A federal court in California has dismissed consumer-fraud putative-class claims filed in a first amended complaint against the Ghirardelli Chocolate Co., alleging violations pertaining to white chocolate products that the named plaintiff did not purchase. Miller v. Ghirardelli Chocolate Co., No. 12-4936 (N.D. Cal., order entered April 5, 2013). Details about a similar order entered as to the original complaint appear in Issue 465 of this Update.

While the court disagreed with the defendant that the products were dissimilar because its label description—“Ghirardelli® Chocolate”—is like a Dunkin’ Donuts logo used on products, such as coffee, that are clearly not donuts, the court found that “an ‘unlawful’ claim based on ‘chocolate’ necessarily reaches back to the FDA definition. Identity labeling of food requires—under the plain language of the regulation that the statement of identity of the commodity on the principal display panel of a food in package form be ‘the name . . . required by any applicable Federal law or regulation.’ That identity of the commodity here under FDA regulations is ‘white chocolate,’ not ‘chocolate.’ That in turn means that a determination of standing is back to an examination of the entire label, and the court previously found—even with the juxtaposition of ‘Ghirardelli®’ to ‘Chocolate’ and the resulting implication of a connection to chocolate—the five products and the alleged misrepresentations were not sufficiently similar.”

The court denied the defendant’s motion to dismiss the unfair competition law claim, finding that (i) the state’s Sherman Law, which incorporates federal law and regulations adopted after its effective date, is not unconstitutional because it provides a mechanism for delay and public input on any proposed incorporation before a federal regulation takes effect in California; and (ii) purported pleading deficiencies as to the company’s failure to disclose that the products are “imitation,” “artificial” or “artificially flavored” are premature at the pleading stage—according to the court, “Ghirardelli has enough information to answer the complaint.”

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