A federal court in Illinois has dismissed without prejudice a putative class action alleging consumer fraud against a company that makes snacks which list evaporated cane juice (ECJ) as an ingredient. Ibarrola v. Kind, LLC, No. 13-50377 (N.D. Ill., order entered July 14, 2014). The court declined to address whether the plaintiff had standing to assert claims as to products she had not purchased because class issues such as adequacy and typicality had not yet been briefed and further declined to consider dismissing the complaint under the primary jurisdiction doctrine, noting that the U.S. Supreme Court may have called this rationale into question in POM Wonderful LLC v. Coca-Cola Co., No. 12-761, 2014 WL 2608859 (June 12, 2014).

The court dismissed the entire complaint, however, because it failed “to plausibly and adequately alleged that [the plaintiff] was deceived by Kind’s representations.” She did not apparently “explain how she was deceived, or what she believed evaporated cane juice to be, if not a form of sugar.” She also did not explain “why the inclusion of molasses in the list of ingredients did not cause her to forego buying Vanilla Blueberry Clusters, but the inclusion of cane syrup would have. The Complaint reveals that molasses is also a sweetener derived from sugar cane. [The plaintiff] points out in her response that she did not think that Vanilla Blueberry Clusters were sugar free, but she does not make clear what, if anything, she actually thought with regard to the sugar content of, or the sweeteners used in, Vanilla Blueberry Clusters such that the Court can infer that she was actually deceived.” In the absence of deception, the court was also constrained to dismiss her unjust enrichment claim.


Issue 530

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For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.

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