A federal court in New York has dismissed some allegations in a complaint alleging Wakefern Food Corp.’s graham crackers packaging misleads consumers into believing the product has more whole grain graham flour than non-whole grain flour. Feldman v. Wakefern Food Corp., No. 22-6089 (S.D.N.Y., entered February 8, 2024). The plaintiff also alleged that the packaging misled her into believing the graham crackers contained more than a de minimis amount of honey.

The court dismissed statutory claims brought under Connecticut, New Jersey and Delaware consumer-fraud law as well as state warranty and Magnuson-Moss Warranty Act claims. The plaintiff’s fraud and unjust enrichment claims were also dismissed, but the court allowed New York, Pennsylvania and New Hampshire claims to proceed.

The court focused on Wakefern’s argument that the “common or usual name,” as required by U.S. Food and Drug Administration regulations, of the product is “graham cracker.” As evidence, the defendant appealed to the court’s “experience and common sense” rather than submitting evidence of the usage of “graham cracker,” the court noted. “Defendant’s argument necessarily asks the Court to go beyond the four-corners of the Complaint to determine the ‘common usage’ of the term ‘Graham Cracker,’” it found. “‘This [the Court] cannot do.’”