Gavilanes v. Gerber Prods. Co.

ROSSY GAVILANES, individually and on behalf of all others similarly situated, Plaintiff, v. GERBER PRODUCTS COMPANY, Defendant.

No. 1:20-cv-05558

United States District Court, E.D. New York

November 1, 2021

For the Plaintiff: SPENCER SHEEHAN Sheehan & Associates, P.C.

For the Defendant: BRYAN A. MERRYMAN (pro hac vice) DEEMA ABINI (pro hac vice) White & Case LLP, SEQUOIA KAUL, PAULA KATES White & Case LLP

MEMORANDUM AND ORDER

FREDERIC BLOCK, SENIOR UNITED STATES DISTRICT JUDGE

Defendant Gerber Products Company (“Gerber”) moves to dismiss the First Amended Complaint of Plaintiff Rossy Gavilanes (“Gavilanes”) for lack of subject matter jurisdiction, pursuant to FRCP 12(b)(1), and failure to state a claim, pursuant to FRCP 12(b)(6). For the following reasons, Defendant's motion is granted in part and denied in part.^[1]

I.

Plaintiff Gavilanes is a Queens resident who purchased Gerber's Good Start Grow Toddler Drink from Amazon, because she “wanted a food which was nutritionally adequate” for a toddler in her care. Complaint at ¶¶71, 74 75. Defendant Gerber manufactures, markets, and sells Gerber Good Start Grow (the “Product”), a milk-based powder supplemented with iron.

Plaintiff alleges as follows: The American Academy of Pediatrics (AAP) recommends “exclusive breastfeeding for the first 6 months of life with the addition of complementary foods and the continuation of breastfeeding until at least 12 months of age.” Compl. at ¶2. While breastfeeding is recommended, infant formula with added iron (“infant formula”) is an accepted alternative when breastfeeding is not an option. Id. at ¶¶2-3. Pediatric health organizations, including committees from the AAP and the World Health Organization (“WHO”), have advised that after 12 months, “children's nutritional needs should be met with whole cow's milk, water and healthy foods as part of a balanced diet.” Id. at ¶7. Experts “universally oppose consumption of added sugars by children between 12 and 24 months.” Id. at ¶21. “Follow-up” or “transition” formulas are not recommended. Id. at ¶8.

The Product is such a “transition formula”-a milk-based formula with added iron, marketed for children aged 12 to 24 months. Id. at ¶5. The Infant Nutrition Council of America, a trade group that includes Gerber, states that transition formulas “can be used to fill nutrition gaps beyond 12 months.” Id. at ¶6. However, the Product contains 15 grams of added sugar, identified as “corn maltodextrin” and “sugar, ” contrary to health recommendations. Id. at ¶¶22-23. Good Start GentlePro, Gerber's formula for children aged 0 to 12 months, does not appear to contain added sugars, but is otherwise identical to the Product. Id. at ¶23. Both products are identified as “milk-based powder.” Id. at ¶15. Compared to whole cow's milk, the recommended beverage for a toddler's balanced diet, the Product contains “less protein, equivalent calories, and almost fifty percent more carbohydrates (sugars).” Id. at ¶25. The Product costs $17.48 per 680 grams, and whole milk costs $3.85 per gallon in May 2020. Id. at ¶¶26-27. The Product is almost four times the cost of whole milk. Id. at ¶28.

The Product is marketed similarly to another Gerber product, Good Start GentlePro Infant Formula, through “common labeling formats, images, design, type, size, fonts, call-outs and graphics.” Id. at ¶13. The label information is also nearly identical. Gentle Pro advertises: “0-12 months, ” “for complete nutrition & advanced comfort, ” “everyday probiotics, ” “digestive health & immune support, ” “brain & eye development, ” “DHA, easy to digest - comfort proteins, ” “2'-FL, HMO Immune Support.” Id. at ¶18. The Product advertises: “12-24 months, ” “tailored nutrition for toddlers, ” “everyday probiotics, ” “digestive health & immune support, ” “brain development, DHA & Iron, ” “strong bones &teeth, calcium & vitamin D, ” “2'-FL, HMO Immune Support.” Id. These similar labels trick caregivers into purchasing food that is not nutritionally sound and that is in contravention of global recommendations. Id. at ¶15. The labeling implies both that the Product is the “next step” in the Good Start nutritional program, and that the Product is specifically designed for toddlers' nutritional needs, though that is not the case. Id. at ¶¶17, 1920. The Product does not indicate that “foods...with added sugars are inconsistent and contrary to their nutritional needs.” Id. at ¶24.

The Product's label also pictures a seal that certifies it is “not made with genetically engineered ingredients, ” which intentionally mimics the seal of the independent organization, the Non-GMO Project. Id. at ¶44. The Non-GMO Project's Product Verification Program is widely recognized and verifies products as not being derived from GMO crops or from animals fed GMO crops. Id. at ¶¶47-48. The Product, however, has not been verified by the Non-GMO Project-and could not be-because its dairy ingredients are derived from cows fed GMO grains. Id. at ¶¶55, 57. Therefore, the Product's Non-GMO label misleads the consumer about the origins of the ingredients. Id. at ¶¶54-60.

Plaintiff was surprised to find that the contents of the Product are not recommended by global health organizations, and concluded that the Product was worth less than what she and other consumers had paid for it. Id. at ¶¶76-77. The labeling causes caregivers “to make inaccurate and ill-advised nutritional purchasing decisions.” Id. at ¶29. According to a study of caregivers' understanding of transition formulas, confusion of this sort is not uncommon. Fifty-two percent of the participants expected the products to “give toddlers nutrition that they wouldn't get from other sources, ” and 70% thought the drink was suitable for toddlers. Id. at ¶ ¶30, 32. Absent Gerber's labeling statements and omissions, she would not have paid the price premium. Id. at ¶78. Plaintiff “intends to, seeks to, and will purchase the Product again when she can do so with the assurance that Product's representations about its adequacy, components and ingredients are consistent with its representations.” Id. at ¶79.

Plaintiff asserts claims for the violation of the New York State General Business Law §§349 and 350, breach of express warranty, breach of implied warranty of merchantability, and violation of Magnuson Moss Warranty Act, as well as negligent misrepresentation, fraud, and unjust enrichment. Compl. at ¶¶89-110.

II.

“A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). “A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists.” Id. at 113. When resolving a 12(b)(1) motion to dismiss, the court “can refer to evidence outside the pleadings.” Broidy Cap. Mgmt. LLC v. Benomar, 944 F.3d 436, 441 (2d Cir. 2019) (citing Luckett v. Bure, 290 F.3d 493, 496-97 (2d Cir. 2002)).

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.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when “the 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). The pleading must offer more than “bare assertions, ” “conclusory” allegations, or a “formulaic recitation of the elements of a cause of action.” Iqbal, 556 U.S.at 678.

A complaint includes “any written instrument attached to it as an exhibit, materials incorporated in it by reference, and documents that...are ‘integral' to the complaint.” Sierra Club v. Con-Strux, LLC, 911 F.3d 85, 88 (2d Cir. 2018) (quoting Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004)). “[A] court may consider matters of which judicial notice may be taken, [and] documents either in plaintiffs' possession or of which plaintiffs had knowledge and relied on in bringing suit.”^[2] Kalyanaram v. Am. Ass'n of Univ. Professors at N.Y. Inst. of Tech., 742 F.3d 42, 45 n.1 (2d Cir. 2014) (internal citations and quotations omitted).

Where, like here, a party moves for dismissal under Rules 12(b)(1) and 12(b)(6), “the court should consider the Rule 12(b)(1) challenge first since if it must dismiss the complaint for lack of subject matter jurisdiction, the accompanying defenses and objections become moot.” Rhulen Agency, Inc. v. Alabama Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d Cir. 1990).

III.

Defendant seeks a stay or dismissal of Plaintiff's claims pursuant to the primary jurisdiction doctrine. Def. Br. at 23-24. Defendant argues that Plaintiff has conceded this argument by failing to address it in their opposition. Def. Reply at 10. However, though the court may deem a defense waived in such a situation, Jennings v. Hunt Companies, Inc., 367 F.Supp.3d 66, 69 (S.D.N.Y. 2019), the Court declines to do so here, because the primary jurisdiction doctrine is not appropriately invoked.

Primary jurisdiction is a “discretionary doctrine . . . used to fix forum priority when the courts and an administrative agency have concurrent jurisdiction over an issue.” Reed v. 1-800-Flowers.com, Inc., 327 F.Supp.3d 539, 546-47 (E.D.N.Y. 2018) (citing Mrs. W. v. Tirozzi, 832 F.2d 748, 758-59 (2d Cir. 1987)). The Second Circuit applies four factors when determining whether to defer to an agency:

“(1) whether the question at issue is within the conventional experience of judges or whether it involves technical or policy considerations

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