pay for
chicken" when they buy cans of Kirkland Canned Chicken,
even though almost half of the contents of each can is water,
and that such conduct constitutes "an unconscionable and
deceptive commercial practice" in violation of consumer
protection laws in New York, Pennsylvania, and
Massachusetts. (Id. ¶¶ 1-5; see
also ¶¶ 41-62.) Defendant moves to dismiss the
Amended Complaint in its entirety.
motion to dismiss for "failure to state a claim upon
which relief can be granted, " Fed.R.Civ.P. 12(b)(6),
dismissal is proper unless the complaint "contain[s]
sufficient factual matter, accepted as true, to 'state a
claim to relief that is plausible on its face.'"
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)); accord Hayden v. Paterson, 594 F.3d 150,
160 (2d Cir. 2010). "Although for the purposes of a
motion to dismiss [a court] must take all of the factual
allegations in the complaint as true, [it is] 'not bound
to accept as true a legal conclusion couched as a factual
allegation.'" Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 555). "While
legal conclusions can provide the framework of a complaint,
they must be supported by factual allegations."
Id. at 679.
there are well-pleaded factual allegations in the complaint,
"a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to
relief." Id. A claim is facially plausible when
the factual content pleaded allows a court "to draw a
reasonable inference that the defendant is liable for the
misconduct alleged." Id. at 678. Ultimately,
determining whether a complaint states a facially plausible
claim upon which relief may be granted must be "a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense."
Id. at 679.
preliminary matter, the Court must assess whether the
document Defendant attached to its pleadings purporting to
show that the United States Department of Agriculture's
("USDA's") Food Safety Inspection Service
("FSIS") approved the label at issue in this case
("Defendant's FSIS Form 7234-1") is appropriate
to consider for purposes of the instant motion. On a motion
to dismiss, courts may "judicially notice a fact that is
not subject to reasonable dispute because it: (1) is
generally known within the trial court's territorial
jurisdiction; or (2) can be accurately and readily determined
from sources whose accuracy cannot reasonably be
questioned." Fed.R.Evid. 201(b) (c). Matters suitable
for judicial notice include matters of public record.
Giraldo v. Kessler, 694 F.3d 161, 164 (2d Cir.
contends that the Court may consider Defendant's FSIS
Form 7234-1 because "it is a public record and because
Plaintiffs' entire case theory depends on Kirkland Canned
Chicken's label." (Reply Supp. Def.'s Mot. To
Dismiss (ECF No. 21) ("Def.'s Reply") 13.)
Plaintiffs assert that the Court's consideration of this
document is inappropriate on a motion to dismiss because the
Amended Complaint "does not argue that [Defendant]
submitted the label for approval" and because this
document does not bear "the necessary indicia" that
it is "the original or complete submission to the
FSIS." (Pls.' Mem. P. & A. Opp'n Def.'s
Mot. To Dismiss (ECF No. 20) ("Pls.'
Opp'n") 13.) An FSIS Form 7234-1 would ordinarily be
considered a matter of public record, and Plaintiffs rely on
the images displayed in Defendant's FSIS Form 7234-1 in
their Amended Complaint. See Nelson v. MillerCoors,
LLC, 246 F.Supp.3d 666, 673 (E.D.N.Y. 2017) (taking
judicial notice of certain Certificates of Label Approval
("COLA") applications reviewed and approved by the
United States Alcohol and Tobacco Tax and Trade Bureau where
plaintiff relied on images displayed in the COL As in his
complaint and there was no dispute as to the COLAs'
authenticity); see also Dumas v. Diageo PLC, 2016 WL
1367511, at *3 n, 2 (S.D. Cal. April 6, 2016) (taking
judicial notice of COLA applications); Cruz v.
Anheuser-Busch, LLC, 2015 WL 3561536, at *4 n.10 (CD.
Cal. June 3, 2015) (taking judicial notice of COLAs).
However, because Plaintiffs raise concerns with regard to the
authenticity of Defendant's FSIS Form 7234-1,
see Pls.' Opp'n 13, the Court will not
consider Defendant's FSIS Form 7234-1 at this time.
the Court may presume that the Kirkland Canned Chicken label
at issue was approved by the FSIS. The PPIA regulation
discussed herein is clear that the Kirkland Canned Chicken
label required FSIS pre-approval, as no exemption was
applicable due to Defendant's inclusion of American Heart
Association claims and a graphic representation of a heart.
See discussion infra note 2. The label was
actually used on the products offered for sale. (Am. Compl.
¶¶ 11-13.) See Kuenzig v. Kraft Foods,
Inc., 2011 WL 4031141, at *7 n.8 (M.D. Fla. Sept. 12,
2011), aff'd, 505 Fed.Appx. 937 (11th Cir. 2013)
("The regulations relating to the.. .PPIA are clear that
Defendants' labels were required to be submitted to the
FSIS for approval prior to their use, and given that the
labels were, in fact used, the Court will presume that the
labels received the FSIS's approval."). Furthermore,
while Plaintiffs challenge the authenticity of
Defendant's FSIS Form 7234-1 due to concerns about page
numbering, they make no allegation that Defendant did not
actually receive FSIS approval. Therefore, the Court will assume that
there is no dispute as to the fact of FSIS approval of the
Kirkland Canned Chicken label.
moves to dismiss on several grounds. First, it argues that
Plaintiffs' state law claims are preempted by the PPIA.
(Mem. Law Supp. Costco Wholesale Corporation's Mot. To
Dismiss (ECF No. 19) ("Def.'s Mem.") 6-10.)
Second, it argues that Plaintiffs' claims are precluded
to the extent they are predicated on violations of the PPIA,
which lacks a private right of action (Def.'s Mem.
10-14.) Finally, Defendant argues that Plaintiffs' claims
fail as a matter of law because no reasonable consumer would
be misled by Kirkland Canned Chicken's packaging and
label. (Id. 15-24.) The Court will address each
argument in turn.
reasons that because Plaintiffs' challenges to the
representations on the Kirkland Canned Chicken label fall
within the express preemption clause of the PPIA and the FSIS
has preapproved the challenged label, Plaintiffs' state
law claims are expressly preempted. (Def.'s Mem. 10.) The
Court, noting that Plaintiffs also fail to allege a violation
of applicable federal law, agrees that Plaintiffs'
labeling-related claims are preempted under the facts
alleged. In addressing this argument, the Court will begin by
describing the relevant statutory and regulatory framework
controlling the labeling of poultry products.
the PPIA, Congress granted the USDA the authority to regulate
the distribution and sale of poultry products shipped in
interstate commerce by ensuring, among other things, that
poultry products are "properly marked, labeled, and
packaged." See 21 U.S.C. § 451. The PPIA
forbids the sale of poultry products that have a false or
misleading marking, labeling or container. 21 U.S.C. §
457(c). Pursuant to this prohibition, the FSIS, a public
health agency of the USDA, is tasked with inspecting and
approving product labels under the purview of the PPIA before
products bearing that label may be sold in interstate
commerce. 9 C.F.R. § 412.1(a).
canned poultry products are subject to a number of specific
labeling requirements. The relevant requirement in this case
states: "Canned boned poultry, except poultry within
paragraph (c) of this section,  shall meet the requirements set forth in
Table II. The percentages in Table II shall be calculated on
the basis of the total ingredients used in the preparation of
the product." 9 C.F.R. § 381.157(b). Table II, in
turn, contains a list of percentages specifying the minimum
amount of meat and maximum amount of liquid a canned chicken
product may contain for each of four categories and,
alongside each category's percentages, the naming
requirements for products falling into each specified range.
See 9 C.F.R. § 381.157(e). Table II appears as
1 Liquid may be in the form of, but is not
limited to, broth or extractives.
Table II Minimum percent cooked, deboned poultry meat
of kind indicated, with skin, fat, and seasoning
Maximum percent liquid that may be added1
1. Boned (Kind)-solid pack
2. Boned (Kind)
3. Boned (Kind) with broth2
4. Boned (Kind) (-) percent broth2 3
2 Alternatively, product may be prepared from raw
boned poultry in combination with cooked boned poultry so
long as the product complies with the specified standard.
3 Total amount of liquid added shall be included
in the name of the product: e.g., "Boned Chicken with 25