21.  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.”    23.  The food labeling laws and regulations of New York impose requirements which  mirror federal law.    24.  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).   25.  Courts have noted the incorporation of FDA regulations into New York law in  evaluating claims brought under NY GBL § 349. See Ackerman v. Coca-Cola Co., No. CV-09- 0395 (JG) (RML), 2010 U.S. Dist. LEXIS 73156, at *13 (E.D.N.Y. July 21, 2010) (“New York's  Agriculture and Marketing law similarly provides in relevant part that food shall be deemed  misbranded ‘[i]f its labeling is false or misleading in any particular,’ and incorporates the  FDCA's labeling provisions”); Izquierdo v. Mondelez Int'l, Inc., No. 16-cv-04697 (CM), 2016  U.S. Dist. LEXIS 149795, at *11 (S.D.N.Y. Oct. 26, 2016) (“Here [in a slack-fill case brought  under NY GBL § 349], New York law expressly incorporates the standard imposed by the  60.  Plaintiff MORRISON 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 Product during the applicable limitations period,  and/or such subclasses as the Court may deem appropriate (“the  Nationwide Class”).   61.  In the alternative, Plaintiff MORRISON seeks to represent:   All persons who made retail purchases of the Product in New York  during the applicable limitations period, and/or such subclasses as  the Court may deem appropriate (“the New York Class”).   62.  The proposed Classes exclude current and former officers and directors of  Defendant, members of the immediate families of the officers and directors of Defendant,  Defendant’s legal representatives, heirs, successors, assigns, and any entity in which they have or  have had a controlling interest, and the judicial officer to whom this lawsuit is assigned.   63.  Class members are so numerous that joinder of all Class 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.   65.  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.   66.  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.   68.  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.   69.  A class action is superior to other available methods for the fair and efficient  adjudication of this controversy. The damages suffered by any individual Class member are too  small to make it economically feasible for an individual Class member to prosecute a separate  action, and it is desirable for judicial efficiency to concentrate the litigation of the claims in this  forum. Furthermore, the adjudication of this controversy through a class action will prevent the  potentially inconsistent and conflicting adjudications of the claims asserted herein. There will be  no difficulty in the management of this action as a class action.   70.  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.    72.  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.    73.  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.   74.  Plaintiff MORRISON realleges and incorporates herein by reference the  allegations contained in all preceding paragraphs, and further alleges as follows:   75.  Plaintiff MORRISON 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.   76.  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.”   78.  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.”   79.  The foregoing deceptive acts and practices were directed at consumers.   80.  Defendant should be enjoined from packaging its Product with non-functional  slack-fill, as described above, pursuant to NY GBL § 349.   81.  Plaintiff is at risk of several types of future injury, each of which justifies the  imposition of an injunction. Absent an injunction, Plaintiff MORRISON is at risk of continued  injury because she is no longer able to rely on Defendant’s representations, regardless of whether  they are true or false. Plaintiff may hesitate to purchase Defendant’s Product even if it ceases its  unlawfully labeling the Product by packaging them with misleading slack-fill. Plaintiff may  hesitate to purchase Defendant’s Product even if it begins manufacturing the Product without any  slack-fill. If the Product is no longer sold with the false packaging representations, Plaintiff  MORRISON could not uninhibitedly take advantage of that Product because she has been misled  to believe that they contain slack-fill.   83.  The Court should follow the lead of California Federal Courts and recognize that  a plaintiff may be injured after she learns of a manufacturer’s deception, even though she 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.   85.  Plaintiff MORRISON realleges and incorporates herein by reference the  allegations contained in all preceding paragraphs, and further alleges as follows:   86.  Plaintiff MORRISON brings this claim individually and on behalf of the other  members of the Class for violations of NY GBL § 349.   87.  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.   88.  By the acts and conduct alleged herein, Defendant committed unfair or deceptive  acts and practices by misbranding its Product so that they appear to contain more in the  packaging than is actually included.   89.  The practices employed by Defendant, whereby Defendant advertised, promoted,  marketed and sold its Product in packages containing non-functional slack-fill are unfair,  deceptive and misleading and are in violation of the NY GBL § 349, New York Agm. Law § 201  and the FDCA (21 U.S.C. § 343(d)) in that said Product are misbranded.    91.  Plaintiff MORRISON 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 MORRISON 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 MORRISON  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.   92.  This claim is brought on behalf of Plaintiff MORRISON and members of the  Class against Defendant.   93.  Plaintiff MORRISON realleges and incorporates by reference the allegations  contained in all preceding paragraphs, and further alleges as follows:   94.  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.    96.  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 chips 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.   97.  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.    98.  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.    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  consumer protection law of other states and the District of Columbia to the extent New  York law is inapplicable to out-of-state Class members, or, in the alternative, on behalf of  the New York Class)   INJUNCTION 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  consumer protection law of other states and the District of Columbia to the extent New  York 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  consumer protection law of other states and the District of Columbia to the extent New  York law is inapplicable to out-of-state Class members, or, in the alternative, on behalf of  the New York Class)  