Does “Stone Ground Wheat” Mean Whole Grain? A New York Court Examines Consumer Expectations Under GBL §§ 349 and 350

By: Jeffrey M. Haber 

New York’s consumer protection statutes, General Business Law (“GBL”) §§ 349 and 350, prohibit materially deceptive business practices and false advertising directed at consumers. To state a claim under either statute, a plaintiff must allege that the challenged conduct was consumer-oriented, materially misleading to a reasonable consumer acting reasonably under the circumstances, and caused an injury. The inquiry is objective and turns on the overall context in which the representation is made. Harbour v. Acme Mkts. Inc., 2026 N.Y. Slip Op. 32223(U) (Sup. Ct. Westchester County Sept. 9, 2026), illustrates the continued importance of the reasonable-consumer standard in food-labeling litigation and the limitations of claims premised on a consumer’s subjective interpretation of product packaging.

Harbour v. Acme Mkts. Inc.

Harbour involved a putative class action under GBL §§ 349 and 350 in which the plaintiff alleged that defendant’s “stone ground wheat” crackers were deceptively marketed because the packaging conveyed that the product's primary wheat ingredient was whole wheat or whole grain, causing consumers to pay a price premium for the product.

Plaintiff alleged that, between January 2023 and October 2025, and within the applicable limitations period, she purchased defendant’s stone ground wheat crackers. According to the Complaint, plaintiff paid a premium price, approximately $3.99 per package, because the packaging’s “stone ground wheat” claim and depiction of three light-brown, coarse-textured crackers conveyed that the product’s primary or predominant wheat ingredient was whole wheat or whole grain, rather than unbleached wheat flour.

Plaintiff commenced the action on behalf of herself and a putative class consisting of New York consumers who purchased the product in New York for personal, family, or household use during the applicable limitations period. The Complaint asserted claims under GBL §§ 349 and 350, alleging that defendant engaged in deceptive business practices and false advertising in connection with the marketing and sale of the product.

Defendant moved to dismiss.

In support of the motion, defendant argued that any claims arising from purchases made between January 2023 and February 3, 2023 were time-barred because the action was not commenced until February 4, 2026, and is subject to a three-year statute of limitations. Defendant further contended that the Complaint failed to state a viable cause of action because the term “stone ground” describes only the method by which wheat is milled and does not represent that the product contained whole wheat, is predominantly whole grain, or includes any particular quantity of whole-grain ingredients.

Defendant also contended that the facts in Harbour were similar to those in Randolph v. Mondelez Globol, LLC, 2022 WL 953301 (S.D.N.Y. Mar. 30, 2022), in which the United States District Court for the Southern District of New York dismissed a complaint containing analogous allegations regarding “stoned wheat thins.” In Randolph, the court held that because the package did not state “whole grains” or use a similar phrase, it should not be inferred that a reasonable consumer would mistake the product for being predominantly whole grain. And, even if there were any ambiguity, it would be easily remedied by reading the ingredient list.

Defendant also argued that plaintiff lacked standing to bring the action because she failed to allege a cognizable injury caused by the purported deception. Although the Complaint alleged that plaintiff paid a price premium based on her belief that the product’s wheat content was entirely, predominantly, or meaningfully whole grain, defendant maintained that the Complaint did not allege that the product was worth less than the price paid. According to defendant, the Complaint’s generalized reference to comparable products was insufficient to plead an economic injury because it neither identified those products nor alleged their prices for comparison.

In opposition, Plaintiff argued that the Complaint adequately alleged a material misrepresentation because a reasonable consumer could understand the term “stone ground wheat,” particularly when viewed alongside the product’s packaging, to signify that the crackers contained a substantial amount of whole-grain wheat. Plaintiff further contended that consumers reasonably expect products marketed as “stone ground wheat” to contain more whole grain, that competing definitions of the term render the label misleading, that the ingredient list does not cure the deception, and that industry naming conventions reinforce consumers’ expectation that whole-grain ingredients predominate in the product.

Plaintiff also argued that the Complaint sufficiently alleged an injury-in-fact for standing purposes because it alleged that she paid a premium price for the product and would not have paid that amount, or would not have purchased the product at all, had she known the truth about its wheat content. Plaintiff further contended that New York law recognizes a lost-benefit-of-the-bargain or price-premium theory of injury, that she was not required at the pleading stage to identify specific comparable products or their prices, and that defendant’s challenge to the sufficiency of her damages allegations raised factual issues inappropriate for resolution on a motion to dismiss.

In reply, defendant argued that Randolph squarely controls because it rejected materially identical allegations concerning a “stone ground wheat” label. Defendant further maintained that plaintiff’s competing definition and linguistic arguments are irrelevant to the objective reasonable consumer standard, that any ambiguity is dispelled by the ingredient list, and that plaintiff’s price-premium allegations were conclusory because the Complaint did not identify comparable products, market prices, or any actual price differential.

The motion court granted the motion.

Regarding standing, the motion court held that plaintiff had standing to bring the action.[1]

Standing is a threshold requirement and prerequisite to filing suit.[2] “[W]hen challenged, [it] must be considered at the outset of any litigation.”[3] The burden is on the moving defendant to establish, prima facie, that the plaintiff lacks standing to bring the action as a matter of law.[4] To defeat the motion, a plaintiff must submit evidence which raises a question of fact as to its standing.[5]

“General Business Law § 349(h) provides standing to any person who has been injured by reason of any violation of this section.”[6] While a plaintiff must be actually harmed by the alleged deceptive act or practice, the harm need not be pecuniary.[7]

In holding that plaintiff had standing, the motion court found (though not specifically stated) that plaintiff adequately alleged a cognizable injury by claiming that she paid a price premium for the product as a result of the allegedly deceptive labeling and would not have paid that amount, or purchased the product at all, had she known the truth.[8] 

Regarding the statute of limitations, the motion court held that any claims falling within the limitation period were not time-barred since “Plaintiff [did] not oppose limiting any recovery to purchases occurring within the limitations period.”[9] “Accordingly,” said the motion court, “any claim premised upon a purchase that occurred before February 4, 2023, is barred by the statute of limitations and dismissed.”[10]

Turning to the substantive arguments of defendant’s motion, the motion court held that plaintiff failed to state a claim.

To state a cause of action under GBL §§ 349 and 350, a “[p]laintiff must allege that: (l) the defendant’s conduct was consumer-oriented; (2) the defendant’s act or practice was deceptive or misleading in a material way; and (3) the plaintiff suffered an injury as a result of the deception.”[11]

The motion court focused on whether the challenged labeling was materially misleading, as defendant did not dispute that its conduct was consumer-oriented and the motion court had already found that plaintiff adequately alleged an injury.[12] In addressing that issue, the motion court observed that “[a] defendant’s actions are materially misleading when they are likely to mislead a reasonable consumer acting reasonably under the circumstances” and that “[w]hat is objectively reasonable depends on the facts and context of the misrepresentations.”[13]

Against that framework, the motion court found Randolph, persuasive, concluding that there was no meaningful distinction between the “stone ground wheat crackers” at issue in Harbour and the “stoned wheat thins” considered in Randolph.[14] Relying on Randolph, the motion court explained that because the deception inquiry under GBL §§ 349 and 350 is governed by an objective reasonable-consumer standard and does not require proof of reliance, plaintiff’s subjective expectations could not establish that a reasonable consumer would be misled by the label.[15]

In addition, the motion court found that the appearance of the crackers on the front of the packaging did not plausibly support an inference of deception.[16] The motion court observed that the Complaint contained no allegations explaining how the light-brown, coarse appearance of the crackers would mislead a reasonable consumer, particularly where the front label made no representation that the product contained whole wheat or whole grain.[17] 

The motion court further held that, even if the front label could be viewed as ambiguous, any potential ambiguity was dispelled by the ingredient list and nutritional information, which accurately disclosed the product’s contents and would not mislead a reasonable consumer.[18] 

Takeaway

Harbour reinforces that the touchstone of liability under GBL §§ 349 and 350 is the objective reasonable-consumer standard, not a plaintiff’s subjective understanding of a product label. Even where a consumer claims to have interpreted a label in a particular manner, the relevant inquiry is whether a reasonable consumer acting reasonably under the circumstances would likely be misled. As the motion court emphasized, personal expectations and assumptions do not substitute for a plausible allegation that the challenged representation would deceive an objectively reasonable consumer.

Harbour demonstrates that New York state courts will look to federal food-labeling decisions for guidance when applying the reasonable-consumer standard under GBL §§ 349 and 350. By relying on Randolph v. Mondelez Global, LLC, the motion court concluded that a reasonable consumer would not interpret the phrase “stone ground wheat” as a representation that the product is predominantly whole grain and signaled that terms describing a manufacturing or processing method will not necessarily be construed as representations about ingredient composition. Consistent with that approach, the motion court was unwilling to infer that consumers would understand a product to contain predominantly whole wheat or whole grain where the label made no such express claim.

Another important takeaway is that packaging imagery, standing alone, may be insufficient to establish deception. The motion court rejected the argument that the depiction of light-brown, coarse-textured crackers plausibly conveyed that the product was predominantly whole grain, particularly where the complaint failed to explain why those visual characteristics would communicate such a message to a reasonable consumer.

The decision further highlights the significance of ingredient disclosures in food-labeling litigation. Even assuming the front label could be viewed as ambiguous, the motion court concluded that the ingredient list and nutrition information dispelled any potential misunderstanding. Harbour therefore recognizes that, in appropriate circumstances, accurate ingredient disclosures may cure ambiguity created by generalized statements appearing elsewhere on the packaging.

On standing, however, the motion court reaffirmed that a traditional price-premium theory remains sufficient at the pleading stage. The motion court accepted allegations that the plaintiff paid more for the product because of the challenged representation and would not have paid that amount, or purchased the product at all, had she known the truth. Thus, while plaintiff ultimately failed to state a claim, the action was not dismissed for lack of standing.

Finally, Harbour illustrates the distinction between pleading injury and pleading deception. A plaintiff may adequately allege economic injury through an overpayment or lost-benefit-of-the-bargain theory, yet still fail to state a claim if the challenged representation is not materially misleading as a matter of law. In that respect, Harbour serves as a reminder that standing and the merits remain separate inquiries under GBL §§ 349 and 350, and success on the former does not guarantee success on the latter.

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Jeffrey M. Haber is a partner and co-founder of Freiberger Haber LLP.

This article is for informational purposes only and is not intended to be, and should not be, taken as legal advice.

Unless otherwise stated, Freiberger Haber LLP’s articles are based on recently decided published opinions or litigation releases and not on matters handled by the firm.

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[1] Slip Op. at *3.

[2] New York State Assn. of Nurse Anesthetists v. Novello, 2 N.Y.3d 207, 211 (2004); Saratoga County Chamber of Commerce v. Pataki, l00 N.Y.2d 801, 812 (2003)

[3] Society of Plastics Indus. County of Suffolk, 77 N.Y.2d 761,722 (1991).

[4] U.S. Bank N.A. v. Guy, 125 A.D.3d 845, 857 (2d Dept. 2015).

[5] Id.

[6] UnitedHealthcare Servs., Inc. v. Asprinio, 49 Misc. 3d 985, 997 (Sup. Ct., Westchester County 2015); see also GBL 349(h).

[7] Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, N.A., 85 N.Y.2d 20, 26 (1995)

[8] Slip Op. at *3, citing Handsome v. Continental Mills, Inc., 89 Misc.3d 12l5(A), 2026 N.Y. Slip Op. 50955(U) (Sup. Ct., Kings County 2026); Raphael v. Schwan’s Consumer Brands, Inc., 87 Misc. 3d 1260(A), 2025 N.Y. Slip Op. 52089(U) (Sup. Ct., Kings County 2025).

[9] Id.

[10] Id. (citations omitted).

[11] Himmelstein, McConnell, Gribben, Donoghu & Joseph, LLP v. Matthew Bender & Co., 37 N.Y.3d 169, 176 (2021) (internal citations omitted).

[12] Slip Op. at *4.

[13] Himmelstein, 37 N.Y.3d at 178 (internal quotation marks and citations omitted).

[14] Slip Op. at *4.

[15] Id., citing Randolph, 2022 WL 953301, at 3.

[16] Id. at 4-5.

[17] Id. at 5, citing Stinnie v. Aldi Inc., 2025 N.Y Slip Op. 32415(U), at 3-5 (Sup. Ct., N.Y. County 2025).

[18] Id., citing id.