Scholder v. Sioux Honey Ass’n Coop., CV 16-5369 (GRB), 2022 WL 125742 (E.D.N.Y. Jan. 13, 2022)
Despite the failure of most “vanilla” claims, a
metaphorically consumer vanilla false advertising claim can survive the motion
to dismiss stage, as this case shows (though claims for breach of warranty and
for injunctive relief get tossed, the latter for lack of standing).
Scholder alleged that defendant violated NY law because it
puts “Pure” or “100% Pure” on the SueBee product labels, but the honey contains
glyphosate, a synthetic chemical and herbicide that is potentially
carcinogenic. Scholder alleged that “[c]onsumers reasonably believe that a
product labeled ‘[P]ure’ or ‘100% [P]ure’ does not contain synthetic
substances, such as artificial biocides,” and that had he known at the time
that SueBee honey contained glyphosate, he would not have considered the honey
to be pure and would not have paid a premium for the product.
Defendant argued that label couldn’t be materially
misleading to a reasonable consumer because “any trace amounts of glyphosate in
the honey was the result of the natural process of bees interacting with agriculture
and not its production process, and thus its honey was in fact ‘Pure.’” At the
pleading stage, though, it wasn’t clear whether a reasonable consumer would
understand the terms “Pure” or “100% Pure” to mean that trace amounts of
glyphosate could end up in honey from the bees foraging process.
As the Second Circuit previously held: “[u]nlike ‘natural,’
the words ‘pure’ and ‘100% natural’ indicate the absolute absence of
contaminants.” Unlike the case where a term (“natural”) occurs only in the brand
name and not elsewhere on the package, the product label here described the
honey as “100% Pure Unfiltered Honey” on a stand-alone basis.
Further, the complaint alleged that the targeted consumers
would care, because they “value pure foods,” and alleged the existence of
specific statements/research about the potential dangers of glyphosate even at
low levels. This made the allegations that reasonable consumers would care
plausible.
Warranty claims failed for want of pre-suit notice, as
required in NY, but unjust enrichment survived.
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