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.…
Category Archives U.S. Circuit Courts
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…
A plaintiff has alleged that Mondelez Global LLC misleads consumers about the butter content of its Lorna Doone shortbread cookies. Troutt v. Mondelez Global LLC, No. 21-1279 (S.D. Ill., Benton Div., filed October 19, 2021). The plaintiff argues that "the Product’s ingredients are inconsistent with what consumers expect from a food identified as 'shortbread cookies'" and asserts that "Dictionary.com defines shortbread as a 'a butter cookie commonly made in thick, pie-shaped wheels or rolled and cut in fancy shapes.'" Instead of butter, the plaintiff alleges, Mondelez uses "shortening provided exclusively from vegetable oils," resulting in a cookie that "lacks the nutritional, organoleptic, and sensory attributes of shortbread." Further, the consumer argues, the representation of Lorna Doone cookies as providing a '"Melt in Your Mouth' taste is false and misleading" because "vegetable oils do not melt at mouth temperature, and leave a waxy mouthfeel," while "[b]utter melts at mouth temperature and does…
A plaintiff has filed a putative class action alleging that Kellogg Sales Co. misleads consumers as to the quantity of vegetables in its MorningStar "Veggie" products, including "Veggie Burgers," "Veggie Dogs," "Veggitizers" and "Veggie Chik'n." Kennard v. Kellogg Sales Co., No. 21-7211 (N.D. Cal., filed September 17, 2021). Kellogg represents its products as "Veggie," the complaint asserts, "but this representation is false or at least highly misleading because the predominant non-water ingredient in all of the Veggie Products is not vegetables—or even vegetable-based—but instead, grain or oil." The consumer also argues that the "Veggie" products violate California law "by using product names that include the term 'VEGGIE' while failing to disclose the percentage of vegetables in the products, which have a material bearing on the price and consumer acceptance of the Veggie Products." The plaintiff alleges violations of California consumer-protection statutes as well as breach of warranties and seeks class…
A New York federal court has dismissed allegations that Aldi Inc. misled consumers about the contents of its vanilla almond milk product. Parham v. Aldi Inc., No. 19-8975 (S.D.N.Y., entered September 21, 2021). The complaint asserted that the almond milk contained a "comparatively high level of vanillin" and "'a trace or de minimus' amount of vanilla," allegedly misleading consumers as to the primary flavoring agent of the product. A magistrate judge provided the court with a recommendation, noting that a "reasonable consumer would understand that the word ‘vanilla’ on the front of the carton describes how the Product tastes, not what it contains, especially in circumstances where the ingredients listed on the Product container do not mention vanilla at all." Further, the magistrate stated, "Five other courts in this district have recently addressed nearly identical arguments regarding other vanilla-flavored products. All five courts rejected claims that the labeling of vanilla-flavored products was…
Snyder's-Lance Inc. has voluntarily dismissed a lawsuit seeking to appeal a decision holding that it could not trademark "Pretzel Crisps" as a name for its product, which Frito-Lay North America Inc. had challenged before the Trademark Trial and Appeal Board. Snyder's-Lance Inc. v. Frito-Lay N. Am. Inc., No. 21-1758 (4th Cir., filed August 31, 2021). The dismissal concludes years-long litigation disputing whether the "Pretzel Crisps" mark was too generic to be registered. An appeal of a lower court's ruling that the term is generic had been pending until Snyder's-Lance's voluntary dismissal.
According to a putative class action complaint, Kodiak Cakes LLC and Baker Mills Inc. deliberately mislead consumers by labeling Kodiak Cakes pancake and waffle mixes as containing 14 grams of protein despite allegedly containing only 11.5 grams. Hinkley v. Baker Mills Inc., No. 21-221 (D. Utah, filed April 13, 2021). "Consumers are increasingly health conscious and, as a result, many consumers seek foods high in protein to support weight loss, exercise, and general fitness, among other perceived health benefits of protein consumption," the plaintiffs argue. "To capitalize on this trend, Defendants prominently label their Kodiak Cakes products as providing specific amounts of protein per serving depending on the product, such as '14g protein' on the label of its Buttermilk Flapjack and Waffle Mix. Consumers, in turn, reasonably expect that each product will provide the actual amount of protein per serving that the label claims it will. In truth, however, Defendants’…
Tootsie Roll Industries has filed a trademark infringement action alleging Lafayette Bay Products, LLC, doing business as Spunky Pup, illegally copied its trade dress by manufacturing and selling a product called "Tootsie Pups." Tootsie Roll Indus. LLC v. Lafayette Bay Prods. LLC, No. 21-1997 (N.D. Ill., E. Div., filed April 14, 2021). Tootsie Roll Industries alleges that the dog treats sold as Tootsie Pups are shaped and colored like Tootsie Roll Midgees, "being brown and cylindrically shaped with a length approximately two times its diameter." Further, the treats are sold in packages that allegedly echo the Tootsie Roll Midgees packaging, including "prominent wording in the same position and the same white font, the large, dark brown middle panel, and the bright stripes on each side of the panel." Tootsie Roll Industries also notes that it has licensed its marks for sale on pet items, allegedly resulting in a likelihood of…
A consumer has alleged that The Kroger Co. misleads with its packaging for sparkling water products sold with flavors such as "Black Cherry," "White Grape" and "Kiwi Strawberry" because the waters are purportedly flavored artificially rather than with extracts of the fruits. Gammino v. Kroger Co., No. 21-2933 (N.D. Cal., filed April 22, 2021). The complaint asserts that Kroger's "packaging, labeling, and advertising scheme for these Products is intended to give consumers the impression that they are buying a premium, all-natural product instead of a product that is artificially flavored." The plaintiff asserts that the flavoring in the beverages comes from malic acid, "a synthetic chemical manufactured in a petrochemical factory from petroleum feedstocks." The complaint lists several causes of action, including alleged violations of Ohio and California's consumer-protection statutes as well as fraud by omission, negligent misrepresentation and money had and received.
A plaintiff has filed a putative class action alleging that Whole Foods Market Group Inc. misleads consumers by selling sparkling mineral water in a lemon raspberry flavor without an "appreciable amount" of lemons and raspberries. Kelly v. Whole Foods Mkt. Grp. Inc., No. 21-3124 (S.D.N.Y., filed April 11, 2021). The label of the water contains images of lemons and raspberries, the complaint asserts, and consumers "will expect the presence of a non-de minimis amount of lemon and raspberry ingredients, based on the pictures of these fruits." The plaintiff argues that the ingredient list, which shows the contents as "carbonated mineral water, organic natural flavors (raspberry, lemon)," fails to inform consumers the flavoring "mainly consists of flavors from fruits other than lemons and raspberries." "Because lemon oil and raspberry oil or raspberry extract are not separately identified ingredients, it means that any real lemon or raspberry flavoring is at most a de minimis…
