The opinion of the court was delivered by: Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
Plaintiffs Karen Reyes and her minor son, Evan Reyes, filed a class action against McDonald's Corporation ("McDonald's") in the Cook County Circuit Court of Illinois for violations of the 815 ILCS 505/2, the Illinois Consumer Fraud and Deceptive Practices Act ("CFA"), and breach of express and implied warranties, all in connection with a public statement made by McDonald's correcting the fat and calorie contents in McDonald's french fries. After McDonald's removed the action to federal court and filed a Motion to Dismiss, the parties stayed briefing by agreement pending transfer of a related class action case filed by Wladimir Raingevirtz ("Raingevirtz" and together with the Reyes family "Plaintiffs") for violations of the New York General Business Law §§ 349-350 ("GBL"), breach of express warranty, and breach of express and implied warranties. McDonald's now moves to dismiss Plaintiff's joint Amended Complaint on two separate grounds: that Plaintiffs have failed to plead the elements of their claims pursuant to Federal Rule of Civil Procedure 12(b)(6), and that the state law actions are preempted by the Nutrition Labeling in Education Act, 21 U.S.C. §§ 341 et seq (the "NLEA").
The following facts are taken from Plaintiffs' Amended Complaint and are accepted as true when deciding a Motion to Dismiss. Plaintiff Karen Reyes and her 12-year-old son Evan are residents of Illinois. Plaintiff Raingevirtz is a resident of New York. McDonald's is a Delaware corporation with its headquarters in Illinois. McDonald's owns and franchises fast-food restaurants throughout the United States, and sells french fries, among other items. All processors of McDonald's french fries must prepare them according to McDonald's recipe.
McDonald's has published the fat and calorie content of its foods, including french fries. McDonald's publishes its representations about fat and calorie content through brochures that are available in restaurants and through its Website.
With respect to the french fries prior to February 8, 2006, McDonald's had represented that:
(i) the trans fatty acid content of its large fries was six grams; (ii) the total fat content of its large fries was 25 grams; and (iii) the total calories in a serving of large fries was 520. On February 8, 2006, McDonald's modified its representations via press release stating that: (i) the trans fatty content of its large fries is eight grams; (ii) the total fat content is 30 grams; and (iii) the total calorie content is 570.
Prior to the lawsuit, Plaintiffs patronized McDonald's at least three to four times per month, and frequently purchased french fries. Plaintiffs knew about McDonald's representations with respect to its french fries, and claim that they would have modified their consumption of the french fries had they known about the correct information.
Motion to Dismiss pursuant to 12(b)(6)
When considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), the Court must accept the allegations set forth in Plaintiffs' Amended Complaint as true and all reasonable inferences should be drawn in favor of Plaintiffs. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). Dismissal of Plaintiffs' Amended Complaint is proper only if it appears beyond doubt that Plaintiffs can prove no set of facts that would entitle them to relief. Lifanda v. Elmhust Dodge, Inc., 237 F.3d 803, 805-06 (7th Cir. 2001). A plaintiff need provide only a short and plain statement showing that he is entitled to relief; if the plaintiff pleads additional facts, however, the defense may suggest that those same facts show that the plaintiff is not entitled to the relief he seeks. McCready v. Ebay, Inc., 453 F.3d 882, 886 (7th Cir. 2006).
Count I - Illinois Consumer Fraud and Deceptive Practices Act
The Illinois CFA prohibits the "misrepresentation or the concealment, suppression or omission of any material fact" in the course of commerce. 815 ILCS § 505/2. In order to state a claim for violation of the CFA, Plaintiffs must allege that: (1) McDonald's is engaged in a deceptive act or practice; (2) McDonald's intended that Plaintiffs would rely on the deception; (3) the deception occurred in the course of conduct involving trade and commerce; (4) Plaintiffs were injured; and (5) McDonald's conduct proximately caused Plaintiffs' injury. See Avery v. State Farm Mut. Auto. Ins. Co., 835 N.E.2d 801, 850 (Ill. 2005); accord Cozzi Iron & Metal, Inc. v. U.S. Office Equipment, Inc., 250 F.3d 570, 575-76 (7th Cir. 2001). Actual reliance is not required to establish a claim under the CFA. Cozzi, 250 F.3d at 576 (reversing district court for dismissing a claim for lack of detrimental reliance). The CFA is a consumer fraud statute, and as such the complaint must be pled with specificity. See Avery, 835 N.E.2d at 843, citing Connick v. Suzuki Motor Co., 675 N.E.2d 584, 593 (Ill. 1996); see also DiLeo v. Ernst & Young, 901 F.2d 624, 627 (7th Cir. 1990). "While [Rule 9(b)] does not require a plaintiff to plead facts that if true would show that the defendant's alleged misrepresentations were indeed false, it does require the plaintiff to state 'the identity of the person making the misrepresentation, the time, place, and content of the misrepresentation, and the method by which the misrepresentation was communicated to the plaintiff.'" Uni*Quality, Inc. v. Infotronx, Inc., 974 F.2d 918, 923 (7th Cir. 1992).
Plaintiffs have plead their CFA claim with sufficient specificity to survive a motion to dismiss. Plaintiffs have alleged: (1) the date on which they discovered the alleged deception; (2) they read and relied upon the nutrition information posted by McDonald's prior to consuming any McDonald's products; (3) they would have moderated their consumption had they known about the actual information; and (4) they were damaged by the realization that they had consumed products that contained higher trans fats, fats, and calories than advertised. Plaintiffs may not be able to sustain their burden of proof that ...