23-285-cv

Foster v. Whole Foods

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A 

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY 

FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. 

WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST 

CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION 

“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT 

ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

At a stated term of the United States Court of Appeals for the Second Circuit, held at the 

Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 

8th day of December, two thousand twenty-three.

Present:

PIERRE N. LEVAL,

SUSAN L. CARNEY,

WILLIAM J. NARDINI,

Circuit Judges.

_____________________________________

JULIAN FOSTER, individually and on behalf of all 

others similarly situated,

Plaintiff-Appellant,

v. 23-285-cv

WHOLE FOODS MARKET GROUP, INC., 

Defendant-Appellee.

_____________________________________

For Plaintiff-Appellant: ROBERT ABIRI, Custodio & Dubey LLP, Los Angeles, 

California. 

For Defendant-Appellee: BRIAN R. BLACKMAN, Blaxter Blackman LLP, San 

Francisco, California.
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Appeal from a judgment of the United States District Court for the Eastern District of New 

York (Edward R. Korman, District Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 

DECREED that the judgment of the district court is AFFIRMED. 

Plaintiff-Appellant Julian Foster appeals from a judgment of the United States District 

Court for the Eastern District of New York (Edward R. Korman, District Judge), entered on 

February 3, 2023, dismissing his false advertising claims against Defendant-Appellee Whole 

Foods Market Group, Inc. (“Whole Foods”). Foster asserted claims under Sections 349 and 350 

of New York General Business Law, and for breach of express warranty and unjust enrichment. 

Each claim centers on Foster’s allegation that the labeling for Whole Foods’ fish oil dietary 

supplement (the “Fish Oil Product”) was false and deceptive, specifically that the Fish Oil 

Product’s front label misleadingly indicated that the product contains 1000mg of Omega-3s EPA 

and DHA per serving (one capsule), whereas each capsule actually contains only 300mg of 

Omega-3s. The district court dismissed the complaint for failure to state a claim. We assume 

the parties’ familiarity with the case.

We review a district court’s judgment granting a motion to dismiss de novo. Krys v. 

Pigott, 749 F.3d 117, 128 (2d Cir. 2014). “In reviewing the sufficiency of a complaint, we accept 

only its factual allegations, and the reasonable inferences that can be drawn therefrom, as true.” 

Id.

1 This requirement, however, is inapplicable to legal conclusions. See Vaughn v. Phoenix H. 

1 Unless otherwise indicated, in quoting cases, all internal quotation marks, alterations, emphases, 

footnotes, and citations are omitted.
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New York Inc., 957 F.3d 141, 145 (2d Cir. 2020). To survive a motion to dismiss, a complaint 

must “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible 

on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows 

the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 

Fink v. Time Warner Cable, 714 F.3d 739, 741 (2d Cir. 2013). This standard of facial plausibility

depends on a host of considerations, including “the full factual picture presented by the complaint, 

the particular cause of action and its elements, and the existence of alternative explanations so 

obvious that they render plaintiff’s inferences unreasonable.” L–7 Designs, Inc. v. Old Navy, LLC, 

647 F.3d 419, 430 (2d Cir. 2011).

I. Dismissal

General Business Law (“GBL”) § 349 states that “[d]eceptive acts or practices in the 

conduct of any business, trade or commerce or in the furnishing of any service in this state 

are . . . unlawful.” N.Y. Gen. Bus. Law § 349(a). Similarly, GBL § 350 prohibits “[f]alse

advertising in the conduct of any business, trade or commerce or in the furnishing of any service.” 

Id. § 350. “To make out a prima facie case under Section 349, a plaintiff must demonstrate that 

(1) the defendant’s deceptive acts were directed at consumers, (2) the acts are misleading in a 

material way, and (3) the plaintiff has been injured as a result.” Maurizio v. Goldsmith, 230 F.3d 

518, 521 (2d Cir. 2000). Deceptive acts are “likely to mislead a reasonable consumer acting 

reasonably under the circumstances.” Id. The same holds true for liability under § 350. Id. at 

522. 

Here, we conclude that the allegations stated in Foster’s complaint lack sufficient facial 
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plausibility to withstand a motion to dismiss because the complaint does not adequately allege that 

the Fish Oil Product’s labeling was likely to mislead a reasonable consumer. On the front label 

of the bottle, directly in the middle, “Fish Oil” is listed, in large white typeface. Immediately 

above, in slightly smaller but prominent typeface, is the description “100% Wild-Caught.” And, 

immediately below, the front label contains, on separate lines, the following four representations 

listed consecutively, one under the other, in small grey typeface: (1) “Omega-3s EPA & DHA”; 

(2) “1000mg Per Serving”; (3) “From Small Cold-Water Fish”; and (4) “Molecularly Distilled.”

Foster argues that a reasonable consumer would read the first two of the small lines—“Omega-3s 

EPA & DHA” and “1000mg Per Serving”—as a single unit, with 1000mg specifying the quantity 

of Omega-3s, while reading the last two lines as separate statements. But the complaint does not 

sufficiently allege that a reasonable consumer would read the second line—1000mg Per Serving—

in conjunction with the first (and only the first) of the four subsidiary lines, rather than reading 

each of the four small lines to independently describe the principal large-type banner, “Fish-Oil.” 

Put another way, Foster’s complaint does not adequately allege that the front label would likely

mislead a reasonable consumer. 

We have acknowledged that, when ambiguity might exist related to certain representations 

on a product’s label, context can be crucial in determining whether a reasonable consumer would 

have been misled or deceived as “under certain circumstances, the presence of a disclaimer or 

similar clarifying language may defeat a claim of deception.” Fink, 714 F.3d at 742. Here, the 

complaint fails to plausibly allege that the Fish Oil Product’s front label, viewed as a whole, was 

likely to mislead a reasonable consumer. Further, the back labeling clearly and accurately states
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to consumers the supplement facts per serving—namely, that there are 1000mg of Fish Oil, 

including 300mg of Omega-3s EPA and DHA, per serving. Given the complaint’s failure to 

explain that the front label was likely to mislead a reasonable consumer, and the clearly accurate 

information on the back of the label, the district court did not err in dismissing the complaint. 

Foster’s invocation of Mantikas v. Kellogg Co., 910 F.3d 633 (2d Cir. 2018), does not alter 

our conclusion. He argues that Mantikas rejected the proposition that if the front labeling of a 

product is ambiguous, additional clarification on the back can render the front labeling not 

deceptive. That is not what Mantikas held. In Mantikas, we determined that contextual 

information on the reverse of the product’s packaging could not overcome clearly inaccurate 

factual representations on the front labeling. Id. at 638–39. But the case before us does not 

involve an affirmatively inaccurate statement. Even assuming that the representation on the front 

label might be considered ambiguous, the additional information on the Fish Oil Product’s back 

label provides clarifying language that definitively dispels any arguable ambiguity on the front.

In short, the district court properly dismissed the complaint. 

II. Leave to Amend 

Foster also challenges the district court’s denial of his request for leave to amend the 

complaint. The district court concluded that amending the pleading would be futile because the

pleading deficiencies were unlikely to be cured. “We review a district court’s denial of leave to 

amend for abuse of discretion, unless the denial was based on an interpretation of law, such as 

futility, in which case we review the legal conclusion de novo.” Panther Partners Inc. v. Ikanos 

Commc’ns, Inc., 681 F.3d 114, 119 (2d Cir. 2012). Here, Foster did not submit a proposed 
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amended complaint at all, never mind one containing allegations that would remedy the 

insufficiency of the original complaint. Nor do the proposed allegations he belatedly offers in his 

reply brief suffice. Appellant’s Reply Br. at 24. We therefore affirm the district court’s denial 

of his request to further amend the complaint and its decision to grant the motion to dismiss with 

prejudice. See, e.g., City of Pontiac Policemen’s & Firemen’s Ret. Sys. v. UBS AG, 752 F.3d 173, 

188 (2d Cir. 2014) (denying leave to amend where “plaintiffs have identified no additional facts 

or legal theories they might assert if given leave to amend”). 

We have considered Foster’s remaining arguments and find them unpersuasive. 

Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk of Court