In Libman v. Hershey Co., 2025 N.Y. Slip Op. 31769(U), (Sup. Ct., N.Y. County May 5, 2025) (here), the motion court was asked to consider whether a front-of-the-package label on the Twizzlers candy wrapper violated General Business Law (“GBL”) §§ 349 and 350.
Front-of-package labels are labels that manufacturers put on the front of packaged foods to give consumers basic nutrition information in a way that is easy to understand and allows them to compare different products more efficiently and effectively. These labels typically highlight when foods contain high levels of nutrients that are commonly overconsumed and linked to adverse health outcomes (e.g., sodium, added sugar, and saturated fat). By contrast, the nutritional facts label on the back of the packaging provides comprehensive nutrition information per serving for the product. It includes all nutrients, serving size, and % Daily Value, and is intended to help consumers understand the nutritional content of a specific food and how it fits into their overall diet. Thus, while front-of-package labeling focuses on key nutrients (like saturated fat, sodium, and added sugars) and may use a “Low,” “Med,” or “High” scale for easy understanding, the nutrition facts label provides comprehensive nutrition information per serving for the product.
GBL Section 349 prohibits “[d]eceptive acts or practices,” and Section 350 bars “[f]alse advertising.” To plead a cause of action under either section, a plaintiff must allege that the defendant “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.”[1]
Notably, the deceptive practice does not have to rise to “the level of common-law fraud to be actionable under section 349.”[2] In fact, “[a]lthough General Business Law § 349 claims have been aptly characterized as similar to fraud claims, they are critically different.”[3] For example, while reliance is an element of a fraud claim, it is not an element of a GBL § 349 claim.[4]
Whether a statement is misleading is governed by an objective reasonable consumer standard. Under that standard, the statement must be “likely to mislead a reasonable consumer acting reasonably under the circumstances.”[5] “Accordingly, “plaintiffs must do more than plausibly allege that a label might conceivably be misunderstood by some few consumers.”[6] Instead, “[p]laintiffs must plausibly allege that a significant portion of the general consuming public or of targeted customers, acting reasonably in the circumstances, could be misled.”[7] “[A] court may determine as a matter of law that an allegedly deceptive advertisement would not have misled a reasonable consumer.”[8]
“[I]n determining whether a reasonable consumer would have been misled by a particular advertisement, context is crucial.”[9] Relevant to today’s article, courts examining allegedly misleading product claims will rely on common-sense observations and judicial experience.[10] “Courts have also found that the presence of a disclaimer or similar clarifying language, such as a Nutrition Fact Panel, may defeat a claim of deception.”[11] “Thus, where the allegedly deceptive practice is fully disclosed, there is no deception claim.”[12]
Finally, a plaintiff must prove “actual” injury to recover under the statutes, though not necessarily pecuniary harm.[13] And, the plaintiff must prove the deceptive act caused the injury.[14]
Libman v. Hershey Company
Libman was brought as a putative class action in which plaintiffs asserted claims for deceptive business practices and false advertising pursuant to GBL §§ 349 and 350 on behalf of a proposed class of New York State consumers who purchased strawberry-flavored Twizzlers King-Size Candy (“Twizzlers”), which is produced by defendant. Plaintiffs alleged that the front-of-the-package branding of Twizzlers as a “low fat snack” mislead consumers into believing that Twizzlers is “specially made or altered” to be low fat and that the product is not just low fat but also low sugar.
Defendant moved, pre-answer, to dismiss the amended complaint pursuant to CPLR 321l(a)(7) (i.e., failure to state a claim). Plaintiff opposed the motion. As discussed below, the motion court granted the motion.
Plaintiff alleged that the front-of-the-package branding of Twizzlers as a “low fat snack” is misleading to consumers as it lulls them into believing the candy is “specially made or altered” to be low fat and that the candy is also low sugar. Plaintiffs admitted, however, that Twizzlers is “low fat,’ containing zero grams of “Total Fat,” as accurately reflected in the Nutrition Facts label on the reverse side of the product packaging.
The motion court ruled that plaintiffs failed to adequately allege facts demonstrating that reasonable consumers were likely to be misled in the manner they claimed.[15]
The motion court noted that the “specially made or altered” claim was premised on an alleged technical violation of an FDA food-labelling regulation that allows for the use of “low fat” on food labels, but requires additional disclosure language on the label “[i]f the food meets these conditions without the benefit of special processing, alteration, formulation, or reformulation to lower fat content.”[16] The motion court further noted that “private plaintiffs are not authorized to sue for violations of the Federal Food, Drug, and Cosmetic Act, FDA regulations, or identical New York labeling requirements under New York’s Agriculture and Markets Law.[17] Thus, concluded the motion court, plaintiffs’ claim, that the Twizzlers’ packaging violated the FDA’s food-labelling regulation because it omitted the required additional disclosure language despite being a type of candy that is inherently low fat without any special alteration, had to be dismissed.
Turning to the GBL allegations, the motion court held that plaintiffs failed to allege “facts sufficient to allow a reasonable inference that the labeling of Twizzlers as a ‘low fat snack’ constitute[d] false advertising or a deceptive business practice.”[18] The motion court explained that plaintiffs did not “allege that reasonable consumers [were] aware of the federal regulation, much less that they incorporate[d] the regulation into their day-to-day marketplace expectations.”[19] Similarly, said the motion court, plaintiffs failed to “supply extrinsic evidence that the perceptions of ordinary consumers align[ed] with the FDA’s labeling standards, such that they would understand any product labelled as a ‘low fat snack’ as having been ‘specially made or altered’ to be low fat absent the regulation’s additional disclosure language.”[20] In facts, noted the motion court, “plaintiffs concede[d] that reasonable consumers [understood] that Twizzlers is ‘candy,’ as is … expressly stated on the front of the product’s packaging.”[21] Accordingly, concluded the motion court, “it is beyond cavil that reasonable consumers understand that candy, as a category, is not inherently low fat.”[22]
With respect to plaintiffs’ other theory of liability – that “low fat snack” is likely to mislead consumers into thinking that Twizzlers are also low sugar – the motion court found that plaintiffs made several concessions that were fatal to their claims under GBL 349 and 350.[23]For example, plaintiffs conceded “that: Twizzlers does not expressly market itself as ‘low sugar’; the Nutrition Facts and Ingredient List included on the product packaging accurately disclose[d] its total and per-serving added sugar content and percentage Daily Value of added sugars; the front of the product packaging describes the product as ‘candy’; and reasonable consumers understand that Twizzlers is ‘candy’ made from sugar.”[24] “These concessions,” concluded the motion court, were “fatal to plaintiffs’ claim, as no reasonable consumer, understanding that Twizzlers is candy made from sugar, would reasonably assume the product was low in sugar absent any express claim to that effect, especially given the accurate disclosure of the product’s sugar content on the reverse side of the product packaging.”[25]
[1] Koch v. Acker, Merrall & Condit Co., 18 N.Y.3d 940, 941 (2012); Goshen v. Mut. Life Ins. Co. of New York, 98 N.Y.2d 314, 324 n.l (2002) (explaining the “standard for recovery under [GBL] § 350, while specific to false advertising, is otherwise identical to section 349”).
[2] Boule v. Hutton, 328 F.3d 84, 94 (2d Cir. 2003) (citing Gaidon v. Guardian Life Ins. Co., 94 N.Y.2d 330, 343 (1999)).
[3] Gaidon, 94 N.Y.2d at 343.
[4] Stutman v. Chemical Bank, 95 N.Y.2d 24, 29 (2000); Small v. Lorillard Tobacco Co., 94 N.Y.2d 43, 55-56 (1999).
[5] Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20, 26 (1995).
[6] Jessani v. Monini N. Am., Inc., 744 Fed. App’x 18, 19 (2d Cir. 2018).
[7] Id.
[8] Fink v. Time Warner Cable, 714 F.3d 739, 741 (2d Cir. 2013) (citing Oswego, 85 N.Y.2d at 26).
[9] Id. at 742.
[10] See, e.g., Warren v. Coca-Cola Co., 670 F. Supp. 3d 72, 80-83 (S.D.N.Y. 2023).
[11] Mazella v. Coca-Cola Co., 548 F. Supp. 3d 349, 357 (S.D.N.Y. 2021).
[12] Id. (citing Broder v. MBNA Corp., 281 A.D.2d 369, 371 (1st Dept. 2001).
[13] Stutman v. Chemical Bank, 95 N.Y.2d 24, 29 (2000); Oswego, 85 N.Y.2d at 26.
[14] Id.; Oswego, 85 N.Y.2d at 26.
[15] Slip at *3.
[16] Id. (quoting 21 C.F.R. § 101.62(b)(2)(ii)) (internal quotation marks omitted).
[17] Id. (citing 21 U.S.C. § 337(a); Steele v. Wegmans Food Markets, Inc., 472 F. Supp. 3d 47, 49 (S.D.N.Y. 2020)).
[18] Id.
[19] Id.
[20] Id. at *3-*4 (citing Warren v. Whole Foods Mkt. Grp., Inc., 574 F. Supp. 3d 102, 113-14 (E.D.N.Y. 2021); N. Am. Olive Oil Ass’n v. Kangadis Food Inc., 962 F. Supp. 2d 514, 519 (S.D.N.Y. 2013); Wynn v. Topco Assocs., LLC, No. 19-CV-11104 (RA), 2021 WL 168541, at *3 ([S.D.N.Y. Jan. 19, 2021)).
[21] Id. at *4.
[22] Id.
[23] Id.
[24] Id.
[25] Id.
