An Illinois federal court has dismissed a lawsuit alleging Dreyer's Grand Ice Cream Inc. misled consumers by describing its ice cream bars as coated in milk chocolate when the chocolate contained coconut oil. Zurliene v. Dreyer's Grand Ice Cream Inc., No. 21-0747 (S.D. Ill., entered March 17, 2022). The complaint, brought under the Illinois Consumer Fraud and Deceptive Business Practices Act, asserted that the Häagen-Dazs ice cream bars' label confused the plaintiff because she understood the term "milk chocolate" to describe "a product made from the cacao bean without chocolate substitutes, such as coconut oil." The claim "is preempted by the Food, Drug, and Cosmetic Act (FDCA)," the court held. "The FDCA prohibits states from 'directly or indirectly establish[ing] under any authority . . . any requirement for a food which is the subject of a standard of identity . . . that is not identical to such standard identity or…
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A consumer has filed a projected class action alleging Mondelez International Inc.'s Green & Black's chocolate packaging misleads as to the product's cacao content. Lee v. Mondelez Int'l Inc., No. 22-1127 (S.D.N.Y., filed February 9, 2022). The labels indicate that the products are 60%, 70% or 85% cacao, but "the back labels uniformly reveal that the principal chocolate ingredient is not cacao but cocoa, which [] is an inferior, highly processed derivative of the cacao bean that has been stripped of the nutritional qualities that make dark chocolate appealing to its consumers." The complaint explains that the ingredient list—"organic bittersweet chocolate (organic chocolate liquor, organic cane sugar, organic cocoa butter, organic vanilla extract)—makes no "mention of cacao butter, but only of cocoa butter." Further, the front labeling also states that the product is "made from 'the finest Trinitario cacao beans,'" the plaintiff argues, which allegedly implies that the products "retain…
A consumer has alleged that Mondelez Global LLC misleads consumers by marketing its Oreo Fudge Cremes as "fudge covered" because the topping covering the cookies lacks milkfat. Leonard v. Mondelez Global LLC, No. 21-10102 (S.D.N.Y., filed November 28, 2021). The complaint lists several recipes for fudge to support its argument that fudge requires the presence of milkfat, while Mondelez produces its "fudge" with palm oils and nonfat milk. "Fudge covered cookies made with fudge ingredients such as dairy components, containing milkfat, are not a rare or pricy delicacy that would make a reasonable consumer 'double check' their presence by scouring the packaging," the plaintiff argues. "The front label creates an erroneous impression that essential fudge ingredients are present." The complaint compares the "fudge" ingredients to the "truthful and non-misleading 'Mint' representations, through words and pictures of peppermint leaf," which are accurate because the product contains peppermint oil, the plaintiff explains.…
Kilwins Quality Confections Inc. sold chocolate and other candy products in containers that "materially overstate the volume of the contents," according to a plaintiff. Rand v. Kilwins Quality Confections Inc., No. 21-1513 (N.D. Ill., E. Div., filed March 18, 2021). The consumer argues that the company's shredded-chocolate containers "materially overstate the actual volume of, and the number of servings contained in, the containers and packaging in which they are advertised and sold and similarly materially understate the caloric content of a serving." The jars of chocolate were labeled as containing 20 servings of two tablespoons despite containing only 16 servings of that size, the plaintiff argues, and the caloric content of one serving is 140 calories rather than 110 calories as listed on the package. "While Kilwins has recently quietly corrected labeling on the mislabeled products, it has failed to compensate thousands of consumers who, over the three (3) to…
A consumer has filed a putative class action alleging Whole Foods Market Group Inc. mislabels its chocolate-coated ice cream bars because the "purported chocolate contains vegetable oils." Mitchell v. Whole Foods Mkt. Grp. Inc., No. 20-8496 (S.D.N.Y., filed October 12, 2020). "Consumers want chocolate in chocolate products to come from a real source, i.e., from cacao beans," the complaint asserts. "Chocolate provides greater satiety and a creamy and smooth mouthfeel compared to other ingredients which substitute for chocolate, like vegetable oils, which provide less satiety, a waxy and oily mouthfeel and leave an aftertaste." The plaintiff argues that the product's chocolate "contains ingredients not found in real chocolate," such as organic expeller pressed palm kernel oil, and alleges the inclusion of the ingredients amounts to fraud, negligent misrepresentation and unjust enrichment as well as violations of the Magnuson-Moss Warranty Act and New York's consumer-protection statutes.
The U.S. Food and Drug Administration (FDA) has announced the results of a study examining 52 dark chocolate products, determining that four of the products had potentially hazardous levels of milk allergens. "The agency found the 12 samples from the four products to have milk allergen levels ranging from 600 ppm to 3,100 ppm," the announcement states. "The agency determined that, at these levels, the four products held the potential to cause severe reactions in consumers with milk allergy. The FDA took action as warranted to address each of these positives."
The U.S. Food and Drug Administration (FDA) has issued an update for consumers on its 2018 study examining milk allergies and dark chocolate. "U.S. law requires manufacturers to label food products that are major allergens, as well as food products that contain major allergenic ingredients or proteins," the update notes. "Allergens contained in a food product but not named on the label are a leading cause of FDA requests for food recalls, and undeclared milk is the most frequently cited allergen. Chocolates are one of the most common sources of undeclared milk associated with consumer reactions." FDA advised consumers to interpret "may contain" disclosures as "likely to contain," even if the package is also labeled as dairy-free or vegan. "Unfortunately, you can’t always tell if dark chocolate contains milk by reading the ingredients list. FDA researchers found that of 94 dark chocolate bars tested, only six listed milk as an…
Labeling class action filings focused on purportedly misleading ingredient labels tend to come in waves, and 2019 saw a surfeit of lawsuits targeting vanilla, white chocolate and malic acid. Several plaintiffs alleged that they were misled by products listed as vanilla-flavored because, they argued, they believed they were buying products flavored with vanilla beans rather than artificial vanilla. The allegations reached yogurt, cream soda, ice cream, coconut milk and almondmilk, among other products. D-l malic acid, a synthetic flavoring, was frequently alleged to be masquerading on ingredient lists as malic acid, a naturally occurring compound. Many plaintiffs argued that they purchased products—including Brookside chocolates, Laffy Taffy, orange juice and SweeTarts—believing them to be "natural" and free of synthetic ingredients. Plaintiffs continue to file putative class actions alleging that they were misled by labels marketing products as containing "real cocoa" rather than "cocoa processed with alkali," and Oreos and Cocoa Pebbles…
A California federal court has denied Clif Bar & Co.'s motion to dismiss a lawsuit alleging that its products marketed as containing white chocolate lack the claimed ingredients. Joslin v. Clif Bar & Co., No. 18-4941 (N.D. Cal., entered December 2, 2019). A previous version of the complaint was dismissed for failure to show that members of the public were likely to be deceived. The court again found that the plaintiffs failed to allege standing for the injunctive relief they sought, but it held that the amended complaint properly alleged facts that satisfy the "reasonable consumer" standard. "This is a close case," the court stated. "Having considered Plaintiffs’ amendments, the Court concludes Plaintiffs have nudged their claims over the line from possible to plausible. The Court concludes Plaintiffs’ allegations are sufficient to allege the Products’ labels would be likely to deceive a reasonable consumer and sufficiently allege facts to state…
A California federal court has granted summary judgment to The Hershey Co. in a lawsuit alleging that its Brookside chocolates are misleadingly labeled as made with "no artificial flavors" because they contain malic acid. Clark v. Hershey Co., No. 18-6113 (N.D. Cal., entered November 15, 2019). The court found that the named plaintiffs admitted in depositions that they did not rely on the contested label. One plaintiff "did suffer an injury as required by California law—he would not have purchased the Brookside products if he had known they contained artificial ingredients," the court noted. "However, his injury was not caused by the alleged mislabeling of the product, but rather his misunderstanding that the 'No Artificial Flavors' statement meant there were no artificial ingredients whatsoever in the product. Accordingly, regardless of defendant's alleged mislabeling, [the plaintiff] would have suffered the injury." A second and third plaintiff argued that they had relied…
