DECISION AND ORDER INTRODUCTION Plaintiff Patricia Donadio (“Plaintiff”) brings this putative class action against defendant Bayer HealthCare LLC (“Defendant”), alleging that it has deceptively marketed Alka-Setzer Plus brand nighttime “Severe Cold & Flu” mix-in powder packets. (Dkt. 17). Plaintiff alleges that the phrase “Honey Lemon Zest,” accompanied by images of a lemon wedge and a honey dipper, creates the misleading impression that the medicine contains “honey and lemon ingredients beyond a de minimis amount.” (Dkt. 17 at 32). Based on these allegations, Plaintiff asserts claims for: (1) violation of New York General Business Law (“GBL”) §§349 and 350; (2) violation of “[t]he Consumer Fraud Acts” of the states of Kansas, New Mexico, Utah, Idaho, North Dakota, West Virginia, Montana, Mississippi, and Arkansas; (3) breaches of express warranty, the implied warranty of merchantability/fitness for a particular purpose, and the Magnuson Moss Warrant Act, 15 U.S.C. §§2301 et seq.; and (4) fraud. (Id. at
40, 47-67). Defendant has moved to dismiss Plaintiff’s amended complaint. (Dkt. 22). For the reasons that follow, Defendant’s motion is granted. FACTUAL BACKGROUND Defendant manufactures and sells Alka-Setzer Plus brand nighttime mix-in powder packets for relief of “Severe Cold & Flu” (the “Product”). (Dkt. 17 at 1). The Product comes in a package with the phrase “Honey Lemon Zest” on the front, accompanied by images of a lemon wedge and a honey dipper. (Id.). The front of the package also contains a list of active ingredients, in a different area, and on a different colored background. (Id.). The active ingredients listed on the front of the package are acetaminophen, doxylamine succinate, phenylephrine hydrochloride, and dextromethorphan hydrobromide. (Id.). “[T]he full active and inactive ingredient lists on the reverse side of the packaging reveal the absence of honey and any lemon ingredients.” (Id. at 16). Plaintiff alleges that: Notwithstanding the front label disclosure of active ingredients, the Product’s front label emphasis on honey and lemon through the wedge of fresh lemon and dripping honey dipper, described as ‘Honey Lemon Zest’ next to a cup of steaming tea creates an impression of value on honey and lemon greater than their true functional role in the formulation, because these are inactive ingredients and present in de minimis amounts. (Id. at 13 (quotation and alteration omitted)). “Other cold and cough products that do not contain honey and lemon ingredients may contain pictures of a honey dipper and lemon wedge, but disclose on their front labels this only means they have ‘Honey Lemon Flavors.’” (Id. at 12). PROCEDURAL BACKGROUND Plaintiff filed her original complaint on November 21, 2022. (Dkt. 1). Defendant moved to dismiss the original complaint (Dkt. 13), and the Court afforded Plaintiff an opportunity to file an amended complaint “curing the alleged defects” (Dkt. 15). Plaintiff thereafter filed the amended complaint, which is the operative pleading. (Dkt. 17). Defendant filed the instant motion seeking dismissal of the amended complaint (Dkt. 22), which Plaintiff has opposed (Dkt. 23). Briefing was completed on July 12, 2023, when Defendant filed a reply. (Dkt. 24). DISCUSSION I. Legal Standard — Rule 12(b)(6) “In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a district court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint.” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). A court should consider the motion by “accepting all factual allegations as true and drawing all reasonable inferences in favor of the plaintiff.” Trs. of Upstate N.Y. Eng’rs Pension Fund v. Ivy Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016). To withstand dismissal, a claimant must set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Turkmen v. Ashcroft, 589 F.3d 542, 546 (2d Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (internal quotations and citations omitted). “To state a plausible claim, the complaint’s ‘[f]actual allegations must be enough to raise a right to relief above the speculative level.’” Nielsen v. AECOM Tech. Corp., 762 F.3d 214, 218 (2d Cir. 2014) (quoting Twombly, 550 U.S. at 555). II. Plaintiff’s Claims As noted above, Plaintiff’s amended complaint contains the following claims: (1) violation of GBL §§349 and 350; (2) violation of “[t]he Consumer Fraud Acts” of the states of Kansas, New Mexico, Utah, Idaho, North Dakota, West Virginia, Montana, Mississippi, and Arkansas; (3) breaches of express warranty, the implied warranty of merchantability/fitness for a particular purpose, and the Magnuson Moss Warranty Act; and (4) fraud. (Dkt. 17 at
