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Kellogg Gets 2nd Win In Vanilla Flavor False Ad Suit (subscription to Law360 required)

  • As our readers may recall, a California federal judge dismissed a proposed class action on June 22, 2020 alleging that Kellogg Sales Company falsely and misleadingly labeled and advertised Bear Naked Granola V’nilla Almond as being flavored “with vanilla flavoring derived exclusively from vanilla beans when the ingredient list reveals otherwise.”  U.S. District Judge Roger T. Benitez found the lead plaintiff’s argument that Kellogg’s listing of “natural flavors” in the ingredient list, as opposed to “vanilla flavor” or “vanilla extract,” is acknowledgement that vanilla flavor or extract is not an ingredient in the product amounts to speculation rather than an allegation of sufficient facts.
  • On October 29, 2020, the California federal judge dismissed the case a second time, again finding an insufficient factual basis that the granola product was mislabeled.  While the judge agreed that a picture on the product label of a vanilla plant and the word “vanilla,” with no qualifier, would be deceptive if the product does not contain enough vanilla from vanilla beans to independently characterize the product as “vanilla,” the judge found the plaintiff has offered no proof that the flavoring in the product is not from vanilla beans, rejecting the argument that because vanilla is expensive, Kellogg would have included it in the ingredient statement if it were actually present.  Citing a recent decision in Sonner v. Premier Nutrition 971 F.3d 834 (9th Cir. 2020), the judge also dismissed the complaint, which seeks equitable relief, on the basis that the plaintiff failed to plead he lacks an adequate remedy at law.
  • Because the proposed class action was dismissed without prejudice, the plaintiff may amend the complaint a second time to cure the equitable pleading issue and attempt somehow to provide factual evidence of an inadequate level of vanilla from vanilla beans.
  • On June 22, a California federal judge dismissed a proposed class action against Kellogg Sales Company for their Bear Naked Granola V’nilla Almond product. In the complaint, plaintiff Harlan Zaback alleged that Kellogg falsely and misleadingly labeled and advertised the granola as being flavored “with vanilla flavoring derived exclusively from vanilla beans when the ingredient list reveals otherwise.” Zaback claims he would not have purchased the product or would have paid significantly less had he known it was not flavored with vanilla flavoring derived exclusively from vanilla beans.
  • U.S. District Judge Roger T. Benitez dismissed Zaback’s claims because he did not allege what might be in the product, if not vanilla flavoring from vanilla beans. Instead, Zaback concluded that Kellogg’s listing of “natural flavors” in the ingredient list, as opposed to “vanilla flavor” or “vanilla extract,” is acknowledgement that vanilla flavor or extract is not an ingredient in the product. Zaback provided no other factual basis that the product was mislabeled.
  • Judge Benitez agreed with Kellogg that Zaback was “merely speculating” and did not allege sufficient facts to “nudge [his] claims…across the line from conceivable to plausible.” Rather, Judge Benitez held that Zaback’s logic boiled down to “the omission is the admission.” Zaback may file an amended complaint within 14 days of the order.