Parks v. Ainsworth Pet Nutrition, LLC, 18 Civ. 6936 (LLS)

377 F.Supp.3d 241

Markeith PARKS, on behalf of himself and all others similarly situated, Plaintiff,

v.AINSWORTH PET NUTRITION, LLC d/b/a Rachael Ray Nutrish, Defendant.

18 Civ. 6936 (LLS)

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

Signed April 18, 2019

Kim E. Richman, Esq., Richman Law Group, Brooklyn, NY, for Plaintiff.

Ronald Y. Rothstein, Esq., Adrianne Kari Rosenbluth, Esq., Pro Hac Vice, Winston & Strawn LLP, Chicago, IL, Christopher Hynes, Esq., Winston & Strawn LLP, New York, NY, for Defendant.

OPINION & ORDER

LOUIS L. STANTON, U.S.D.J.

Plaintiff Markeith Parks brought this putative class action, on behalf of himself and all others similarly situated, against Defendant Ainsworth Pet Nutrition, LLC and its wholly owned subsidiary, Rachael Ray Nutrish (collectively, "Rachael Ray Nutrish"), alleging claims of deceptive business practices and false advertising under the New York General Business Law, breach of express warranty, and unjust enrichment. Defendant moves to dismiss the complaint, or alternatively, stay the action until the Food and Drug Administration ("FDA") issues guidance regarding the use of the term "natural" in food labeling. For the reasons that follow, the motion to dismiss the complaint is granted.

BACKGROUND

The following facts are as alleged in the Complaint (Dkt. No. 1).

Defendant Rachael Ray Nutrish is a Pennsylvania corporation that manufactures, markets, and distributes a line of Super Premium Food for Dogs ("Products") in retail stores in New York and throughout the United States. Id. 11 3 fig. 1, 19-20. Although Rachael Ray Nutrish labels and advertises the Products as "natural," tests conducted by an independent laboratory revealed that glyphosate, an herbicide, is present in the Products. Id. ¶¶ 3-4, 6-7, 43. The Products do not disclose the presence of glyphosate. Id. 11 7, 31.

Plaintiff Markeith Parks is a citizen of New York who purchased the Products on multiple occasions at a BJ's Wholesale Club in the Bronx, New York. Id. 1 21. Parks relied on the representation that the Products were "natural" when he purchased them, and was willing to pay more for the Products because he expected them to be free of pesticides and other unnatural chemicals. Id. 11 13, 22-23.

DISCUSSION

Preemption

Defendant argues that Plaintiff's claims should be dismissed because they are expressly preempted by federal law. Def. Br. at 20-21. "The Supremacy Clause provides that ‘[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.’ " Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 2128, 68 L.Ed.2d 576 (1981) (quoting Art. VI, cl. 2) (alteration and omissions in original). "It is basic to this constitutional command that all conflicting state provisions be without effect." Id.

In general, three types of preemption exist: (1) express preemption, where Congress has expressly preempted local law; (2) field preemption, where Congress has legislated so comprehensively that federal law occupies an entire field of regulation and leaves no room for state law, and (3) conflict preemption, where local law conflicts with federal law such that it is impossible for a party to comply with both or the local law is an obstacle to the achievement of federal objectives.

New York SMSA Ltd. P'ship v. Town of Clarkstown, 612 F.3d 97, 104 (2d Cir. 2010). "The key to the preemption inquiry is the intent of Congress." Id."Congress may manifest its intent to preempt state or local law explicitly, through the express language of a federal statute, or implicitly, through the scope, structure, and purpose of the federal law." Id. The Supreme Court has stated,

in all pre-emption cases, and particularly those in which Congress has legislated in a field which the States have traditionally occupied, we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.

Wyeth v. Levine, 555 U.S. 555, 565, 129 S.Ct. 1187, 1195, 173 L.Ed.2d 51 (2009) (internal quotations, citations, and alterations omitted). Courts "have a duty to accept the reading that disfavors preemption" when such a reading is plausible. Bates v. Dow Agrosciences LLC, 544 U.S. 431, 449, 125 S.Ct. 1788, 1792, 161 L.Ed.2d 687 (2005).

The Federal Food, Drug, and Cosmetics Act ("FDCA"), enacted in 1938, grants the FDA power to ensure that "foods are safe, wholesome, sanitary, and properly labeled," and prohibits the misbranding of food in interstate commerce. 21 U.S.C. §§ 331(a) - (c), 393(b)(2)(A). In 1990, Congress amended the FDCA with the Nutrition Labeling and Education Act ("NLEA"), which sought "to clarify and to strengthen the Food and Drug Administration's legal authority to require nutrition labeling on foods, and to establish the circumstances under which claims may be made about nutrients in foods." Pub. L. No. 101-535, 104 Stat. 2353 (1990) (codified at 21 U.S.C. § 343 et seq. ); H.R. Rep. No. 101-538 (1990).

"Consistent with the statute's purpose of promoting uniform national labeling standards, the NLEA 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." Koenig v. Boulder Brands, Inc., 995 F.Supp.2d 274, 280 (S.D.N.Y. 2014) (quoting 21 U.S.C. § 343-1 (a) ). "Helpfully, the NLEA is clear on preemption, stating that it ‘shall not be construed to preempt any provision of State law, unless such provision is expressly preempted under [ 21 U.S.C. § 343-1(a) ] of the [FDCA]." New York State Restaurant Ass'n v. New York City Bd. of Health, 556 F.3d 114, 123 (2d Cir. 2009) (alterations and emphasis in original) (quoting Pub. L. No. 101-535, § 6(c)(1), 104 Stat. 2353, 2364).

Under the NLEA's preemption provision, state labeling requirements that are "not identical to" the federal labeling requirements in§§ 343(b), (c), (d), (e), (f), (g), (h), (i), (k), (q), (r), (w), and (x) are preempted. 21 U.S.C. § 343-1(a). Notably, the preemption provision does not mention § 343(a), which states, "A food shall be deemed to be misbranded" if "its labeling is false or misleading in any particular." 21 U.S.C. §§ 343(a), 343-1(a) ; see Manuel v. Pepsi-Cola Co., 17 Civ. 7955, 2018 WL 2269247, at *4 (S.D.N.Y. May 17, 2018) ("Significant here, the NLEA's preemption provision does not apply to § 343(a)").

Defendant argues that Plaintiff's claims are expressly preempted by the FDCA because "Plaintiff's allegations that state law imposes a duty to disclose the alleged presence of glyphosate residue would create food labeling requirements not identical to federal regulation." Def. Br. at 22. However, Plaintiff does not seek a requirement to disclose the presence of glyphosate, but rather "seeks only that Rachael Ray Nutrish remove the word ‘Natural’ from its marketing ...." Pl. Br. at 33. Although the Complaint mentions that Defendant did not disclose the presence of glyphosate and that the failure to disclose is "an omission of material fact," compl. ¶¶ 31, 35, it focuses on the allegation that labeling the Products as "natural" is false and misleading. For instance, Plaintiff alleges,

Rachael Ray Nutrish aggressively advertises and promotes the Products as "Natural." These claims are false, deceptive, and misleading. The Products at issue are not "Natural." Instead, the Products contain the unnatural chemical glyphosate, a potent biocide and endocrine disruptor, with detrimental health effects that are still becoming known.

Id. 11 3-4. Additionally, under the cause of action for a violation of the New York General Business Law ("NYGBL"), he states "Defendant's improper consumer-oriented conduct – including labeling and advertising the Products as being ‘Natural’ – is misleading in a material way ...." and "Plaintiff and the New York Sub-Class Members have been injured inasmuch as they paid a premium for products that were - contrary to Defendant's representations – not ‘Natural.’ " Id. 11 105-06. Therefore, because the NLEA preemption provision does not apply to § 343(a), the prohibition on false or misleading labeling, Plaintiff's state law claims that the labeling of the Products was false and misleading are not preempted. See Axon v. Citrus World, Inc., 354 F.Supp.3d 170, 180 (E.D.N.Y. 2018) (finding that plaintiff's claims against "Florida's Natural" brand orange juice were not preempted because plaintiff was "not seeking the mandatory disclosure of glyphosate" but rather the removal of the "natural" label, and distinguishing from Gibson v. Quaker Oats, No. 16 Civ. 4853, 2017 WL 3508724 (N.D. Ill. Aug. 14, 2017), in which the "plaintiffs were seeking disclosure of glyphosate").

Defendant also argues that Plaintiff's claims are preempted by the FDA's statement, "When we established our policy concerning the term ‘natural,’ ... it was not intended to address food production methods, such as ... the use of pesticides, ... nor did it explicitly address food processing or manufacturing methods ...." Def. Br. at 23 (citing Use of the Term "Natural" in the Labeling of Human Food Products; Request for Information and Comments, 80 Fed. Reg. 69,905 (Nov. 12, 2015) ). The FDA made that statement in its request for public comments on the use of the term "natural" in food labeling; it is not a rule or regulation regarding pesticides in foods labeled "natural" and does not have preemptive effect.

Failure to State a Claim

On a motion to dismiss under Rule 12(b)(6), the court accepts all factual allegations in the complaint as true, and draws all reasonable inferences in the plaintiff's favor. Kelly-Brown v. Winfrey, 717 F.3d 295, 304 (2d Cir. 2013). To survive a motion to dismiss, a...