1st Circuit Gives Coffee Buyers 2nd Shot at False Ad Suit (subscription to Law360 required)

  • On August 8, 2019, the U.S. Court of Appeals for the First Circuit reversed a district court’s dismissal of a lawsuit charging that the label on New England Coffee’s Hazelnut Crème coffee violates Massachusetts’ consumer protection laws because the product does not contain hazelnuts. Kathy Dumont originally brought a putative class action against New England Coffee Company and Reily Foods Company (New England Coffee Company is a subsidiary of Reily Foods Company) in May 2018 in the U.S. District Court for the District of Massachusetts. U.S. District Judge Rya W. Zobel dismissed that case in September 2018.
  • In reversing the district court’s decision, Circuit Judge William J. Kayatta Jr., writing for the majority, stated that even though the ingredient list stated, “100% Arabica Coffee Naturally and Artificially Flavored,” the name of the product could be taken to imply the presence of hazelnuts. He also suggested that while a reasonable consumer who cared whether the coffee contained real hazelnuts would check the list of ingredients, “perhaps a reasonable consumer would find in the product name sufficient assurance so as to see no need to search the fine print on the back of the package, much like one might easily buy a hazelnut cake without studying the ingredients list to confirm that the cake actually contains some hazelnut.” (See Dumont v. Reily Foods and New England Coffee Company, U.S. Court of Appeals for the First Circuit, No. 18-2055.)
  • The Court of Appeals also found that Dumont’s claim under Massachusetts General Laws chapter 93A (concerning unfair and deceptive practice), was not impliedly preempted by federal law but did point out that the Federal Food, Drug, and Cosmetic Act will limit the scope of Dumont’s argument.
  • Judge Sandra Lynch wrote a dissenting opinion, stating, “…a reasonable consumer plainly could not view the phrase ‘Hazelnut Crème’ as announcing the presence of actual hazelnut in a bag of coffee which also proclaims it is ‘100% Arabica Coffee’.”