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Patora v. Vi-Jon LLC

Contaminant Bacterium Not Active, Inactive Ingredient Needing Disclosure, Warning Label

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OPINION AND ORDER   Plaintiffs Jeannie Patora and Nancy Kane bring this consolidated putative class action against defendant Vi-Jon, LLC, arising out of defendant’s allegedly deceptive labeling of certain laxative products purportedly contaminated with a bacterium not listed as an ingredient or mentioned on the products’ labeling. Plaintiffs assert claims for deceptive acts or practices and false advertising under New York General Business Law (“GBL”) Sections 349 and 350, seeking various forms of economic damages and equitable relief.1 Now pending is defendant’s motion to dismiss the consolidated amended complaint (“CAC”) under Rule 12(b)(6). (Doc. #17). For the following reasons, the motion is GRANTED. 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 CAC, as well as in documents incorporated by reference in or documents integral to the CAC, and draws all reasonable inferences in plaintiffs’ favor, as summarized below. Defendant — a Delaware company with its principal place of business in Missouri — manufactures magnesium citrate saline laxative products (the “Products”), which are sold under private label by various retailers throughout New York and the United States, including CVS, Rite Aid, Walgreens, Walmart, Target, Kroger, and Publix, among others. On June 21, 2022, defendant voluntarily recalled one lot of the Products, after testing identified that the affected lot contained the bacterium Gluconacetobacter liquefaciens. (Doc. #16 (“CAC”)

33 n.13). Soon thereafter, defendant expanded the nationwide recall to include other lots of the Products for the same risk of microbial contamination. (Id. 36 n.16).2 Plaintiffs allege “Gluconacetobacter liquefaciens is a gram-negative bacterium” that “can enter the manufacturing process…in several ways.” (CAC

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