Kellogg Escapes Class Action Over Fudge Ingredients (Law360 Subscription Required)

  • We reported on three substantively identical class action lawsuits filed in district courts in Illinois that allege products containing vegetable oils in place of dairy fats (i.e., butter and/or milk) are falsely and misleadingly described as “fudge.”  The lawsuits, which are all filed by Sheehan & Associates, P.C., target Kellogg Sales Company’s “Frosted Chocolate Fudge Pop-Tarts,” Bimbo Bakeries USA, Inc.’s “Chocolate Fudge Iced Cake,” and the Hershey Company’s “Hot Fudge.”  Fudge is not the subject of a formal standard of identity under FDA regulations.
  • On June 2, 2022, the claim under the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA), as well as claims of breach of warranty, negligent misrepresentation, fraud, and unjust enrichment against Kellogg were dismissed.  The judge found that the lead plaintiff failed to back the assertion that an average consumer would expect a fudge ingredient to contain milk fat.  While the plaintiff provided some evidence that credible third parties believe that milkfat is the central component of fudge, Molly Mills, an authority put forward to support the plaintiff’s interpretation, actually included numerous recipes that do not include milkfat in her book of fudge recipes.  While the plaintiff was granted 14 days to amend the complaint, the judge noted that in a similar, heavily cited Strawberry Pop-Tarts case (discussed here), which was also dismissed without prejudice, the plaintiff chose not to pursue the claims.
  • While no decision has been reported yet in the other “fudge” class action lawsuits, the outcome in favor of Kellogg indicates that for a case like this to ultimately succeed, where an ingredient name can be said to merely designate the flavor or taste of the product at issue, the plaintiff will most likely need to provide a well-designed market study as extrinsic evidence of consumer deception.
  • An Illinois District Court dismissed a class-action lawsuit that alleged that the labeling on Kellogg Sales Company’s Unfrosted Strawberry Pop-Tarts mislead consumers into thinking that the product’s filling contained only strawberries, or at least a majority of strawberry ingredients, by including the word “Strawberry” and depicting half of a fresh strawberry and red fruit filling on the front panel of the packaging. In reality, the product’s filling also contained dried pears, dried apples, and the color additive Red 40.
  • The Court held that the claims were not actionable (i.e, a reasonable consumer would not be deceived) largely because the product did not make any representation that the product contained only strawberries or that it contained any particular quantity of strawberries. Interestingly, the Court did not address whether some minimum quantity of strawberry is required in a “strawberry” product and the opinion could be read as holding that a “strawberry” product is not misleading if it contains any measurable amount of real strawberries.
  • The case is very similar to another pair of class-action lawsuits that we have previously blogged about, one which also relates to the strawberry content of Pop-Tarts, and the other which relates to the strawberry content of breakfast bars. All three cases were filed by Sheehan & Associates.
  • A class-action lawsuit filed by Spencer Sheehan which alleged that Whole Foods deceptively labeled its “Oats & Flax Instant Oatmeal” (sold under the 365 Everyday Value brand) has been dismissed without prejudice.
  • The lawsuit brought a variety of causes of action against Whole Foods based on alleged consumer deception related to (1) the labeling of an ingredient as “dehydrated cane juice solids” instead of sugar and (2) the whole grain content of the oatmeal.
  • Specifically, in regard to the first alleged deception, Plaintiffs argued that they purchased the product believing that the “dehydrated cane juice” referred to a fruit juice ingredient and not sugar. The front of the package contained a picture of a bowl of oatmeal with a few raspberries sprinkled on top and lying to the side of the bowl. The Court rejected this claim because there was no representation regarding the sugar content of the oatmeal on the front box (e.g., sugar free) and because any consumers that did not recognize the ingredient listing of “dehydrated cane juice solids” as synonymous with sugar could readily view the sugar content of the product on the adjacent and much larger nutrition facts panel. The court also stated that there was no reason to believe that a reasonable consumer would interpret cane juice to mean fruit juice and that to the extent that the raspberries on the front cover implied that the product contained real raspberries, this notion would be quickly dispelled by the ingredient list.
  • Plaintiffs also alleged that the statement “100% Whole Grain – 18g or more per serving” on the front display panel was misleading because it implied that the product was entirely made up of whole grains. The court dismissed this allegation as frivolous because it was inconsistent with the other allegation (a product containing sugar cannot be completely whole grain), the product name included flax, which is an oilseed and not a grain, and the “18 g or more per serving” clarified that the 100% whole grain content referred to just that portion of the product. The case is another reminder that courts will view allegations of consumer deception in the context of all the information available to consumers.

 

  • Earlier this month, a class-action lawsuit was filed against 7-Eleven, alleging that the company deceptively marketed its “Wasabi Delight Flavored Snack Mix” without including real wasabi in the product. Plaintiff’s counsel is the prolific food litigation attorney, Spencer Sheehan.
  • The complaint points to the product’s ingredient list as evidence that the product includes no real wasabi. Although the ingredient list includes a variety of ingredients that at first glance appear to dispute the claim that the product does not contain real wasabi (e.g., wasabi powder), the sub-ingredients reveal that they are not made from the wasabi plant. For example, the “wasabi powder” (a sub-ingredient of “crunch wasabi peanuts”) consists of maltodextrin and mustard seed.
  • The complaint alleges that real wasabi is valued by consumers for its nutritive and antioxidant properties and its distinctive taste, and that they pay a premium for it. The complaint also suggests that by failing to label the product as “artificially flavored” 7-Eleven deceives consumers and violates FDA’s flavoring regulation at 21 CFR 101.22.
  • As with many of these deceptive advertising lawsuits, the complaint produced no extrinsic evidence of consumer deception. While such evidence will ultimately be important, it is not necessarily required to survive a motion to dismiss which is governed by a permissive plausibility standard.
  • Three class-actions lawsuits filed in district courts in Illinois allege that products containing vegetable oils, and not dairy fat, are falsely and misleadingly described as “fudge.” (See Reinitz v. Kellogg Sales Company, Bartosiake v. Bimbo Bakeries USA, Inc., and Lederman v. The Hershey Company).  The lawsuits, which are all filed by Sheehan & Associates, P.C. and are substantively identical, have targeted Kellogg Sales Company’s “Frosted Chocolate Fudge,” Bimbo Bakeries USA, Inc.’s “Chocolate Fudge Iced Cake,” and the Hershey Company’s “Hot Fudge” respectively.
  • The lawsuits allege that fudge is a candy made from the mixing of sugar, butter, and milk, and that the replacement of dairy fats (butter and/or milk) with vegetable oils in each of the three products at issue constitutes deceptive advertising.  In support of these claims, Plaintiff cites a hodgepodge of sources including three recipes from around the turn of the 20th century, a Wikipedia entry, Molly Mills, who is apparently “one of today’s leading authorities on fudge,” and a 1982 Bulletin from the International Dairy Federation.
  • Plaintiffs have not, however, provided any extrinsic evidence of consumer deception (e.g., market studies), and such information will almost certainly have to be produced for such a case to ultimately succeed. We have previously reported on several other class actions which allege that the replacement of dairy fat with vegetable oil is misleading to consumers (see here and here), and we will continue to monitor and report on the outcomes of these cases.

Frito-Lay’s ‘Hint of Lime’ Chips Have No Lime, Buyers Say (subscription to Law360 required)

  • A proposed class action filed against Frito-Lay on August 25, 2021 in the U.S. District Court for the Central District of California claims that the company’s “Hint of Lime” Tostitos tortilla chips are misleadingly labeled because they contain only “Natural Flavors” and not appreciable amounts of whole lime juice.  The claims are based on alleged violations of California consumer protection laws, federal warranty law, federal trade law, and unjust enrichment.
  • As we previously reported, Frito-Lay faces similar claims in Illinois that likewise hinge largely on the product containing an image of a lime and the statement “Here’s Another Hint – Squeeze in More Flavor With Some Salsa,” which allegedly imply that lime has been squeezed into the product.  Both lawsuits also make much of the fact that a statement, “Flavored Tortilla Chips,” which the plaintiffs characterize as a “disclaimer,” appears at the bottom corner where crumpling of the package hides it from view.  Under federal flavor labeling regulation, however, a lime flavored product can be flavored only with “natural flavoring” derived from lime with no disclaimer required where the product is not purported to contain lime for nutritive value (e.g., vitamin C content).
  • The California lawsuit additionally alleges that after receiving notice of the plaintiffs’ allegations, Frito-Lay “engaged in label changes on its website” by adding the parenthetical, “including natural lime flavor,” after “Natural Flavor” in the list of ingredients.  The potential significance of this new factual allegation is not elucidated in the complaint.
  • Keller and Heckman will continue to monitor and report on the outcome of these “Hint of Lime” cases as well as the many other flavor labeling challenges brought by plaintiffs’ lawyers claiming harm to consumers from allegedly misleading food labeling.
  • An Illinois consumer has filed a class action lawsuit against Kellogg in federal court, claiming that Frosted Strawberry Pop-Tarts’ packaging is misleading because the product contains less strawberry than implied by the packaging.  The complaint highlights that the ingredient declaration indicates that the product “contains 2% or less” of dried strawberries, pears, and apples and speculates that apple and pear could be more prominent than the strawberry component. In addition, the complaint notes that the product contains Red 40 as an ingredient, which allegedly misleads the consumer into thinking there is more strawberry in the product.
  • The plaintiffs in this case raised that the Pop Tarts are not described as being strawberry flavored.  The complaint compared the label of the Frosted Strawberry Pop-Tarts to other brands’ strawberry toaster pastries, like Great Value and Clover Valley, which describe the products on the front of the package as being “artificially and naturally flavored.” The Pop Tarts are described as being “Frosted Strawberry” without reference to being flavored.
  • The newly filed complaint is similar to our previous post on a similar complaint concerning Kashi Strawberry Bars.  Kellogg has yet to respond but will be able to draw from the motion to dismiss it filed earlier this year in response to an analogous Sheehan & Associates complaint concerning Strawberry Pop Tarts filed in New York District Court in the fall of 2020.
  • On July 26, 2021, the U.S. District Court for the Southern District of New York dismissed a proposed class action (subscription to Law360 required) against Wise Foods, Inc.
  • The case challenged the labeling of “Cheddar & Sour Cream Flavored” chips. Represented by prolific food class action firm, Sheehan & Associates, the plaintiff alleged that the product was misleadingly labeled because it contains diacetyl, an artificial ingredient with a buttery flavor, and that the product should have been labeled “artificially flavored” as required under 21 C.F.R. § 101.22(i)(2).
  • The Court granted Wise Foods’ motion to dismiss, stating that reasonable consumers would not reach a sweeping conclusion that “Cheddar & Sour Cream Flavored” would indicate the absence of other flavor ingredients, artificial or not. Judge J. Paul Oetken also noted that an alleged violation of federal labeling regulations does not prove in itself a violation of state law.
  • On July 12, 2021, private plaintiffs filed a proposed class action lawsuit (subscription to Law360 required) against Chobani LLC. The plaintiffs allege that Chobani misrepresented its certification from Fair Trade USA, leading plaintiffs to overpay for Chobani’s products because they believed in the certification labeling.
  • Chobani became the first in the U.S. dairy industry to be certified with the Fair Trade USA seal of approval in May 2021. Fair Trade USA is a nonprofit that grants and sets standards for the fair trade label. However, the suit claims that Chobani’s immigrant laborers work in “dangerous conditions,” dealing with hazards including slippery surfaces, aggressive cows, and heavy machinery being poorly operated on dairy farms in upstate New York. The complaint relies on a nonprofit worker groups’ report that states dairy workers did not succeed in getting Chobani’s support in unionization efforts at farms from which Chobani purchases milk.
  • Chobani stated that the lawsuit is meritless and makes “unfounded attacks on Fair Trade USA, one of the most highly-regarded third-party verification programs for environmental, social and economic standards.” This lawsuit is the most recent action filed by Sheehan & Associates, which has been prolific in recent years in lawsuits against food companies.
  • Sheehan & Associates, one of the most active Plaintiff’s firms in the food litigation space, has continued its pattern of filing aggressive lawsuits based on consumer deception claims that are untethered to any violation of FDA’s food labeling regulations. The firm, on behalf of proposed classes of consumers, alleged in a pair of complaints filed last month that consumers would not expect a “butter cracker” or a pudding “made with real milk” to contain vegetable oils.
  • One of the lawsuits, filed against Pepperidge Farm, Inc., alleges that “Golden Butter” crackers are misleadingly named because they contain vegetable oils (canola, sunflower, and/or soybean) when consumers would expect that a butter product is “all or predominantly made with butter.” The complaint discounts the possibility that a consumer would instead interpret a “butter cracker” to mean a “cracker made with butter,” but provides no evidence in support of this assertion. Further, it blithely claims (or at least strongly suggests) without support that consumers prefer butter to vegetable oils because butter is rich in nutrients like calcium, and Vitamin A and D, while vegetable oils are “highly processed artificial substitutes” and may contain trans-fat. We note that the “Golden Butter” crackers do not in fact contain trans-fat and that vegetable oils are generally considered to be healthier alternatives to butter, which is high in saturated fat. See e.g. USDA Dietary Guidelines 2020-25 at 102 (“Cooking with oils higher in polyunsaturated and monounsaturated fat (e.g., canola, corn, olive, peanut, safflower, soybean, and sunflower) instead of butter also can reduce intakes of saturated fat.”)
  • The second of the lawsuits was filed against Conagra Brands, Inc. and alleges that “Snack Pack Pudding Chocolate Fudge,” which is represented as “made with real milk,” is deceptively labeled because it contains nonfat milk and palm oil, which allegedly substitutes for the milk fat in whole milk. Plaintiff asserts that consumers will interpret “real milk” to mean “whole milk” in the “context of a pudding.” In support of this, Plaintiff offers only that whole milk makes pudding “thicker and taste better,” at least according to Cook’s Illustrated, although one wonders if Plaintiff is suggesting that the reasonable consumer standard is one that requires expertise in the making of pudding. Additionally, Plaintiff dismisses the “made with nonfat milk” disclosure that accompanies the “made with real milk” representation because it is allegedly too small for consumers to appreciate.
  • Without any allegation of a violation of FDA’s labeling guidelines or any other evidence suggesting that consumers would be deceived by the addition of oils, it appears unlikely that the complaints have pled enough to survive a motion to dismiss. However, Keller and Heckman will continue to monitor and report on these cases and other food class-action lawsuits.