22.  Under § 403(d) of the FDCA (21 U.S.C. § 343(d)), a food shall be deemed to be  misbranded “[i]f its container is so made, formed, or filled as to be misleading.”    25.  The possibility that some portion of the slack-fill in Defendant’s Product may be  justified as functional based on the exemptions in §100.100(a) does not justify slack-fill that is in  excess of that required to serve a legitimate purpose—protecting contents, accommodating the  machines that enclose the contents, accommodating settling, etc.  Such slack-fill serves no  purpose other than to mislead consumers about the quantity of food they are actually purchasing.   See Waldman v. New Chapter, Inc., 714 F. Supp. 2d 398, 405 (E.D.N.Y. 2010) (“Misleading  consumers is not a valid reason to package a product with slack-fill. See 21 C.F.R. §  100.100(a)(1–6).”).   26.  The food labeling laws and regulations of New York impose requirements that  mirror federal law.    27.  New York Agm. Law § 201 specifically provides that “[f]ood shall be deemed to  be misbranded … If its container is so made, formed, colored or filled as to be misleading.”  Moreover, Part 259.1 of Title 1 of the New York Codes, Rules and Regulations (1 NYCRR §  259.1), incorporates by reference the regulatory requirements for food labeling under the FDCA:   “For the purpose of the enforcement of article 17 of the Agriculture and Markets  Law, and except where in conflict with the statutes of this State or with rules and  regulations promulgated by the commissioner, the commissioner hereby adopts the  current regulations as they appear in title 21 of the Code of Federal Regulations  (revised as of April 1, 2013) … in the area of food packaging and labeling as  follows: … (2) Part 100 of title 21 of the Code of Federal Regulations [21 C.F.R.  100 et seq.], containing Federal definitions and standards for food packaging and  labeling General at pages 5-10….”  1 NYCRR § 259.1(a)(2).   53.  Plaintiff  JOCELYN brings this action as a class action pursuant to Rule 23 of the  Federal Rules of Civil Procedure on behalf of the following Class:  All persons or entities in the United States who made retail  purchases of the Products during the applicable limitations period,  and/or such subclasses as the Court may deem appropriate (“the  Nationwide Class”).  In the alternative, Plaintiff JOCELYN seeks to represent:   All persons who made retail purchases of the Products in New  York during the applicable limitations period, and/or such  subclasses as the Court may deem appropriate (“the New York  Class”).   55.  Class members are so numerous that joinder of all members is impracticable.  While the exact number of Class members is unknown to Plaintiff at this time and can only be  ascertained through the appropriate discovery, Plaintiff believes that there are thousands of  members in the proposed Classes. Other members of the Classes may be identified from records  maintained by Defendant and may be notified of the pendency of this action by mail, or by  advertisement, using the form of notice similar to that customarily used in class actions such as  this.   56.  Plaintiff’s claims are typical of the claims Class members as they all are similarly  affected by Defendant’s wrongful conduct.   57.  Plaintiff will fairly and adequately protect the interests of the Class members in  that Plaintiff has no interests antagonistic to them. Plaintiff has retained experienced and  competent counsel.   58.  A class action is superior to other available methods for the fair and efficient  adjudication of this controversy. Since the damages sustained by individual Class members may  be relatively small, the expense and burden of individual litigation make it impracticable for the  Class members to individually seek redress for the wrongful conduct alleged herein.   60.  The membership of the Classes is readily definable, and prosecution of this action  as a class action will reduce the possibility of repetitious litigation. Plaintiff knows of no  difficulty which will be encountered in the management of this litigation that would preclude its  maintenance as a class action.   62.  The prerequisites to maintaining a class action for injunctive relief or equitable  relief pursuant to Rule 23(b)(2) are met, as Defendant has acted or refused to act on grounds  generally applicable to the Class, thereby making appropriate final injunctive or equitable relief  with respect to the Class as a whole.    63.  The prerequisites to maintaining a class action for injunctive relief or equitable  relief pursuant to Rule 23(b)(3) are met, as questions of law or fact common to the Classes  predominate over any questions affecting only individual members and a class action is superior  to other available methods for fairly and efficiently adjudicating the controversy.   64.  The prosecution of separate actions by individual Class members would create a  risk of establishing inconsistent rulings and/or incompatible standards of conduct for Defendant.  Additionally, individual actions may be dispositive of the interest of all Class members, although  certain Class members are not parties to such actions.    65.  Defendant’s conduct is generally applicable to the Classes as a whole and Plaintiff  seeks, inter alia, equitable remedies with respect to the Classes as a whole. As such, Defendant’s  systematic policies and practices make declaratory relief with respect to the Classes as a whole  appropriate.   66.  Plaintiff  JOCELYN realleges and incorporates herein by reference the allegations  contained in all preceding paragraphs, and further alleges as follows:   67.  Plaintiff  JOCELYN brings this claim individually and on behalf of the other  members of the Class for an injunction for violations of New York’s Deceptive Acts or Practices  Law, General Business Law (“NY GBL”) § 349.   68.  NY GBL § 349 provides that “deceptive acts or practices in the conduct of any  business, trade or commerce or in the furnishing of any service in this state are . . . unlawful.”   69.  Under the New York Gen. Bus. Code § 349, it is not necessary to prove justifiable  reliance. (“To the extent that the Appellate Division order imposed a reliance requirement on  General Business Law [§] 349 . . . claims, it was error. Justifiable reliance by the plaintiff is not  an element of the statutory claim.” Koch v. Acker, Merrall & Condit Co., 18 N.Y.3d 940, 941  (N.Y. App. Div. 2012) (internal citations omitted)).   70.  The practices employed by Defendant, whereby Defendant advertised, promoted,  marketed and sold its Product in packaging containing non-functional slack-fill are unfair,  deceptive and misleading and are in violation of the NY GBL § 349. Moreover, New York State  law broadly prohibits the misbranding of foods in language identical to that found in regulations  promulgated pursuant to the FDCA § 403 (21 U.S.C. 343(d)). Under New York Agm. Law §  201, “[f]ood shall be deemed to be misbranded … If its container is so made, formed, colored or  filled as to be misleading.”   71.  The foregoing deceptive acts and practices were directed at consumers.   73.  Absent an injunction, Plaintiff  JOCELYN is at risk of continued injury because  she can no longer rely on Defendant’s packaging, even if the nonfunctional slack-fill is  corrected. Plaintiff  JOCELYN might hesitate to purchase Defendant’s products even if it ceases  its unlawful packaging practices and begins packaging its products without slack-fill. If the  products are no longer sold with non-functional slack-fill, then Plaintiff  JOCELYN could not  take advantage of those products because she has been misled into believing that the products  have non-functional slack-fill. Courts have agreed with this assessment:  [S]ome courts have focused on the particular nature of the injury at issue to find  standing. They have found at least two injuries sufficient to establish standing  where the plaintiff is aware of the misrepresentation: absent an injunction, the  plaintiff-consumer will 1) no longer be able to  confidently rely on the defendant's  representations (see Ries, 287 F.R.D. at 533), and 2) refrain from purchasing  products in the future even if they in fact conform to her expectations (see Lilly v.  Jamba Juice Company, No. 13-cv-02998-JST, 2015 U.S. Dist. LEXIS 34498, 2015  WL 1248027, at *3-5 (N.D. Cal. March 18, 2015). When a consumer discovers that  a representation about a product is false, she doesn't know that another, later  representation by the same manufacturer is also false. She just doesn't know  whether or not it's true. A material representation injures the consumer not only  when it is untrue, but also when it is unclear whether or not is true.  Duran v. Hampton Creek, No. 3:15-cv-05497-LB, 2016 U.S. Dist. LEXIS 41650 (N.D. Cal. Mar.  28, 2016).   74.  The Court should follow the lead of California Federal Courts and recognize that  a plaintiff may be injured after he learns of a manufacturer’s deception, even though he is  unlikely to fall victim to the exactly the same scheme again in exactly the same manner. To hold  otherwise would immunize manufacturers and render injunctive relief impossible in consumer  fraud class action lawsuits – if learning of a deception removed a Plaintiff’s standing to seek an  injunction, then wrongdoers could violate the law with impunity, defeating the purpose of  consumer protection statutes.   76.  Plaintiff  JOCELYN realleges and incorporates herein by reference the allegations  contained in all preceding paragraphs, and further alleges as follows:   77.  Plaintiff  JOCELYN brings this claim individually and on behalf of the other  members of the Class for violations of NY GBL § 349.   78.  Any person who has been injured by reason of any violation of NY GBL § 349  may bring an action in her own name to enjoin such unlawful acts or practices, an action to  recover her actual damages or fifty dollars, whichever is greater, or both such actions. The court  may, in its discretion, increase the award of damages to an amount not to exceed three times the  actual damages up to one thousand dollars, if the court finds the defendant willfully or  knowingly violated this section. The court may award reasonable attorney’s fees to a prevailing  plaintiff.   79.  By the acts and conduct alleged herein, Defendant committed unfair or deceptive  acts and practices by misbranding its Product so that it appears to contain more in the packaging  than is actually included.   81.  The foregoing deceptive acts and practices were directed at consumers.   82.  Plaintiff  JOCELYN and the other Class members suffered a loss as a result of  Defendant’s deceptive and unfair trade practices. Specifically, as a result of Defendant’s  deceptive and unfair acts and practices, Plaintiff  JOCELYN and the other Class members  suffered monetary losses from the purchase of Product, i.e., receiving less than the capacity of  the packaging due to non-functional slack-fill in the Product. In order for Plaintiff  JOCELYN  and Class members to be made whole, they must receive a refund of the purchase price of the  Product equal to the percentage of non-functional slack-fill in it.   83.  This claim is brought on behalf of Plaintiff  JOCELYN and members of the Class  against Defendant.   84.  Plaintiff  JOCELYN realleges and incorporates by reference the allegations  contained in all preceding paragraphs, and further alleges as follows:   85.  Defendant has been and/or is engaged in the “conduct of … business, trade or  commerce” within the meaning of N.Y. Gen. Bus. Law § 350.    87.  Pursuant to the FDCA as implemented through 21 C.F.R. § 100.100, package size  is an affirmative representation of quantity. Thus, the non-functional slack-fill in Defendant’s  Product constituted false advertising as to the quantity of candy contained therein. Defendant  caused this false advertising to be made and disseminated throughout New York and the United  States. Defendant’s false advertising was known, or through the exercise of reasonable care  should have been known, by Defendant to be deceptive and misleading to consumers.   88.  Defendant’s affirmative misrepresentations were material and substantially  uniform in content, presentation, and impact upon consumers at large. Consumers purchasing the  Product were, and continue to be, exposed to Defendant’s material misrepresentations.    89.  Defendant has violated N.Y. Gen. Bus. Law § 350 because its misrepresentations  and/or omissions regarding the Product, as set forth above, were material and likely to deceive a  reasonable consumer.    90.  Plaintiff  JOCELYN and members of the Class have suffered an injury, including  the loss of money or property, as a result of Defendant’s false and misleading advertising. In  purchasing the Product, Plaintiff  JOCELYN and members of the Class relied on the  misrepresentations regarding the quantity of the Product that was actually candy rather than non- functional slack-fill. Those representations were false and/or misleading because the Product  contains substantial hidden non-functional slack-fill. Had Plaintiff and the Class known this, they  would not have purchased the Product or been willing to pay as much for it.   92.  Plaintiff realleges and incorporates herein by reference the allegations contained  in all preceding paragraphs, and further alleges as follows:   93.  Through its product packaging, Defendant intentionally made materially false and  misleading representations regarding the quantity of candy that purchasers were actually  receiving.   94.  Plaintiff and Class members were induced by, and relied upon, Defendant’s false  and misleading representations and did not know the truth about the Product at the time they  purchased it.   95.  Defendant knew of its false and misleading representations. Defendant  nevertheless continued to promote and encourage customers to purchase the Product in a  misleading and deceptive manner, intending that Plaintiff and the Class rely on its  misrepresentations.    96.  Had Plaintiff and the Class known the actual amount of candy they were  receiving, they would not have purchased the Product.    COMMON LAW FRAUD  (brought on behalf of the Nationwide Class, in conjunction with the substantively similar  common law of other states and the District of Columbia to the extent New York common  law is inapplicable to out-of-state Class members, or, in the alternative, on behalf of the  New York Class)   DAMAGES FOR VIOLATIONS OF NEW YORK GENERAL BUSINESS LAW § 349  (DECEPTIVE AND UNFAIR TRADE PRACTICES ACT)  (brought on behalf of the Nationwide Class, in conjunction with the substantively similar  common law of other states and the District of Columbia to the extent New York common  law is inapplicable to out-of-state Class members, or, in the alternative, on behalf of the  New York Class)   Identical Federal and State Law Prohibit Misbranded Foods with Non-Functional Slack-Fill   VIOLATIONS OF NEW YORK GENERAL BUSINESS LAW §§ 350 AND 350-a(1)  (FALSE ADVERTISING)  (brought on behalf of the Nationwide Class, in conjunction with the substantively similar  common law of other states and the District of Columbia to the extent New York common  law is inapplicable to out-of-state Class members, or, in the alternative, on behalf of the  New York Class)  