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The deceptive advertising claims brought by two Manhattan business partners against the manufacturer of a sports nutrition bar are not preempted by a federal nutritional labeling act, a state appellate court ruled Thursday. The Appellate Division, 1st Department, in Morelli v. Weider Nutrition Group Inc., 1549, unanimously affirmed Justice Barry Cozier’s decision denying the Weider Nutrition Group’s motion to dismiss the complaint by Michael Morelli and his partner alleging that Weider’s “Steel Bar” contained more fat, sodium and sugar, and fewer vitamins and minerals than its label indicated. The business partners had both tried the sports nutrition bars, one because he was a runner and the other because he was trying to lose weight, their attorney said. They then sued the manufacturer under New York’s General Business Law Sections 349 and 350, which bars deceptive and misleading business practices, after they allegedly discovered that the product did not live up to its label, according to their attorney, Saul Roffe of Sirota & Sirota’s New York office. Justice Cozier in Supreme Court, New York County, denied Weider’s motion to dismiss for lack of subject matter jurisdiction based on its argument that the state law claims were preempted by the Federal Nutritional Labeling and Education Act (NLEA). The five-judge appellate panel said in its unsigned opinion that the General Business Law sections did not conflict with the federal law’s preemptive provision, “which bars states from enacting requirements for food in interstate commerce that are not identical to those prescribed in the NLEA.” The businessmen did not seek to impose liability for conduct sanctioned by the federal law, and the fact that the remedy they sought was consistent with the federal statute did not render their claim an action to enforce the NLEA, which may only be commenced by the federal government, the appellate panel said. The relief they sought was limited to that provided under the state statute, the panel observed. “We perceive no reason to suppose that, in committing the power to enforce the NLEA to the federal government, Congress intended to limit a state’s otherwise undoubted power to afford consumers within its borders a statutory remedy for injuries caused by knowingly deceptive and misleading business practices where, as here, such remedy in no way interferes with the federal prerogative to promulgate and enforce uniform food labeling standards,” the court said. The appellate panel also agreed with Cozier that the proper statute of limitations for the Section 349 claims was three years, not six years as provided for general fraud claims. He had ruled that the plaintiffs’ claims accruing before March 23, 1996, were time-barred. Justices Milton L. Williams, Peter Tom, Alfred D. Lerner, Richard T. Andrias and David Friedman formed the appellate panel. Roffe was assisted on the appeal by Barry Baskin of Farrow, Bramson Baskin & Plutzik in Walnut Creek, Calif. Alexandra A.E. Shapiro, Blair G. Connelly and James E. Brandt of Latham & Watkins handled the appeal for Weider Nutrition Group.

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