UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

Case No. 1: 22-cv-22930-RNS

HERIBERTO VALIENTE, individually and 

on behalf of all others similarly situated,

Plaintiff,

v.

PUBLIX SUPER MARKETS, INC.,

Defendant.

DEFENDANT PUBLIX SUPER MARKETS, INC.’S

MOTION TO DISMISS PLAINTIFF’S CLASS ACTION COMPLAINT

Daniel B. Rogers

Danielle A. Greenberg

SHOOK, HARDY & BACON L.L.P.

201 South Biscayne Blvd., Suite 3200

Miami, Florida 33131

(305) 358-5171

drogers@shb.com

dgreenberg@shb.com

Brian T. Guthrie

SHOOK, HARDY & BACON L.L.P.

100 North Tampa Street, Suite 2900

Tampa, Florida 33602

(813) 202-7100 

bguthrie@shb.com 

Counsel for Defendant Publix Super Markets, Inc.

Case 1:22-cv-22930-RNS Document 8 Entered on FLSD Docket 01/17/2023 Page 1 of 22
TABLE OF CONTENTS

INTRODUCTION & FACTUAL BACKGROUND...................................................................... 1

LEGAL STANDARD..................................................................................................................... 3

ARGUMENT.................................................................................................................................. 3

I. PLAINTIFF LACKS STANDING. .................................................................................... 3

A. Plaintiff Has Sustained No Injury-in-Fact. ............................................................. 4

B. Plaintiff Lacks Standing to Obtain an Injunction. .................................................. 5

II. PLAINTIFF’S STATE-LAW CLAIMS ARE PREEMPTED BY FEDERAL 

LAW. .................................................................................................................................. 6

A. The FDA Monograph Process for OTC Drugs. ...................................................... 6

B. Federal Requirements for Antitussives................................................................... 6

C. Plaintiff’s Claims Are Preempted Because This Product Label Complies 

with the Applicable FDA Monograph, and Plaintiff’s State-Law Claims 

Seek to Impose Different/Additional/Non-Identical Labeling 

Requirements. ......................................................................................................... 7

III. PLAINTIFF FAILS TO STATE ANY VIABLE CAUSES OF ACTION......................... 8

A. The Product’s Label Was Not Deceptive, and It Complied With Federal 

Regulations, Thereby Precluding Liability Under the FDUTPA............................ 8

1. No Reasonable Person Would Read the Label in the Deceptive 

Manner Plaintiff Does................................................................................. 8

2. The FDUTPA Claim Is Precluded by the Statute’s Safe Harbor 

Provision. .................................................................................................. 12

B. The Other State Consumer Fraud Claims Fail...................................................... 13

C. The Express Warranty, Implied Warranty, and MMWA Claims Fail.................. 14

1. Plaintiff Did Not Provide the Required Pre-Suit Notice........................... 14

2. Publix’s Label Did Not Warrant that the Product Contained Real 

Lemon. ...................................................................................................... 15

3. Publix Did Not Breach Any Implied Warranties...................................... 16

4. Plaintiff’s MMWA Claim Also Fails for Multiple Reasons..................... 16

D. The Negligent Misrepresentation and Fraud Claims Fail. .................................... 17

1. The Economic Loss Rule Bars the Claims. .............................................. 17

2. The Fraud Claim Does Not Plead the Essential Elements........................ 18

E. Plaintiff Does Not Plead An Actionable Unjust Enrichment Claim..................... 18

CONCLUSION............................................................................................................................. 19

Case 1:22-cv-22930-RNS Document 8 Entered on FLSD Docket 01/17/2023 Page 2 of 22
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Defendant Publix Super Markets, Inc. (“Publix”) moves, pursuant to Federal Rule of Civil 

Procedure 12(b)(1) and (6), to dismiss the Class Action Complaint [ECF No. 1] filed by Plaintiff 

Heriberto Valiente because he lacks standing and fails to plead any viable causes of action.

INTRODUCTION & FACTUAL BACKGROUND

This case concerns Publix’s “honey-lemon menthol cough suppressant/oral anesthetic 

cough drops” and, in particular, the “honey-lemon” descriptor. Here is an image of the front label:

Although the adjective “honey-lemon” and the related images on the front label are intended to 

inform consumers that the cough drops have a honey-lemon flavor, Plaintiff purposefully 

mischaracterizes the statement to manufacture this putative class action.1

According to Plaintiff, he believed the words “honey-lemon,” an image of a halved lemon, 

and an image of a “yellow-colored lozenge” amounted to a representation that the cough drops 

contained a “non-de minimus amount of lemon ingredients.” Compl. ¶¶ 2, 7, 30, 64, 68–69. That 

 

1 This is not the first time Plaintiff’s New York counsel has (mis)characterized a product’s label 

in a putative class action complaint. He has filed over 450 putative class actions since January 1, 

2020, the majority of which (mis)construe statements made on the label of a consumer product to 

claim they are false and misleading. See Devey v. Big Lots, Inc., No. 21-CV-6688L, 2022 WL 

6827447, at *n.3 (W.D.N.Y. Oct. 12, 2022) (“Plaintiff’s counsel appears to have made misleading 

labeling claims somewhat of a cottage industry, having filed over 70 such cases in the Second 

Circuit, and a few dozen more in other circuits nationwide.”).

Case 1:22-cv-22930-RNS Document 8 Entered on FLSD Docket 01/17/2023 Page 3 of 22
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is deceptive, Plaintiff says, because the product “lacks the amount and type of lemon ingredients 

expected by Plaintiff and consumers.” Id. ¶ 3.2 But no reasonable consumer would read this 

product’s label in the manner alleged by Plaintiff to mean the product contained some unidentified 

“non-de minimus” amount of real lemon as an ingredient rather than lemon flavor. After all, the 

label’s list of ingredients does not include lemon. Plaintiff’s result-driven interpretation of the label 

is neither an objectively-fair reading of the entire label, in context, nor grammatically correct. In 

any event, Plaintiff does not allege he used the product, much less that it caused him a physical 

injury. While he contends the product was “worth less” than what he paid, id. ¶ 75, he does not 

allege that the product failed to provide the intended cough suppressant and oral anesthetic

benefits.

Plaintiff nevertheless asserts six baseless counts against Publix, without even assigning 

them a number, on behalf of himself and Florida and Multi-State Classes of persons who purchased 

the product. Id. ¶ 78. The six claims are: violation of the Florida Deceptive and Unfair Trade 

Practices Act (“FDUTPA”); violation of other unidentified state consumer fraud acts; breach of 

express and implied warranties and the Magnuson Moss Warranty Act (“MMWA”); negligent 

misrepresentation; fraud; and unjust enrichment. Id. ¶¶ 86–123. Plaintiff seeks both monetary and 

injunctive relief. Id. at Prayer for Relief. 

The Court should dismiss the Complaint in its entirety for multiple independent reasons:

 Plaintiff lacks standing to assert his claims, including his claim for injunctive relief. 

 Plaintiff’s state-law claims are preempted by federal law.

 Plaintiff fails to plead facts plausibly establishing that the statement “honey-lemon” on 

this label is false, deceptive, or misleading—the linchpin for all of his claims.

 The FDUTPA claim should also be dismissed under the statute’s Safe Harbor Provision 

because the challenged practices are permitted by federal law.

 

2 The Complaint alleges that the product “contains and makes other representations and omissions 

which are false and misleading,” id. ¶ 25, alleges that Plaintiff relied upon unidentified statements 

by Publix “in digital, print and/or social media” and “through in-store, digital, audio, and print 

marketing,” id. ¶ 69, and references other unidentified “extra-labeling promises and 

commitments,” id. ¶¶ 114–15. Those vague allegations, which do not set forth the particulars of 

the “who, what, when, where, and how” of the alleged misrepresentations, fail to satisfy the 

heightened pleading standard for misrepresentation claims in Rule 9(b) and should not be 

considered in determining the viability of Plaintiff’s claims. Omnipol. A.S. v. Multinational 

Defense Servs., LLC, 32 F.4th 1298, 1307 (11th Cir. 2022) (affirming dismissal of fraud claim that 

was not pled in compliance with Rule 9(b)).

Case 1:22-cv-22930-RNS Document 8 Entered on FLSD Docket 01/17/2023 Page 4 of 22
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 Plaintiff lacks standing to sue under the unidentified non-Florida consumer fraud acts.

 The warranty claims fail on multiple levels, including lack of pre-suit notice and no 

facts demonstrating that Publix made—much less, breached—any express and implied 

warranties. In addition, the MMWA is inapplicable to over-the-counter (“OTC”) drugs, 

like the cough drops at issue, at this price point. 

 The economic loss rule bars the misrepresentation claims. 

 The one-paragraph unjust enrichment claim alleges no inequities and is impermissibly 

based on allegedly wrongful conduct for which Plaintiff has a legal remedy.

LEGAL STANDARD 

To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim, Plaintiff must 

plead “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 

face.’” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 

544, 570 (2007)). “Determining whether a complaint states a plausible claim for relief [is] a 

context-specific task that requires the reviewing court to draw on its judicial experience and 

common sense.” Id. at 663–64. Under Rule 8, Plaintiff must plead “more than labels and 

conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual 

allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 

U.S. at 555 (citations omitted). “[C]onclusory allegations, unwarranted factual deductions or legal 

conclusions masquerading as facts will not prevent dismissal.” Davila v. Delta Air Lines, Inc., 326 

F.3d 1183, 1185 (11th Cir. 2003). 

To survive a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction based 

on a facial (not factual) attack, Plaintiff must have “sufficiently alleged a basis of subject matter 

jurisdiction” in the Complaint, applying the standards similar to those governing 12(b)(6) review. 

Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1335 (11th Cir. 2013).

ARGUMENT

I. PLAINTIFF LACKS STANDING.

“One element of the case-or-controversy requirement is that plaintiffs must establish that 

they have standing to sue.” Clapper v. Amnesty Intern. USA, 568 U.S. 398, 408 (2013). Plaintiff 

must show that he sustained (1) an injury-in-fact that is (2) fairly traceable to the defendant’s 

challenged conduct and (3) redressable by a favorable ruling. Lujan v. Defs. of Wildlife, 504 U.S. 

555, 560–61 (1992); accord Spokeo v. Robbins, 578 U.S. 330, 338 (2016). Here, Plaintiff fails to 

allege facts demonstrating that he suffered any injury-in-fact. Further, his allegations show he is 

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aware of the purported flaws with the statement on the product’s label and is thus not at risk of 

being deceived by it in the future, undermining his standing to seek prospective injunctive relief.

A. Plaintiff Has Sustained No Injury-in-Fact.

Article III requires “an injury [to] be concrete, particularized, and actual or imminent.” 

Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149 (2010). The injury cannot be 

“speculative.” Lujan, 504 U.S. at 564 n.2. Where a complaint alleges a threat of future harm, the 

threat must be “certainly impending” as opposed to a mere possibility. Lujan, 504 U.S. at 564; 

Whitmore v. Arkansas, 495 U.S. 149, 158 (1990). Thus, in cases like this one involving products, 

standing cannot be based solely on the risk that a product may possibly cause harm. Hall v. Omega 

Flex, Inc., No. 13-61213-CIV-DIMITROULEAS, 2014 WL 12496551, at *9 (S.D. Fla. Jan. 17, 

2014) (concluding plaintiffs lacked concrete and particularized injury-in-fact that is actual or 

imminent, where their products did not fail to function as intended). In the absence of an actual 

injury caused by the product, a mere increased risk of injury is “more speculative than imminent” 

and therefore cannot be a basis for standing. Id. (citing Clapper, 568 U.S. at 409).

In this case, Plaintiff alleges no personal injury. Although he alleges an economic injury—

that the product was supposedly worth less than he paid due to the allegedly-misleading statement 

on the label—Plaintiff does not plead that the product failed to work as intended and provide the 

expected cough suppressant and oral anesthetic relief. Plaintiff makes only the conclusory 

allegation that he paid a “premium price” that was “higher than similar products” (which he never 

identifies) that are “represented in a non-misleading way.” Compl. ¶ 30. Critically, however, he 

does not plead facts concerning the price of those unidentified comparable products to make 

plausible his conclusion that the “Product was worth less than what Plaintiff paid.” Id. ¶ 75. See 

Prohias v. Pfizer, Inc., 485 F. Supp. 2d 1329, 1336–37 (S.D. Fla. 2007) (finding that to show 

damages under the price premium theory, plaintiff needed to demonstrate the hypothetical price 

Lipitor would sell if not for the purportedly misleading advertisements, and a determination of 

such hypothetical price was too speculative to be an “actual injury” under Article III); see also

Sabo v. Wellpet, LLC, 282 F. Supp. 3d 1040, 1041–42 (N.D. Ill. 2017) (dismissing claim because 

“conspicuously absent from the complaint are any straightforward assertions about the price of 

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defendants’ products; the price of comparable products ... or any other measurable criteria ... 

required to establish actual damages”).3

Because Plaintiff pleads no facts showing an economic injury and does not even attempt 

to allege a personal injury, he lacks Article III standing, and all of his claims should be dismissed. 

B. Plaintiff Lacks Standing to Obtain an Injunction.

“The ‘injury-in-fact’ demanded by Article III requires an additional showing when 

injunctive relief is sought. In addition to past injury, a plaintiff seeking injunctive relief must ‘show 

a sufficient likelihood that [s]he will be affected by the allegedly unlawful conduct in the future.’” 

Barron v. Snyder’s-Lance, Inc., No. 13-62496-CIV, 2015 WL 11182066, at *10 (S.D. Fla. Mar. 

20, 2015) (quoting Wooden v. Bd. of Regents of Univ. Sys. of Ga., 247 F.3d 1262, 1284 (11th Cir. 

2001)). In Barron, the plaintiffs sought an injunction to correct misrepresentations on a product’s 

label. Although the plaintiffs alleged that they intended to purchase the product in the future if they 

could be confident the label was truthful and not misleading, this Court found they lacked standing 

because “a consumer fraud Plaintiff seeking to enjoin a manufacturer from deceptively labeling a 

product cannot establish Article III standing if she is not likely to purchase the ‘noncompliant’ 

product in the future.” Id. at *11 (dismissing claim for injunctive relief); accord Snyder v. Green 

Roads of Fla. LLC, 430 F. Supp. 3d 1297, 1304 (S.D. Fla. 2020).

The same is true here. Plaintiff has not alleged—and cannot allege—a threat of future harm 

from supposedly being deceived about whether the product contains real lemon as an ingredient

because he alleges he is now aware of the purported deception and states he “would not have 

purchased the Product if he knew the representations and omissions were false and misleading.” 

Compl. ¶ 73. He thus lacks standing under Article III to seek such prospective injunctive relief.

See, e.g., Valiente v. Unilever United States, Inc., No. 22-21507-CIV, 2022 U.S. Dist. LEXIS

222409, at *22–23 (S.D. Fla. Dec. 8, 2022) (dismissing identically-pled claim for injunctive relief

for lack of standing (despite complaint sufficiently pleading an injury-in-fact)).4

 

3 Nor does Plaintiff explain why he has incurred an economic injury in light of the Publix 

Guarantee: “We will never knowingly disappoint you. If for any reason your purchase does not 

give you complete satisfaction, the full purchase price will be cheerfully refunded immediately 

upon request.” See https://www.publix.com/pages/policies/publix-guarantee (last accessed Jan. 

16, 2023).

4

See also Dapeer v. Neutrogena Corp., 95 F. Supp. 3d 1366, 1373–74 (S.D. Fla. 2015) (“Although 

the FDUTPA allows a plaintiff to pursue injunctive relief even where the individual plaintiff will 

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II. PLAINTIFF’S STATE-LAW CLAIMS ARE PREEMPTED BY FEDERAL LAW.

Preemption is a matter of law for the Court to decide. Merck, Sharple & Dohme v. Albrecht, 

139 S. Ct. 1668, 1680 (2019). The Food, Drug, & Cosmetic Act (“FDCA”), which governs OTC

medications like cough drops, expressly preempts all state-law claims that impose requirements 

that are “different from,” “in addition to,” or “otherwise not identical” with federal labeling 

requirements for such products. 21 U.S.C. § 379r(a). That is the case here—Plaintiff’s state-law 

claims seek to impose requirements on the labeling of Publix’s cough drops that are different, 

additional, and not identical to those imposed by federal law. The claims are thus preempted.

A. The FDA Monograph Process for OTC Drugs.

The FDA regulates most OTC medications through a monograph process. A monograph is 

a detailed set of FDA regulations that describe the conditions under which a category of drugs may 

be marketed without a prescription. See 21 C.F.R. § 330.1; Nat. Res. Def. Council, Inc. v. U.S. 

Food & Drug Admin., 710 F.3d 71, 75 (2d Cir. 2013) (describing the monograph process). A 

monograph is “like a recipe” that “sets out the FDA-approved active ingredients for a given 

therapeutic class of OTC drugs” and specifies acceptable doses, formulations, and labeling. Id.

A monograph exists only after the FDA has appointed an advisory panel of independent 

experts that “review[s] all available data” and reports its conclusions and recommendations to the 

FDA “with respect to the safety and effectiveness of the drugs.” 21 C.F.R. § 330.10(a). Based on 

the panel’s recommendations, the FDA publishes a proposed monograph for public comment, and 

then publishes a “tentative final monograph” for further public comment. Id. § 310.10(a)(6). After 

a rigorous process of reviewing any objections, the entire administrative record, and the arguments 

made at any oral hearing, the FDA publishes a final monograph “establishing conditions under 

which a category of OTC drugs or a specific drug are generally recognized as safe and effective 

and not misbranded.” Id. § 310.10(a)(9). Given the rigor of the FDA’s monograph process, any 

OTC drug that complies with a monograph is considered safe, effective, and not misbranded. Nat. 

Res. Def. Council, 710 F.3d at 75.

B. Federal Requirements for Antitussives.

The FDA has published a final monograph for OTC antitussives (cough suppressants) that 

contain menthol, like the Publix cough drops, which contains a comprehensive set of labeling 

 

not benefit from an injunction...it cannot supplant constitutional requirements. Article III of the 

Constitution requires that a plaintiff seeking injunctive relief allege a threat of future harm.”).

Case 1:22-cv-22930-RNS Document 8 Entered on FLSD Docket 01/17/2023 Page 8 of 22
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requirements and specific disclosures that manufacturers must make on labels for such products 

(the “Monograph”). 52 Fed. Reg. 30,042 at 30,055–56 (Aug. 12, 1987) (codified at 21 C.F.R. § 

341.74). The labels must, for example, include approved language describing the established 

indications for use. 21 C.F.R. § 341.74(b). They must include certain specified warnings. 21 C.F.R. 

§ 341.74(c). They must include directions and dosage requirements. 21 C.F.R. §§ 341.74(d). The 

regulations also include specific requirements, where necessary, for products that contain certain 

active ingredients, including the menthol active ingredient found in Publix’s cough drops. See 21 

C.F.R. §§ 341.74(b)(vi). If an OTC cough suppressant’s label meets the requirements set forth in 

these regulations in the Monograph, the product is “not misbranded.” 21 C.F.R. § 341.1(a); accord 

Nat. Res. Def. Council, 710 F.3d at 75.

Importantly for this case, the FDA has chosen not to propose incorporation of 21 C.F.R. 

§ 101.22 (regulations concerning food products) into the OTC labeling mandates for these OTC 

antitussive drug products. See Rulemaking History for OTC Antitussive Drug Products, FDA, 

https://www.fda.gov/drugs/historical-status-otc-rulemakings/rulemaking-history-otc-antitussivedrug-products (last accessed Jan. 10, 2023) (listing notices for rule proposals to the OTC 

antitussive monograph, spanning from 1976 to present); see also Over-The-Counter Human 

Drugs; Labeling Requirements, 64 Fed. Reg. 13254, 13263 (Mar. 17, 1999) (amending 21 C.F.R. 

§§ 201, 330, 331, 341, 346, 355, 358, 369, and 701) (“[T]he agency recognizes the possibility that 

more detailed regulations or guidance on the listing of inactive ingredients may prove necessary”). 

C. Plaintiff’s Claims Are Preempted Because This Product Label Complies with 

the Applicable FDA Monograph, and Plaintiff’s State-Law Claims Seek to 

Impose Different/Additional/Non-Identical Labeling Requirements.

As another District Court Judge in Florida explained in dismissing on preemption grounds 

a similar product-labeling class action filed against Publix by this same plaintiff’s counsel: “‘no 

State ... may establish or continue in effect any requirement ... that is different from or in addition 

to, or that is otherwise not identical with, a requirement’ for OTC drugs in the [FDCA].” Amara 

v. Publix Supermarkets, Inc., No. 8:22-cv-367-VMC-JSS, 2022 WL 3357575, at *3 (M.D. Fla. 

Aug. 12, 2022) (quoting 21 U.S.C. § 379r(a)) (emphasis added); see also Hi-Tech Pharms., Inc. v. 

HBS Int'l Corp., 910 F.3d 1186, 1196 (11th Cir. 2018) (“[T]o avoid preemption, [the] state-law 

claim must be identical, not merely consistent, with federal requirements.”); Bowling v. Johnson 

& Johnson, 65 F. Supp. 3d 371, 375 (S.D.N.Y. 2014) (“[P]reemption is certainly appropriate when 

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a state law prohibits labeling that is permitted under federal law. But it is also appropriate when a 

state law prohibits labeling that is not prohibited under federal law”). 

The same result is warranted here. Publix’s cough drops fully comply with the FDA 

Monograph for antitussives, and Plaintiff makes no allegation to the contrary. Instead, Plaintiff 

alleges that the labeling is not compliant with the food regulations in 21 C.F.R. § 101.22(i)(1)(i)

because “if a product contains a de minimus, negligible amount of lemon ingredient that is 

insufficient to characterize it, ... the front label would be required to state, ‘Natural Lemon Flavored 

Cough Drops.” Compl. ¶ 13. This argument fails for at least two reasons. First, 21 C.F.R. § 101 

addresses food, not OTC antitussives like Publix’s cough drops, and thus whether the cough drops 

comply with that regulation is legally irrelevant. Second, all labeling requirements for OTC 

antitussives are included in the Monograph, see 21 C.F.R. § 341.74, and, as noted above, FDA has 

not chosen to incorporate 21 C.F.R. § 101 into this Monograph and its labeling requirements. See 

Rulemaking History for OTC Antitussive Drug Products. 

Accordingly, Plaintiff’s state-law claims, which seek to impose new, additional labeling 

requirements not required by or identical to federal law set forth in the Monograph—e.g., a statelaw requirement that the label can include the word “lemon” (and related images) only if the cough 

drops contain a non-negligible amount of real lemon as an ingredient—are preempted. See Amara, 

No. 8:22-cv-367-VMC-JSS, 2022 WL 3357575, at *3–4 (finding plaintiff’s state-law claims 

seeking to remove “non-drowsy” from the label effectively imposed additional regulations not 

contained in the applicable FDA monograph and were thus preempted); see also Hi-Tech Pharms., 

910 F.3d at 1195 (finding plaintiff’s state-law claim “preempted because it would impose liability 

for labeling that does not violate the Food, Drug, and Cosmetic Act or the regulations that carry it 

into effect”). As such, Plaintiff’s state-law claims must be dismissed with prejudice.

III. PLAINTIFF FAILS TO STATE ANY VIABLE CAUSES OF ACTION.

A. The Product’s Label Was Not Deceptive, and It Complied With Federal 

Regulations, Thereby Precluding Liability Under the FDUTPA.

1. No Reasonable Person Would Read the Label in the Deceptive Manner 

Plaintiff Does.

FDUTPA claims have three elements: a deceptive act or unfair practice; causation; and 

actual damages. Rollins, Inc. v. Butland, 951 So. 2d 860, 869 (Fla. 2d DCA 2006). The FDUTPA 

claim here is based on alleged deception. See Compl. ¶¶ 86–91. “[D]eception occurs if there is a 

representation, omission, or practice that is likely to mislead the consumer acting reasonably in the 

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circumstances, to the consumer’s detriment.” Zlotnick v. Premier Sales Group, Inc., 480 F.3d 

1281, 1284 (11th Cir. 2007). The standard requires “probable, not possible, deception...likely to 

cause injury to a reasonable relying consumer.” Id. (quoting Millennium Comm. & Fulfillment,

Inc. v. Dept. of Legal Affairs, 761 So. 2d 1256, 1263 (Fla. 3d DCA 2000)). Thus, “an objective 

test is used to determine whether the alleged practice was likely to deceive a consumer acting 

reasonably in the same circumstances.” Piescik v. CVS Pharmacy, Inc., 576 F. Supp. 3d 1125, 

1132 (S.D. Fla. 2021) (internal quotation marks omitted). 

Because determining deception is dependent on reasonable consumers’ likelihood of being 

misled by representations, “context is crucial.” Brown v. Kellogg Sales Co., No. 1:20-CV-7283-

ALC, 2022 WL 992627, at *3 (S.D.N.Y. Mar. 31, 2022) (citing Mantikas v. Kellogg Co., 910 F.3d 

633, 636 (2d Cir. 2018)) (internal citations omitted). The Court must consider all of the information 

available to Plaintiff in deciding whether a reasonable consumer in his shoes could have been 

misled by the totality of the information provided. In context, disclaimers and additional 

information can cure statements that might potentially mislead a reasonable consumer. Standalone 

images or words evoking foods do not automatically equate to assurances of particular ingredients 

in particular amounts. Dashnau v. Unilever Mfg. (US), Inc., 529 F. Supp. 3d 235, 244–45 

(S.D.N.Y. 2021) (“vanilla” without additional modifiers is merely a claim about flavor, not 

ingredients); Brown, 2022 WL 992627, at *6 (image of halved strawberry and “Strawberry” in 

title indicated flavor). This is especially true when nutritional panels and ingredient lists on product 

labels can cure any potential consumer confusion on nutritional value or ingredient sources. See, 

e.g., Brown, 2022 WL 992627, at *6 (finding nutritional panel could cure consumer confusion); 

Russett v. Kellogg Sales Co., No. 7:21-CV-08572 (NSR), 2022 WL 2789837, at *3–4 (S.D.N.Y. 

July 15, 2022) (same); Angeles v. Nestle USA, Inc., No. 21-CV-7255 (RA), 2022 WL 4626916, at 

*4 (S.D.N.Y. Sept. 30, 2022) (finding phrase “contains no juice” curative); Twohig v. Shop-Rite 

Supermarkets, Inc., 519 F. Supp. 3d 154, 164–65 (S.D.N.Y. 2021) (finding nutritional panel would 

clarify ingredient sources); Steinberg v. Icelandic Provisions, Inc., No. 21-CV-05568-EMC, 2022 

WL 220641, at *7 (N.D. Cal. Jan. 25, 2022) (finding disclaimers on back of package clarified 

confusion).

Applying that law here, Plaintiff’s FDUTPA claim fails at the pleading stage because the 

Complaint’s facts do not make it plausible that a consumer acting reasonably in the circumstances 

would believe, based on the totality of the label, that these cough drops contained a non-de minimus

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amount of real lemon as an ingredient. The front label did not state or assure that the cough drops 

included lemon as an ingredient. Rather, the front label merely indicated the cough drops were 

“honey-lemon” and included “pictures of a yellow-colored lozenge and a halved lemon.” Compl. 

¶ 2. That informed Plaintiff of the cough drops’ flavor, and no reasonable consumer reading this 

label would leap to the conclusion that it was a representation of the product’s ingredients. After 

all, the product label includes a list of inactive ingredients, Compl. ¶ 9, none of which is lemon:

Plaintiff does not—and cannot—point to any affirmative representations by Publix that the 

cough drops contain a non-de minimus amount of lemons. Critically, there is no statement on the 

label, like “made with real lemons,” that would lead a reasonable consumer to believe lemons were 

in this product even though not on the ingredient list. Reasonable consumers in Plaintiff’s shoes 

would instead interpret the “honey-lemon” descriptor and images on the label as branding elements 

indicating flavor, not ingredients. Numerous courts around the country have reached this same 

conclusion in dismissing similarly-deficient claims of supposed label deception. See Brown, 2022 

WL 992627, at *4–5 (finding images of strawberries and red filling coupled with “strawberry” on 

the front of the package were objectively not deceptive and instead simply indicated a flavor); 

Russett, 2022 WL 2789837, at *3–4 (same); Angeles, 2022 WL 4626916, at *3–4 (yellow tint on 

packaging, images of lemons, and words “lemon and lemon zest” were indications of flavor not 

misrepresentations of ingredients); Cosgrove v. Or. Chai, Inc., 520 F. Supp. 3d 562, 584 (S.D.N.Y. 

2021) (finding “vanilla” was used to describe flavor, not presence of vanilla); Steinberg, 2022 WL 

220641, at *4–6 (finding images of Iceland, company advertising, and indications that yogurt was 

“Traditional Icelandic Skyr” were not deceptive to a reasonable consumer as to yogurt’s place of 

manufacture). 

Just as the image of a strawberry on pop tarts or the yellow tint of a lemon-flavored water 

is not indicative of ingredients, especially when not on the ingredient list, neither is a singular use 

of a sliced lemon or the golden tint of the lozenge. See, e.g., Brown, 2022 WL 992627, at *4; 

Russett, 2022 WL 2789837, at *3–4; Angeles, 2022 WL 4626916, at *3–4. Similarly, using the 

Case 1:22-cv-22930-RNS Document 8 Entered on FLSD Docket 01/17/2023 Page 12 of 22
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adjective “honey-lemon” to modify “menthol cough-suppressant/oral anesthetic cough drops” is 

an indicator of a “honey-lemon” flavor—just as “vanilla,” presented as “vanilla chai tea,” is an 

indicator of flavor. See Cosgrove, 520 F. Supp. 3d at 581 (“[T]he term [“vanilla”] appears to 

describe a flavor more than an ingredient”). This is further supported by the fact that “lemon” does 

not appear as a standalone word; rather, the label states “honey-lemon,” indicating a flavor 

evocative of both honey and lemons.5 The fact that there is no species of lemon known as a “honey 

lemon” or “honey-lemon”6likewise supports this interpretation of the phrase by a consumer acting 

reasonably in the circumstances as a signal of flavor rather than assurance of contained ingredients.

As noted, any possible confusion about the meaning of “honey-lemon” on the front label 

is dispelled by a perusal of the back label. Just as with the front label, the back contains no 

affirmative representations of lemon ingredients. Critically, Plaintiff admits that the list of inactive 

ingredients on the label lacks any mention of lemon. Compl. ¶¶ 9–10. Plaintiff correctly notes that 

the ingredient list includes “natural and artificial flavors,” id., which is entirely consistent with the 

discussion above that “honey-lemon” was an indication of flavor, not ingredients. After all, the 

listing of “natural and artificial flavors” as opposed to “lemon” or other lemon derivatives both 

reaffirms that the “lemon” in “honey-lemon” was an indication of flavor and again serves to put 

Plaintiff on notice that the product does not contain more than a negligible amount of lemon 

derivatives. Indeed, the very absence of an ingredient sought in the list should put a reasonable 

consumer on notice that said ingredient is not contained therein. See, e.g., Jessani v. Monini N. 

Am., Inc., 744 F. App’x 18, 19 (2d Cir. 2018) (lack of truffle on list of ingredients in combination 

with other contextual cues (low price of product, use of “truffle flavored” description, and 

perishability of truffles) would lead reasonable consumer to know truffles were not source of 

 

5 Hyphens are frequently used to create novel or combination descriptors. See e.g. Compl. ¶ 7 

(“yellow-colored”), ¶ 50 (“well-known”), ¶ 54 (“industry-wide”) and ¶ 114 (“extra-labeling”). For 

example, the phrases “a man-eating shark” or “a right-hand man” connote completely different 

meanings from “a man eating shark” or “a right hand man” (presumably a man with only a right 

hand or who is a right hand). 

6

See Patrick O’Hare, 30 Different Types of Lemons (All Lemon Varieties), PLANTSNAP (Dec. 16, 

2020), https://www.plantsnap.com/plantblog/types-of-lemons/ (listing 30 lemon varieties, none 

called “honey lemons”); BALCONY GARDEN WEB, Different Types of Lemons with Pictures | Best 

Lemon Varieties, https://balconygardenweb.com/different-types-of-lemons-with-pictures-bestvarieties/ (same with 22 lemon varieties) (last accessed Jan. 7, 2023).; LEAFY PLACE, Types of 

Lemons: Lemon Varieties with Pictures From Around the World, https://leafyplace.com/types-oflemons/ (same with at least 18 lemon varieties discussed) (last accessed Jan. 7, 2023).

Case 1:22-cv-22930-RNS Document 8 Entered on FLSD Docket 01/17/2023 Page 13 of 22
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flavor); c.f. Steinberg, 2022 WL 220641 at *7 (“Furthermore, because there are no 

misrepresentations on the Product's front label, the explicit disclosure...on the Product’s back 

label-Batavia, NY-is fatal [to plaintiff’s case]”); Twohig v. Shop-Rite Supermarkets, Inc., 519 F. 

Supp. 3d 154, 161–65 (S.D.N.Y. 2021) (“vanilla” was an indicator of flavor and therefore not 

misleading; where there was confusion, the ingredient list was curative); Dashnau v. Unilever Mfg. 

(US), Inc., 529 F. Supp. 3d 235, 245 (S.D.N.Y. 2021) (finding “vanilla bean” ultimately described 

flavor not ingredients). That is particularly true here, where the ingredient list includes “honey” 

but not “lemon.” No consumer acting reasonably in these circumstances would possibly—much 

less, probably—be deceived into thinking the product nevertheless had real lemon as an ingredient.

Because no reasonable consumer would interpret the label of this product in the resultdriven, deceptive manner Plaintiff alleges, the Court should dismiss Plaintiff’s FDUTPA claim 

with prejudice. E.g., Piescik, 576 F. Supp. 3d at 1132 (finding plaintiff failed to plead a “deceptive 

act” because reasonable consumers would not interpret the label in the same way plaintiff did); 

Kurimski v. Shell Oil Co., 570 F. Supp. 3d 1228, 1244 (S.D. Fla. 2021) (dismissing FDUTPA 

claim where price signage would not mislead a reasonable consumer, and noting that “where 

[p]laintiffs base deceptive advertising claims on unreasonable or fanciful interpretations o[f] labels 

or other advertising, dismissal on the pleadings may well be justified”).

2. The FDUTPA Claim Is Precluded by the Statute’s Safe Harbor Provision.

Plaintiff’s allegations are not actionable under the FDUTPA because the statute has a Safe 

Harbor Provision that precludes claims predicated on “[a]n act or practice required or specifically 

permitted by federal or state law.” Fla. Stat. § 501.212(1); accord Kuenzig v. Hormel Foods Corp., 

505 F. App’x. 937, 939 (11th Cir. 2013); Dep’t of Legal Affairs v. Tenet Healthcare Corp., 420 F. 

Supp. 2d 1288, 1310 (S.D. Fla. 2005) (explaining that Safe Harbor Provision focuses on whether 

“specific federal or state law affirmatively authorized [the defendant] to engage in the conduct”).

As discussed above, federal law affirmatively authorized the information on this product’s 

label. Such antitussive drug products are subject to federal labeling rules in an FDA Monograph, 

and there is no allegation—nor could there be—that these cough drops did not fully comply with 

the Monograph, including its labeling requirements. Plaintiff’s allegations concerning FDA 

regulations for different products are, as noted above, legally irrelevant. Because federal law 

authorized the information and formatting of the product’s label, and did not prohibit the use of 

descriptors for flavoring on the label, like “honey-lemon,” the Safe Harbor Provision precludes 

Case 1:22-cv-22930-RNS Document 8 Entered on FLSD Docket 01/17/2023 Page 14 of 22
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liability under the FDUTPA. See Phelps v. Hormel Foods Corp., 244 F. Supp. 3d 1312, 1319 (S.D. 

Fla. 2017) (dismissing claims pursuant to Safe Harbor Provision because a federal agency “reviews 

and approves product labels for commercial use”; thus, “they are specifically permitted by federal 

law”).7

B. The Other State Consumer Fraud Claims Fail.

Plaintiff makes no attempt to allege the elements of the non-Florida consumer protection 

statutes he claims Publix has violated, or even identify the specific statutes allegedly violated. 

Plaintiff also does not incorporate any other allegations of the Complaint into this claim. Publix is 

left to guess as to how it supposedly violated the unidentified statutes. This vague, insufficientlypled claim should be dismissed. See Peterson v. Atlanta Hous. Auth., 998 F.2d 904, 912 (11th Cir. 

1993) (“[A] court’s duty to liberally construe a plaintiff’s complaint in the face of a motion to 

dismiss is not the equivalent of a duty to re-write it for her.”).

Regardless, Plaintiff, a Florida citizen who allegedly purchased the product in Florida, see 

Compl. ¶¶ 33, 63, cannot bring claims under the consumer protection acts of other States. Renzi v. 

Demilec (USA) LLC, No. 12-80516, 2013 WL 6410708, at * 8 (S.D. Fla. Dec. 9, 2013) (stating 

“‘[p]laintiffs may only assert a state statutory claim if a named plaintiff resides in that state,’” and 

holding plaintiff—a Florida resident—lacked standing under other state consumer protection acts); 

In re Terazosin Hydrochloride Antitrust Litig., 160 F. Supp. 2d 1365, 1371–72 (S.D. Fla. 2001) 

(dismissing claims under state statutes where named plaintiff could not allege injury in those 

states); see also Valiente, 2022 U.S. Dist. LEXIS 222409, at *26–27 (dismissing similarly-pled

claim under non-Florida consumer protection statutes for lack of standing since plaintiff purchased

product only in Florida). That a member of the proposed classes may have standing under another 

State’s statute does not bestow Plaintiff with the ability to assert a claim under that statute. Id.; 

Knowles v. McDonald’s USA, LLC, No. 16-81657, 2018 WL 8244277, at *23 (S.D. Fla. Feb. 9, 

 

7

See also Prohias v. AstraZeneca Pharm., L.P., 958 So. 2d 1054, 1056 (Fla. 3d DCA 2007) 

(affirming dismissal because promotion and advertising of drug were “specifically permitted” by 

federal law); Hauser v. Steward Melbourne Hosp., Inc., No. 6:19-cv-1150-Orl-41EJK, 2020 WL 

917259, at *5 (M.D. Fla. Feb. 11, 2020) (finding “claim fall[s] squarely within FDUTPA’s Safe 

Harbor Provision” since federal law regulated disclosure requirements); Kuenzig v. Kraft Glob. 

Foods, Inc., No. 8:11–cv–838–T–24, 2012 WL 366916, at *3 (M.D. Fla. Feb. 3, 2012) (dismissing 

because defendant complied with federal regulations); Brett v. Toyota Motor Sales, U.S.A., Inc., 

No. 6:08-cv-1168-Orl-28GJK, 2008 WL 4329876, at *7 (M.D. Fla. Sept. 15, 2008) (dismissing 

because disclosure requirements authorized by federal agency).

Case 1:22-cv-22930-RNS Document 8 Entered on FLSD Docket 01/17/2023 Page 15 of 22
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2018) (concluding a plaintiff “cannot rely upon the circumstances of unnamed plaintiffs to assert 

a claim and the injury that gives rise to that claim”). 

C. The Express Warranty, Implied Warranty, and MMWA Claims Fail.

To state a claim for breach of warranty, a complaint must allege: (1) the sale of goods; (2) 

the type of warranty created; (3) breach of the warranty; (4) notice to the seller of the breach; and 

(5) the injuries sustained by the buyer as a result of the breach. Jovine v. Abbott Labs., Inc., 795 F. 

Supp. 2d 1331, 1340–41 (S.D. Fla. 2011); Durham-Bush, Inc. v. Thermo-Air Servs., Inc., 351 So. 

2d 351 (Fla. 4th DCA 1977).

1. Plaintiff Did Not Provide the Required Pre-Suit Notice.

Plaintiff’s state-law claims for breach of express and implied warranty are subject to 

Florida’s UCC. See Fla. Stat. § 672.102. The Florida UCC unequivocally provides that a “buyer 

must within a reasonable time after he or she discovers or should have discovered any breach 

notify the seller of breach or be barred from any remedy.” Fla. Stat. § 672.607 (emphasis added); 

see also Garcia v. Clarins USA, Inc., 14CV21249HUCKOTAZORE, 2014 WL 11997812, at *7

(S.D. Fla. Sep. 5, 2014) (“Florida law requires Plaintiff to give notice of the breach to the seller.”) 

(citing Jovine v. Abbott Labs., Inc., 795 F. Supp. 2d 1331, 1340 (S.D. Fla. 2011)). The statute and 

case law are clear: the advance notice requirement is “a precondition of imposing liability.” Toca 

v. Tutco, LLC, 430 F. Supp. 3d 1313, 1323 (S.D. Fla. 2020) (quoting Gen. Matters, Inc. v. 

Paramount Canning Co., 382 So. 2d 1262, 1264 (Fla. 2d DCA 1980)). “The buyer bears the burden 

of showing that he gave the required notice within a reasonable time.” Royal Typewriter Co. v. 

Xerographic Supplies Corp., 719 F.2d 1092, 1102 (11th Cir. 1983); accord Toca, 430 F. Supp. 3d 

at 1323. And “[b]ecause the point of the notice requirement is to allow the warrantor an opportunity 

to cure the problem rather than defend a lawsuit, ... pre-suit notice is required.” Valiente, 2022 

U.S. Dist. LEXIS 222409, at *48 (cleaned up).

Here, Plaintiff’s Complaint offers only the boilerplate, vague allegation that he “provided 

or will provide notice to Defendant, its agents, representatives, retailers, and their employees.” 

Compl. ¶ 105. That conclusory allegation, which lacks supporting facts and equivocates on 

whether Plaintiff actually gave pre-suit notice, is insufficient to establish that Publix received the 

required pre-suit notice. In fact, the next paragraph of the Complaint demonstrates that Plaintiff 

did not give pre-suit notice by alleging “Plaintiff provides notice to Defendant that it breached the 

express and implied warranties associated with the Product.” Id. ¶ 106 (emphasis added). 

Case 1:22-cv-22930-RNS Document 8 Entered on FLSD Docket 01/17/2023 Page 16 of 22
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Plaintiffs’ warranty claims must be dismissed for this reason alone. See, e.g., Valiente, 2022 U.S.

Dist. LEXIS 222409, at *49 (dismissing identically-pled express warranty claim for lack of presuit notice); N. Brevard Cnty. Hosp. Dist. v. Metrus Energy-Atlantis, LLC, No. 6:20-CV-547-

ORL37EJK, 2020 WL 10459467, at *4 (M.D. Fla. July 10, 2020) (warranty claims dismissed for

lack of pre-suit notice); Sclar v. OsteoMed, L.P., No. 17-23247-CIV, 2018 WL 559137, at *1–2

(S.D. Fla. Jan. 24, 2018) (claim for breach of warranty dismissed); Armadillo Distribution Enters.

v. Hai Yun Musical Instruments Mfr. Co., Ltd., 142 F. Supp. 3d 1245, 1254 (M.D. Fla. 2015)

(implied warranty claims barred for lack of pre-suit notice); Garcia v. Clarins USA, Inc., No. 14-

CV-21249-HUCK/OTAZO-REYES, 2014 WL 11997812, at *7 (S.D. Fla. Sep. 5, 2014) 

(dismissing express warranty claim for failure to allege notice); Arcure v. Kellogg Co., 2:10-CV192-FTM-36-SPC, 2011 WL 13294631, at *5 (M.D. Fla. Mar. 29, 2011) (dismissing express and 

implied warranty claims, including for failing to allege that the statutorily-required notice was 

provided).

8

2. Publix’s Label Did Not Warrant that the Product Contained Real Lemon.

Plaintiff alleges that Publix expressly warranted the product “contained a non-negligible 

amount of lemon ingredients.” Compl. ¶ 96. This claim fails for the simple reason that the 

Complaint points to no specific language from Publix—located either on the product’s label or 

elsewhere—that guarantees this product contains lemon as an ingredient. As discussed above, no 

reasonable person would believe that the descriptor “honey-lemon” and images of a lemon and 

yellow cough drop constituted a warranty that the product included a non-negligible amount of 

lemon (as opposed to being honey-lemon flavored), especially when lemon is not listed as an 

ingredient. Plaintiff’s inability to identify a specific statement by Publix expressly warranting that 

the product includes real lemon requires dismissal of his express warranty claim. E.g., Pavletic v. 

Caterpillar, Inc., No. 11-60484-CIV, 2011 WL 13217295, at *2 (S.D. Fla. Dec. 21, 2011) 

(dismissing express warranty claim for failing to identify the warranty that defendant allegedly 

made and breached).

 

8 Plaintiff’s failure to give Publix pre-suit notice (and an opportunity to cure) is significant and 

material in light of the Publix Guarantee, discussed above, that “the full purchase price will be 

cheerfully refunded immediately upon request.” See note 3, supra.

Case 1:22-cv-22930-RNS Document 8 Entered on FLSD Docket 01/17/2023 Page 17 of 22
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3. Publix Did Not Breach Any Implied Warranties.

When the seller is a merchant, every contract for the sale of goods includes an implied 

warranty “that the goods shall be merchantable.” Fla. Stat. § 672.314. “Most commonly, the goods 

must ‘[p]ass without objection in the trade,’ id. § 672.314(2)(a), and be ‘fit for the ordinary 

purposes for which such goods are used,’ id. § 672.314(2)(c).” Toca, 430 F. Supp. 3d at 1325. The 

product here is a cough suppressant and oral anesthetic, see Compl. ¶ 1, and Plaintiff never claims 

the product did not work for the ordinary purposes of suppressing coughs and aestheticizing his 

mouth/throat. Thus, even if Plaintiff were correct (he is not) that the statement “honey-lemon” 

falsely implies that the product includes real lemon, that does not establish a breach of the implied 

warranty of merchantability because the Complaint does not allege that the lack of real lemon 

ingredients had any impact on the product’s ordinary purposes of suppressing coughs and 

aestheticizing the mouth/throat. See Business Radio, Inc. v. Relm Wireless Corp., 373 F. Supp. 2d 

1317, 1322 (M.D. Fla. 2005) (dismissing merchantability claim where plaintiff received what it 

paid for and product worked as intended). 

As for the particular purpose claim, “[a] ‘particular purpose’ differs from the ordinary 

purpose in that it envisages a specific use by the buyer which is peculiar to the nature of its 

business” and known by the seller. Zoom Tan, LLC v. Heartland Tanning, Inc., No. 2:12-cv-684, 

2013 WL 5720140, at *9 (M.D. Fla. Oct. 21, 2013). Here, Plaintiff does not allege he purchased 

the product for anything other than the ordinary purposes of suppressing coughs and aestheticizing 

his mouth/throat. More importantly, he does not allege that Publix was aware of some other 

(unidentified) particular purpose for which he bought the product. As such, Plaintiff fails to state 

a claim for breach of implied warranty of fitness for a particular purpose. Id. at *9–10.

4. Plaintiff’s MMWA Claim Also Fails for Multiple Reasons.

Because Plaintiff’s state-law warranty claims fail, so too does his claim under the MMWA. 

See Valiente, 2022 U.S. Dist. LEXIS 222409, at *51 (dismissing MMWA claim for failure of statelaw warranty claims); Amara, 2022 WL 3357575, at *5 (“[A] breach of warranty claim under 

the MMWA is dependent upon a viable underlying state breach of warranty claim.”); Nuwer v. 

FCA US LLC, 552 F. Supp. 3d 1344, 1362 (S.D. Fla. 2021) (“A MMWA claim can only survive 

if the plaintiff pleads a valid state law warranty claim.”); Toca, 430 F. Supp. 3d at 1325 (same); 

Melton v. Century Arms, Inc., 243 F. Supp. 3d 1290, 1304 (S.D. Fla. 2017) (same); Hill v. Hoover 

Co., 889 F. Supp. 2d 1259, 1266 (N.D. Fla. 2012) (same). 

Case 1:22-cv-22930-RNS Document 8 Entered on FLSD Docket 01/17/2023 Page 18 of 22
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The MMWA claim also fails because that statute is “inapplicable to any written warranty 

the making or content of which is otherwise governed by Federal law.” 15 U.S.C. § 2311(d). 

“Through the FDCA, the FDA extensively regulates the labeling, marketing, and sale of all overthe-counter medications.... As such, the MMWA is inapplicable to any alleged express or implied 

warranty claims on [such products].” Hernandez v. Johnson & Johnson Consumer, Inc., No. 3:19-

cv-15679, 2020 WL 2537633, at *13–14 (D.N.J. May 19, 2020) (citations omitted). Accordingly, 

Plaintiff is barred from bringing an MMWA claim. In re Zantac (Ranitidine) Prods. Liab. Litig.

510 F. Supp. 3d 1141, 1173–74 (S.D. Fla. 2020) (dismissing MMWA claim and explaining that 

“federal courts have held that the MMWA is inapplicable to both express-warranty and impliedwarranty claims for products with FDA-regulated labeling”). Additionally, Plaintiff fails to meet 

the requirement under the MMWA that the amount in controversy for any individual claim exceeds 

$25, 15 U.S.C. § 2310(d)(3)(A), since he claims he purchased the product for approximately $1.79, 

Compl. ¶ 30. The Court should dismiss the MMWA claim for each of these independent reasons, 

as well. 

D. The Negligent Misrepresentation and Fraud Claims Fail.

1. The Economic Loss Rule Bars the Claims. 

Florida’s economic loss rule prohibits tort claims, including for fraudulent and negligent 

misrepresentation, concerning products when the only injury is economic loss. Tiara Condo. Ass’n 

v. Marsh & McLennan Cos., 110 So. 3d 399, 407 (Fla. 2013). It is well settled that “Florida’s 

economic loss rule applies to all...tort claims” that “pertain only to the quality of [defendant’s] 

products” and “allege only economic harm arising from the claims.” Melton, 243 F. Supp. 3d at

1302 (dismissing misrepresentation and other tort claims). Misrepresentation claims seeking 

economic damages for a product’s failure to comply with a warranty, with no claim of personal 

injury or damage to other property, are, in substance, products-liability claims subject to dismissal 

under the economic loss rule.9

Here, Plaintiff does not allege he sustained personal injuries or damage to other property. 

He alleges only an economic loss. Therefore, the negligent misrepresentation and fraud claims 

 

9 E.g., Aprigliano v. Am. Honda Motor Co., 979 F. Supp. 2d 1331, 1336–38 (S.D. Fla. 2013) 

(finding misrepresentation claim barred where allegations were the same as those for breach of 

warranty); Burns v. Winnebago Indus., Inc., No. 8:13-cv-1427, 2013 WL 4437246, at **7–9 (M.D. 

Fla. Aug. 16, 2013) (applying economic loss rule because “Plaintiff’s claims are simply product 

liability claims re-titled as claims for negligent misrepresentation and fraudulent concealment”).

Case 1:22-cv-22930-RNS Document 8 Entered on FLSD Docket 01/17/2023 Page 19 of 22
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should be dismissed pursuant to the economic loss rule. E.g., Valiente, 2022 U.S. Dist. LEXIS

222409, at *57–58 (dismissing similarly-pled negligent misrepresentation and fraud claims as

barred by the economic loss rule).

2. The Fraud Claim Does Not Plead the Essential Elements. 

Neither the negligent misrepresentation nor the fraud claim incorporate any preceding 

paragraphs of the Complaint. This is particularly fatal to the fraud claim because it notably fails to 

plead that Plaintiff relied upon the alleged representations and suffered damages therefrom, 

essential elements of a Florida fraud claim. Omnipol, 32 F.4th at 1307 (stating elements of Florida 

fraud claim, which include “the consequent injury by the party acting in reliance on the 

representation”) (quoting Butler v. Yusem, 44 So. 3d 102, 105 (Fla. 2010)). The deficiently-pled 

claim should be dismissed for that additional reason.

E. Plaintiff Does Not Plead An Actionable Unjust Enrichment Claim.

A claim for unjust enrichment is reserved for when, even though the defendant committed 

no misconduct, it would still “be inequitable for the defendant to retain [a] benefit without paying 

for it.” Day v. Sarasota Doctors Hosp., Inc., No. 8:19-cv-1522-T-33TGW, 2020 WL 7390153, at 

*7 (M.D. Fla. Feb 7, 2020); see also State Farm Fire & Cas. Co. v. Silver Star Health & Rehab, 

739 F.3d 579, 584 (11th Cir. 2013) (stating unjust enrichment claims exist “to prevent the wrongful 

retention of a benefit, or the retention of money or property of another, in violation of good 

conscience and fundamental principles of justice or equity”). “Courts routinely dismiss unjustenrichment claims when that plaintiff ‘fail[s] to plausibly plead that the circumstances are such 

that it would be inequitable for the defendant to retain the benefit.’” Id. (quoting OJ Commerce, 

LLC v. Ashley Furniture Indus., Inc., 359 F. Supp. 3d 1163, 1176 (S.D. Fla. 2018)). 

Plaintiff’s single-paragraph unjust enrichment claim is deficiently pled. It alleges no facts, 

does not incorporate any other prior allegations, and leaves Publix to fill in the blanks. See 

Valiente, 2022 U.S. Dist. LEXIS 222409, at *62–63 (dismissing identical unjust enrichment claim

for inadequate pleading). Regardless, there is no inequity because, as discussed above, Plaintiff 

does not allege he failed to receive the benefit of his bargain. See Marrache v. Bacardi U.S.A., 

Inc., 17 F.4th 1084, 1102 (11th Cir. 2021) (holding unjust enrichment claim failed where plaintiff 

received what was bargained for). Plaintiff paid for an antitussive product and does not allege that 

it failed to suppress his cough or aestheticize his mouth/throat. 

Case 1:22-cv-22930-RNS Document 8 Entered on FLSD Docket 01/17/2023 Page 20 of 22
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Plaintiff’s unjust enrichment claim also fails because it is an equitable claim that cannot 

be predicated on unlawful or wrongful conduct. See State of Fla., Office of Atty. Gen., Dep’t of 

Legal Affairs v. Tenet Healthcare Corp., 420 F. Supp. 2d 1288, 1309 (S.D. Fla. 2005) (dismissing 

unjust enrichment claim premised on statutory violations because “the law of unjust enrichment is 

concerned solely with enrichments that are unjust independently of [alleged] wrongs”); accord 

Electrostim Med. Servs., Inc. v. Lindsey, No 8:11-cv-2467-T-33TBM, 2012 WL 1560647, at *4 

(M.D. Fla. May 2, 2012); AtroTel, Inc. v. Verizon Fla., LLC, No. 8:11-cv-2224-TY-33TBM, 2012 

WL 1581596, at *10 (M.D. Fla. May 4, 2012). Here, Plaintiff grounds his unjust enrichment claim 

on supposed misrepresentations, Compl. ¶ 123, the same alleged conduct upon which Plaintiff 

bases his legal claims for violations of consumer protection acts, warranties, and fraud. To the 

extent Plaintiff is entitled to any relief (he is not), it would be under those legal claims. Florida law 

does not permit Plaintiff to repackage those claims alleging legal wrongs as equitable unjust

enrichment claims. See Prohias v. Pfizer Inc., 490 F. Supp. 2d 1228, 1237 (S.D. Fla. 2007) 

(dismissing unjust enrichment claim that sought “recovery for the exact same wrongful conduct as 

in their consumer fraud claim”); see also Weaver v. Mateer & Harbert, P.A., No. 5:9-cv-514-Oc34TBS, 2012 WL 3065362, at *11 (M.D. Fla. July 27, 2012) (dismissing unjust enrichment claim 

pled in the “alternative” because FDUTPA provided “an adequate legal remedy”); Am. Honda 

Motor Co. v. Motorcycle Info. Network, Inc., 390 F. Supp. 2d 1170, 1178 (M.D. Fla. 2005) 

(dismissing unjust enrichment claim “predicated on the same set of allegations supporting ... 

claims under ... FDUTPA”).

CONCLUSION

For the foregoing reasons, Publix respectfully requests that the Court dismiss the 

Complaint in its entirety with prejudice. 

Dated: January 17, 2023 Respectfully submitted,

/s/Daniel B. Rogers

Daniel B. Rogers (Florida Bar No. 195634)

E-Mail: drogers@shb.com

Danielle A. Greenberg (Florida Bar No.1038864)

E-mail: dgreenberg@shb.com

SHOOK, HARDY & BACON L.L.P.

201 South Biscayne Blvd., Suite 3200

Miami, Florida 33131

T: (305) 358-5171

Case 1:22-cv-22930-RNS Document 8 Entered on FLSD Docket 01/17/2023 Page 21 of 22
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Brian T. Guthrie (Florida Bar No. 84232)

E-Mail: bguthrie@shb.com 

SHOOK, HARDY & BACON L.L.P.

100 North Tampa Street, Suite 2900

Tampa, Florida 33602

T: (813) 202-7100 

Counsel for Defendant Publix Super Markets, Inc.

Case 1:22-cv-22930-RNS Document 8 Entered on FLSD Docket 01/17/2023 Page 22 of 22