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 that is not identical to the requirement of section 343(g).”

“[N]either the name nor the ingredients of the product ‘milk chocolate and vegetable fat coating’ must be stated on the ice cream bars’ front label. The front label must include ‘a statement of the identity of the commodity,'” the court explained. “Here, the commodity is not milk chocolate and vegetable fat coating, but ice cream bars, of which milk chocolate and vegetable fat coating are ingredients. . . . The [Food and Drug Administration (FDA)] regulations require Defendant to list the ingredients of milk chocolate and vegetable fat coating (specifically, coconut oil) either on the front of the package or on the side of the package where the ingredients are normally listed.”

The court noted that the plaintiff conceded that coconut oil is listed as an ingredient but argued that it should also appear on the front of the package. “This requirement would be one step beyond FDA regulations and is therefore preempted,” the court held.

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