OPINION AND ORDER Plaintiff Deena Indiviglio brings this putative class action against defendant B&G Foods, Inc. (“B&G”), alleging a violation of the Magnuson-Moss Warranty Act, 15 U.S.C. §2301, et seq. (“MMWA”); violations of Sections 349 and 350 of New York’s General Business Law (“GBL”); violations of the consumer fraud acts of Alaska, Arkansas, Idaho, Iowa, Mississippi, North Carolina, North Dakota, Texas, Utah, Virginia, and Wyoming; breach of express warranty; breach of the implied warranty of merchantability/fitness for a particular purpose; and unjust enrichment. Plaintiff’s claims are all based on the assertion that the phrase “All Fruit” on the packaging of B&G’s Polaner-brand spreadable fruit is false and misleading. Now pending is defendant’s motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(6). (Doc. #8). For the reasons set forth below, the motion is GRANTED. The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§1331, 1332(d)(2). BACKGROUND For the purpose of ruling on the motion, the Court accepts as true all well-pleaded factual allegations in the complaint and draws all reasonable inferences in plaintiff’s favor, as summarized below. Defendant B&G “manufactures, markets, and sells” spreads, jams, preserves, marmalades, and jellies under its Polaner brand. (Doc. #1 (“Compl.”)
1, 27). At issue in this case are statements on the packaging of Polaner’s “All Fruit spreadable fruit” (the “Product”). The Product, which comes in a variety of flavors, displays on its front label the fruit contained in the spread and the words “All Fruit,” “Spreadable Fruit,” and “Sweetened Only with Fruit Juice,” as depicted below: (Compl. 2). As alleged in the complaint, the back label lists the Product’s ingredients, which include a particular fruit, juice concentrates, fruit pectin, citric acid, and natural flavor. (Compl. 6). An image of the ingredient list for the cherry-flavored Product is shown below: (Compl. 6). Plaintiff alleges the description “All Fruit” is false and misleading because neither citric acid nor natural flavor “can reasonably be described as fruit.” (Compl. 7). Plaintiff asserts the statement “Sweetened Only with Fruit Juice” furthers the false impression the Product contains only fruit ingredients. (Id. 13). Moreover, competitors allegedly sell products containing “all fruit ingredients,” so plaintiff contends consumers reasonably expect it is “technologically and economically feasible” to sell fruit products without any non-fruit ingredients. (Id. 12). Plaintiff purchased the Product “in 2021 and/or 2022″ at stores including a Shoprite location in New Rochelle, New York. (Compl. 30). Plaintiff alleges she purchased the Product in part because statements on its packaging led her to believe the Product contained “only fruit ingredients.” (Id. 31). Plaintiff asserts “[c]onsumers value fruit ingredients because these are generally less processed, more natural, and healthier than non-fruit ingredients.” (Id. 14). She contends that she and other similarly situated consumers would not have paid the retail price — $3.99 for a ten ounce jar — had they known the “representations and omissions” on the Product’s packaging were false and misleading. (Id. 16). DISCUSSION I. Standard of Review A. Rule 12(b)(1) A district court must dismiss an action pursuant to Rule 12(b)(1) “for lack of subject matter jurisdiction if the court lacks the statutory or constitutional power to adjudicate it.” Conn. Parents Union v. Russell-Tucker, 8 F.4th 167, 172 (2d Cir. 2021).1 When deciding a Rule 12(b)(1) motion at the pleading stage, the Court “must accept as true all material facts alleged in the complaint and draw all reasonable inferences in the plaintiff’s favor,” except for “argumentative inferences favorable to the party asserting jurisdiction.” Buday v. N.Y. Yankees P’ship, 486 F. App’x 894, 895 (2d Cir. 2012) (summary order). To the extent a Rule 12(b)(1) motion places jurisdictional facts in dispute, the district court must resolve the disputed jurisdictional fact issues by referring to evidence outside of the pleadings. Amidax Trading Grp. v. S.W.I.F.T. SCRL, 671 F.3d 140, 145 (2d Cir. 2011). In addition, when a defendant moves to dismiss for lack of subject matter jurisdiction and on other grounds, a court should consider the Rule 12(b)(1) challenge first. Rhulen Agency, Inc. v. Ala. Ins. Guar. Ass’n, 896 F.2d 674, 678 (2d Cir. 1990) B. Rule 12(b)(6) In deciding a Rule 12(b)(6) motion, the Court evaluates the sufficiency of the complaint under the “two-pronged approach” articulated by the Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). First, a plaintiff’s legal conclusions and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,” are not entitled to the assumption of truth and thus are not sufficient to withstand a motion to dismiss. Id. at 678; Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). Second, “[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. at 679. To survive a Rule 12(b)(6) motion, the allegations in the complaint must meet a standard of “plausibility.” Ashcroft v. Iqbal, 556 U.S. at 678; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 564 (2007). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 556). II. GBL Claims Defendant argues plaintiff has not sufficiently pleaded the Product’s packaging is false or materially misleading because she has not alleged the Product actually contains non-fruit ingredients. The Court agrees. A. Legal Standard GBL Section 349 prohibits “[d]eceptive acts or practices in the conduct of any business, trade or commerce,” and Section 350 prohibits “[f]alse advertising in the conduct of any business, trade or commerce.” N.Y. Gen. Bus. Law §§349(a), 350. To state a claim under either section, “a plaintiff must allege that a defendant has engaged in (1) consumer-oriented conduct that is (2) materially misleading and that (3) plaintiff suffered injury as a result of the allegedly deceptive act or practice.” Orlander v. Staples, Inc., 802 F.3d 289, 300 (2d Cir. 2015). “[I]n determining whether a reasonable consumer would have been misled by a particular advertisement, context is crucial.” Fink v. Time Warner Cable, 714 F.3d 739, 742 (2d Cir. 2013) (per curiam). “For example, under certain circumstances, the presence of a disclaimer or similar clarifying language may defeat a claim of deception.” Id. In other words, courts assess “each allegedly misleading statement in light of its context on the product label or advertisement as a whole,” contemplating “[t]he entire mosaic…rather than each tile separately.” Belfiore v. Procter & Gamble Co., 311 F.R.D. 29, 53 (E.D.N.Y. 2015). Moreover, plaintiff “must do more than plausibly allege that a label might conceivably be misunderstood by some few customers.” Twohig v. Shop-Rite Supermarket, Inc., 519 F. Supp. 3d 154, 160 (S.D.N.Y. 2021). Rather, she must assert “that a significant portion” of consumers, “acting reasonably in the circumstances, could be misled.” Id. Whether an advertisement is misleading to a reasonable consumer is generally a question of fact. See Lugones v. Pete & Gerry’s Organic, LLC, 440 F. Supp. 3d 226, 242 (S.D.N.Y. 2020). However, it is well settled a court may, in certain cases, determine advertising is not materially misleading as a matter of law. Fink v. Time Warner Cable, 714 F.3d at 741 (citing Oswego Laborers’ Local 213 Pension Fund v. Marine Midland Bank, N.A., 85 N.Y.2d 20, 26 (1995)). B. Analysis Plaintiff’s GBL claims must be dismissed because she has not adequately alleged the Product’s packaging contains any materially false or misleading statement. Plaintiff defines “fruit” as “the seed-associated fleshy structures or produce of plants that are sweet or sour and edible in the raw state.” (Compl. 3). Nonetheless, the appearance, description, and physical packaging of the Product patently reveals it does not contain solely whole, unaltered fruit in its natural state. No reasonable consumer would open a jar of the cherry-flavored Product and sincerely expect to find it full of raw cherries. See Weinstein v. eBay, Inc., 819 F. Supp. 2d 219, 228 (S.D.N.Y. 2011) (the reasonable consumer is not “the least sophisticated consumer” or one that lacks common sense). Indeed, plaintiff concedes “[f]ruits can be processed to make other products like spreads, jams and preserves.” (Compl. 4). Thus, the phrase “All Fruit spreadable fruit” tells a reasonable consumer the Product “will consist only of fruit ingredients,” as modified and processed to make the fruit spreadable. (Id. 6). In other words, “as long as the Product contains only fruit products in a form that can be distributed over an area or applied on a surface, the label would not be inherently misleading or confusing to a reasonable consumer.” Vitort v. Kroger Co., 2021 WL 6061864, at *2 (D. Or. Sept. 13, 2021), aff’d, 2023 WL 3143690 (9th Cir. Apr. 28, 2023). The crux of plaintiff’s argument is that neither citric acid nor natural flavor can reasonably be considered fruit ingredients because both may be derived from sources other than fruit. As discussed below, this is unavailing. 1. Citric Acid Plaintiff alleges “[c]itric acid is an organic acid in a variety of fruits, especially citrus.” (Compl. 8). Thus, under plaintiff’s own definition, citric acid is a fruit product. This is consistent with plaintiff’s allegations that fruit pectin and juice concentrates — also fruit derivatives — “can reasonably be described as fruit.” (Id. 7). Nonetheless, plaintiff alleges that when “industry” uses citric acid as an ingredient in other foods, the acid is not derived from fruit but rather “industrially produced by fermentation from the fungus Aspergillus niger.” (Compl.
