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 minerals without adding other ingredients is discreetly indicated by the dagger accompanying the front label statement of ‘A Good Source of 12 Vitamins & Minerals,†’ which corresponds to a smaller statement several lines below, ‘†When Prepared As Directed,’” she said in the complaint.

The plaintiff also alleged the “No Artificials” labeling was misleading because the product’s ingredient list notes it contains a bioengineered food ingredient. She said consumers seeing the prominent representation would not expect the product to contain bioengineered ingredients or ingredients produced with chemical compounds.

The plaintiff alleges Nestlé violated Sections 349 and 350 of New York General Business Law, as well as other state consumer-fraud acts. She also alleges breaches of express and implied warranty, negligent misrepresentation, fraud and unjust enrichment. She is seeking class certification, damages and attorney’s fees.

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