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Davis v. The Pur Company (USA) Inc.

Gum's Peppermint Was Favoring But Not Sole Source of Its Peppermint Flavor

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DECISION AND ORDER Plaintiff, on behalf of herself and a putative class of individuals who purchased the subject product throughout the United States (except in, Delaware where defendant is headquartered), brings this action against The Pur Company (“defendant”). Plaintiff alleges that defendant manufactured, marketed and sold packages of peppermint chewing gum (the “Product”) which derived their peppermint flavoring from “natural flavors,” and allegedly did not contain “any real peppermint” except at “trace or de minimis levels as part of the natural flavor[s].” (Dkt. #1 at 10). Plaintiff asserts causes of action for deceptive marketing under N.Y. General Business Law (“GBL”) §§349 and 350, breach of express warranty, breach of the implied warranty of merchantability, violation of the Magnuson Moss Warranty Act, 15 U.S.C. §2301 et seq. (“MMWA”), negligent misrepresentation, fraud, and unjust enrichment, and seeks compensatory, statutory, and punitive damages. (Dkt. #1). Defendant now moves to dismiss the complaint for failure to state a claim pursuant to Fed. R. Civ. Proc. 12(b)(6). (Dkt. #8). For the reasons that follow, that motion is granted. FACTUAL BACKGROUND Plaintiff alleges that she purchased the Product “on one or more occasions within the statutes of limitations for each cause of action alleged, at stores in Chemung County, [New York], between July and August 2022, and/or among other times.” (Dkt. #1 at 29). She also alleges that at some point, she read and relied upon the label’s use of the word “peppermint,” which she interpreted as a representation that the Product derived its peppermint taste solely from the use of “real peppermint,” in the form of peppermint extract or peppermint oil. (Dkt. #1 at

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