OPINION AND ORDER Plaintiffs Tom Sabatano and Daniel Barzoloski bring this putative class action on behalf of themselves and all others similarly situated against defendant Iovate Health Sciences U.S.A. Inc. a/k/a Muscletech (“Iovate”). Plaintiffs bring claims under the Magnuson-Moss Warranty Act, 15 U.S.C. §§2301(1) et seq., the California Consumers Legal Remedies Act (“CLRA”), Cal. Civ. Code §§1750 et seq., the California Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code §§17200 et seq., the California False Advertising Law (“FAL”), Cal. Bus. & Prof. Code §§17500 et seq., and the N.Y. Gen. Bus. Law §§349, 350. Plaintiffs also bring claims for breach of warranty, unjust enrichment, and fraud. Now pending is defendant’s motion to dismiss the amended complaint under Rule 12(b)(6). (Doc. #15). For the following reasons, the motion is GRANTED IN PART and DENIED IN PART. The Court has subject matter jurisdiction pursuant to 28 U.S.C. §1332(d). BACKGROUND For the purpose of ruling on the motion to dismiss, the Court accepts as true all well-pleaded allegations in the amended complaint and draws all reasonable inferences in plaintiffs’ favor, as summarized below. Defendant, a Delaware corporation, manufactures, packages, and sells the dietary supplement Platinum 100 percent BCAA1 8:1:1 (“Platinum BCAA”).2 Plaintiffs allege Platinum BCAA purports to facilitate muscle growth through the consumption of three essential amino acids (“EEAs”) — leucine, valine, and isoleucine. (See Doc. #5 (“Am. Compl.”)
1-4). According to plaintiffs, there exist nine EEAs in total, and building muscle requires all of them, not just leucine, valine, and isoleucine. (See id. 7 (alleging muscle “cannot be built without the necessary raw materials, to wit all EAAs”)). Plaintiffs allege that in August 2017, Dr. Robert Wolfe published the article Branch-chained Amino Acids and Muscle Protein Synthesis in Humans: Myth or Reality?, in which Dr. Wolfe concluded that taking Platinum BCAA “not only fails to increase the rate of muscle protein synthesis in human subjects, but actually reduces the rate of muscle protein synthesis.” (Am. Compl. 16, Ex. A at 5). Thus, according to plaintiffs, ingesting Platinum BCAA leaves consumers wishing to build muscle “in a worse position than if not taking the product at all.” (Id. 1). Plaintiff Sabatano alleges that in 2018, he purchased Platinum BCAA for approximately $30 at a GNC store in Yonkers, New York. Sabatano alleges he read, relied on, and was induced to purchase Platinum BCAAA because of statements on the product’s packaging. Specifically, Sabatano alleges the packaging contains the following misrepresentations: “Promotes Muscle Protein Synthesis,” “ensures that your muscles are primed for musclebuilding,” and provides “key building blocks of muscle.” (Am. Compl. 3; see also id. at 28). On September 20, 2019, Sabatano — through his attorney — requested Iovate take corrective action and provided “preliminary notice” respecting the alleged misrepresentations. (See id. Ex. B). Plaintiff Barzoloski alleges that in 2018, he too purchased Platinum BCAA for approximately $30, but from a 24 Hour Fitness gym in Sacramento, California. Like Sabatano, Barzoloski alleges he read, relied on, and was induced to purchase the product because of statements on the packaging that Platinum BCAA: “Promotes Muscle Protein Synthesis,” “ensures that your muscles are primed for musclebuilding,” and provides “key building blocks of muscle.” (Am. Compl. 3; see also id. at 29). On July 26, 2019, Barzoloski — through his attorney — requested Iovate take corrective action and provided “preliminary notice” respecting the alleged misrepresentations. (See id. Ex. C). Simply, plaintiffs allege Platinum BCAA’s marketing contained misrepresentations which led them to believe that consuming the product would facilitate muscle growth. According to plaintiffs, such misrepresentations induced their purchase of Platinum BCAA. However, plaintiffs claim that ingesting Platinum BCAA alone — without the other six of nine total EEAs — negatively impacts muscle protein synthesis, and, therefore, ingesting Platinum BCAA had the inverse effect of its intended use. DISCUSSION I. Standard of Review In deciding a Rule 12(b)(6) motion, the Court evaluates the sufficiency of the operative complaint under the “two-pronged approach” articulated by the Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).3 First, a plaintiff’s legal conclusions and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,” are not entitled to the assumption of truth and are thus not sufficient to withstand a motion to dismiss. Id. at 678; Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). Second, “[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. at 679. To survive a Rule 12(b)(6) motion, the complaint’s allegations must meet a standard of “plausibility.” Ashcroft v. Iqbal, 556 U.S. at 678; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 564 (2007). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 556). In considering a motion to dismiss pursuant to Rule 12(b)(6), courts “may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint.” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). II. State Statutory Claims Defendant argues plaintiffs cannot state a plausible claim for deceptive trade practices under New York or California consumer protection statutes because defendant’s statements would not mislead a reasonable consumer. The Court agrees. A. New York General Business Law Sections 349, 350 New York General Business Law Section 349 provides: “[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state are hereby declared unlawful.” N.Y. Gen. Bus. Law §349. To establish a prima facie case under Section 349, a plaintiff must demonstrate that “(1) the defendant’s deceptive acts were directed at consumers, (2) the acts are misleading in a material way, and (3) the plaintiff has been injured as a result.” Maurizio v. Goldsmith, 230 F.3d 518, 521 (2d Cir. 2000) (citing Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, N.A., 85 N.Y.2d 20, 25 (1995)). “[D]eceptive acts” are defined as acts that are “likely to mislead a reasonable consumer acting reasonably under the circumstances.” Maurizio v. Goldsmith, 230 F.3d at 522 (citing Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, N.A., 85 N.Y.2d at 26). New York General Business Law Section 350 renders unlawful “[f]alse advertising in the conduct of any business, trade or commerce or in the furnishing of any service in this state is hereby declared unlawful.” N.Y. Gen. Bus. Law §350. To state a plausible Section 350 claim, a plaintiff must allege the act, practice or advertisement was consumer-oriented and misleading in a material respect, and that plaintiff was injured as a result of such conduct. Medisim Ltd. v. BestMed LLC, 910 F. Supp. 2d 591, 607 (S.D.N.Y. 2012). “A plaintiff must also demonstrate reliance, which typically means he must point to a specific advertisement or public pronouncement upon which the consumer relied.” Id. B. California Consumer Protection Statutes The UCL prohibits “unfair competition,” which is defined as “any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising.” Cal. Bus. & Prof. Code §17200. The statute “is violated where a defendant’s act or practice is (1) unlawful, (2) unfair, (3) fraudulent, or (4) in violation of section 17500 (false or misleading advertisements).” Lozano v. AT&T Wireless Servs., Inc., 504 F.3d 718, 731 (9th Cir. 2007). In addition, violations of the FAL constitute “unlawful” conduct for the purposes of the UCL. See Comm. on Children’s Television, Inc. v. Gen. Foods Corp., 35 Cal. 3d 197, 210 (1983) (“[a]ny violation of the false advertising law…necessarily violates the unfair competition law”), superseded by statute on another ground, as stated in Californians for Disability Rights v. Mervyn’s, LLC, 39 Cal. 4th 223, 227 (2006). To state a claim under the FAL, “a plaintiff must allege: (1) statements in the advertising are untrue or misleading, and (2) defendant knew, or by the exercise of reasonable care should have known, that the statements were untrue or misleading.” VP Racing Fuels, Inc. v. Gen. Petrol. Corp., 673 F. Supp. 2d 1073, 1086 (E.D. Cal. 2009). A claim under the FAL may be based on “advertising which [,] although true, is either actually misleading or which has a capacity, likelihood or tendency to deceive or confuse the public.” Kasky v. Nike, Inc., 27 Cal. 4th 939, 951 (2002) (alteration in original). Finally, the CLRA prohibits specified “unfair methods of competition and unfair or deceptive acts or practices” in connection with the sale, or lease, of goods or services to a consumer. See Cal. Civ. Code, §1770(a). Among the practices prohibited by the CLRA is “[r]epresenting that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that they do not have.” Cal. Civ. Code §1770(a)(5). C. Reasonable Consumer Standard “To state a claim for false advertising or deceptive business practices under New York or California law, a plaintiff must plausibly allege that the deceptive conduct was likely to mislead a reasonable consumer acting reasonably under the circumstances.” Mantikas v. Kellogg Co., 910 F.3d 633, 636 (2d Cir. 2018). “[These provisions] require an additional finding that a reasonable consumer in like circumstances would consider the misrepresentation material.” Alce v. Wise Foods, Inc., 2018 WL 1737750, at *9 (S.D.N.Y. Mar. 27, 2018) (discussing Sections 349 and 350); Williams v. Gerber Prod. Co., 552 F.3d 934, 938 (9th Cir. 2008) (noting “claims under these California statutes are governed by the ‘reasonable consumer’ test”). Determining the likelihood that reasonable consumers would be misled entails “[v]iewing each allegedly misleading statement in light of its context on the label and in connection with the marketing of [the product] as a whole.” Ackerman v. Coca-Cola Co., 2010 WL 2925955, at *15 (E.D.N.Y. July 21, 2010). Although “California courts…have recognized that whether a business practice is deceptive will usually be a question of fact not appropriate for decision on [a motion to dismiss],” Williams v. Gerber Prod. Co., 552 F.3d at 938, “[i]t is well settled that a court may determine as a matter of law that an allegedly deceptive advertisement would not have misled a reasonable consumer.” Fink v. Time Warner Cable, 714 F.3d 739, 741 (2d Cir. 2013) (per curiam) (citing Freeman v. Time Inc., 68 F.3d 285 (9th Cir. 1995)). “Indeed, a number of courts have dismissed [California statutory] claims as a matter of law post-Williams, especially where,…the claim alleges that a consumer will read a true statement on a package and will then disregard well-known facts of life and assume things about the products other than what the statement actually says.” Red v. Kraft Foods, Inc., 2012 WL 5504011, at *3 (C.D. Cal. Oct. 25, 2012). D. Application The core issue here is whether a reasonable consumer could reasonably believe he would build muscle if he consumed the dietary supplement Platinum BCAA — and only Platinum BCAA. The Court concludes plaintiffs cannot plausibly plead that the statements on the packaging for Platinum BCAA would mislead a reasonable consumer into thinking that ingesting Platinum BCAA alone would build muscle. First, and most importantly, plaintiffs’ amended complaint includes an image of the Platinum BCAA packaging, which states in large and clearly visible letters at the bottom: “DIETARY SUPPLEMENT.” (Am. Compl. 23). The Federal Food, Drug, and Cosmetic Act (the “Act”) defines a dietary supplement as: (1) [A] product (other than tobacco) intended to supplement the diet that bears or contains one or more of the following dietary ingredients:…(D) an amino acid; (E) a dietary substance for use by man to supplement the diet by increasing the total dietary intake; (F) or a concentrate, metabolite, constituent, extract, or combination of any [above listed] ingredient[s]. 21 U.S.C. §321(ff)(1). Pursuant to the Act, a dietary supplement “is not represented for use as a conventional food or as a sole item of a meal or the diet.” Id. §321ff(2)(B). A reasonable consumer would not be misled into believing Platinum BCAA is a conventional food or should be eaten as a sole item in a diet. Here, the words “DIETAERY SUPPLEMENT” are displayed in large, upper-case font, in a different color, on the front of the Platinum BCAA packaging. No reasonable consumer, acting reasonably, would be misled into believing Platinum BCAA — a dietary supplement — would supplant one’s diet and build muscle on its own. This is in line with other courts that have similarly dismissed claims in which consumers allege to have “read a true statement on a package” and nevertheless assumed things about the product, disregarding “well-known facts of life.” Red v. Kraft Foods, Inc., 2012 WL 5504011, at *3; see also Mantikas v. Kellogg Co., 910 F.3d at 637-38 (distinguishing such cases). Second, plaintiffs cannot plausibly allege the statements identified on the Platinum BCAA packaging were actually misleading. Plaintiffs point to the following statements and claim such misrepresentations induced their purchases: “Promotes Muscle Protein Synthesis;” “ensures that [his] muscles are primed for musclebuilding;” and provides “key building blocks of muscle.” (Am. Compl.
