Nutella® False Ad Suits to Proceed as Statewide Class Action

A federal court in California has entered an order certifying a class in consolidated lawsuits alleging that the company which produces Nutella® falsely advertises its product as healthy and beneficial to children despite making the hazelnut spread with “dangerous levels of fat and sugar.” In re Ferrero Litig., No. 11-205 (S.D. Cal., decided November 15, 2011). The court limited the class to California consumers, agreeing with the defendant that California law could not be applied to the claims of non-California class members who neither saw the advertisements nor purchased the product in the state. Because the defendant is a Delaware corporation that does business from its New Jersey headquarters and the product is made in Canada, the non-California class members would also have been unable to show that their claims arose out of conduct that occurred in California.

The court refused to certify an 11-year class, noting that nationwide TV ads
for Nutella® began airing in August 2009, and that the statute of limitations
for several of the class claims is three years. Accordingly, the court concluded
that “the appropriate class period start date is August 2009.” Considering
whether common issues predominate over individual ones, the court rejected
the defendant’s contention that the case “involves class members’ individual
expectations, dietary preferences, nutritional knowledge, and imperfect
substitutes in the market,” but indicated that these issues may prove relevant
to the merits of the case. In this regard, the court stated, “Plaintiffs present
sufficient facts to show that all of the class members’ claims share a common
contention: namely, that Defendant made a material misrepresentation
regarding the nutritious benefits of Nutella®” that violated state consumer
fraud laws.