Movie buffs may recite multiple comedic movies including a “no MSG” line in the script, but because of consumer preferences many food manufacturers do prominently label their products as “No MSG” or “No Added MSG.” Plaintiff in Henry v. Nissin Foods (U.S.A.) Co. Inc., No. 22CV363NGGRER, 2023 WL 2562214, at *1 (E.D.N.Y. Mar. 17, 2023), brought various claims against Defendant Nissin Foods over such a use of the phase “No Added MSG” in relation to certain products that it manufactures and sells. She sought relief on behalf of herself and a proposed class of similarly situated purchasers of Defendant’s products, asserting claims for (i) violation of various state consumer protection statutes; (ii) deceptive business practices under N.Y. G.B.L. § 349; (iii) deceptive advertising under N.Y. G.B.L. § 350; (iv) breach of express warranty; and (v) breach of the Magnuson-Moss Warranty Act. Defendant moved to dismiss Plaintiff’s Complaint in its entirety for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). The Court dismissed the complaint using an oft overlooked common sense point worth a note here.

The parties primarily disputed whether a reasonable consumer would be misled by the “No Added MSG” label and the Products’ packaging. According to Defendant, no reasonable consumer would be confused by the packaging] because: 1) no MSG is actually added to the Products, 2) the Products contain a Disclaimer right next to the phase No Added MSG, which informs consumers that the Products do in fact contain naturally occurring glutamates. Plaintiff countered that a reasonable consumer would understand the “No Added MSG” label to mean that Defendant does not even add free glutamates to the Products.

Whether or not a reasonable consumer would be misled by the allegedly deceptive packaging is a question of law that can be decided by a court at motion to dismiss. It is not a question of fact. Mere allegations in a complaint that a statement would mislead a reasonable consumer do not satisfy a plaintiff’s burden at the pleading stage. See, e.g., Wynn v. Topco Asscs., LLC, No. 19-CV-11104 (RA), 2021 WL 168541, at *3 (S.D.N.Y. Jan. 19, 2021). Courts in the 2d Circuit have regularly dismissed GBL claims when warranted considering the alleged facts. See, e.g., Warren v. Whole Foods Mkt. Grp., Inc., 574 F. Supp. 3d 102, 117 (E.D.N.Y. 2021); Boswell v. Bimbo Bakeries USA, Inc., 570 F. Supp. 3d 89, 96 (S.D.N.Y. 2021); Davis v. Hain Celestial Grp., Inc., 297 F. Supp. 3d 327, 337 (E.D.N.Y. 2018); Engram v. GSK Consumer Healthcare Holdings (US) Inc., No. 19-CV-2886 (EK) (PK), 2021 WL 4502439, at *1 (E.D.N.Y. Sept. 30, 2021).

Materially misleading representations are those likely to mislead a reasonable consumer acting reasonably under the circumstances. This inquiry is objective. Cohen v. JPMorgan Chase & Co., 498 F.3d 111, 126 (2d Cir. 2007). Courts view each allegedly misleading statement in light of its context on the product label or advertisement as a whole. The entire mosaic is viewed rather than each tile separately. Belfiore v. Proctor & Gamble Co., 311 F.R.D. 29, 53 (E.D.N.Y. 2015).

Here Plaintiff’s argument on the allegedly misleading nature of the “No Added MSG” label rests in large part on FDA guidance and statements. Plaintiff acknowledged that FDA guidance on terminology has been disregarded in certain cases but argued that this has only occurred where the regulations at issue are “hyper-technical.” But this distinction has not been recognized in caselaw. See, e.g., Warren, 574 F. Supp. 3d at 113-14 (finding FDA regulations to be inapplicable to the reasonable consumer analysis under N.Y. G.B.L. §§ 349 and 350); Garadi v. Mars Wrigley Confectionery US, LLC, No. 19-CV-3209 (RJD) (ST), 2021 WL 2843137, at *3 (declining to consider FDA regulations in the context of evaluating claims under N.Y. G.B.L. §§ 349 and 350). It is also unclear which FDA regulations are so “hyper-technical” as to be unrelated to the views of reasonable consumers, and which are not. In the court’s view here, such a determination would be difficult to ascertain. Many FDA regulations involve some degree of technical expertise.

Moreover, the notion of “misleading” under the Federal Food, Drug, and Cosmetic Act is not the same as “materially misleading” under state consumer protection statutes, such as N.Y. G.B.L. §§ 349 and 350. Under the FDCA, “in determining whether the labeling or advertising is misleading there shall be taken into account … not only representations made or suggested by statement, word, design, device, or any combination thereof, but also the extent to which the labeling or advertising fails to reveal facts material in the light of such representations or material with respect to consequences which may result from the use of the article.” 21 U.S.C. § 321(n); see also 21 U.S.C. § 343(a). But the New York Court of Appeals has prescribed a much different meaning for the term “materially misleading”—that which is likely to mislead a reasonable consumer acting reasonably under the circumstances. Orlander, 802 F.3d at 300. The term “reasonable consumer” appears nowhere in the FDCA’s definition of “misleading.” Other courts in the 2d Circuit have reached the same conclusion. See Warren, 574 F. Supp. 3d at 113 (“The FDA and New York law apply different standards.”); Steele v. Wegmans Food Mkts., Inc., 472 F. Supp. 3d 47, 49 (S.D.N.Y. 2020) (“[T]he extensive discussion and argument in the motion papers with respect to particular federal standards for ice cream flavor descriptions is without consequence.”); Daniel v. Mondelēz Int’l, Inc., 287 F. Supp. 3d 177, 190 (E.D.N.Y. 2018); see also Bush v. Mondelēz Int’l, Inc., No. 16-CV-02460 (RS), 2016 WL 7324990, at *3 (N.D. Cal. Dec. 16, 2016).

So out went the reliance on the FDA’s statements on the term “No Additional MSG” in determining whether Plaintiff has pleaded sufficient facts as to the reasonable consumer inquiry. Even if on its face the no added language could be misleading in terms of whether it meant during the production process or after the production process, the court looked to the disclaimer next to the “No Added MSG” label to determine if it corrects the alleged misconception created by the label. ““[I]n determining whether a reasonable consumer would have been misled by a particular advertisement, “Context is crucial … under certain circumstances, the presence of a disclaimer or similar clarifying language may defeat a claim of deception.” Fink, 714 F.3d at 742; see also Nelson v. MillerCoors, LLC, 246 F. Supp. 3d 666, 674-75 (E.D.N.Y. 2017). Here, the Products’ packaging included the disclaimer: “contains small amounts of naturally occurring glutamates.” It was on the front of the packaging right next to the “No Added MSG” label. It is in the same white, capitalized lettering as the labels at issue, although in smaller font. The disclaimer was also linked to the “No Added MSG” label by an asterisk. This asterisk puts consumers on notice that the packaging contains related additional information. A reasonable consumer would not miss it. Concluding otherwise would “attribute[ ] to consumers a level of stupidity that the Court cannot countenance.” See Kommar v. Bayer Consumer Health, 252 F. Supp. 3d 304, 312 (S.D.N.Y. 2017).
Plaintiff’s proffered interpretation of the label—no free glutamates whatsoever—directly conflicts with the disclaimer, which states that natural glutamates are in fact present.

As is often the case, Plaintiff twisted herself in circles to try to escape the motion. She contended that the disclaimer does not cure the misconception left by the label for consumers who seek to avoid MSG because they are unaware that the term “free glutamate” means the same thing. Yet the Complaint specifically alleged that “to consumers, MSG means free glutamate” and that “the only reason a consumer might want to avoid consuming foods that contain MSG is if they want to avoid consuming free glutamates.” Of course, any consumer who is unaware that MSG and free glutamates refer to the same thing, as alleged, could not be misled in the first place.

Therefore, the court found that the disclaimer clarified any alleged incorrect impression created by the “No Added MSG” label and that a reasonable consumer would not be misled to believe that the Products do not contain free glutamates. They would reach this conclusion without being forced to consult the ingredient panel on the Products’ packaging. Complaint dismissed with prejudice.

Photo of Sean Wajert Sean Wajert

Sean P. Wajert is a partner at Shook, Hardy & Bacon LLP, and the Managing Partner of Shook’s Philadelphia office.  He concentrates his complex litigation practice on the defense of companies from a variety of industries, including the chemical, consumer product, drug and…

Sean P. Wajert is a partner at Shook, Hardy & Bacon LLP, and the Managing Partner of Shook’s Philadelphia office.  He concentrates his complex litigation practice on the defense of companies from a variety of industries, including the chemical, consumer product, drug and medical device industries.  His practice focuses on complex commercial litigation, mass tort, toxic tort and product liability litigation, and appellate work. For a decade he served as Chair of the Products Liability Group of his prior firm.  Sean also taught complex litigation issues for ten years as a Lecturer-in-Law at the University of Pennsylvania Law School.