MEMORANDUM AND ORDER Plaintiff Theda Jackson-Mau brings this action against International Vitamin Corporation (“IVC”) for violations of New York General Business Law §349 related to its manufacturing of glucosamine sulfate. The defendant moves to dismiss the state claim against it based on federal preemption under Federal Rules of Civil Procedure 12(b)(6) and the claim for injunctive relief under 12(b)(1). For the following reasons, the defendant’s motion is granted in part and denied in part. I. “A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it,” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000), such as for lack of standing to seek injunctive relief. Pungitore v. Barbera, 506 F. App’x 40, 41 (2d Cir. 2012). Plaintiff bears the burden of establishing standing. All. for Open Soc’y Int’l, Inc. v. U.S. Agency for Int’l Dev., 651 F.3d 218, 227-28 (2d Cir. 2011), aff’d sub nom. Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S. 205, 133 S. Ct. 2321, 186 L. Ed. 2d 398 (2013) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). For dismissal under 12(b)(6), the Court must take as true all the allegations of the complaint and must draw all inferences in plaintiff’s favor. See Weixel v. Board of Educ., 287 F.3d 138, 145 (2d Cir. 2002). A complaint “does not need detailed factual allegations,” but “a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Id. at 555. Federal preemption is an affirmative defense; therefore, the defendant bears the burden of proof. See Bruesewitz v. Wyeth LLC, 562 U.S. 223, 251 n. 2 (2011). II. Plaintiff’s relevant testing allegations are as follows: (1) she purchased a bottle labeled Glucosamine Sulfate at Walgreens, (2) she brought the bottle to her counsel, who had the pills professionally analyzed, (3) the lab tests uncovered “that there was no Glucosamine Sulfate in the pills that were tested” despite the bottle stating the pills contained Glucosamine Sulfate, and (4) “[i]t is implausible to consider that [the lab test result] is the result of simple manufacturing variance.” Amended Complt.
