United States District Court, S.D. New York
BIOLA DANIEL, ABEL DURAN, and TREKEELA PERKINS, on behalf of themselves and all others similarly situated, Plaintiffs,
TOOTSIE ROLL INDUSTRIES, LLC, Defendant.
Counsel for plaintiffs: C.K. Lee Anne M. Seelig Lee
Litigation Group, LLC
Counsel for defendant: David W. Haller Covington &
MEMORANDUM AND ORDER
REICE BUCHWALD, UNITED STATES DISTRICT JUDGE
Biola Daniel (“Daniel”), Abel Duran
(“Duran”), and Trekeela Perkins
(“Perkins”), on behalf of themselves and all
others similarly situated, bring this action against
defendant Tootsie Roll Industries, LLC
(“defendant”), asserting violations of the
Federal Food Drug & Cosmetic Act, the New York General
Business Law, and the Mississippi Consumer Protection Act.
Plaintiffs allege that defendant's opaque boxes of Junior
Mints candies contain “non-functional slack-fill,
” essentially wasted, empty air, which mislead
consumers as to the amount of product contained therein.
Defendant now moves, pursuant to Federal Rules of Civil
Procedure 9(b), 12(b)(1), 12(b)(2), 12(b)(6), and 12(f), to
dismiss plaintiffs' First Amended Class Action Complaint,
and/or to strike plaintiffs' class claims. For the
following reasons, defendant's motion to dismiss is
granted, and its motion to strike is denied as moot.
in Chicago, Illinois, defendant “manufacture[s],
package[s], distribute[s], advertise[s], market[s] and
s[e]l[ls]” Junior Mints, a 0.5” wide “ovoid
chocolate coated mint cand[y], ” to “millions of
consumers nationwide.” First Amended Class Action
Complaint (“Am. Compl.”) ¶¶ 20, 49,
Jan. 2, 2018, Dkt. No. 12.
September 23, 2016, Daniel, a New York City resident,
purchased a 3.5 oz. box of Junior Mints for $1.49 from a
Duane Reade location in Manhattan. Id. ¶ 37. On
December 28, 2017, Duran, who also resides in New York City,
purchased a 4.13 oz. box of Junior Mints for $4.49 at an AMC
Theatre location in Garden City, New York. Id.
¶ 43. Perkins, who resides in Jackson County,
Mississippi, purchased “boxes” of Junior Mints,
“including the 3.5 oz. size, ” “on several
occasions at Walmart and grocery stores” for about
$1.00 to $1.29. Id. ¶ 46. In addition to the
varieties of Junior Mints plaintiffs purchased, defendant
also produces 1.84 oz. and 10.5 oz. boxes, along with
“other Junior Mints product[s] that [are] packaged in a
box with more than one quarter of the box containing air,
” (collectively, the “Products”).
Id. ¶ 1.
the Products, which are “mass produced and packaged in
non-transparent boxes of standardized sizes, ” contain
a certain amount of empty air or “slack-fill.”
Id. ¶ 2. The 1.84 oz. box is 1.88” wide
and 0.75” long, with 3” out of its 4.75”
vertical capacity filled with candy, meaning 37% is
slack-fill; the 3.5 oz. box is 3.25” wide and
0.75” long, with 3.125” out of its 5.5”
vertical capacity filled with candy, meaning 43% is
slack-fill; the 4.13 oz. box is 3.25” wide and
0.75” long, with 3.5625” out of its 5.5”
vertical capacity filled with candy, meaning 35% is
slack-fill; and the 10.5 oz. box is 4.5” wide and
1” long, with 4.25” out of its 7” vertical
capacity filled with candy, meaning 39% is slack-fill.
Id. ¶¶ 5-8, 57-60.
to plaintiffs, the size of the Product boxes in comparison to
the volume of candy contained therein makes it appear that
consumers are buying more than what is actually being sold,
thereby denying them the benefit of their bargain. See
Id. ¶¶ 2, 4. In other words, consumers
receive fewer candies than defendant represents that they are
getting, such that consumers pay more money for each quantity
of candy than had been bargained for. See Id.
¶¶ 10-11. Plaintiffs allegedly “paid . . .
for the Product[s] on the reasonable assumption that [the]
box was filled to functional capacity . . . and would not
have paid this sum had [they] known that the box was more
than one third full of air or had the box been proportioned
to its actual contents.” Id. ¶ 38; see
Id. ¶¶ 44, 47.
filed the operative First Amended Class Action Complaint on
January 2, 2018. Plaintiffs allege, on behalf of a putative
nationwide class and certain subclasses in the alternative,
that defendant “manufactures, markets and sells the
Products with non-functional slack-fill” in violation
of the Federal Food, Drug, and Cosmetic Act
(“FDCA”), 21 U.S.C. § 301 et seq. Am. Compl.
¶ 9. However, as the FDCA does not provide a private
right of action, plaintiffs bring claims pursuant to New
York's prohibition on (1) deceptive and unfair trade
practices, N.Y. Gen. Bus. Law § 349 (“GBL §
349”), and (2) false advertising, Id.
§§ 350, 350-a (“GBL §§ 350,
350-a”), see Am. Compl. ¶¶ 126-43, as well as
(3) the Mississippi Consumer Protection Act
(“MPCA”), Miss. Code Ann. § 75-24-1 et seq.,
see Am. Compl. ¶¶ 144-53. Plaintiffs also assert a
common law fraud claim. See Id. ¶¶ 154-60.
February 16, 2018, defendant moved to dismiss the First
Amended Class Action Complaint. See Dkt. No. 18. Defendant
argues that: (1) plaintiffs do not have standing with respect
to claims under laws of states in which they did not reside,
the Products they did not purchase, and/or to the extent they
seek injunctive relief; (2) this Court may not exercise
personal jurisdiction with respect to Perkins' claims;
(3) plaintiffs have not plausibly pleaded that the slack-fill
in the Products is “non-functional, ” in
violation of the FDCA; (4) no reasonable consumer would be
misled by the Products; (5) plaintiffs have not alleged an
injury under GBL §§ 349, 350, and/or 350-a; (6)
plaintiffs' fraud claims fail under Rule 9(b); and (7)
plaintiffs' class claims should be dismissed or stricken.
We proceed to consider each argument seriatim and
ultimately grant defendant's motion to dismiss and deny
its motion to strike as moot. Before doing so, however, we
first review the applicable federal and state regulatory
schemes governing food product labeling.
Federal and State Regulatory Schemes
Federal Regulatory Scheme
enacting the FDCA, Congress established the Federal Food and
Drug Administration (“FDA”) to “promote the
public health” by “ensuring that . . . foods are
safe, wholesome, sanitary, and properly labeled.” 21
U.S.C. § 393(b). The FDA enforces the FDCA and the
accompanying regulations it promulgates; there is no private
right of action under the FDCA. PDK Labs, Inc. v.
Friedlander, 103 F.3d 1105, 1113 (2d Cir. 1997).
amended the FDCA by enacting the Nutrition Labeling and
Education Act of 1990 (“NLEA”), which
“sought ‘to clarify and to strengthen the
[FDA's] legal authority to require nutrition labeling on
foods, and to establish the circumstances under which claims
may be made about nutrients in foods.'” N.Y.
State Rest. Ass'n v. N.Y.C. Bd. of Health, 556 F.3d
114, 118 (2d Cir. 2009) (quoting H.R. Rep. No. 101-538, at 7
(1990), reprinted in 1990 U.S.C.C.A.N. 3336, 3337). Among
other requirements, the NLEA provides that “[a] food
shall be deemed to be misbranded” if “its
container is so made, formed, or filled as to be
misleading.” 21 U.S.C. § 343(d).
category of misleading products are those that contain
“slack-fill, ” defined as “the difference
between the actual capacity of a container and the volume of
product contained therein.” 21 C.F.R. §
100.100(a). Yet not all slack-fill is misleading; rather,
slack-fill is only misleading if (1) consumers are unable to
fully view the contents of the package, and (2) the
slack-fill is non-functional. See Id. Slack-fill is,
in turn, non-functional only if none of the following
raisons d'être apply: (1) protection of
the contents of the package; (2) requirements of the machines
used to enclose the contents in the package; (3) unavoidable
settling during shipping and handling; (4) the need for the
package to perform a specific function; (5) the food is
packaged in a reusable container with empty space as part of
the presentation of the food; and/or (6) the inability to
increase the fill level or reduce the package size because,
for example, the size is necessary to accommodate food
labeling requirements or to discourage theft. See
Id. § 100.100(a)(1)-(6).
State Regulatory Schemes
York law provides that “[f]ood shall be deemed to be
misbranded . . . [i]f its container is so made, formed,
colored or filled as to be misleading.” N.Y. Agric.
& Mkts. Law § 201(4). “Like its federal
counterpart, New York law also provides remedies, including
private rights of action, for misbranding food under consumer
protection laws.” Izquierdo v. Mondelez Int'l,
Inc., No. 16-cv-04697 (CM), 2016 WL 6459832, at *3
(S.D.N.Y. Oct. 10, 2016). GBL Sections 349, 350 and 350-a in
particular have been interpreted to provide a private right
of action for excessive slack-fill. See Mennen Co. v.
Gillette Co., 565 F.Supp. 648, 655 (S.D.N.Y. 1983),
aff'd sub nom. Mennen v. Gillette, 742 F.2d 1437
(Table) (2d Cir. 1984); see also Waldman v. New Chapter,
Inc., 714 F.Supp.2d 398, 406 (E.D.N.Y. 2010).
law, and specifically the MCPA, prohibits “unfair or
deceptive trade practices in or affecting commerce.”
Miss. Code Ann. § 75-24-5(1); see Holman v. Howard
Wilson Chrysler Jeep, Inc., 972 So.2d 564, 571 (Miss.
2008) (The purpose of the MCPA “is to protect the
citizens of Mississippi from deceptive and unfair trade
practices.”). The MCPA defines unfair or deceptive
trade practices as, inter alia,
“[r]epresenting that goods or services have . . .
quantities that they do not have, ” and
“[a]dvertising goods or services with the intent not to
sell them as advertised.” Miss. Code Ann. §
addition to enforcement rights reserved for the Attorney
General of the State of Mississippi, the MCPA “creates
a private right of action in favor of any person who
purchases or leases goods or services primarily for personal,
family or household purposes and thereby suffers any
ascertainable loss of money or property, real or personal, as
a result of the use of or employment by the seller, lessor,
manufacturer or producer” of such unfair or deceptive
trade practices. Humphrey v. Citibank NA, No.
2:12CV148M-V, 2013 WL 5407195, at *6 (N.D. Miss. Sept.
25, 2013) (internal quotation marks omitted) (quoting Miss.
Code Ann. § 75-24-15(1)).
with the NLEA's purpose of promoting uniform national
labeling standards, the statute includes an express
preemption provision that 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.” Izquierdo, 2016 WL 6459832, at *4
(quoting 21 U.S.C. § 343-1(a)). “The effect of the
NLEA's preemption provision is to ensure that the states
only enact food labeling requirements that are equivalent to,
and consistent with, the federal food labeling
requirements.” Id. “State laws that
impose affirmatively different labeling requirements from
federal law in these areas are preempted.” Id.
However, “state laws that seek to impose labeling
requirements identical to those required by federal
regulations are not preempted.” Id. (citing
Koenig v. Boulder Brands, Inc., 995 F.Supp.2d 274,
284 (S.D.N.Y. 2014)). The consequence is that if a
product's packaging does not run afoul of federal law
governing food labeling, no state law claim for consumer
deception will lie. See Daniel v. Mondelez Int'l,
Inc., 287 F.Supp.3d 177, 187 n.7 (E.D.N.Y. 2018);
cf. Martin v. Wm. Wrigley Jr. Co., No.
4:17-cv-00541-NKL, 2017 WL 4797530, at *2 (W.D. Mo. Oct.
24, 2017) (“[T]he Court must construe the [Missouri
Merchandising Practices Act] provisions governing
Plaintiff's claims, which purport to concern misleading
containers and slack-fill, as being no broader than
corresponding federal law.”); Bautista v.
CytoSport, Inc., 223 F.Supp.3d 182, 192 (S.D.N.Y. 2016);
Izquierdo, 2016 WL 6459832, at *4.
Subject Matter Jurisdiction: Article III Standing
first moves under Federal Rule of Civil Procedure 12(b)(1) to
dismiss the First Amended Class Action Complaint for lack of
subject matter jurisdiction, namely, plaintiffs'
purported failure to establish Article III standing.
defeat a Rule 12(b)(1) motion, a plaintiff must establish
subject matter jurisdiction by a preponderance of the
evidence. Makarova v. United States, 201 F.3d 110,
113 (2d Cir. 2000). In considering such a motion, the Court
must accept as true all material facts alleged in the
complaint and draw all reasonable inferences in the
plaintiff's favor. Conyers v. Rossides, 558 F.3d
137, 143 (2d Cir. 2009). Nevertheless, “even on a
motion to dismiss, courts are not bound to accept as true a
legal conclusion couched as a factual allegation.”
Id. (internal quotation marks omitted) (quoting
Sharkey v. Quarantillo, 541 F.3d 75, 83 (2d Cir.
raises three different standing arguments: (1) that
plaintiffs lack standing to bring claims on behalf of a class
under the laws of states where the named plaintiffs have
never lived or resided; (2) that plaintiffs were not injured,
and thus do not have standing, with respect to the Products
they did not personally purchase; and (3) that Daniel and
Duran, who seek injunctive relief under GBL § 349, have
not demonstrated that defendant's allegedly misleading
packaging is likely to injure them in the future.
order to bring a suit in federal court, a plaintiff must
demonstrate that he possesses standing to do so. Under well
settled Supreme Court precedent, in order to demonstrate
standing, a plaintiff must show three elements: (1) an injury
in fact, (2) that is fairly traceable to the defendant's
allegedly unlawful conduct, and (3) that is likely to be
redressed by a favorable judicial decision. Spokeo, Inc.
v. Robins, 136 S.Ct. 1540, 1547 (2016). The
“injury in fact” must be a “concrete and
particularized” harm to a “legally protected
interest” that is “actual or imminent not
conjectural or hypothetical.” Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992) (internal quotation
marks omitted). A “particularized” injury is one
that “affect[s] the plaintiff in a personal and
individual way.” Id. at 560 n.1.
a suit may be a class action . . . adds nothing to the
question of standing, for even named plaintiffs who represent
a class must allege and show that they personally have been
injured.” Lewis v. Casey, 518 U.S. 343, 357
(1996) (internal quotation marks omitted) (quoting Simon
v. E. Ky. Welfare Rights Org., 426 U.S. 26, 40 n.20
(1976)). Thus, “[f]or each claim asserted in a class
action, there must be at least one class representative . . .
with standing to assert that claim.” Fort Worth
Emps.' Ret. Fund v. J.P. Morgan Chase & Co.,
862 F.Supp.2d 322, 331-32 (S.D.N.Y. 2012) (citing Cent.
States Se. & Sw. Areas Health & Welfare Fund v.
Merck-Medco Managed Care, L.L.C., 504 F.3d 229, 241 (2d
Standing for Class Claims Under Other States'
purport to bring their claims “in conjunction with the
substantively similar common law of other states and the
District of Columbia to the extent New York common law is
inapplicable to out-of-state Class members.” Am. Compl.
at 43, 46, 47, 51. Defendant, pointing to several district
court cases within this Circuit, argues that “named
plaintiffs lack standing to bring claims on behalf of a class
under the laws of states where the named plaintiffs have
never lived or resided.” Def.'s Supp. at 27 (citing
In re HSBC BANK, USA, N.A., Debit Card Overdraft Fee
Litig.,1 F.Supp.3d 34, 50 ...