Health Law Daily Wrap Up, FOOD—E.D.N.Y.: False advertising case over ‘pure’ honey will proceed to discovery, (Jan 24, 2022)

By Brian Craig, J.D.

A consumer plausibly alleges deceptive business practices and false advertising under New York state law against a honey seller because the honey purportedly contains glyphosate.

In a putative class action lawsuit brought against an Iowa-based cooperative that manufactures and sells honey, the federal district court in Long Island, New York has concluded that claims alleging deceptive business practices and false advertising under New York state law can proceed. In denying the honey seller’s motion to dismiss, the court found the complaint plausibly alleges that a reasonable consumer viewing the honey products labeled “Pure” or “100% Pure” would interpret the terms to mean the final honey would be free of substances other than honey, including glyphosate, a synthetic chemical and herbicide. The court dismissed, however, the express warranty claim because the consumer failed to give pre-suit notice to the honey seller. The court also denied the consumer’s request for injunctive relief because past purchasers of a product claiming deceptive advertising are not likely to encounter future harm of the kind that makes injunctive relief appropriate (Scholder v. Sioux Honey Association Cooperative, January 13, 2022, Brown, G.).

Sioux Honey Association Cooperative, a cooperative in Sioux City, Iowa, manufactures, markets, sells, and distributes SueBee honey in retail stores in New York and throughout the United States. A citizen of New York purchased honey in New York after seeing and relying upon the product label representing the SueBee honey to be “Pure” or “100% Pure” and was willing to pay more for the honey because of the representation. The consumer alleges that SueBee honey is not “Pure” or “100% Pure” because the honey contains the biocide glyphosate, an artificial chemical and potential carcinogen. The consumer brought a class action lawsuit on behalf of himself and a nationwide class of all consumers, and sub-class of New York consumers, against the honey cooperative alleging alleges four causes of action: (1) violation of New York General Business Law § 349 for deceptive practices; (2) violation of New York General Business Law § 350 for false advertising; (3) breach of express warranty; and (4) unjust enrichment. The consumer seeks both money damages and injunctive relief. The honey cooperative moved to dismiss the complaint.

Deceptive practices and false advertising. The court concluded that the consumer has plausibly alleged violation of New York laws that prohibit deceptive business practices and false advertising. New York General Business Law § 349 prohibits “deceptive acts and practices in the conduct of any business, trade or commerce or in furnishing of any service.” New York General Business Law § 350 prohibits false advertising. Here, the court found that the consumer has plausibly alleged that the honey seller engaged in consumer-oriented activity that was materially misleading and caused him a cognizable injury. Accordingly, the court denied the motion to dismiss the claims alleging deceptive business practices and false advertising under New York law.

Express warranty. The court dismissed the claim alleging breach of express warranty over the honey labels. To maintain a claim of breach of express warranty in New York, the buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of the breach or be barred from any remedy. Here, the complaint does not contain any allegations or specific facts that the consumer notified the honey seller of a breach within a reasonable time after his discovery. Because the consumer failed to satisfy the pre-suit notice requirement, the court dismissed the express warranty claim.

Unjust enrichment. Next, the court allowed the unjust enrichment claim to proceed. The consumer plausibly alleges that the honey seller may have engaged in materially misleading conduct. Although the unjust enrichment claim may ultimately be deemed duplicative of other theories of recovery, at this stage of the proceedings, the allegations are sufficient to survive a motion to dismiss.

Injunctive relief. Finally, the court denied the consumer’s request for injunctive relief because the consumer could not show future harm. The U.S. Court of Appeals for the Second Circuit has made clear that past purchasers of a consumer product who claim to be deceived by that product’s packaging have, at most, alleged a past harm. Past purchasers of a product are not likely to encounter future harm of the kind that makes injunctive relief appropriate. Inasmuch as the consumer knows the honey purportedly contains glyphosate, he would not purchase the product in the current state and thus cannot show an imminent risk of future deception and injury. Therefore, the court granted the motion to dismiss concerning the consumer’s request for injunctive relief.

Accordingly, the court granted in part, and denied, in part, the motion to dismiss. The court directed the parties to proceed with discovery.

The case is No. CV 16-5369 (GRB).

Attorneys: Michael J. Gabrielli (Gabrielli Levitt LLP) for Jason Scholder. Edward Kevin Lenci (Hinshaw & Culbertson LLP) for Sioux Honey Association, Cooperative.

Companies: Sioux Honey Association

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