Greene v. Gerber Products Co. (262 F. Supp. 3d 38, 2017)

MEMORANDUM & ORDER

. MARGO K. BRODIE, United States District Judge:

Plaintiffs Jeremy Greene and Cetaria Wilkerson (the “Greene Plaintiffs”) commenced a putative class action on behalf of themselves and all others similarly situated against Defendant Gerber Products Co., doing business as Nestlé Nutrition^ Nestlé Infant Nutrition or Nestlé Nutrition North America on March 8, 2016. (Greene Compl., Docket Entry No. 1.) Several months later, on January 6, 2017, Plaintiff Wendy Manemeit commenced a nearly identical putative class action on behalf of herself and all others similarly situated, and against the same Defendant, Gerber Products Co. (Manemeit Compl., Docket Entry No. 1.) The Greene Plaintiffs allege violations of (1) the Ohio Consumer Sales Practices Act, Ohio Rev. Code Ann. §§ 1345.01 et seq.; (“OCSPA”), (2) the Ohio Deceptive Trade Practices Act, Ohio Rev. Code Ann. §§ 4165.01 et seq. (“ODT-PA”), and (3) the North Carolina Deceptive Trade Practices Act, N.C. Gen. Stat. Ann. §§ 75-1.1 et seq. (“NCDTPA”). (Greene Compl. ¶14.) Manemeit alleges violations bf sections 349 and 350 of New York’s General Business Law (“GBL”). (Manemeit Compl, ¶¶93-108.) Plaintiffs also bring common-law claims for fraudulent-concealment, intentional misrepresentation, negligent misrepresentation and unjust enrichment, based on Defendant’s advertising and marketing of its “Good Start” line of infant formula (the “Infant Formula”). (Greene Compl.- ¶ 14; Mane-meit Compl.. ¶ 14.) Plaintiffs allege that Defendant’s - advertising and marketing misrepresent that Defendant’s Infant Formula reduces the risk that infants will develop allergies, and also misrepresent that the- Infant Formula is the first and only infant formula that the Food and Drug Administration (the “FDA”) endorses tq reduce the risk of infants developing allergies. (Greene Compl. ¶¶2-3.) Plaintiffs seek actual, statutory and punitive damages, restitution, and disgorgement, and injunctive relief. (Greene Compl. 38; Manemeit Compl. 33.)

Defendant moves to dismiss or stay the Greene action, only, pursuant tó the primary jurisdiction doctrine. Defendant also moves to dismiss Plaintiffs’ claims for in-junctivé relief pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, strike the nationwide class allegations and dismiss the Greene Complaint and the Ma-nemeit Complaint pursuant to Rules 9(b) and 12(b)(6) of the Federal Rules of Civil Procedure.

The Court consolidates the Greene and Manemeit actions for purposes of deciding this motion. For the reasons set forth below, the Court declines to dismiss or stay the Greene. Complaint pursuant to the primary jurisdiction doctrine,' grants Defendant’s motion to dismiss Plaintiffs’ claims under the OCSPA and ODTPA, and denies Defendant’s motion to dismiss Plaintiffs’ claims under the NCDTPA. As to the Ma-nemeit Complaint, the Court denies Defendant’s motion to dismiss the claims brought pursuant to sections 349 and. 350 of the GBL. As to the Greene and Mane-meit Complaints, the Court finds that Plaintiffs lack standing to seek injunctive relief; grants Defendant’s motion to dismiss the unjust enrichment claims; denies Defendant’s motion to strike the nationwide class allegations; and denies Defendant’s motion to dismiss the fraudulent concealment, intentional misrepresentation and negligent misrepresentation claims.

I. Background

The facts alleged in the Greene Complaint and Manemeit Complaint are’ assumed to be true for the purpose of this motion..

a. Defendant’s applications to FDA

Since at least 2011, Defendant has manufactured, distributed and sold the Infant Formula, ahd has advertised the Infant Formula through- television, print media, product labeling and- on the Internet. (Greene Compl. ¶ 32.) The Infant Formula contains partially hydrolyzed whey protein, which is the ingredient that is purportedly responsible for the Infant Formula’s ability to reduce the risk of developing allergies. (Id. ¶¶ 5,8-9.)

In June of 2005, Defendant petitioned the FDA for approval of a qualified health claim to use in its marketing of the Infant Formula. (Id. ¶ 40.) Defendant sought approval to state that “emerging clinical research in healthy infants with family history of allergy shows that feeding a 100% Whey-Protein Partially Hydrolyzed formula may .reduce- the risk of common- food allergy symptoms, particularly allergic skip rash.” (Id.) The FDA denied Defendant’s petition'on May 11, 2006, concluding that there was “no credible evidence to support the qualified health claim relating consumption of 100 percent partially hydrolyzed whey protein in infant formula to a reduced risk of food allergy.” (Id. ¶ 41.)

In May of 2009, Defendant again petitioned the FDA to approve a qualified health claim, stating:

emerging clinical research shows that, in healthy infants with family history of allergy, feeding a 100% Whey-Protein Partially Hydrolyzed infant formula instead of a formula containing intact cow’s milk proteins may reduce the risk of developing the most common allergic disease of infancy — atopic dermatitis— throughout the 1st year of life and up to 3 years of age.

(Id. ¶ 42.) The FDA determined that this claim mischaracterized the scientific evidence and was therefore misleading. (Id. ¶ 48.) The FDA instead proposed four alternative qualified health claims, over which it would consider exercising its enforcement discretion not to challenge the qualified health claim. (Id. ¶ 45.)

b. The alleged false and misleading representations

Plaintiffs allege that, “since at least 2011,” Defendant has marketed and advertised the Infant Formula using false and misleading representations. (Id. ¶ 55.) Plaintiffs allege six examples of the allegedly false and misleading representations: a statement on the seal of the Infant Formula that it is the “1st & only routine formula to reduce the risk of developing allergies,” (id. ¶ 56 (capitalization omitted); Ex. C, annexed to Compl.); a statement on the label of the Infant Formula that it is “the first and only formula brand made from 100% whey protein hydrolyzed', and that meets the criteria for a FDA Qualified Health Claim for atopic dermatitis,” (Compl. ¶¶57, 59; Ex. D, annexed to Compl.); a television commercial stating in relevant part: “You want your Gerber baby to have your imagination ... your smile ... your eyes ... not your allergies .... [I]f you introduce formula, choose the Gerber Good Start Comfort Proteins Advantage,” (Compl. ¶ 60 (alterations in original); Ex. E, annexed to Compl.); a print advertisement stating:

The Gerber Generation says “I love Mommy’s eyes, not her allergies.”

If you have allergies in your family, breastfeeding your baby can help reduce their risk. And, if you decide to introduce formula, research shows the formula you first provide your baby may make a difference. In the case of Gerber® Good Start® Gentle Formula, it’s the Comfort Proteins® Advantage that is easy to digest and may also deliver protective benefits.

(Compl. ¶ 61; Ex. F, annexed to Compl.); and two additional print advertisements stating that it is the “the first and only infant formula that meets the criteria for a FDA Qualified Health Claim.” (Compl. ¶¶ 62-63; Ex. G, annexed to Compl.; Ex. H, annexed to Compl.)

According to Plaintiffs, these statements can be categorized as making two deceptive representations: (1) that the Infant Formula reduces the risk that infants will develop allergies, and (2) that the Infant Formula meets the criteria for an FDA qualified health claim for atopic dermatitis. As to the representation that the Infant Formula “reduce[s] the risk of [infants] developing allergies,” Plaintiffs allege that it is false because the, FDA rejected this claim in May 2006, and the scientific evidence demonstrates that this claim is false. (Compl. ¶¶ 56, 60.) In support of this argument, Plaintiffs allege that several scientific studies have concluded that partially hydrolyzed whey protein' does not lower the risk that infants will develop allergies. {Id. ¶¶ 46-52.) Plaintiffs cite to a June of 2011 study by Adrian Lowe, Ph.D., University of Melbourne and Melbourne Royal Children’s Hospital (“the Lowe Study”), which concluded that “[t]here was no evidence that introducing pHWF [(partially hydrolyzed whey formula)] at the cessation of breast-feeding reduced the risk of allergic manifestations, including eczema, asthma, and allergic rhinitis, in [a] study of high-risk infants.” {Id. ¶ 47 (alterations in original) (quoting Adrian J. Lowe, Effect of a Partially Hydrolyzed Whey Infant Formula at Weaning on Risk of Allergic Disease in High-Risk Children: A Randomized Controlled Trial, 128 J. Allergy & Clinical Immunology 2, 360-65 (2011)).)

As to the representation that the Infant Formula meets the criteria for an FDA qualified health claim for atopic dermatitis, Plaintiffs allege that this representation is deceptive because it “implies that the FDA fully endorsed Defendant’s atopic-dermati-tis claims,-despite the fact that the FDA’s endorsement was strictly reserved to claims indicating that there was ‘little’ or ‘very little’ evidence supporting the link between Good Start and. atopic dermatitis.” {Id. ¶ 57.) In addition, by not including the language of one of the four qualified health claims and by using the FDA term of art “qualified health claim” to suggest that the .Infant Formula was endorsed by the FDA for a particular purpose, Defendant “falsely or misleadingly implied that Good Start would unqualifiedly reduce the risk of atopic determatitis.” {Id. ¶¶ 57-58.)

c. FDA warning letter

On October 31, 2014, the FDA sent a warning letter to Defendant’s President and CEO “outlining various false and misleading representations made in the promotion of [the Infant Formula]” (the “FDA Warning Letter”). (Id. ¶ 68.) After reviewing the labeling on the Infant Formula that was sold as a 23.2 ounce milk-based powder, the FDA concluded that the labeling on the Infant Formula bore “health claims that were not authorized by FDA” and , that “the labeling [was] misleading.” (FDA Warning Letter 1, ■ annexed to Castello Deel. as. Ex. 3.) The FDA also noted that it had “previously considered and denied” the statement on the label of the Infant Formula that it was the “1st & only routine formula to reduce risk of developing allergies.” (Id. at 2 (capitalization omitted).) The FDA acknowledged that consistent with the FDA’s four proposed qualified health claims, Defendant’s labeling and website both stated that there was “limited evidence” that partially hydrolyzed whey protein can reduce the risk of infants developing atopic dermatitis, (id. at 2-3), but nevertheless concluded that' by failing to include the qualifying statement about the. infants with existing milk allergies, as required by the FDA, Defendant failed to provide “essential information necessary to ensure the safety of consumers,” (id. at 3-4). Because Defendant failed to include the qualifying statement on its website or on the labeling of the Infant Formula, the FDA concluded that Defendant’s qualified health claim was misleading. (Id.)

d. Litigation involving Defendant

On October 29, 2014, the Federal Trade Commission (the “FTC”) filed a lawsuit against Defendant in the United States District Court for the District of New Jersey, alleging that the Product’s labeling and advertising' are false and deceptive. (the “FTC. Litigation”). (Compl. ¶ 66.); Fed. Trade Comm’n v. Gerber Prods. Co., No. 14-CV-6771, 2014 WL 5510763 (D.N.J. Oct. 29, 2014). The FTC alleged'that Defendant’s representation that the Infant Formula reduces the risk of developing allergies is false or misleading and unsubstantiated. (Id. ¶ 67); Fed. Trade Comm’n v. Gerber, complaint at ¶¶ 19-20. The FTC also alleged that Defendant’s representation on the labeling and in its advertising that the Infant Formula qualified for or received approval for a health claim from the FDA is false or misleading. (Compl. ¶ 67); Fed. Trade Comm’n v. Gerber, complaint at ¶¶ 22-23.

Since the. FTC filed its action against Defendant, four- other cases regarding the Infant Formula have been filed against Defendant, (Greene Pis. Mem, of Law in Opp’n to Def. Mot. (“Pls. Opp’n”) 5-6, Docket Entry No. 24; Def. Mem. 1); see also Hasemann v. Gerber Prods. Co., No. 15-CV-2995, 2016 WL 5477595 (E.D.N.Y. Sept. 28, 2016); Slocum v. Gerber Prods. Co., No. 16-CV-4120, 2016 WL 3983873 (W.D. Mo. Mar. 14, 2016); Zakaria v. Ger ber Prods. Co., No. 15-CV-200, 2015 WL 3827654 (C.D. Cal. June 18, 2015); Nat’l Consumers League v. Gerber Prods. Co., No. 14-CA-8202, 2015 WL 4664213 (D.C. Super. Ct. Aug. 8, 2015). In all four cases the plaintiffs allege that Defendant’s representations that the Infant Formula reduces the risk of developing allergies and their representations that the FDA approved Defendant’s health claims are false and misleading, respectively. See Hasemann, No. 15-CV-2995, complaint at ¶¶ 42-53; Zakaria, 2015 WL 3827654, at *1; Nat’l Consumers League, slip op. at 3.

e. Plaintiffs’ purchases

Plaintiffs allege that they reviewed the representations on the label of the Infant Formula and on Defendant’s website stating that the Infant Formula reduces the risk that infants will develop allergies and that the FDA has endorsed Defendant’s qualified health claim. (Compl.’¶¶ 72-74; Manemeit Compl. ¶¶ 72-25.) Based on these representations, Plaintiffs purchased the Infant Formula in “canisters” for $18 in Ohio; for between $16 and $22 in North Carolina; and for $25 in New York. (Compl. ¶¶ 72-74; Manemeit Compl. ¶ 72.) According to Plaintiffs, Defendant “inflated” the price of the Infant Formula by approximately forty-one percent based on its false and misleading representations. (Compl. ¶ 77; Manemeit Compl. ¶ 77.) Plaintiffs assert that they would not have paid “these inflated prices” had they known that the Infant Formula does not reduce the risk that irifants will develop allergies or that the FDA did not endorse Defendant’s qualified health claim. (Compl. ¶ 78; Manemeit Compl. ¶ 79.)

f. Proposed classes

’ Plaintiff Greene asserts his claims on behalf of a class of persons who purchased the ’Infant Formula in the state of Ohio from' Máy 15, 2011 to the present (the “Ohio Class”). (Compl. ¶ 79.) Plaintiff Wilkerson .asserts’ her claims on behalf of a class of persons who purchased the Infant Formula in the state of North Carolina from May 15, 2011 to the present (the “North Carolina Cíass”). {Id, ¶80.) Plaintiff Manemeit asserts her claims on behalf of a class , of persons who purchased the Infant Formula in the state of New York from May. Í5, 2011 to the present. (Mane-meit Compl. ¶80.) Plaintiffs collectively bring claims on behalf of all persons who purchased the Infant Formula in the United States from May 15,2011 to the present (the “Nationwide Class”). {Id. ¶ 81; Compl. ¶ 81.)

II. Discussion

a. Standards of review

i. Rule 12(b)(1)

A district court may dismiss an action for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) when the court “lacks the statutory or constitutional power, to adjudicate it.” Cortlandt St. Recovery Corp. v. Hellas Telecomms., S.A.R.L., 790 F.3d 411, 416-17 (2d Cir. 2015) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)); Shabaj v. Holder, 718 F.3d 48, 50 (2d Cir. 2013) (quoting Aurecchione v. Schoolman Transp. Sys., Inc., 426, F.3d 635, 638, (2d Cir. 2005)). The plaintiff has the burden to prove that, subject matter jurisdiction exists, and in evaluating whether the plaintiff has met that burden, “ ‘[t]he court must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff,’ but ‘jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it.’ ” Morrison v. Nat’l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (citations omitted), affd, 561 U.S. 247, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010). A court may consider matters outside of the pleadings when determining whether subject matter jurisdiction exists. M.E.S., Inc. v. Snell, 712 F.3d 666, 671 (2d Cir. 2013); Romano v. Kazacos, 609 F.3d 512, 520 (2d Cir. 2010).

ii. Rule 12(b)(6)

In reviewing a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court must construe the complaint liberally, “accepting all factual allegations in the complaint as true and drawing all reasonable inferences in the plaintiffs favor.” Concord Assocs., L.P. v. Entm’t Prop. Trust, 817 F.3d 46, 52 (2d Cir. 2016) (quoting Chambers v. Time Warner Inc., 282 F.3d 147, 152 (2d Cir. 2002)); see also Tsirelman v. Daines, 794 F.3d 310, 313 (2d Cir. 2015) (quoting Ja-ghory v. N.Y. State Dep’t of Educ., 131 F.3d 326, 329 (2d Cir. 1997)). A complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)); see also Pension Ben. Guar. Corp. ex rel. St. Vincent Catholic Med. Ctrs. Ret. Plan v. Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705, 717-18 (2d Cir. 2013). Although all allegations contained in the complaint are assumed true, this principle is “inapplicable to legal conclusions” or “[t]hread-bare recitals of the elements of a cause of action, supported by mere conclusory statements.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.

iii. Rule 12(f)

Rule 12(f) of the Federal Rules of Civil Procedure provides that a court may “strike from a pleading ... any redundant, immaterial, impertinent, or scandalous matter” sua sponte or “on motion made by a party.” Fed. R. Civ. P. 12(f); see also Reynolds v. Lifewatch, Inc., 136 F.Supp.3d 503, 511 (S.D.N.Y. 2015) (applying same). Rule 23(c)(1)(A) of the Federal Rules of Civil Procedure “calls for a determination of ‘whether to certify the action as a class action’ at ‘an early practicable time after a person sues ... as a class representative.’” See id. at 511 (internal quotation marks omitted) (quoting Emilio v. Sprint Spectrum L.P., 68 F.Supp.3d 509, 514 (S.D.N.Y. 2014)). To succeed on a motion to strike class allegations, a defendant must “demonstrate from the face of the complaint that it would be impossible to certify the alleged class regardless of the facts the plaintiffs may be able to obtain during discovery.” Mayfield v. Asta Funding, 95 F.Supp.3d 685, 696 (S.D.N.Y. 2015) (alterations omitted); cf. Calibuso v. Bank of Am. Corp., 893 F.Supp.2d 374, 388 (E.D.N.Y. 2012) (“[T]he court finds that ... it would be futile to allow [the] plaintiffs to conduct discovery because plaintiffs theory for class certification is simply foreclosed.”).

“Motions to strike under Rule 12(f) are rarely successful.” Reynolds, 136 F.Supp.3d at 511; see also Belfiore v. Procter & Gamble Co., 94 F.Supp.3d 440, 447 (E.D.N.Y. 2015) (“Courts rarely grant motions to strike pursuant to [Rule] 12(f).”); Emilio, 68 F.Supp.3d at 514 (“Motions to strike are viewed with disfavor and infrequently granted.” (alterations and internal quotation marks omitted)). This is particularly true in the class-action context because a Rule 12(f) motion “requires a reviewing court to preemptively terminate the class aspects of litigation, solely on the basis of what is alleged in the complaint, and before plaintiffs are permitted to complete the discovery to which they would otherwise be entitled on questions relevant to class certification.” Belfiore, 94 F.Supp,3d at 447 (internal quotation marks omitted); see also Emilio, 68 F.Supp.3d at 514 (same). As a result, “district courts in this Circuit have frequently found that a determination of whether Rule 23 requirements are met is more properly deferred to the class certification stage,” when the court has before it a more complete factual record from which to make its determination. Mazzola v. Roomster Corp., 849 F.Supp.2d 395, 410 (S.D.N.Y. 2012). Stated differently, “motions to strike class allegations are often denied as premature.” Reynolds, 136 F.Supp.3d at 511; Chen-Oster v. Goldman, Sachs & Co., 877 F.Supp.2d 113, 117 (S.D.N.Y. 2012) (“Generally speaking ... motions [to strike class allegations] are deemed procedurally premature.”); cf. Pilgrim v. Univ. Health Card, LLC, 660 F.3d 943, 949 (6th Cir. 2011) (“It is only when no amount of discovery or time will allow for plaintiffs to resolve deficiencies in class definitions under Rule 23, that a 'motion to strike class allegations should be granted.”). However, when a motion to strike “addresses issues separate and apart from the issues that will be decided on a class certification motion,” the motion to strike may not be premature. Chenr-Oster, 877 F.Supp.2d at 117 (internal quotation marks omitted).

b. Primary jurisdiction doctrine

Defendant moves pursuant to,the primary jurisdiction doctrine to either dismiss or stay the Greene action pending resolution of the FTC Litigation. ,(Def. Mem. 2.) Defendant argues that the- FDA has promulgated “a complex and comprehensive regulatory scheme governing mis-brand, and food and beverage labeling in particular,” -and that the FTC and FDA are both in a “far better position” to determine whether Defendant’s representations are “improper.” (Id. at 18,19.) The Greene Plaintiffs argue that the primary jurisdiction doctrine is inapplicable here because the FTC Litigation does not involve technical issues within the agency’s specialty and there is little risk that the FDA will issue guidance that conflicts with the current case. (Pis. Opp’n 20.) The Greene Plaintiffs also argue that the Court already rejected the primary-jurisdiction argument in its earlier decision in Hasemann, 2016 WL 5477595. (Id. at 19.)

The Court decided the applicability of the primary jurisdiction doctrine to identical facts in Hasemann. In that case, as here, Defendant argued that the action should be dismissed or stayed pending the outcome, of the FTC Litigation because the FTC and the FDA were in a “far better position” to determine whether Defendant’s misrepresentations were “improper.” Hasemann, 2016 WL 5477595, at *5. In weighing the factors relevant to the primary jurisdiction doctrine in Hasem-ann, the Court determined that “only, the fact that the FDA has discretion to regulate the Infant Formula weighs in favor of applying the primary jurisdiction doctrine, and this factor alone is insufficient to support such an outcome.” Id..at *7. Thus, for the reasons set forth in Hasemann, the Court denies Defendant’s motion to dismiss or stay the Greene action pursuant to the primary jurisdiction doctrine. See id. at *5-7.

c. Standing to seek injunctive relief

Defendant argues that Plaintiffs are not entitled to injunctive relief because they fail to allege that they will purchase the Infant Formula in the future, and therefore fail to allege a likelihood of continuing dr future injury. (Def, Mem. 20.) Plaintiffs argue that they have third-party standing, which enables them to. sue to enjoin Defendant’s false advertising practices even if they “lack individual standing to seek injunctive relief for [Defendant’s] misleading, advertising.” (Pis. Opp’n Mem. 21.)

As the Court explained in Hasem-ann, a plaintiff seeking injunctive relief “must show the three familiar elements of standing: injury in fact, causation, and re-dressability.” Cacchillo v. Insmed, Inc., 638 F.3d 401, 404 (2d Cir. 2011) (citing Summers v. Earth Island Inst., 665 U.S. 488, 493, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009)). “[T]o meet the constitutional minimum of standing” for injunctive relief, a plaintiff “must carry the burden of establishing that ‘he has sustained or is immediately in danger of 'sustaining some direct injury as the result of the challenged official conduct.’ ” Shain v. Ellison, 356 F.3d 211, 216 (2d Cir. 2004) (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 101-102, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)); see also Nicosia v. Amazon.com, Inc., 834 F.3d 220, 239 (2d Cir. 2016) (“Plaintiffs lack standing to pursue injunctive belief where they are unable to establish a ‘real or immediate threat’ of injury.” (first citing Lyons, 461 U.S. at 111-12, 103 S.Ct. 1660; and then citing Shain, 366 F.3d at 215-16)); Pungitore v. Barbera, 506 Fed.Appx. 40, 41 (2d Cir. 2012) (“[W]hen seeking prospective injunctive relief, the plaintiff must prove the likelihood of future or continuing harm.”). The alleged injury “must be ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’ ’’ Knife Rights, Inc. v. Vance, 802 F.3d 377, 383 (2d Cir. 2015) (quoting Susan B. Anthony List v. Driehaus, 573 U.S. — , -, 134 S.Ct. 2334, 2341, 189 L.Ed.2d 246 (2014)); Am. Civil Liberties Union v. Clapper, 785 F.3d 787, 800 (2d Cir, 2015) (“The Supreme Court has ‘repeatedly reiterated that “threatened injury must be certainly impending to constitute injury in fact,” and' that “[ajllegations of possible future injury” are not sufficient.’ ” (alteration in original) (quoting Clapper v. Amnesty Int’l USA, 568 U.S. 398, 133 S.Ct. 1138, 1147, 185 L.Ed.2d 264 (2013))).

A plaintiff “cannot rely on past injury to satisfy the injury requirement but must show a likelihood that he .,. will be injured in the future.” Shain, 356 F.3d at 215; see also Nicosia, 834 F.3d at 239 (stating that past injuries do not confer standing to seek injunctive relief); Pungitore, 506 Fed.Appx. at 42 (stating that, while past .wrongs may be “evidence bearing on whether there is a real and immediate threat of repeated injury,’ such evidence ‘does not in itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any continuing, present adverse effects’ ” (quoting Lyons, 461 U.S. at 102, 103 S.Ct. 1660)). “In establishing a certainly impending future injury, ... the plaintiff must establish how he or she will be injured prospectively and that the injury would- be prevented by the equitable relief sought.” Marcavage v. City of New York, 689 F.3d 98, 103 (2d Cir. 2012) (collecting cases). “[A]t the pleading stage, standing allegations need not be crafted with precise detail, nor must the plaintiff prove his allegations of injury.” Baur v. Veneman, 362 F.3d 625, 631 (2d Cir. 2003) (citing Lujan v. Defenders of Wildlife, 604 U.S. 655, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)).

Although ,the Supreme Court has “adhered to the rule that a party ‘generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties,’ ” this, rule is not absolute, and “there may be circumstances where it is necessary to grant a third party standing to assert the rights of another " Kowalski v. Tesmer, 543 U.S. 125, 129-30, 125 S.Ct. 564, 160 L.Ed.2d 519 (2004) (quoting Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed,2d 343 (1975)). These circumstances are “well-recognized,- prudential exceptions to the ‘injury-in-fact’ re quirement” that “permit third-party standing where the plaintiff can demonstrate (1) a close relationship- to the injured party and, (2) a barrier to the injured party’s ability to assert its own interests.” W.R. Huff Asset Mgmt. Co., LLC v. Deloitte & Touche LLP, 549 F.3d 100, 109-10 (2d Cir. 2008) (citing Kowalski, 543 U.S. at 130,125 S.Ct. 564); see also Mid-Hudson Catskill Rural Migrant Ministry, Inc. v. Fine Host Corp., 418 F.3d 168, 174 (2d Cir. 2005) (“[A] plaintiff seeking third-party standing in federal court must .., ! demonstrate] a close relation to the injured third party and a hindrance to that party’s ability to protect its own interests.”-(internal quotation marks omitted)); cf. Camacho v. Brandon, 317 F.3d 153, 159 (2d Cir. 2003) (“A plaintiff may assert the constitutional claims of a third party if .the plaintiff can demonstrate: (1) injury to the plaintiff, (2) a close relationship between the plaintiff and the third party that would cause plaintiff to be an effective advocate for the third party’s rights, and (3) ‘some hindrance' to the third party’s ability to protect his or her ovm interests.’ ” (emphasis added) (quoting Campbell v. Louisiana, 523 U.S. 392, 397, 118 S.Ct. 1419, 140 L.Ed.2d 551 (1998))). Thus, courts “historically have permitted trustees to bring suits to benefit their trusts; guardians at litem to bring suits to benefit their wards; receivers to bring suit to benefit their receiv-erships; assignees in bankruptcy to bring suits to benefit bankrupt estates; and executors to bring suit to benefit testator estates.” W.R. Huff, 549 F.3d at 110 (alterations, citations and internal quotation marks omitted); see also Smith v. Org. of Foster Families for Equality & Reform, 431 U.S. 816, 841 n.44, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977) (recognizing third-party standing for foster parents to raise due process claims on behalf of foster. children).

The Supreme Court has “been quite forgiving with these, criteria in certain circumstances,” as in the context of the First Amendment or in allowing parties to litigate the rights of third parties “when enforcement of the challenged restriction against the litigant would result indirectly in the violation of third .parties’ rights.” Kowalski, 543 U.S. at. 130, 126 S.Ct. 564 (collecting cases, including Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); and Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953)). In general, the Court has “permitted third-party standing only where more ‘daunting’ barriers deterred the rightholder.” Miller v. Albright, 523 U.S. 420, 449-50, 118 S.Ct. 1428, 140. L.Ed.2d 575 (1998) (citing Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991) (criminal defendant challenging exercise of peremptory challenges on behalf of potential jurors); Hodel v. Irving, 481 U.S. 704, 107 S.Ct. 2076, 95 L.Ed.2d 668 (1987) (litigants asserting the rights of their deceased parents);. Carey v. Population Servs. Int’l, 431 U.S. 678, 97 S.Ct. 2010, 52,L.Ed.2d 675 (1977) (vendor challenging law prohibiting distribution of contraception to minors)). The Supreme Court has also accorded third-party standing “[w]here insurmountable procedural obstacles preclude a rightholder’s own suit.” Kowalski, 543 U.S. at 130, 125 S.Ct. 564 (citing Singleton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) (physician asserting the rights of women seeking an abortion where privacy may deter women from bringing suit and their “claim[s] will soon become at least technically moot” if they are forced to forgo the abortion); Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976) (alcohol vendor asserting equal protection challenge on behalf of 18-to-20-year-old males affected by beer-sale restriction where some males in class would have claims mooted by aging out of restriction)).

“Beyond these examples,” however, the Supreme Court “ha[s] not looked favorably upon third-party standing.” Kowalski, 543 U.S. at 130, 125 S.Ct. 564 (citing Conn v. Gabbert, 526 U.S. 286, 119 S.Ct. 1292, 143 L.Ed.2d 399 (1999) (rejecting an attorney’s attempt to adjudicate the rights’ of a client)). To the extent that the Supreme Court’s exceptions to classic standing doctrine rest on a unifying principle, the analytical distinction seems to be “between claims asserting private interests and those asserting public interests.” Mahon v. Ticor Title Ins. Co., 683 F.3d 59, 67 (2d Cir. 2012) (Hall, J., concurring). This is because “[w]hen private rights are involved, it is easy to understand that one person cannot seek to recover on a claim that belongs to someone else”; however, “when a party properly in court seeks to sustain its own opposition to a public act by invoking the interests of others,” courts will occasionally allow the party to do so. Id. (quoting Charles Alan Wright et al., Fed. Practice & Proc. § 3531.9 (3d ed. 2011)); see also Barrows, 346 U.S. at 257, 73 S'.Ct. 1031 (permitting third-party standing to challenge racially restrictive covenant because “the reasons which underlie [the] rule denying standing to raise another’s rights” were “outweighed by the need to protect the fundamental rights” that otherwise would have been denied).

' Here, Plaintiffs cannot assert third-party standing “on behalf of individuals who are not yet aware that Gerber’s advertisements are false,” (Manemeit Pl. Mem. in Opp’n to Manemeit Def. Mot. (“Manemeit Opp’n”) 23, Docket Entry No. 21). The Court acknowledges the persuasive value of Plaintiffs’ argument that, without third-party standing, consumers could not enjoin false or deceptive advertising because (1) if they were unaware of the falsity of the advertising and therefore at risk of future injury, they would not bring suit, and (2) once they become aware that a product is falsely or deceptively advertised, they cannot plausibly allege that they would repurchase the product. (Manemeit Opp’n Mem. 24.)

However, the relationship between a class representative and would-be consumers “is not the type of close relationship courts have recognized as creating a ‘prudential exception’ to the third-party standing rules.” See W.R. Huff, 549 F.3d at 110 (holding that an investment manager to whom investor-clients had given power-of-attorney and authority over investment decisions lacked standing to file a security fraud claim on the clients’ behalf). In fact, the Supreme Court has made clear that it does “not look[ ] favorably upon third-party standing” except in certain circumstances when the challenged conduct would indirectly violate a third party’s rights even if it were merely enforced against the primary litigant. Kowalski, 543 U.S. at 130, 125 S.Ct. 564.

In general, the Supreme Court’s concern appears to be that “where a hindrance impedes the assertion' of a claim, the right likely will not be asserted — anc! thus the relevant law will not bé enforced — unless the Court recognizes third-party standing.” Miller, 523 U.S. at 450, 118 S.Ct. 1428. In practice, almost without exception, the Supreme Court allows third-party standing only to preserve the constitutional rights of third parties who aré unable to challenge the infringement of those rights. See id. (discussing specific examples of third-party standing); see also Am. Psych. Ass’n v. Anthem Health Plans, Inc., 821 F.3d 352, 358 (2d Cir. 2016) (explaining that “a physician or other professional may raise the constitutional rights, but generally not the statutory rights, of his or her patients”)

No constitutional rights are at risk here, Plaintiffs are adequately able to vindicate their own rights by seeking damages, and there is no risk that “the relevant law will not be enforced” if Plaintiffs are not able to seek prospective injunctive relief on behalf of a nebulous class of would-be Gerber consumers. See Miller, 523 U.S. at 450, 118 S.Ct. 1428. Basically, the injunctive relief. Plaintiffs seek would not remedy the injury Plaintiffs allege they suffered, and the alleged injuries of would-be consumers are not sufficient to confer standing on Plaintiffs See W.R. Huff, 549 F.3d at 110 (denying third-party standing where “[t]he remedies sought- in the complaint ... would not redress either [of] the alleged injuries]”); see also Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 107, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (“Relief that does not remedy the injury suffered cannot boostrap a plaintiff into federal court.”).

Moreover, Plaintiffs have not demonstrated that the unidentified class of would-be consumers would likely be harmed. Á speculative, outside possibility of harm is insufficient to confer standing even on the group that Plaintiffs contend would be affected by Defendant’s ongoing deceptive advertising. See. Nicosia, 834 F.3d at 239 (“Plaintiffs lack standing to pursue injunctive relief where they are unable to establish a ‘real or immediate threat’ of injury.” (quoting Lyons, 461 U.S. at 111-12, 103 S.Ct. 1660)); Knife Rights, Inc., 802 F.3d at 383 (holding that the alleged injury “must be ‘concrete and .particularized’ and ‘actual or imminent, not conjectural or hypothetical’ ” (citation omitted)). Plaintiffs make no allegations that the unidentified group on whose behalf they assert standing would be exposed to the same advertising, rely on it, or purchase the Infant Formula as a result. As the Supreme Court has made clear, where a plaintiffs standing is at issue, the Court is not at liberty to make inferences in the plaintiffs favor. Spokeo, Inc. v. Robins, 578 U.S. -, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (May 16, 2016) (“Where, as here, a case is at the pleading stage, the plaintiff must clearly allege facts demonstrating each element of standing.” (citations and internal quotation marks omitted)); see also Warth, 422 U.S. at 518, 95 S.Ct. 2197 (“It is the responsibility of the complainant clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute and the exercise of the court’s remedial powers.”); Morrison, 547 F.3d at 170 (“Jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it.”). The Court therefore finds that Plaintiffs lack standing to enjoin Defendants’ alleged conduct.

d. Ohio statutory claims

i. OCSPA

In count one of the Greene Complaint, the Greene Plaintiffs allege that Defendant’s false and misleading advertising constituted an “unfair or deceptive act or practice” under the OCSPA because Defendant falsely claimed that the Infant Formula reduced the risk of an infant developing certain allergies, which ascribed to the Infant Formula performance characteristics and benefits that it did not possess, and because Defendant misleadingly suggested that the FDA had unquali-fiedly approved of Defendant’s atopic-der-matitis-claim, which ascribed to the Infant Formula a particular standard, quality or grade that it did not possess. (Compl. ¶ 97.)

Defendant argues that the Court should dismiss the Greene Plaintiffs’ class action claim under the OCSPA because the Greene Plaintiffs did not allege, as the OCSPA requires, “that [Defendant] had prior notice that its conduct was ‘deceptive or unconscionable.’ ” (Def. Mem, 12.) The Greene Plaintiffs argue that the OCSPA’s notice requirements are preempted by Rule 23 of the Federal Rules of Civil Procedure, and that, in any event, the Greene Plaintiffs have met the OCSPA’s requirements. (Pis, Opp’n 10-12.) The Greene Plaintiffs alternatively argue that Defendant was on notice that the OCSPA prohibits false or misleading allergy claims because the state attorney general, pursuant to her authority under the OCSPA, has promulgated rules that prohibit individuals or companies from making' “any representations” that lack “a reasonable basis in fact” and has made publicly available several consent decrees with companies that made unsubstantiated health claims. (Id. at 12.)

The OCSPA prohibits suppliers from engaging in either unfair or deceptive consumer sales practices or unconscionable acts or practices as set forth in the Ohio Revised Code (“ORC”) sections 1345.02 and 1345.03. As relevant here, the OCSPA defines as “deceptive” any act or practice that represents “[t]hat the subject of a consumer transaction has sponsorship, approval, performance characteristics, accessories, uses or benefit? that it does not have,” ORC § 1345.02(B)(1); “[t]hat the subject of a consumer transaction is of a particular standard, quality, grade, style, prescription, or model, if it is not,” id, § 1345.02(B)(2); or “[t]hat the supplier has a sponsorship, approval, or affiliation that the supplier does not have,” id, § 1345.02(B)(9). The OCSPA states that in determining whether an act or practice is “unconscionable,” a court should take into account several factors, including whether the supplier “knew at the time the consumer transaction was entered into” either that “the price was substantially in excess of the price at which similar property or services were readily obtainable in similar consumer transactions by like consumers,” id. § 1345.03(B)(2), or that the consumer would be unable “to receive a substantial benefit from the subject of the consumer transaction,” id. § 13.45.03(B)(3), In general, the OCSPA “defines ‘unfair or deceptive consumer sales practices’ as those that mislead consumers about the nature of the product they are receiving, while ‘unconscionable acts or practices’ relate to a supplier manipulating a consumer’s understanding of the nature of the transaction at issue.” McKinney v. Bayer Corp., 744 F.Supp.2d 733, 743 (N.D. Ohio 2010) (quoting Whitaker v. M.T. Automotive, Inc., 111 Ohio St.3d 177, 855 N.E.2d 825, 829 (2006)),

Although the OCSPA permits both individual and class action claims, see ORC § 1345.09, a consumer can assert a class action claim under the OCSPA “only if the defendant’s alleged violation of the Act .is substantially similar to an act or practice previously declared to be deceptive by one of the methods identified in” ORC § 1345.09(B). See McKinney, 744 F.Supp.2d at 743; see also Marrone v. Philip Morris USA Inc., 110 Ohio St.3d 5, 850 N.E.2d 31, 33 (2006). Under ORC § 1345.09(B), a consumer “may qualify for a class action only when a supplier acted in the face of prior notice that its conduct was deceptive or unconscionable.” Philip Morris USA, 850 N.E.2d at 34. .The notice must be in the form of (1) “an act or practice declared to be deceptive or unconscionable by a rule adopted [by the Ohio Attorney General]” or (2) “an act or practice determined by [an Ohio state court] to violate [the OCSPA] and committed after the decision containing the determination has been made available for public inspection.” ORC § 1345.09(B); McKinney, 744 F.Supp.2d at 743; Philip Morris USA, 850 N.E.2d at 33-34. “Lack of prior notice requires dismissal of class action allegations.” St. Clair v, Kroger Co., 581 F.Supp.2d 896, 901 (N.D. Ohio 2008); see also City of Findlay v. Hotels.com, L.P., 441 F.Supp.2d 855, 863 (N.D. Ohio 2006) (finding that “the City cannot bring an OCSPA class action claim because the two prerequisites set forth in [ORC § 1345.09(B)] have not been alleged”); Volbers-Klarich v. Middletown Mgmt., Inc., 125 Ohio St.3d 494, 929 N.E.2d 434, 441 (2010) (holding that “appellant’s claim seeking certification of a class action alleging a violation of the OCSPA fails to state a claim upon which relief can be granted” because the complaint' did not “satisfy the notice requirement” of ORC § 1345.09(B));

The Court considers whether Rule 23 preempts the OCSPA notice requirement and, if not, whether the Greene Plaintiffs have met the OCSPA notice requirement.

1. Rule 23 and the OCSPA

The Greene Plaintiffs argue that the Supreme Court’s decision in Shady Grove Orthopedic Ass’n, P.A. v. Allstate Ins. Co., 559 U.S. 393, 130 S.Ct. 1431, 176 L.Ed.2d, 311 (2010) abrogates the OCSPA’s notice requirement because the notice requirement conflicts- with Rule 23 of the Federal Rules of Civil Procedure. (Pis. Opp’n 10-11.) Defendant argues that most courts to consider the issue have found that because the OCSPA’s notice requirement is a substantive requirement, Rule-23 does not preempt the notice requirement; (Def. Reply 4.)

In Shady Grove, the Supreme Court addressed whether Rule 23, which governs class actions, conflicted with New York Civil Practice Law section 901(b) (“section 901(b)”), which precludes • class actions seeking penalties or statutory minimum damages. Shady Grove, 559 U.S. at 399, 130 S.Ct. 1431. A majority -of the- Court agreed that state class action provisions directly conflict with Rule 23, but the Court split on when Rule 23 preempts a conflicting state class action provision. Id. at 402-04, 130 S.Ct. 1431. The plurality opinion found that Rule 23 preempts all state class action provisions, and that “the substantive nature of New York’s law, or its substantive purpose, makes no difference., A Federal Rule of Procedure is not valid in some jurisdictions and invalid in others — or valid in some cases and invalid in others — depending upon whether its effect is to frustrate a substantive state law (or a state procedural law enacted for substantive purposes).” Id. at 409, 130 S.Ct. 1431. Justice Stevens concurred in the narrow holding that Rule 23 and section 901(b) conflict, but agreed with the four-Justice dissent that “there are some state procedural rules that federal courts must apply in diversity cases because they function as part of the State’s definition of substantive rights and remedies.” Id. at 423, 130 S.Ct. 1431 (Stevens, J., concurring in part and concurring in judgment). Justice Stevens wrote a separate opinion holding that “[a] federal rule ... cannot govern a particular case in which the rule would displace a state law that is procedural in the ordinary use of the term but is so intertwined with a state right or remedy that it functions to define the scope of the state-created right.”- Id. To avoid such a result, Justice .Stevens concluded * that “[w]hen a federal rule appears to abridge, enlarge or modify a substantive right, federal courts must consider whether the rule can reasonably be interpreted to avoid that impermissible result.” Id.

The Greene - Plaintiffs argue that the restrictions on class actions under section 1345.09(B) of the OCSPA: are not applicable in federal court after Shady Grove because the restrictions conflict with Rule 23. In particular, the Greene Plaintiffs contend that the plurality opinion controls, and therefore Shady Grove stands for the proposition that any state law restricting class actions in federal court is invalid. (Pis. Opp’n 10-11.) As explained below, the Court disagrees.

“When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” United States v. Alcan Aluminum Corp., 315 F.3d 179, 189 (2d Cir. 2003) (quoting Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977)). This rule applies where “one opinion can meaningfully be regarded as ‘narrower’ than another — only when one opinion is a logical 'subset of other, broader opinions.” Id. (quoting King v. Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991) (en banc)). "When the narrowest opinion is not “the common denominator representing the position approved by at least five justices,” — that is, when “it is not possible to discover a single standard that legitimately constitutes the narrowest ground for-a decision on that issue, there is then no law of the land because no one standard commands the support of- a majority of the Supreme Court.” Id.; see Leonard v. Abbott Labs., Inc., No. 10-CV4676, 2012 WL 764199, at *12 (E.D.N.Y. Mar. 5, 2012) (quoting Alcan Aluminum, 315 F.3d at 189).

The Second Circuit has not directly addressed whether Justice Stevens’ opinion controls. See Retained Realty, Inc. v. McCabe, 376 Fed.Appx. 52, 55 (2d Cir. 2010) (noting that the decision in Shady Grove “does not set forth a single test” that governs when a Federal Rule supersedes a state rule). However, the Court agrees with the majority of district and circuit courts that have found Justice Stevens’ concurring opinion controls because it provides the “narrowest grounds” or the “common denominator” of the majority position. See Abbott Labs., 2012 WL 764199, at *12 (collecting cases); Phillips v. Philip Morris Cos. Inc., 290 F.R.D. 476, 479-80 (N.D. Ohio 2013) (“[A] clear majority of courts have applied Stevens’s narrower holding as the controlling opinion for use in determining whether a federal rule may displace a conflicting state law.” (collecting cases)); Kline v. Mortg. Elec. Sec. Sys,, No. 08-CV-408, 2010 WL 6298271, at *3 (S.D. Ohio Dec. 30, 2010) (noting that the district courts faced with this issue in Ohio “have concluded unanimously ‘that Justice Stevens’ concurrence ... is the controlling opinion by which [they are] bound.’” (quoting McKinney, 744 F.Supp.2d at 747)); In re Wellbutrin XL Antitrust Litig., 756 F.Supp.2d 670, 675 (E.D. Pa. 2010) (finding that Justice Stevens’ concurrence controlled because “although he found Rule 23 to conflict with [section] 901(b) along with the plurality, Judge Stevens’ Rules Enabling Act analysis called for an analysis of the state’s substantive rights and remedies that was consistent with the approach of the four members of the dissent”); see also James River Ins. Co. v. Rapid Funding, LLC, 658 F.3d 1207, 1217 (10th Cir. 2011) (“Justice Stevens concurred, and the Tenth Circuit has understood his concurrence to be the controlling opinion in Shady Grove.”); Godin v. Schencks, 629 F.3d 79, 84 (1st Cir. 2010) (relying on Justice Stevens’ concurrence to hold that a state statute was “so intertwined with a state right or remedy” that it could not be displaced by a Federal Rule of Civil-Procedure).

Although the Greene Plaintiffs do not address whether the class action notice prerequisite in the OCSPA is “intertwined” with the substantive right afforded by the statute, “every court in Ohio to address this issue has held that section 1345.09(B) is substantive in nature and therefore not preempted by Rule 23.” Leonard, 2012 WL 764199, at *13. This is because section 1345.09(B) “is not a pan-substantive rule that applies to federal claims or to claims based on other states’ laws. Rather, it applies only to ‘a violation of Chapter 1345 of the [ORC]’ — indicating its substantive nature.” In re Whirlpool Corp. Front-Loading Washer Prod. Liab. Litíg., No. 08-WP-65000, 2010 WL 2756947, at *2 (N.D. Ohio July 12, 2010) (quoting ORC § 1345.09); see also Phillips, 290' F.R.D. at 480 (“[E]very court to reach the question has concluded that the [0] CSPA’s notice requirement is not displaced by [Rule] 23.” (collecting cases)); Kline, 2010 WL 6298271, at *3-4 (adopting the reasoning in Whirlpool); McKinney, 744 F.Supp.2d at 746-47 (adopting the reasoning in Whirlpool).

The Court follows the reasoning employed by those courts and concludes that the Shady Grove decision does not require Rule 23 to displace the OCSPA’s class action notice requirement.

2. The Greene Plaintiffs have not satisfied the notice requirement

The Greene Plaintiffs argue that because the Ohio Attorney General has promulgated rules that prohibit companies from making “any representations” that lack “a reasonable basis in fact,” Defendant was “on notice that making false or misleading allergy claims — and exaggerating FDA support for these claims — would be considered deceptive in Ohio.” (Pls.. Opp’n 12-13 (citing Ohio Adm. Code 109:4-3-10).) In addition, the Greene Plaintiffs argue that Defendant was on notice because of consent decrees entered into by the Ohio Attorney General with parties that allegedly made false health claims, which consent decrees were on the Attorney General’s public website. (Id.) Defendant argues that the challenged statements relating to the Infant Formula “actually have a reasonable basis in fact because they are substantiated by numerous scientific studies,” and that consent judgments by the Ohio Attorney General do not constitute sufficient notice under the OCSPA. (Def. Mem. 4-5.)

The Greene Plaintiffs first rely on Ohio Administrative Code 109:4-3-10, which states that it is a deceptive act or practice for a supplier to make any representations in the absence of a reasonable basis in fact. (Pls. Opp’n 12 (citing Ohio Adm. Code 109:4-3-10).) In interpreting this rule, the Ohio Supreme Court has held that the rule “is insufficient to provide prior notice under [ORC § 1345.09(B)] because it does not refer to any particular act or practice.” Volbers-Klarich, 929 N.E.2d at 441 (quoting Marrone, 850 N.E.2d at 36). The Ohio Supreme Court has specified that “[a] general rule is not sufficient to put a reasonable person on notice of the prohibition against a specific act or practice. To permit a generic rule to constitute prior notice for purposes of [ORC § 1345.09(B) ] would allow any previous determination of a deceptive act or practice to qualify as prior notice for any subsequent alleged deceptive act or practice.” Id. (quoting Marram, 850 N.E.2d at 36). Thus, the Court rejects the Greene Plaintiffs’ argument that a general rule promulgated by the Ohio Attorney General can provide adequate notice for purposes of an OCSPA class action.

The Greene Plaintiffs next rely on various consent decrees into which the Ohio Attorney General entered with parties that allegedly made false health claims. (Pls. Opp’n 12-13.) Plaintiffs rely on Charvat v. Telelytics, LLC, No. 05-AP-1279, 2006 WL 2574019, at *11 (Ohio Ct. App. Aug. 31, 2006), for the proposition that consent decrees constitute “court determinations” that provide sufficient notice under the OCSPA. See ORC § 1345.09(B) (stating that prior notice may be in the form of “an act or practice determined by [an Ohio court] to violate section 1345.02, 1345.03, or 1345.031 of the Revised Code and committed after the decision containing the determination has been made available for public inspection [by the Attorney General]”).

In Charvat, the court explained that a consent judgment is not a judgment on the merits, but rather a reflection of a settlement between the parties, and it therefore lacks precedential value. Charvat, 2006 WL 2574019, at *6. The court reasoned that, nevertheless, “a consent judgment’s precedential value is not determinative under [ORC section 1345.09(B) ] because the statute specifically refers to a court’s determination, not a judgment.” Charvat, 2006 WL 2574019, at *11. Thus, according to the Charvat court, a court’s approval of a consent judgment in which an entity is alleged to have violated the OCSPA constitutes a “determination” by that court that a particular practice is circumscribed under section 1345.09(B). See id. (“[E]ven within a consent judgment, ‘an act or practice determined by a court’ to violate the OCSPA is , actionable -under. [section 1345.09(B) ].”)

Since Charvat was decided, however, several federal courts in Ohio have questioned its ruling. These courts reason that the OCSPA. requires the Attorney General to make available for publie. inspection “all judgments, including supporting opinions, by courts of this state that determine the rights of the pairies .. •• determining that specific acts or practices violate” the OCS-PA, and, reading that broad command together with ORC section 1345.09, “it is clear that the reference to a court’s ‘determination’ in [section] 1345.09(B) is a reference to a court’s final determination, ie. á judgment with supporting reasoning.” Pattie v. Coach, Inc., 29 F.Supp.3d 1051, 1056 (N.D. Ohio 2014) (quoting Gascho v. Global Fitness Holdings, LLC, 918 F.Supp.2d 708, 715 (S.D. Ohio 2013)); see also Ice v. Hobby Lobby Stores, Inc., No. 14-CV-744, 2015 WL 5731290, at *4 (N.D. Ohio Sept. 29, 2015) (rejecting Charvat); Gascho, 918 F.Supp.2d at 715 (“Because the reasoning of a consent judgment is not necessarily that of the court,, it has no precedential value, and cannot be considered the court’s ‘opinion.’ ”); Robins v. Glob. Fitness Holdings, LLC, 838 F.Supp.2d 631, 649 (N.D. Ohio 2012) (rejecting reliance on consent judgments for prior notice); Kline, 2010 WL 6298271, at *8 (characterizing the Charvat decision as “isolated” and holding that it is “neither persuasive nor binding” on a federal district court), report & recommendation adopted, No. 08-CV-408, 2011 WL 1125346 (S.D. Ohio Mar. 25, 2011).

. The Court is not persuaded that consent judgments reflect a court’s “determination” that an act or practice violated the OCSPA. Indeed, as the Charvat court noted, “a consent judgment typically is not a judgment on the merits, but a contract between the parties that the court reduces to a judgment,” Charvat, 2006 WL 2574019, at *11. In addition, “when a court approves a settlement between the parties, the resulting consent judgment or decree, and the reasoning applied therein, does not reflect the considered judgment of the court. If it did, the determination would have precedential value,” Gascho, 918 F.Supp.2d at 716. Accordingly, , the Court finds that the consent judgments that the Greene Plaintiffs rely on as having provided prior notice under the OCSPA do not satisfy the notice prerequisite. The Court therefore dismisses the Greene Plaintiffs’ OCSPA claim.

ii. ODTPA

In count two of the Complaint, the Greene Plaintiffs allege that Defendant’s “false or misleading advertising .,. constitutes a deceptive trade practice under [the ODTPA]” because Defendant “represented that goods have characteristics, ingredients, uses, benefits or quantities that they do not have” and “represented that goods have sponsorship, approval, or characteristics that they do not have.” (Compl. ¶ 107 (citing ORC § 4165.02 (alterations omitted)).) Defendant argues that “[t]he vast majority of Ohio district courts'and lower state courts hold that ‘the ODTPA is not available to consumers.’” (Def. Mem. 14 (quoting Phillips, 290 F.R.D. at 484).)

The ODTPA authorizes actions' by .a “person who is likely to be damaged by a person who commits .a deceptive trade practice” or a “person who is injured by a person who commits a 'deceptive trade practice.” ORC § 4165.03(A)(l)-(2), A “person” is defined under the .ODTPA to include “an individual, corporation, government, governmental subdivision or agency” or “any other legal or commercial entity.” Id § 4165.01(D).

“The Ohio Supreme Court has.not yet addressed whether a consumer may pursue a claim under the ODTPA,' and there is a split' of authority between the Northern and Southern Districts of Ohio,, and even within the Southern District, on the issue.” Terlesky v. Fifth Dimension, Inc., No. 15-CV-374, 2015 WL 7254189, at *2 (S.D. Ohio Nov. 17, 2015). However, the majority of courts to address the issue have reasoned that the ODTPA is substantially similar to section,, 43(a) of the Lanham Act, which confers standing on “any person who believes that he or sheds likely to be damaged” by conduct prohibited under 15 U.S.C. § 1125(a). Id.; see In re Porsche Cars N. Am., Inc., 880 F.Supp.2d 801, 874 (S.D. Ohio 2012); Dawson v. Blockbuster, Inc., No. 86451, 2006 WL 1061769, at *4 (Ohio App. Ct. Mar. 16, 2006), cert. denied, 110 Ohio St.3d 1442, 852 N.E.2d 190 (2006). These courts have determined that, because “the ODTPA is substantially similar to Section 43(a) of the Lanham Act and the Lanham Act protects the interests of a purely commercial class that.does not include individual consumers,” the ODTPA. does not confer standing on consumers. Terlesky, 2015 WL 7254189, at *2 (quoting In re Porsche, 880 F.Supp.2d at 874); see, e.g., Citimortgage, Inc. v. Crawford, 934 F.Supp.2d 942, 950 (S.D. Ohio 2013) (“[A] consumer does not have standing to [s]ue under the [0] DT-PA.”); Phillips, 290 F.R.D. at 484 (“[T]he [c]ourt holds that consumers lack standing to bring claims under the [0] DTPA.”); Hamilton v. Ball, 7 N.E.3d 1241, 1253 (Ohio App. Ct. 2014) (holding that consumers lack standing to file suit under the QDTPA).

■The Greene Plaintiffs cite two cases that hold otherwise,, and they are the only two the Court has located that hold that the plain language of the ODTPA is not so restrictive that it precludes a consumer from bringing'an action under the statute. See Schumacher v. State Auto. Mut. Ins. Co., 47 F.Supp.3d 618, 630-33 (S.D. Ohio 2014); Bower v. Int’l Bus. Machs., Inc., 495 F.Supp.2d 837, 84