A California resident has filed a putative class action against the company that owns the Breyers ice cream brand, alleging violations of consumer protection laws because its 23 chocolate-flavored products are labeled “All Natural” but also contain cocoa processed with alkali. Denmon-Clark v. Conopco, Inc., No. 10-7898 (C.D. Cal., filed October 20, 2010).

According to the complaint, “Breyers Ice Cream products containing alkalized cocoa are processed with potassium carbonate which is a recognized synthetic substance.” While acknowledging that the Food and Drug Administration (FDA) does not directly regulate the use of the term “natural,” the plaintiff alleges that the agency has a policy that defines “the outer boundaries of the use of that term” and clarifies that “a product is not natural if it contains color, artificial flavors, or synthetic substances.”

The plaintiff alleges that FDA requires products made with an “alkalization” process to include the statement “Processed with alkali.” Breyers’ website includes this information on its product ingredient lists. She also alleges that she purchased Breyers All Natural Chocolate Ice Cream about four times each year and believed that the product was “all natural and relied on this representation in making the purchase.” The plaintiff does not allege any personal injury from consuming the product.

Seeking to certify a statewide class of all consumers who purchased Breyers
ice cream in the state since October 2006, the named plaintiff alleges
unlawful, unfair and fraudulent business practices; false advertising and
unjust enrichment. Alleging damages in excess of $5 million, she requests
restitution or Breyers’ profits from the transactions, an order enjoining
misleading advertisements, attorney’s fees, costs, interest, and “an order
requiring an accounting for, and imposition of a constructive trust upon, all
monies received by Breyers as a result of the unfair, misleading, fraudulent
and unlawful conduct alleged herein.”

About The Author


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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