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Lima v. Post Consumer Brands, LLC

United States District Court, D. Massachusetts

August 13, 2019

ANITA S. LIMA and SUSAN WRUBLEWSKI, individually and on behalf of others similarly situated, Plaintiffs,
v.
POST CONSUMER BRANDS, LLC, Defendant.

          MEMORANDUM AND ORDER ON MOTIONS TO DISMISS

          ALLISON D. BURROUGHS, U.S. DISTRICT JUDGE

         This putative class action concerns the allegedly deceptive advertising and packaging of Defendant Post Consumer Brands LLC's (“Post”) Honey Bunches of Oats cereal. Anita S. Lima and Susan Wrublewski (“Plaintiffs”) claim that Post breached express warranties, violated numerous state consumer protection statutes, and unjustly enriched itself by creating the impression that Honey Bunches of Oats was primarily sweetened with honey, when it is in fact primarily sweetened with sugar, brown sugar, and corn syrup. See [ECF No. 25 (“Amended Complaint” or “Am. Compl.”) ¶¶ 20-39, 57-103]. Presently before the Court is Post's motion to dismiss for failure to state a claim. [ECF No. 29]. For the reasons discussed herein, the motion to dismiss [ECF No. 29] is GRANTED and the Amended Complaint is dismissed with prejudice.

         I. BACKGROUND

         The following facts are drawn from the Amended Complaint, the well-pleaded allegations of which are taken as true for the purposes of evaluating the motion to dismiss. See Ruivo v. Wells Fargo Bank, N.A., 766 F.3d 87, 90 (1st Cir. 2014). Certain details are also culled from documents and product packaging referred to in the Amended Complaint. See Alvarez-Mauras v. Banco Popular of P.R., 919 F.3d 617, 622 (1st Cir. 2019).

         Post is a Delaware limited liability company that is headquartered in Minnesota. Am. Compl. at 1, ¶ 3. It manufactures and sells several varieties of cereal under the registered trademark “Honey Bunches of Oats.” U.S. Patent & Trademark Office, Honey Bunches of Oats, Registration No. 1575358, http://tmsearch.uspto.gov/. Plaintiffs are Massachusetts residents who purchased Honey Bunches of Oats with Almonds under the mistaken belief that honey was the cereal's exclusive or primary sweetener. Am. Compl. ¶¶ 40-45. Although the ingredient lists on the side or back of the packaging at issue listed honey as the fifth most prominent sweetener, Plaintiffs did not look at the ingredient lists and instead believed that the cereal was primarily sweetened with honey based on “several television commercials” that “emphasized the presence of honey” and Post's “branding and packaging.” Id. ¶¶ 28, 42, 44. Specifically, Plaintiffs relied on the appearance of Honey Bunches of Oats with Almonds to-go cups and cereal boxes like those pictured below:

         (Image Omitted)

         Id. ¶¶ 23-24; [ECF No. 30-2].[1] As shown above, the Honey Bunches of Oats with Almonds packaging includes an image of the sun, a wooden honey dipper dripping with honey, and the outline of a bee trailing a broken line to indicate flight. Am. Compl. ¶ 22.[2]

         The ingredient list on the side of Honey Bunches of Oats with Almonds cereal boxes discloses that honey is the least prominent of the sweetening ingredients used in the cereal:

         (Image Omitted)

         [ECF No. 30-2 at 2]; see also Am. Compl. ¶ 28.[3] Plaintiffs do not dispute the accuracy of the ingredient list or claim that Post makes any objectively false representations about the amount of honey, and agree that the cereal contains some honey. Am. Compl. ¶ 27. They assert, however, that the cereal's honey content relative to other sweeteners is far less than Post's packaging and marketing led them to expect. See id ¶¶ 28, 41, 44; see also 21 C.F.R § 101.4 (generally requiring ingredients to be listed "in descending order of predominance by weight").

         Surveys show that most consumers believe honey is "better for you than sugar" and that approximately half of consumers are willing to pay more for foods that are primarily sweetened with honey. Am. Compl. ¶¶ 14-15. As such, Plaintiffs claim that they suffered economic harm when they purchased Honey Bunches of Oats with Almonds because its value was materially less than Post's marketing implied. Id ¶¶ 19, 41-45.

         Plaintiffs filed this lawsuit on October 5, 2018 and their Amended Complaint on February 8, 2019. [ECF No. 1]; Am. Compl. The Amended Complaint brings claims on behalf of the following five putative classes of consumers who purchased some variety of Honey Bunches of Oats cereal:

The Nationwide Class. All persons who, on or after October 6, 2012, purchased the Products for personal, family, or household purposes in the United States.
The Injunctive Relief Class. All persons who, on or after October 6, 2012, purchased the Products for personal, family or household purposes in the United States.
The Multistate UDAP Class. All persons who, within the relevant limitations periods, purchased the Products for personal, family, or household purposes in Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, the District of Columbia, Florida, Hawaii, Idaho, Iowa, Kansas, Maine, Massachusetts, Minnesota, Missouri, Nebraska, New Hampshire, New Jersey, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Texas, Utah, Vermont, Virginia, Washington, West Virginia, and Wyoming.
The Multistate Warranty Class. All persons who, within the relevant limitations periods, purchased the products for personal, family, or household purposes in Alaska, Arizona, California, Colorado, Connecticut, Delaware, the District of Columbia, Florida, Georgia, Hawaii, Illinois, Indiana, Kansas, Louisiana, Massachusetts, Michigan, Minnesota, Missouri, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, and Wyoming.
The Massachusetts Class. All persons who, within the relevant limitations periods, purchased the products for personal, family, or household purposes in Massachusetts.

         Am. Compl. ¶¶ 46-50. Plaintiffs assert the following claims:

• Count I: Violations of the Minnesota Consumer Fraud Act on behalf of the Plaintiffs and the Nationwide Class.
• Count II: Breach of express warranty on behalf of Plaintiffs and the Nationwide Class.
• Count III: Unjust enrichment on behalf of Plaintiffs and the Nationwide Class.
• Count IV: Violations of specified states' consumer protection statutes on behalf of Plaintiffs and the Multistate UDAP
• Count V: Violations of specified states' express warranty statutes on behalf of Plaintiffs and the Multistate Warranty Class.
• Count VI: Violations of the Massachusetts Consumer Protection Act, Massachusetts General Laws ch. 93A, on behalf ...

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