Page:Pelman v. McDonald's Corporation (S.D.N.Y. 2003).pdf/15

 McDonalds thus argues that if Congress determined that restaurants should no have to label their food, McDonalds cannot be made to do so indirectly, pursuant to a New York State statute.

State law that conflicts with federal law is without effect. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 2617, 120 L.Ed.2d 407 (1992) (citing Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 68 L.Ed.2d 576 (1981)). However, “the historic police powers of the States [are] not to be superseded by … Federal Act unless that [is] the clear and manifest purpose of Congress.” Id. (brackets in original) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947)).

Section 343–1, the NLEA’s pre-emptive provision, provides that no state may require nutrition labeling for food in interstate commerce that is not identical to that prescribed by the NLEA. 21 U.S.C. § 343–1(a)(4); see also Morelli v. Weider Nutrition Group, Inc., 275 A.D.2d 607, 607, 712 N.Y.S.2d 551 (1st Dep’t 2000). This provision would seem to support McDonalds’ argument. However, subsection (4) of the pre-emptive provision specifically permits states to require nutrition labeling of food that is exempt under subclause (i) or (ii) of 21 U.S.C. § 343(q)(5)(A). 21 U.S.C. § 343–1(a)(4). As noted above, § 343(q)(5)(A)(i) is the very provision on which McDonalds relies to state that it has “complied” with federal regulations and that the State of New York cannot make it do anything more.

Therefore, § 343–1(a)(4) does not expressly bar nutrition labeling on restaurant foods either directly or, as plaintiffs seek to do in this action based on a New York state statute, indirectly. A finding that a lack of nutritional labeling on McDonalds’ products violates §§ 349 and 350 therefore is explicitly not pre-empted by the NLEA. In fact, in discussing its rules and regulations implementing the NLEA, the Food and Drug Administration recognized that the states could protect their consumers in this manner. FDA, Food Labeling; General Requirements for Health Claims for Food, 58 FR 2478, 2517, 1993 WL 1547 (1993) (“States remain free, however, to ensure under their own consumer protection laws that menus do not provide false or misleading information.”). McDonalds’ late-breaking arguments are accordingly rejected.


 * 2. Requirements of §§ 349 and 350

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 if the consuming public is already aware of the “concealed” characteristics and therefore is not deceived.

A plaintiff must plead with specificity the allegedly deceptive acts or practices that form the basis of a claim under the Consumer Protection Act. E.g., Weaver v. Chrysler Corp., 172 F.R.D. 96, 100 (S.D.N.Y.1997) (“In pleading a claim under the Consumer Protection Act, a plaintiff is required to set forth specific details regarding the allegedly deceptive acts or practices.”); ''Moses v. Citicorp Mortg. Inc.'', 982 F.Supp. 897, 903 (E.D.N.Y.1997) (“Conclusory allegations have been held insufficient to state a claim under section 349.”); ''Grand Gen. Store, Inc. v. Royal Indem. Co.'', No. 93 Civ. 3741 (CSH), 1994 WL 163973, at *4 (S.D.N.Y. April 22, 1994) (discussing violation of Insurance law alleged to be deceptive practice under § 349). See also Small v. Lorillard Tobacco Co., 252 A.D.2d 1, 9, 679 N.Y.S.2d 593, 600 (1st Dep’t 1998) (“plaintiffs do not point to any specific advertisement or public pronouncement”).

For instance, one of the cases on which plaintiffs rely, Blue Cross and Blue Shield of New Jersey, 178 F.Supp.2d at 269–70,