A food manufacturer sold a “Stoneground Wheat Cracker” which stated “ORGANIC WHOLE WHEAT FLOUR” on the bottom of the package. Plaintiffs brought a class action lawsuit claiming that the label misled them to believe that the product primarily contained whole wheat flour as opposed to enriched wheat flour. The plaintiffs alleged this violated New York law prohibiting deceptive practices and false advertising. N.Y. Gen. Bus. §§ 349-350. The manufacturer filed a motion to dismiss.

To succeed on a claim for deceptive practices and false advertising, the plaintiff must show that product’s label is “likely to mislead a reasonable consumer acting reasonably under the circumstances.” Bynum v. Fam. Dollar Stores, Inc., 592 F. Supp. 3d 304, 310 (S.D.N.Y. 2022). If a label is ambiguous, but any uncertainty can be answered on the ingredient label, then a reasonable consumer would not be misled. Here, the phrase “ORGANIC WHOLE WHEAT FLOUR” was in small letters next to the phrase “ORGANIC WHOLE BROWN FLAX SEED & SEA SALT.” Compare Mantikas v. Kellogg Co., 910 F.3d 633, 636 (2d Cir. 2018). This ambiguity of whether the product contained whole wheat rather than enriched wheat flour could have been resolved by reading the nutrition label. Because a reasonable consumer would not have been misled, the court granted the manufacturer’s motion to dismiss. 

Venticinque v. Back to Nature Foods Co. LLC, 2023 WL 5055034 (S.D. New York, Aug. 8, 2023).