An Illinois federal court has granted a partial motion to dismiss a putative class action alleging that Kashi Sales L.L.C. misled consumers by making the flavoring of "Ripe Strawberry" cereal bars with pear juice concentrate and apple powder. Johnston v. Kashi Sales L.L.C., No. 21-0441 (S.D. Ill., entered September 8, 2022). The plaintiff alleged that she "expected the filling would contain more strawberry ingredients than other fruit ingredients, but did not expect that the 'filling would contain more pears and apples compared to strawberries.'” The court first disposed of the plaintiff's request for injunctive relief, finding that she did not have standing because she is aware of the allegedly deceptive sales practices. The court discussed a number of decisions centered on similar issues and compared their outcomes. "Like the deceptive advertising cases that survive dismissal—where the words in defendants’ labels were subject to different plausible interpretations—the phrase 'Ripe Strawberry' is…
Category Archives 7th Circuit
An Illinois consumer has filed a putative class action against Kellogg Sales Co., alleging it misrepresented the amount of whole grains its Harvest Wheat Toasteds crackers contain. Moore v. Kellogg Sales Co., No. 22-03172 (C.D. Ill., filed September 5, 2022). The plaintiff asserts in the complaint that consumers want to consume more whole grains, but their efforts to do so are stymied by confusing product labels. “One food and nutrition professor stated, ‘Even people with advanced degrees cannot figure out how much whole grain’ is in products represented to consumers as whole grain,” the plaintiff said in the complaint. She asserted that despite the labeling of the crackers at issue as “Harvest Wheat,” and the product’s appearance of having a dark brown color and visible pieces of grains, it “contains a negligible absolute and relative amount of whole grains compared to refined grains.” The plaintiff alleged that the value of the…
An Illinois federal court has granted Kraft Heinz Foods Co.'s motion to dismiss a lawsuit alleging the labeling noting the inclusion of mozzarella cheese and tomato sauce in Bagel Bites is misleading. Jackson v. Kraft Heinz Foods Co., No. 21-5219 (N.D. Ill., E. Div., entered August 3, 2022). "Central to all of Plaintiff s claims is the notion that the Product's label misleads consumers by representing that the Product contains ‘mozzarella cheese. REAL cheese,' and 'tomato sauce,' but omitting that it contains additives," the court found. "However, a product that says it contains mozzarella cheese and tomato sauce when the Product does, in fact, contain mozzarella cheese and tomato sauce is not misleading to the reasonable consumer simply because its label does not list its additives." The court also noted that the standard of a "reasonable consumer" can vary according to the product at issue. "[W]hile Plaintiff contends reasonable consumers do…
An Illinois federal court has granted Kellogg Sales Co.'s motion to dismiss a consumer's putative class action complaint alleging that Frosted Chocolate Fudge Pop-Tarts lacked the milkfat (milk and butter) necessary for a product to be described as fudge. Reinitz v. Kellogg Sales Co., No. 21-1239 (C.D. Ill., entered June 2, 2022). As evidence for the claim, the plaintiff provided a book by Molly Mills, who was described as "one of today's leading authorities on fudge"; Kellogg argued that Mills' book, which contains 40 recipes for fudge, included multiple recipes that do not contain milkfat. "Plaintiff fails to support that the average consumer would believe a fudge product must, of necessity, contain milkfat," the court found. Comparing a similar case dismissed when the plaintiff could not show that a reasonable consumer would be misled by the strawberry designation on the Pop-Tart label, the court dismissed the complaint but granted leave to…
Beyond Meat Inc., producer of plant-based meat substitute products, has been hit with two lawsuits in the same week—one filed by a competitor and another filed by a group of consumers. Roberts v. Beyond Meat Inc., No. 22-2861 (N.D. Ill., E. Div., filed May 31, 2022); Don Lee Farms v. Beyond Meat Inc., No. 22-3751 (C.D. Cal., filed June 2, 2022). The complaints make similar allegations, asserting that Beyond Meat "miscalculates and overstates the Products' protein content" as well as the quality of the protein. "Beyond Meat goes the extra mile to represent that the Products are the 'future of protein' and claims that eating the Products allows consumers to get high-quality protein in their diet while simultaneously helping the environment," the consumer complaint argues. Both complaints describe the process of testing Beyond Meat's products to ascertain the protein content of the products, allegedly finding that most of the products contained…
An Illinois federal court has dismissed a lawsuit alleging Dreyer's Grand Ice Cream Inc. misled consumers by describing its ice cream bars as coated in milk chocolate when the chocolate contained coconut oil. Zurliene v. Dreyer's Grand Ice Cream Inc., No. 21-0747 (S.D. Ill., entered March 17, 2022). The complaint, brought under the Illinois Consumer Fraud and Deceptive Business Practices Act, asserted that the Häagen-Dazs ice cream bars' label confused the plaintiff because she understood the term "milk chocolate" to describe "a product made from the cacao bean without chocolate substitutes, such as coconut oil." The claim "is preempted by the Food, Drug, and Cosmetic Act (FDCA)," the court held. "The FDCA prohibits states from 'directly or indirectly establish[ing] under any authority . . . any requirement for a food which is the subject of a standard of identity . . . that is not identical to such standard identity or…
An Illinois federal court has dismissed a complaint alleging that Kellogg Sales Co. misleads consumers by including more ingredients than just strawberries in the filling of its Strawberry Pop-Tarts. Chiappetta v. Kellogg Sales Co., No. 21-3545 (N.D. Ill., E. Div., entered March 1, 2022). The plaintiff alleged that "the Product packaging misled her and other consumers into believing that the Product’s fruit filling contained 'only strawberries and/or more strawberries than it does' because it bears the word 'Strawberry,' and it depicts half of a fresh strawberry and red fruit filling. [] In reality, though, the Product’s fruit filling contains more than just strawberries; it also contains dried pears, dried apples, and a food dye known as 'red 40,' among other ingredients." The court was unpersuaded by the plaintiff's arguments. "The essence of [the plaintiff's Illinois Consumer Fraud and Deceptive Business Practices Act] claim is that the word 'Strawberry,' combined with a…
A plaintiff has filed a putative class action alleging Bimbo Bakehouse LLC misleads consumers by selling The Cheesecake Factory "Our Famous 'Brown Bread' Wheat Sandwich Loaf" as a bread made with primarily whole grains despite containing higher amounts of enriched wheat flour. Hamidani v. Bimbo Bakehouse LLC, No. 22-1026 (N.D. Ill., E. Div., filed February 26, 2022). "Consumers increasingly prefer whole grains to non-whole grains," the complaint asserts. In addition to "important nutrients like fiber, vitamins, minerals, and antioxidants," the "bran also gives whole grains their distinctive brown coloring." "Despite the labeling of the Product as 'Brown Bread,' with a dark brown color, and visible pieces of grain, the Product is not made with mainly whole grains," the plaintiff argues. "The ingredient list reveals that the most predominant ingredient is not whole grain flour but 'ENRICHED WHEAT FLOUR.' [] While 'WHOLE WHEAT FLOUR' is the third most predominant ingredient, this is…
A consumer has filed a putative class action alleging Whole Foods Market Group Inc. sells a boxed rice pilaf in packaging that misleads consumers by being larger than the ingredients inside require. Jacobs v. Whole Foods Mkt. Grp., No. 22-0002 (N.D. Ill., E. Div., filed January 1, 2022). The complaint details Whole Foods' stated commitment to environmentally friendly practices before arguing that the rice pilaf box contains "over 50%" empty space without legitimate reason. "Defendant promised customers, through digital, print, audio, television, and in-store placards and signs, that it is replicating its reduction in excess packing materials across all aspects of its operations, to promote environmental welfare," the plaintiff asserts. "Defendant’s excess packaging violates its pledges and commitments to consumers that it will operate sustainably and promote environmental stewardship." In addition to allegations of fraud, negligent misrepresentation and unjust enrichment, the plaintiff alleges violations of Illinois consumer-protection statutes and the Magnuson-Moss…
A plaintiff has filed a putative class action alleging Abbott Laboratories Inc.'s Similac Pro-Advance infant formula is advertised as the company's "closest formula to breastmilk," allegedly misleading consumers into believing that the formula can convey the same benefits as breast milk. Conner v. Abbott Labs. Inc., No. 21-1463 (S.D. Ill., Benton Div., filed November 20, 2021). "Infant formula is critical for children whose mothers are unable to breastfeed or produce enough milk," the complaint asserts. "Marketing of infant formula sometimes goes beyond meeting those limited needs, to tout itself as an equivalent to breast milk. The representations that the Product contains lutein, vitamin E, DHA, and HMO—Human Milk Oligosaccharide, and the claim, 'Our Closest Formula to Breast Milk,' imply the inclusion of these constituents can approach the benefits from breast milk." The plaintiff seeks class certification, injunctive relief, damages and fees for allegations of fraud, unjust enrichment, negligent misrepresentation and…
