SUMMARY ORDER Plaintiff Abraham Jacob Warner brings this diversity-based putative class-action for deceptive practices,1 false advertising,2 dealing in misbranded food,3 and unjust enrichment, under New York law, based on defendant StarKist Co.’s use of a “Heart-Check Mark” on certain seafood products without disclosing that the mark is a paid endorsement by the American Heart Association (AHA). (Compl., Dkt. No. 1
4-5, 17-30, 69-117.) Pending is StarKist’s motion to dismiss, (Dkt. No. 10), which is granted in part and denied in part as follows.1. Deceptive Practices and False Advertising Claims[N.Y. Gen. Bus. (GBL) §] 349 prohibits [d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state. [GBL §] 350 prohibits [f]alse advertising in the conduct of any business, trade or commerce or in the furnishing of any service in this state. To successfully assert a claim under either section, a plaintiff must allege that a defendant has 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.Orlander v. Staples, Inc., 802 F.3d 289, 300 (2d Cir. 2015) (citing Koch v. Acker, Merrall & Condit Co., 18 N.Y.3d 940, 944 (2012)) (internal quotation marks omitted). To determine whether a defendant’s conduct is “materially misleading,” New York has adopted an objective test that considers “whether representations or omissions [are] likely to mislead a reasonable consumer acting reasonably under the circumstances.” Oswego Laborers’ Local 214 Pension Fund v Marine Midland Bank, N.A., 85 N.Y.2d 20, 26 (1995). “Such a test…may be determined as a matter of law or fact (as individual cases require)[.]” Id.Here, the specific portion of StarKist’s disputed label depicts a white check-mark in the center of a red heart and is accompanied by the following statement: “American Heart Association — CERTIFIED — Meets Criteria For Heart-Healthy Food.” (Dkt. No. 10, Attach. 4 at 8; Compl. 51.4) StarKist argues that placement of the Heart-Check Mark on its products is not materially misleading because the information it conveys is accurate. (Dkt. No. 10, Attach. 4 at 7-9.) However, as Warner points out, (Dkt. No. 17 at 16), the complaint also alleges that the labeling is misleading because StarKist does not disclose that it paid the AHA to place the mark on its products.5 (Compl.
