Defendant's Attorney: David Kwasniewski, Jonathan Kortmansky and Matt Borden
Description: New York City, New York consumer law lawyers represented Plaintiff who sued Defendant on a fraud theory.
Plaintiff Gracemarie Venticinque (“Plaintiff”) brings this putative class action against Back to Nature Foods Company, LLC, a manufacturer of plant-based snacks. See Am. Compl., Dkt. 7 (“FAC”). Plaintiff claims that Defendant misled her and other consumers into believing that its “Stoneground Wheat Cracker” (the “Product”) contains primarily whole wheat flour as opposed to enriched wheat flour. See FAC ¶¶ 9-10. Plaintiff brings claims for deceptive practices and false advertising under New York General Business Law §§ 349-50 (“NYGBL”). Defendant has moved to dismiss Plaintiff's claims. See Def. Mem., Dkt. 25. For the reasons that follow, Defendant's motion is GRANTED.
Plaintiff Venticinque, a resident of Bronx, New York, purchased and consumed the Product “[i]n the years preceding this action” based on the belief that the Product's main flour ingredient was organic whole wheat flour. FAC ¶¶ 1, 19-20. The Product, manufactured by Defendant under the brand name “Back to Nature,” contains whole wheat flour, but its main source of flour is “organic unbleached enriched wheat flour.” See id. ¶¶ 1, 7-10. Plaintiff alleges that the reason she believed that the Product contained primarily whole wheat flour is based on the label on the front of the package of the Product, which states “ORGANIC WHOLE WHEAT FLOUR” at the bottom:
Plaintiff alleges that the statement on the Product's package “is deceptive and misleading to consumers, as it conveys that organic whole wheat flour is the main type of flour in the Product.” Id. ¶ 9. Plaintiff further alleges that, had she known that the Product's main flour ingredient was enriched wheat flour rather than whole wheat flour, she would not have purchased it, or, more accurately, would not have purchased it at the price she was charged. See id. ¶¶ 1, 12-13. This is because enriched wheat flour is “of an inferior quality” compared to whole wheat flour because whole wheat flour “contains the full wheat kernel, consisting of the bran, endosperm, and germ,” whereas “enriched wheat flour does not.” Id. ¶¶ 10, 12.
On September 13, 2022, Plaintiff filed an Amended Complaint alleging damages of more than $5,000,000 for one count of deceptive acts or practices in violation of New York General Business Law § 349 and one count of false advertising in violation of New York General Business Law § 350. See FAC ¶¶ 4, 29-47. On December 2, 2022, Defendant moved to dismiss for failure to state a claim and for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(6) and 12(b)(1), respectively. Def. Mot., Dkt. 24.
Outcome: Motion to dismiss granted.