Page:Pelman v. McDonald's Corporation (S.D.N.Y. 2003).pdf/14

 350 prohibits “[f]alse advertising in the conduct of any business.” N.Y. Gen. Bus. Law § 350. To state a claim for deceptive practices under either section, a plaintiff must show: (1) that the act, practice or advertisement was consumer-oriented; (2) that the act, practice or advertisement was misleading in a material respect,; [sic] and (3) that the plaintiff was injured as a result of the deceptive practice, act or advertisement. E.g., ''Stutman v. Chem. Bank, 95 N.Y.2d 24, 29, 709 N.Y.S.2d 892, 731 N.E.2d 608 (2000); St. Patrick’s Home for Aged and Infirm v. Laticrete Intern., Inc., 264 A.D.2d 652, 655, 696 N.Y.S.2d 117, 122 (1st Dep’t 1999); BNI N.Y. Ltd. v. DeSanto'', 177 Misc.2d 9, 14, 675 N.Y.S.2d 752, 755 (N.Y.City Ct.1998). See also Berrios v. Sprint Corp., 1998 WL 199842, at *3 (E.D.N.Y. March 16, 1998). The standard for whether an act or practice is misleading is objective, requiring a showing that a reasonable consumer would have been misled by the defendant’s conduct. Marcus v. AT&T, 138 F.3d 46, 64 (2d Cir.1998); Oswego Laborers’ v. Marine Midland Bank, 85 N.Y.2d 20, 26, 623 N.Y.S.2d 529, 533, 647 N.E.2d 741 (1995). Omissions, as well as acts, may form the basis of a deceptive practices claim. Stutman, 95 N.Y.2d at 29, 709, N.Y.S.2d 892, 731 N.E.2d 608 (citing Oswego Laborers’, 85 N.Y.2d at 26, 623 N.Y.S.2d 529, 647 N.E.2d 741 (delineating different inquiry in case of claim of deceit by omission)). Further, traditional showings of reliance and scienter are not required under the act. Blue Cross and Blue Shield of New Jersey, Inc. v. Philip Morris, Inc., 178 F.Supp.2d 198, 231 (E.D.N.Y.2001) (Weinstein, J.).

McDonalds argues that plaintiffs’ claims under §§ 349 and 350 fail because (1) they are not plead with sufficient specificity, and (2) acts or practices cannot be deceptive is the consuming public is already aware of the “concealed” characteristics and therefore is not deceived. McDonalds also argued for the in its reply papers that plaintiffs’ claims are pre-empted by federal law. Although raised last, the pre-emption argument will be addressed first.


 * 1. Federal Pre-Emption

McDonalds raises for the first time in its reply brief an argument that its compliance with (or rather, exemption from) the Federal Nutritional Labeling and Education Act, 21 U.S.C. § 343(q), bars the plaintiffs’ contentions that McDonalds’ failure to provide nutritional information is deceptive. Defs.’ Reply Mem. at 24. Section 343(q) requires labels with specified nutritional values to be attached to all packaged food, but it specifically exempts restaurants from this requirement. 21 U.S.C. § 343(q)(5)(A)(i) (labeling requirements “shall not apply to food which is served in restaurants or other establishments in which food is served for immediate human consumption or which is sold for sale or use in such establishments”).