A New York woman has brought a putative class action against Nestlé USA Inc. alleging the company makes misleading claims about the nutrition content of its Ovaltine flavored drink mix products. McMenamy v. Nestlé USA Inc., No. 22-1053 (N.D.N.Y., filed October 11, 2022). The plaintiff took issue with labeling including “A Good Source of 12 Vitamins & Minerals” and “No Artificials.” She said that under state and federal regulations, the former phrase is a nutrient content claim, meaning that the product should provide between 10 to 19 percent of the recommended daily intake or recommended daily value of no less than 12 vitamins or minerals. She said the product is not a good source of 12 vitamins and minerals because the consumer is required to mix the product with a cup of low-fat Vitamin A & D milk. “That the Product is not a good source of 12 vitamins and…
Category Archives 2nd Circuit
A California woman has filed a proposed class action against Danone Waters of America, alleging its Evian Natural Spring Water product packaging made misleading representations about being carbon neutral. Dorris v. Danone Waters of America, No. 22-8717 (S.D.N.Y., filed October 13, 2022). The plaintiff noted in her suit that the defendant represents on all versions of its Evian packaging that the product is “carbon neutral.” As a result, she asserted that reasonable consumers would believe the manufacturing of the product is sustainable and does not leave a carbon footprint, but that impression is false. “Defendant’s manufacturing of the Product still causes carbon dioxide ('CO2') to be released into the atmosphere,” she said in the complaint. “Accordingly, the carbon neutral claim is false and misleading because the Product’s manufacturing process is not carbon neutral, and consumers would not have purchased the Product, or paid substantially less for it, had they known…
A New York federal court has dismissed a lawsuit alleging that customers of Big Lots Inc. were misled by the packaging of Fresh Finds Colombian coffee. Devey v. Big Lots Inc., No. 21-6688 (W.D.N.Y., entered October 12, 2022). The plaintiff asserted that the canisters of coffee she purchased stated that the contents could produce "up to 210" 6-oz. servings, but preparation by following the serving instructions would only yield 152 servings. "[B]y focusing solely on the instructions for brewing a single serving, plaintiff’s calculation completely overlooks the brewing instructions on the label for larger batches, which offer a significantly higher potential yield. While 1 Tblsp. of ground coffee is recommended for a single serving, larger batches require 20% less ground coffee: ¼ cup (4 Tblsp.) for 5 servings, and ½ cup (8 Tblsp.) for 10," the court found. "Preparing coffee in batches of 5 or 10 per the label instructions,…
A New York consumer has filed a putative class action against juice maker Suja Life, LLC, alleging the company deceptively labeled its juice blends as “Cold-Pressed.” Lumbra v. Suja Life, LLC, No. 22-893 (N.D.N.Y., filed August 28, 2022). The plaintiff alleges that the packaging of Suja’s “Cold-Pressed” juices led her to believe they were not processed after being extracted. She asserts in the complaint that typically, juices that are not subjected to treatment after they’re extracted are labeled as “Cold-Pressed,” while juices that are treated usually prominently disclose treatment. She alleges that Suja failed to prominently disclose to consumers that after its juices are cold-pressed, they are subjected to a treatment known as high-pressure processing. “By describing the Product as 'Cold-Pressed' without any prominent, clear disclaimers of other processing steps, consumers expect it will be fresh,” the plaintiff asserts. “However, the Product is not fresh and has more in common with…
A Florida consumer has sued cheesemaker Lactalis American Group, Inc., alleging the company misrepresented the authenticity of its President-branded feta cheese. Gallagher v. Lactalis American Group, Inc., No. 22-00614 (W.D.N.Y., filed Aug. 14, 2022). The plaintiff alleges that Lactalis misrepresented its feta cheese as made in Europe under the President brand, when it is made in the United States. In the complaint, the plaintiff highlighted the company's feta cheese packaging, which includes language that the brand is “Europe’s Leading Cheese Expert," a gold olive branch wreath and the word “feta” “stylized in ancient-Greek font.” The plaintiff asserts that the labeling "gives consumers the impression the Product was made in Greece, or at the very least in another European country,” “Consumers are faced with increasing commercialization of products and seek brands that are genuine – feta cheese from Greece, sake from Japan, and tomatoes from Italy," the plaintiff asserts in the complaint.…
A consumer has filed a putative class action alleging Popeyes Louisiana Kitchen Inc. misled her into believing that the restaurant's chicken tenders were composed of chicken tenderloins. Sanders v. Popeyes Louisiana Kitchen Inc., No. 22-4477 (E.D.N.Y., filed July 29, 2022). "Traditionally, chicken tenders are made from chicken tenderloins," the complaint asserts. "Chicken tenderloins are the small strips of meat that are loosely attached to the underside of each breast, along the breastbone. As a result, chicken tenderloins are more tender than regular chicken breast, and hence, the name chicken tender. Chicken tenderloins are also juicier, making them more desirable for consumption. They are significantly smaller than the remainder of the chicken breast, also making them more expensive than the rest of the chicken breast." The chicken tenders at Popeyes, the plaintiff argues, are instead made from the remainder of the chicken breast. The plaintiff asserts that Popeyes' competitors are accurate in their…
A consumer has filed a putative class action alleging Danone North America Public Benefit Corp. misleads consumers about the nature of its International Delight coffee creamers by labeling the products as creamers rather than non-dairy creamers. English v. Danone N. Am. Pub. Benefit Corp., No. 22-5105 (S.D.N.Y., filed June 17, 2022). The plaintiff argues that International Delight creamer "lacks cream or dairy ingredients beyond a de minimis amount of sodium caseinate" and instead "substitutes water and palm oil, the first and third ingredients, to reduce costs." The complaint notes that consumers "value cream from dairy ingredients for its nutritive purposes," and the plaintiff alleges she would not have purchased the product if she had not been misled by the packaging implying the presence of dairy ingredients. For alleged violations of New York consumer-protection statutes, fraud, unjust enrichment and breach of express warranty, the plaintiff seeks class certification, restitution, damages and attorney's fees.
The U.S. District Court for the Southern District of New York has given final approval to a $7.5 million settlement in a lawsuit alleging that Godiva Chocolatier Inc.'s packaging misled consumers into believing all of its chocolate was produced in Belgium. Hesse v. Godiva Chocolatier Inc., No. 19-0972 (S.D.N.Y., order entered April 20, 2022). The approval dismisses concerns raised by the attorneys general of six states arguing that elements of the settlement were too favorable to Godiva. Their concerns included a $25 cap on claims with proof of purchase as well as a lack of notice about the settlement on Godiva's website, but the court found the cap to be reasonable and noted that Godiva sent 8.2 million initial emails and 7.7 million reminder emails to customers to provide notice of the settlement.
A consumer has filed a projected class action alleging Mondelez International Inc.'s Green & Black's chocolate packaging misleads as to the product's cacao content. Lee v. Mondelez Int'l Inc., No. 22-1127 (S.D.N.Y., filed February 9, 2022). The labels indicate that the products are 60%, 70% or 85% cacao, but "the back labels uniformly reveal that the principal chocolate ingredient is not cacao but cocoa, which [] is an inferior, highly processed derivative of the cacao bean that has been stripped of the nutritional qualities that make dark chocolate appealing to its consumers." The complaint explains that the ingredient list—"organic bittersweet chocolate (organic chocolate liquor, organic cane sugar, organic cocoa butter, organic vanilla extract)—makes no "mention of cacao butter, but only of cocoa butter." Further, the front labeling also states that the product is "made from 'the finest Trinitario cacao beans,'" the plaintiff argues, which allegedly implies that the products "retain…
A consumer has alleged that Mondelez Global LLC misleads consumers by marketing its Oreo Fudge Cremes as "fudge covered" because the topping covering the cookies lacks milkfat. Leonard v. Mondelez Global LLC, No. 21-10102 (S.D.N.Y., filed November 28, 2021). The complaint lists several recipes for fudge to support its argument that fudge requires the presence of milkfat, while Mondelez produces its "fudge" with palm oils and nonfat milk. "Fudge covered cookies made with fudge ingredients such as dairy components, containing milkfat, are not a rare or pricy delicacy that would make a reasonable consumer 'double check' their presence by scouring the packaging," the plaintiff argues. "The front label creates an erroneous impression that essential fudge ingredients are present." The complaint compares the "fudge" ingredients to the "truthful and non-misleading 'Mint' representations, through words and pictures of peppermint leaf," which are accurate because the product contains peppermint oil, the plaintiff explains.…
