OPINION & ORDER This putative class action alleges that Defendant The Hillshire Brands Company (“Defendant”) misrepresented to consumers that its product “Delights English Muffin” by Defendant’s Jimmy Dean brand (“the Product”) is made only or predominantly with whole grain. (Compl. at 1-8, ECF No. 1.) Plaintiff Christopher Wargo, individually and on behalf of others similarly situated, brings this action against Defendant asserting claims for violations of New York’s General Business Law §§349 and 350, negligent misrepresentation, breach of express warranty, breach of implied warranty of merchantability, violation of the Magnuson Moss Warranty Act, fraud, and unjust enrichment. (Id. at 8-14.) Presently pending before the Court is Defendant’s motion to dismiss Plaintiff’s Complaint under Federal Rule of Civil Procedure 12(b)(6). (ECF No. 15.) For the following reasons, the Court GRANTS in part, DENIES in part Defendant’s motion to dismiss. BACKGROUND I. Factual Background The following facts are derived from the Complaint and are taken as true and construed inthe light most favorable to Plaintiff for the purposes of this motion. Defendant manufactures, distributes, markets, labels, and sells turkey sausage, egg white and cheese breakfast sandwiches purporting to be “English muffin made with whole grain”, as depicted in the image below: (Compl.
1-3.) The label also states that the Product’s ingredients include: INGREDIENTS: MUFFIN: ENRICHED WHEAT FLOUR (WHEAT FLOUR, MALTED BARLEY FLOUR, NIACIN, REDUCED IRON, THIAMINE MONONITRATE, RIBOFLAVIN, FOLIC ACID), WATER, WHOLE GRAIN WHEAT FLOUR, YEAST, WHEAT GLUTEN, CONTAINS LESS THAN 2 percent OF: DEGERMED YELLOW CORN FLOUR, DEGERMED YELLOW CORNMEAL, SODIUM BICARBONATE, FUMARIC ACID, CORN STARCH, SODIUM ACID PYROPHOSPHATE, MONOCALCIUM PHOSPHATE, CALCIUM SULFATE, SALT, AMMONIUM CHLORIDE, HONEY, CALCIUM PROPIONATE AND POTASSIUM SORBATE (PRESERVATIVES), SOYBEAN OIL, HIGH FRUCTOSE CORN SYRUP, VINEGAR. (Id. 24.) Plaintiff alleges the Product’s label is misleading because, while the Product’s front label prominently states “MADE WITH WHOLE GRAIN,” the primary ingredient in the sandwich portion of the Product is enriched wheat flour. (Id. 24.) Enriched wheat flour is “refined grains that have been processed to remove their bran and germ”, thereby “removing the dietary fiber and most other nutrients…” before going through another process that “adds back some of the previously removed iron and B vitamins.” (Id.
