In Izquierdo v. Panera Bread Co., No. 18-cv-12127, 2020 WL 1503557 (S.D. N.Y. March 30, 2020), the court denied injunctive relief to the plaintiff for lack of standing for failing to allege that he planned to purchase the product in the future, but the court refused to dismiss the consumer's putative class action claim that the defendant violated New York's prohibition against deceptive business practices and engaged in false advertising and fraud allegedly by misrepresenting the contents of its blueberry bagels. The plaintiff claimed that signs in the bakery and on its website refer to the product in question as a "blueberry" bagel; placement of discrete pieces of fruit throughout the bagel; and placement of the bagel alongside blueberry muffins that contained only real blueberries would lead the reasonable consumer into believing that the bagel consisted solely of real blueberries, when in fact the bagel contained primarily imitation blueberries with a lesser quantity of real blueberries. The plaintiff claimed that he paid a higher price for the bagel than he would have had he known that it contained only trace amounts of real blueberries. According to the court, the U.S. Court of Appeals for the Second Circuit has found it materially misleading to suggest that a product contains a greater proportion of a preferred ingredient than it actually does, even where there is a visible ingredients list that states the correct composition of the food. The plaintiff alleged fraud by claiming that the bakery knew the true composition of its blueberry bagel, as evidenced by its publication of the ingredient list; produced the bagel in such a way that imitation blueberries were indistinguishable from real ones; purposely advertised "menu transparency" and its "clean" food; knew of consumer beliefs about the healthful qualities of blueberries; and sought to capitalize on those beliefs and its branding to sell more bagels.
Originally published July 23, 2020.
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