Barton v. Pret A Manger (USA) Ltd.

535 F.Supp.3d 225

Jessica BARTON, individually and on behalf of all others similarly situated, Plaintiff,

v.PRET A MANGER (USA) LIMITED, Defendant.

1:20-cv-04815 GHW

United States District Court, S.D. New York.

Signed April 27, 2021

Michael Robert Reese, Reese Richman, LLP, New York, NY, Jason P. Sultzer, The Sultzer Law Group, Poughkeepsie, NY, for Plaintiff.

Jared Alexander Levine, Sarah Gilbert, Crowell & Moring LLP, New York, NY, for Defendant.

MEMORANDUM OPINION AND ORDER

GREGORY H. WOODS, United States District Judge Plaintiff Jessica Barton values natural products, believing that they are safer and healthier than products that contain synthetic ingredients. Ms. Barton is even willing to pay more for products that she believes contain exclusively natural ingredients. For that reason, Ms. Barton bought food from Defendant Pret A Manger ("Pret"), which touted its "natural food" and products made with "natural ingredients." Ms. Barton believed that Pret's offerings were free from genetically modified organisms ("GMOs") and other synthetic ingredients. But they are not. Ms. Barton alleges that she was deceived by Pret's logo and its products’ packaging—notwithstanding the fact that the ingredient labels on the back of the products accurately described the products’ contents. She brought this lawsuit as a result.

Because Plaintiff has plausibly alleged that the references to "natural ingredients" and "natural food" on the products’ packaging are likely to lead a reasonable consumer to wrongly believe that these products contain exclusively natural ingredients and that they are free of GMOs, Plaintiff's consumer protection claims under Sections 349 and 350 of the New York General Business Law are adequately pleaded. However, Plaintiff's auxiliary tort and warranty claims fail. As a result, Defendant's motion to dismiss is GRANTED in part and DENIED in part.

I. BACKGROUND

a. Facts

In today's society, "[c]onsumers have become increasingly concerned about the effects of synthetic and chemical ingredients in food, cleaning products, bath and beauty products and everyday household products." Am. Compl., Dkt. No. 13 (the "FAC"), ¶ 5. "Indeed, consumers are willing to pay, and have paid, a premium for products branded ‘natural’ over products that contain synthetic ingredients." Id. Plaintiff is one of those consumers. Plaintiff alleges that she is one of many who were misled by Pret's offering of "natural food" and products made with "natural ingredients." Pret's logo, "which appeared throughout retail outlets and was prevalently featured on the company's advertisements, and, including but not limited to, signage, employee uniforms, cups, napkins, product packaging, and takeaway bags," contained the representation that it sells "Natural Food." Id. ¶ 6. Similarly, prominent signage in Pret's retail outlets stated, "Freshly prepared, good, natural food," and the labels for many of Pret's products stated that they were made with "natural ingredients." Id. ¶¶ 7, 8.

At different times during the Class Period,¹ Plaintiff purchased various food items that she believed were "natural," including the Pret Salt & Vinegar Chips, Pret BBQ Chips, Pure Pret Ginger Beer, the Pret Chicken & Avocado Sandwich, the Pret Turkey & Pesto Sandwich, and the Pret Bang Chicken Wrap from different Pret stores in New York City. Id. ¶ 40. Plaintiff bought those items with the belief that they did not contain synthetic ingredients, having relied on Pret's alleged misrepresentations that the products were "natural." Plaintiff alleges that she paid a premium price for the Pret's products compared to similar products that did not purport to be "natural." Id. ¶ 3. Plaintiff alleges that she was misled by these representations because Pret did not actually deliver "natural" products.

To understand these allegations, one must examine Pret's logo and the packaging for the products. Because a picture is worth a thousand words, images of the logo and packaging appear below.

Id. ¶ 6.

Id. ¶ 7.Id. ¶ 8. Plaintiff alleges that similar representations regarding the "natural" content of Pret's food can be found on twenty–six products.²

Plaintiff alleges that, notwithstanding Pret's representations, its products were not natural. Instead, they contained GMOs and numerous other synthetic ingredients. Id. ¶ 9. Plaintiff points to a plethora of synthetic ingredients, which she alleges that one would not expect to find in products advertised as "natural," namely, maltodextrin, citric acid, malic acid, lactic acid, diacetyl tartaric acid esters of mono-and diglycerides, mono-and diglycerides of fatty acids, and ascorbic acid. Id. ¶¶ 10, 11.

Furthermore, a majority of the twenty–six products with which Plaintiff takes issue contain soya, which, according to Plaintiff, "is known to be derived from GMOs and/or to be synthetically produced." Id. ¶ 12. "The term GM foods or GMOs (genetically-modified organisms) commonly refers to crop plants created for human or animal consumption using the latest molecular biology techniques." Id. ¶ 13. "GMOs are not natural because they grow from seeds that have been modified in a laboratory." Id. ¶ 14. Plaintiff specifically alleges that the products at issue in this suit "use plants or plant derivatives grown or created from GMOs." Id. ¶ 15. Because they use GMOs, Plaintiff alleges that the products are not "natural." Id.

Plaintiff points to regulatory guidance to support her position that a reasonable consumer would understand the term "natural" to mean that a product did not contain synthetic substances. In particular, Plaintiff points to a 2013 draft guidance document issued by the United Department of Agriculture (the "USDA") regarding "Classification of Materials as Synthetic or Nonsynthetic (Natural)." Id. ¶ 17.³ Plaintiff contends that reasonable consumers simply "do not expect a synthetic chemical with suspected health concerns to be found in a product marketed as ‘natural,’ which makes [Pret's] ‘Natural Food’ representation deceptive and misleading." Id. ¶ 19. She alleges that surveys and market research will demonstrate that the term's use is misleading. Id. ¶ 20.

Plaintiff acknowledges that the products at issue in this case identify on their packaging the synthetic and GMO ingredients of which she complains. Id. ¶ 22. She alleges that because "[d]iscovering that the ingredients are not natural requires a scientific investigation and knowledge of chemistry beyond that of the average consumer," Pret's representation that the products are "natural" is nonetheless misleading. Id. Plaintiff maintains that "the reasonable consumer is not expected or required to scour the ingredients list on the back of the Products in order to confirm or debunk Defendant's prominent front and side-of-the-Products claims, representations, and warranties that the Products are ‘Natural.’ " Id. ¶ 23. Plaintiff claims that Defendant knew and intended that consumers would pay a premium for Products labeled "Natural" over comparable products not so labeled. Id. ¶ 30. Had it not been for these alleged misrepresentations, Plaintiff alleges, she would not have been willing to pay the same amount for the products she purchased, and, consequently, would not have been willing to purchase the products at all. Id. ¶ 32.

b. Procedural History

Plaintiff initiated this action on June 23, 2020. Dkt. No. 1. She filed an amended complaint (the "First Amended Complaint" or the "FAC") on September 4, 2020. Dkt. No. 13. In the First Amended Complaint, Plaintiff asserts claims for violations of Sections 349 and 350 of the New York General Business Law (the "GBL"), breach of express warranty, violation of the Magnuson Moss Warranty Act, 15 U.S.C. § 2301, et seq. , and unjust enrichment. Plaintiff asserts the claims on behalf of herself as well as a putative class of "all consumers who purchased the Products anywhere in the United States during the Class Period." FAC ¶ 44.

Defendant moved to dismiss the First Amended Complaint in its entirety on October 16, 2020. Def.’s Notice Mot. to Dismiss, Dkt. No. 21; Mem. Law Supp. Def.’s Mot. to Dismiss ("Def.’s Mem."), Dkt. No. 21-1. Plaintiff filed her opposition on November 6, 2020. Mem. Law Opp'n to Def.’s Mot. to Dismiss, Dkt. No. 22 ("Opp'n"). Defendant filed its reply on November 13, 2020. Mem. Law Further Supp. Def.’s Mot. to Dismiss, Dkt. No. 23 ("Reply").

II. LEGAL STANDARD

A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). However, a defendant may move to dismiss a plaintiff's claim for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In deciding a motion to dismiss under Rule 12(b)(6), the Court accepts as true all well-pleaded factual allegations and draws all reasonable inferences in the plaintiff's favor. See Palin v. N.Y. Times Co. , 940 F.3d 804, 809–10 (2d Cir. 2019) (quoting Elias v. Rolling Stone LLC , 872 F.3d 97, 104 (2d Cir. 2017) ).

To survive a motion to dismiss pursuant to 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.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A claim is facially plausible when a plaintiff "pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). "The choice between two plausible inferences that may be drawn from factual allegations is not a choice to be made by the court on a Rule 12(b)(6) motion." Lynch v. City of New York , 952 F.3d 67, 75 (2d Cir. 2020) (quoting Anderson News, L.L.C. v. Am. Media, Inc. , 680 F.3d 162, 185 (2d Cir. 2012) ). " Rule 12(b)(6) does not countenance ... dismissals based on a judge's...