• On January 23, 2021, plaintiffs filed a putative class action complaint in the United States District Court Southern District of New York against Icelandic Provisions, Inc. (“Company”), which sells Skyr, a traditional Icelandic cultured dairy product.  Plaintiffs allege that the Company’s marketing and advertising misleads consumers to believe that the Skyr is made in Iceland when actually it is produced in Batavia, New York.
  • The complaint alleges fraud, negligent misrepresentation, unjust enrichment, and violation of state consumer-protection statutes.  Plaintiffs claim that the depiction of the Icelandic countryside with a snow covered backdrop, the statement “Traditional Icelandic Skyr,” and Company’s name, “Icelandic Provisions” misleads consumers to believe that the product is made in Iceland.  Additionally, the plaintiffs claim that Company’s inclusion of “Developed in partnership with MS Iceland Dairies, Reykjavik, ISL” is misleading because it furthers the impression that the Skyr is made in Iceland.
  • The plaintiff’s counsel is Sheehan & Associates, a firm that has become known in recent years for its pursuit of class action litigation claiming harm to consumers from allegedly misleading food labeling.  The Sheehan firm has represented a number of class action plaintiffs in recent flavor labeling challenges.  Origin and geographic claims have drawn scrutiny from the Federal Trade Commission, state regulators, and most recently, class action plaintiffs’ lawyers.
  • A proposed class of consumers filed a complaint (Law360 subscription required) against the grocery chain Aldi Inc. on January 26, 2021 in the Eastern District of New York alleging that Aldi’s “Smoked White Cheddar – Deli Sliced Cheese” product is mislabeled because it allegedly achieves its smoked flavor from natural flavorings rather than by smoking the cheese. The complaint asserts that while “natural smoke flavor” is listed as an ingredient, the front panel of the product violates FDA flavor labeling regulations by failing to use a product identity statement that shows the flavor is added and not obtained through smoking.
  • The Aldi suit closely follows claims in two previous cases filed in 2020 against Dietz & Watson Inc. in New York federal courts regarding smoked provolone and smoked gouda cheese products. Each case relies on the same FDA regulations, outlined in detail in our previous post, and highlights an FDA warning letter sent to Middlefield Original Cheese Co-op in 2017 that alleged that two Middlefield products were improperly labeled as “smoked cheese” when the flavor was obtained with added flavors rather than smoking the cheese.
  • In the Dietz & Watson smoked provolone case, plaintiffs filed to voluntarily dismiss the suit with prejudice earlier this month; settlement details have not been made public. To date, Dietz & Watson continues to advertise the smoked provolone, gouda, and other smoked cheeses on their website; the package labeling and product identity statement do not appear to have changed from those depicted in the original complaints.
  • The plaintiff’s counsel in the above three cases is Sheehan & Associates, a firm that has become known in recent years for its pursuit of class action litigation claiming harm to consumers from allegedly misleading food labeling. The Sheehan firm has represented a number of class action plaintiffs in the recent spate of flavor labeling challenges.
  •  As of a January 19, 2021 order dismissing false advertising claims against Topco Associates LLC’s ‘Vanilla Almond Milk’ (subscription to Law360 required), district court judges in the Southern District of New York have now rejected, as a matter of law, five cases attempting to claim that the word “vanilla” on food labeling falsely communicates to a reasonable consumer that the flavor of the respective ice cream and beverage products at issue derives entirely from real vanilla.  In each case, the court found it irrelevant that the product may perhaps not comply with the Food and Drug Administration’s (FDA) “complex” labeling regulations implementing the Federal Food, Drug, and Cosmetic Act (FDCA), finding “no extrinsic evidence that the perceptions of ordinary consumers align with these various labeling standards.”
  • As we have reported, a court in the Northern District of California, on December 1, 2020, granted a motion to dismiss in a similar case, involving Westbrae Natural, Inc.’s organic unsweetened vanilla soymilk.  In addition to making the same arguments as in the other ‘vanilla’ cases, the plaintiff in Westbrae offered a 2020 survey showing that 69.5% of 400 consumers believed that “vanilla” on the label meant that the soymilk’s flavor comes exclusively from the vanilla bean, but the court found that this survey alone does not satisfy the reasonable consumer test.
  • In a January 19, 2021 motion to dismiss (subscription to Law360 required), Trader Joe’s Company cites to the Westbrae decision for precedent and argues that reasonable consumers understand that “vanilla,” in the context of labeling for its ‘Vanilla Almond Clusters’ breakfast cereal, describes the product’s flavor, not its ingredients.  The grocery chain also notes that the plaintiff’s counsel, Spencer Sheehan, has filed 110 lawsuits over vanilla flavoring in 18 months, and further suggests that Mr. Sheehan rushed the Trader Joe’s lawsuit in an attempt to get ahead of dismissals in the “virtually identical” New York cases.
  • Based on the relevant court rulings, the Trader Joe’s lawsuit and others, including a proposed class action filed in California in September against McDonald’s vanilla ice cream (subscription to Law360 required), could be the last in a spate of class action lawsuits alleging deceptive and misleading labels on vanilla products.

 

  • On January 8, 2021, a plaintiff filed a proposed class action lawsuit against Ferrara Candy Co. (“defendant”) alleging that its Keebler Fudge Stripes cookies do not contain “real fudge.”  The labels of the Keebler product state that the product is “made with real Keebler fudge” and bear a picture of chocolate fudge.
  • Fudge is not the subject of a formal standard of identity under Food and Drug Administration regulations.  In the complaint, the plaintiff relies on dictionary definitions of fudge to argue that the defendant’s product is not fudge because it does not contain sugar, butter, and milk.   Instead, the plaintiff notes that the fudge in the defendant’s cookies contains vegetable oil, invert syrup, and whey.  The plaintiff also claims that the company is masking the fudge’s ingredients by combining the ingredients for both the cookie and fudge in a single ingredient listing, as opposed to having separate compound ingredient listings for the cookie and fudge components.
  • The plaintiff’s counsel in this case is Sheehan & Associates, which has been prolific in pursuing cases against allegedly misleading vanilla products in recent years.  It remains to be seen whether the Keebler case is the beginning of a flood of cases against other foods claiming to contain fudge.
  • On December 6, a complaint was filed in the Southern District of New York against the owners of PopChips, VMG Partners LLC. The proposed class action alleges that the labeling of “Cheddar and Sour Cream” PopChips is misleading to consumers. Named plaintiff, John Salony, told the court that when consumers see the flavors “cheddar & sour cream” on a label without qualifiers like “naturally flavored,” “other natural flavors,” or “artificially flavored,” consumers expect the product to be primarily, if not entirely, flavored by the actual characterizing ingredients.
  • Salony stated that while the product contains some cheddar cheese, it also contains added cheddar cheese flavor as indicated by the listing of “natural flavors” in the ingredient list.  According to the complaint, “natural flavors” are added because the amount of cheddar cheese is insufficient to independently provide the product with a cheddar taste, and therefore, the front label should have disclosed the added cheddar flavoring in accordance with FDA’s flavoring labeling at 21 CFR 101.22(i)(1)(i).
  • Additionally, Salony alleged that the label failed to disclose that the product contained no real sour cream, thereby misleading consumers who “want real sour cream because even when consumed in small amounts, it contributes to beneficial health effects.” The complaint listed the following sour cream health benefits: helps to establish and maintain beneficial intestinal bacterial flora and reduce lactose intolerance; has high mineral content (i.e., phosphorus and calcium); contains Vitamin B12 which helps preserve nerve cells and maintain red blood cells; and contains Vitamin A which helps promote eye health, and increases the body’s immunity.
  • The complaint states that PopChips’s branding, marketing, and packaging is designed to deceive, mislead, and defraud consumers, and that VMG Partners sold more of the product and at higher prices because of the deceit. In the suit, Salony intends to represent all buyers of PopChips who live in New York, and brings claims under the state’s consumer protection statutes, as well as claims for negligent misrepresentation, breach of express and implied warranty, fraud, and unjust enrichment. Notably, Salony’s attorney, Spencer Sheehan, is representing another consumer making similar claims against Frito-Lay’s Ruffles Cheddar & Sour Cream Flavored Potato Chips.

Keller and Heckman will continue to monitor any developments.

  • On September 11, 2020, Sheehan & Associates, P.C., filed a class-action lawsuit on behalf of a proposed class of New York consumers against Frito-Lay, Inc., alleging that the company had failed to disclose that their “cheddar & sour cream flavored” Ruffles (potato chips) were artificially flavored.
  • The complaint alleges that diacetyl (2,3 di-butanone) produced in the fermentation of sour cream is primarily responsible for sour cream’s desirable flavor and aroma. The complaint further alleges that the production of high levels of diacetyl requires high levels of citrate, that such levels are found only in cream derived from cows on a pasture diet, and that producers frequently supplement inadequate levels of diacetyl in sour cream derived from feedlot cattle with artificial diacetyl flavor. Further, the complaint alleges that Frito has done exactly that to produce the sour cream flavor of the Ruffles, and, rather than disclose that their product was “Artificially Flavored” as required by 21 CFR 101.22, merely disclosed “Artificial Flavors” on the ingredient list.
  • While this is the first flavor case that we have seen that deals with the alleged addition of artificial diacetyl, flavoring litigation has become a common subject of litigation, and we will continue to monitor and report on developments in this area.
  • On August 25, 2020, Sheehan & Associates P.C., on behalf of a proposed class of New York consumers, filed a class action lawsuit against Family Dollar Stores, Inc., alleging that the company is misleadingly advertising its Eatz-brand Smoked Almonds as “smoke” flavored despite the fact that the almonds have not gone through the smoking food preparation process.
  • Plaintiffs identified “Natural Smoke Flavor” on the ingredient list, and from this disclosure, inferred that the almonds derived their smoke flavor not from the smoking process but from this added natural flavor. Plaintiffs allege that consumers would expect that foods with a “smoke” flavor have undergone an actual smoking process and that Defendant’s product should have been labeled with a qualifying term such as “Naturally Flavored.”
  • This lawsuit is almost identical to another lawsuit recently filed by the same firm regarding a Smoked Gouda Artisan Cheese product sold by Dietz & Watson, Inc. and may be a harbinger of further lawsuits against smoke flavored products. Keller & Heckman will continue to monitor and report on trends in the food litigation space.
  • On August 9, 2020, a class action lawsuit was filed against Hostess Brands, LLC, alleging that the company had deceptively marketed its product as a “carrot cake donette” when in fact it contained no real carrots.
  • Plaintiffs alleged that consumers would expect the product to contain real carrots because it was described as a “carrot cake” without qualifying this name with any of the terms prescribed by the flavoring regulation (e.g. “flavored, naturally flavored, artificially flavored”). They further alleged that it was apparent that the product did not contain any real carrots because the ingredient list did not disclose carrots and instead disclosed that the product contained “natural and artificial flavor.” Plaintiffs alleged that the “natural flavor” meant that at best the product contained an ingredient derived from real carrots, and that, in any case, consumers would not expect the product to contain any “artificial flavor.”
  • Plaintiffs are represented by Sheehan & Associates P.C. which has filed many lawsuits in the food flavoring litigation space, in particular against companies marketing vanilla products. Keller & Heckman will continue to monitor and provide updates regarding class-action litigation in the food industry.
  • On June 26, 2020, Sheehan & Associates, P.C., on behalf of a proposed class of Plaintiffs, filed a class action lawsuit against Hain Celestial Group, Inc. asserting that the company had deceptively labeled its “Organic Plus Vanilla Soymilk” because it (1) contained non-vanilla flavor and (2) disguised sugar as “Evaporated Cane Juice.”
  • On the first claim, Plaintiffs alleged that the ingredient list’s disclosure of “Vanilla Flavor With Other Natural Flavors” indicated that the product contained non-vanilla flavor. Furthermore, they alleged that this non-vanilla flavor contained vanillin. Additionally, they alleged that because vanilla is governed by standards of identity (see 21 CFR 169.175 (“Vanilla extract); 21 CFR 169.177 (“Vanilla flavoring”)), the general flavoring rules of 21 CFR 101.22, including the designation of “with other natural flavors,” do not apply and any non-vanilla flavor must be disclosed as an artificial flavor.
  • As to the sugar claim, Plaintiffs alleged that consumers expect an ingredient with the term “juice” to be derived from a consumable fruit or vegetable, that “evaporated cane juice” “had little in common” with this definition of juice because it was “another name for . . . ‘sugar,”’ and that the choice of labeling resulted in the misleading impression that the product was a better nutritional choice than comparable products.
  • Plaintiffs’ vanilla claim echo a plethora of similar class-action lawsuits, many dozen of which have been filed by the same firm. However, unlike some of these cases, including one that was recently dismissed, Plaintiffs did not solely rely on the declaration of “natural flavors” in the ingredient list to conclude that a non-vanilla flavor was present, but rather specifically allege that the challenged product contains vanillin. Keller & Heckman will continue to monitor and provide updates regarding class-action litigation in the food industry.