Stay ADvised: 2026, Issue 5

In This Issue:

• New York City Signals Aggressive Consumer Protection Enforcement Through Executive Orders 9 and 10
• TINA Challenges Keurig's "Recyclable" K-Cup Claims
• SDNY Dismisses Dunkin' "Refresher" Fruit Content Class Action

New York City Signals Aggressive Consumer Protection Enforcement Through Executive Orders 9 and 10

As the old adage goes, we are known by the company we keep. That observation may have particular resonance in New York City, where Mayor Zohran Mamdani has surrounded himself with officials associated with an aggressive approach to consumer protection enforcement.

Mayor Mamdani has brought on former Federal Trade Commission (FTC) Chair Lina Khan as a senior advisor and appointed Samuel Levine, former Director of the FTC's Bureau of Consumer Protection, as Commissioner of the New York City Department of Consumer and Worker Protection (DCWP). Against that backdrop, the mayor recently issued two executive orders—Executive Orders 9 and 10—directed at "junk fees" and subscription practices, respectively.

For advertisers and consumer-facing businesses, the orders warrant attention not only for their subject matter, but for what they may signal about the city's enforcement posture.

Executive Order 9: "Combatting Hidden Junk Fees"

Executive Order 9 establishes a citywide "Junk Fee Task Force," chaired by Commissioner Levine and the Deputy Mayor for Economic Justice. The Order frames hidden or misleading fees as contributing to New Yorkers' cost-of-living pressures and directs DCWP and other city agencies to:

• Increase monitoring and investigation of allegedly deceptive or undisclosed fees;
• Coordinate enforcement across city agencies;
• Pursue enforcement under applicable city and state law; and
• Recommend additional policy or regulatory measures as appropriate.

The Order does not create new substantive prohibitions. Rather, it directs enhanced enforcement of existing authority—principally under the New York City Administrative Code and other applicable consumer protection statutes. It signals a coordinated enforcement initiative focused on fee disclosures and pricing transparency.

Executive Order 10: "Fighting Subscription Tricks and Traps"

Executive Order 10 similarly directs DCWP to prioritize enforcement relating to subscription practices, including allegedly deceptive enrollment flows, cancellation obstacles, and other "dark patterns." The Order calls for:

• Increased investigation of unlawful subscription practices;
• Interagency coordination; and
• Policy recommendations to strengthen oversight of recurring billing and automatic renewal practices.

As with EO 9, the Order itself does not establish new substantive standards. It reflects a prioritization directive—channeling agency resources toward subscription marketing, negative option features, and user interface design that may obscure material terms.

Enforcement Signals: From FTC to City Hall

While the executive orders operate within the confines of existing municipal and state authority, the appointments of Khan and Levine are the more consequential signals of increased enforcement priorities.

Both officials were central figures at an FTC known for testing the outer bounds of its jurisdiction and advancing novel theories under Section 5 of the FTC Act—particularly in areas such as dark patterns, subscription practices, fee disclosures, data practices, and marketwide "unfairness" theories. Under their leadership, the FTC frequently sought to expand interpretive frameworks through aggressive enforcement actions and policy statements, even where statutory language was longstanding.

DCWP is, of course, not the FTC. It does not wield federal Section 5 authority, nor can it impose nationwide rules. Its jurisdiction is grounded in the New York City Administrative Code and other applicable state and local provisions. That said, DCWP historically has not confined its enforcement interest to purely local actors. The agency has brought actions affecting national advertisers whose marketing reaches New York City consumers, including online businesses.

Placing a former FTC Bureau Director at the helm of DCWP, alongside an adviser who chaired the FTC during a period of expansive enforcement theory, suggests the possibility of:

• Aggressive interpretations of what constitutes a deceptive or unfair practice under city law;
• Increased scrutiny of digital design, pricing disclosures, and subscription flows;
• Strategic selection of cases with broader signaling value; and
• Coordination with state and potentially federal counterparts.

In short, while the statutory tools differ, the DCWP enforcement philosophy may resemble recent federal approaches.

Implications for National Advertisers

For businesses outside New York, these developments are not merely local news. DCWP's authority extends to conduct affecting New York City consumers—including online and nationally disseminated advertising that reaches the city.

Companies should expect heightened scrutiny in areas that have already been enforcement focal points at the federal level, such as:

• Drip pricing and ancillary fees;
• Automatic renewal and cancellation mechanisms;
• Interface design and "dark pattern" allegations; and
• Clarity and prominence of material terms.

Given the overlap with federal and state priorities, businesses may face parallel risk exposure. Practices that draw attention under FTC or state attorney general frameworks may now also attract city-level enforcement.

Key Takeaways

• The combination of Executive Orders 9 and 10 and the appointment of former FTC leadership to key advisory and enforcement roles signals a clear enforcement priority in New York City. Aggressive consumer protection oversight, particularly in the digital marketplace, should be anticipated.
• While the executive orders themselves do not create new substantive obligations, they marshal enforcement resources and elevate junk fees and subscription practices to political and regulatory priorities. Advertisers and subscription-based businesses—especially those engaged in e-commerce—should reassess their pricing disclosures, cancellation flows, and interface design through the lens of both traditional deception standards and more expansive "unfairness" theories.
• In an enforcement environment increasingly characterized by layered federal, state, and local oversight, DCWP may emerge as a meaningful additional regulator in the advertising and consumer protection space.

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TINA Challenges Keurig's "Recyclable" K-Cup Claims

Truth in Advertising Inc. (TINA.org) has filed complaints with the Federal Trade Commission (FTC) and several state and local attorneys general alleging that Keurig's marketing of its K-Cup coffee pods as "recyclable" is deceptive.

For the uninitiated, TINA is not a regulator. It is a public advocacy group focused on advertising that investigates marketing practices and, when it believes claims are misleading, submits petitions to enforcement authorities and publicizes its findings. Such complaints can generate scrutiny, but TINA does not initiate enforcement proceedings or guarantee regulatory action.

The Allegations

TINA contends that although K-Cups are made primarily from polypropylene (#5 plastic)—a material that is technically recyclable—the pods are recyclable only "in theory." According to the complaint, practical barriers such as pod size and shape, sorting limitations at material recovery facilities, contamination from coffee grounds, and recycling economics mean that K-Cups are not accepted or processed for recycling in most U.S. communities.

TINA challenges statements such as "100% of K-Cup Pods are Recyclable," along with recycling symbols and related sustainability messaging. It also argues that qualifying language (e.g., "check locally" and "Not recycled in many communities") is insufficient to cure the allegedly misleading net impression that the pods are widely recyclable.

Legal Context

The complaint relies on the FTC's Green Guides, which provide that:

• A product should not be marketed as "recyclable" unless it can be collected, separated, or otherwise recovered through an established recycling program;
• Unqualified recyclable claims generally require access for a "substantial majority" of consumers (interpreted by the FTC as at least 60%); and
• Where access is more limited, clear and prominent qualification is required.

The FTC began a review and potential update of the Green Guides more than two years ago, but revisions have not been finalized. In the interim, federal enforcement activity specific to recyclability claims has been limited. By contrast, the plaintiffs' bar has remained active in challenging environmental marketing claims, including recyclability representations.

Keurig has not yet publicly responded to the complaint, and it will undoubtedly have counterarguments—potentially regarding resin recyclability, access statistics, consumer preparation steps, evolving infrastructure, and the sufficiency of its disclosures. At this stage, the allegations reflect TINA's position, not a regulatory finding, nor is it a certainty that any regulator will take action.

Key Takeaways

• Theoretical vs. Practical Recyclability Is Central. Even if a material is technically recyclable, advertisers should consider whether infrastructure exists to support recycling in practice.
• Net Impression Controls. Prominent "100% recyclable" statements and symbols may outweigh qualifications if consumers are left with the impression of broad recyclability.
• Enforcement Is Multifront. While the FTC has not prioritized finalizing Green Guides updates, private plaintiffs continue to test green claims aggressively.
• Watchdog Complaints Create Risk Without Determining Liability. TINA's filing does not establish a violation, but it can increase reputational exposure and catalyze litigation or regulatory interest.

For companies making recyclability claims—particularly in the current environment of heightened scrutiny—this matter underscores the need to evaluate not just resin capability, but the realities of recycling infrastructure to fully evaluate risk and compliance.

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SDNY Dismisses Dunkin' "Refresher" Fruit Content Class Action

A New York federal court dismissed a proposed false advertising class action alleging that Dunkin' misled consumers into believing its "Refresher" beverages contain real fruit. The decision reinforces Second Circuit precedent distinguishing between flavor descriptions and ingredient representations and highlights the importance of contextual analysis at the pleading stage.

The plaintiff challenged drinks with names such as "Strawberry Dragonfruit" and "Mango Pineapple," alleging that consumers would understand those names to mean the beverages contain the identified fruits. According to the complaint, the products instead consist primarily of green tea, water, sugar, and flavored concentrates designed to mimic fruit taste. The plaintiff asserted claims under New York General Business Law §§ 349 and 350, along with breach of warranty, fraud, and unjust enrichment.

The court dismissed the complaint in its entirety but gave plaintiff an opportunity to replead the allegations by March 11.

Critically, the court focused on the only specific marketing representation identified in the complaint: Dunkin's in-store menu board. The menu listed the flavor names, identified certain optional ingredients (such as green tea), and included product images. It did not state that the beverages were "made with" the named fruits or otherwise represent that real fruit was present. Nor did the plaintiff allege that any representation on the menu board contradicted the drinks' actual ingredient composition.

The court held that merely naming a product after fruits does not plausibly allege deception where the surrounding context does not suggest the presence of those ingredients. The plaintiff's theory that some consumers might assume fruit content was insufficient. As the court emphasized, reasonable consumer analysis requires contextual review informed by judicial experience and common-sense observations. "In this court's view, plaintiff has failed to plausibly allege that defendants' menu board, or any other representation, hides the ball as to the fact that the Products are merely named after the represented fruits."

Because the plaintiff failed to plausibly allege a misrepresentation, the court also dismissed the breach of warranty claim (for failure to identify an actionable affirmation of fact) and the unjust enrichment and fraud claims, which rose or fell with the deception theory.

Key Takeaways

• Flavor names remain a persistent risk area—but courts are crediting reasonable consumers. Flavor-based naming has been a recurring theory in food and beverage class actions over the past several years, particularly in the Second Circuit (including the "vanilla" cases). This decision adds to a growing body of precedent suggesting that courts in the Second Circuit are willing to apply a common-sense reasonable consumer analysis and distinguish between flavor descriptions and ingredient representations.
• Context controls—and courts may be reluctant to infer ingredient claims from flavor names alone. Absent "made with," "contains," or similar ingredient-forward language, courts in the Second Circuit may be reluctant to treat a flavor name or formulation that mimics a certain taste as a representation of actual ingredient content. The absence of affirmative ingredient claims on the menu board was central to dismissal here.
• Failure to plead specific misrepresentations may present an early attack point. For food brands facing similar allegations, this case underscores that plaintiffs must identify concrete statements and explain how they misrepresent product composition. Where complaints rely on conclusory allegations or generalized assumptions about consumer expectations—without pointing to specific ingredient representations—lack of pleading specificity may provide a viable motion-to-dismiss strategy, as it did here.
• Warranty and fraud claims commonly rise or fall with the deception theory. Where no actionable misrepresentation is plausibly alleged, parallel breach of warranty, unjust enrichment, and fraud claims commonly fail for the same reason.

This decision reflects continued judicial scrutiny of flavor-based claims in the Second Circuit and reinforces the value of careful front-of-house messaging, particularly avoiding ingredient-forward language where products are formulated with flavorings rather than the named ingredient itself.

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