Beers v. Mars Wrigley Confectionery US, LLC

Background

Mars Wrigley manufactures and sells Dove Bars, which are chocolate-coated vanilla ice cream bars. Steven Beers alleged that he bought the product several times, including at a 7-Eleven store in Jefferson Valley, New York, during the summer of 2020. The front label described the product as “Silky Smooth Dove Bar®, Vanilla Ice Cream with Milk Chocolate” and showed pieces of chocolate. The back label also referred to “silky smooth DOVE® Milk Chocolate.”

The product’s ingredient list separately listed the ingredients in its coating. In order of predominance, those ingredients were milk chocolate, semisweet chocolate, coconut oil, and palm oil. Beers alleged that the references to milk chocolate misled consumers into believing that the product contained only milk chocolate made from cacao-bean ingredients and did not contain vegetable oils. He alleged that consumers preferred cacao-derived ingredients for reasons including cost, taste, texture, health, nutrition, and naturalness. He also alleged that the product was worth less than he paid for it.

The amended complaint asserted claims under Sections 349 and 350 of the New York General Business Law, which address deceptive business practices and false advertising, as well as warranty, federal warranty, negligent-misrepresentation, fraud, and unjust-enrichment claims. In his opposition to the motion, Beers withdrew the warranty, federal warranty, negligent-misrepresentation, fraud, and injunctive-relief claims. The General Business Law and unjust-enrichment claims remained.

Legal standard

Mars Wrigley moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint states a legally plausible claim for relief. At this stage, the court accepts well-pleaded factual allegations as true but does not accept legal conclusions. For the New York General Business Law claims, Beers had to plausibly allege consumer-oriented conduct, a materially misleading act or practice, and resulting injury.

General Business Law claims

The court held that Beers had not plausibly alleged that the product’s labeling misled a reasonable consumer. Beers conceded that the coating contained milk chocolate made with cocoa butter. The ingredient list showed that milk chocolate was the coating’s leading ingredient, followed by semisweet chocolate, coconut oil, and palm oil. The court concluded that the label confirmed, rather than contradicted, the ingredient list.

The court also ruled that the phrase “with milk chocolate” and the words “silky smooth” did not communicate that the product contained only milk chocolate or contained no other ingredients. The label did not use terms such as “only,” “exclusively,” or “100% pure.” The court distinguished cases involving labels that suggested a product contained a greater proportion of a preferred ingredient than it actually did. Here, the label accurately identified milk chocolate as a prominent ingredient and did not claim that vegetable oils were absent.

The court rejected Beers’s reliance on a consumer survey because the amended complaint did not provide enough information about the survey’s questions or methodology. The court also reasoned that the survey allegation did not establish deception because the product did contain chocolate from cacao-derived ingredients; the presence of vegetable oil in the coating did not make the milk chocolate ingredient any less chocolate.

The court further found that Beers had not plausibly alleged that the vegetable oils replaced cocoa butter in the milk chocolate or that their use caused an unpleasant taste, waxy texture, or other product disappointment. The packaging made no health, nutrition, or satiety claims. The court therefore dismissed the claims under Sections 349 and 350 of the New York General Business Law. It did not reach Mars Wrigley’s separate argument that those claims were preempted by federal food-labeling law.

Unjust-enrichment claim

Under New York law, unjust enrichment generally requires enrichment at the plaintiff’s expense under circumstances making it inequitable for the defendant to keep the benefit. The court dismissed this claim because Beers did not explain how it was different from his other claims. The court noted that unjust-enrichment claims are routinely dismissed when they merely duplicate contract or tort claims, and that courts in the Second Circuit have consistently treated such claims as duplicative of New York General Business Law claims.

Leave to amend and disposition

The court declined to grant leave to amend. Beers had already amended once after receiving notice of Mars Wrigley’s anticipated dismissal arguments and the court’s observations at a pre-motion conference. He did not request another amendment or identify additional facts that would cure the pleading defects.

The court granted Mars Wrigley’s motion to dismiss, dismissed the remaining General Business Law and unjust-enrichment claims, declined to grant leave to amend, directed the clerk to terminate the pending motion, and ordered the case closed. The opinion does not state that the dismissal was with or without prejudice.