• 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.
  • On June 10, 2021, a class-action lawsuit was filed against Inventure Foods, Inc., which manufactures and sells its “Onion Ring Snacks” under the TGI Fridays brand name, for allegedly deceiving consumers by advertising the snacks as onion rings when they contain only de minimis amounts of real onion.
  • The complaint alleges that the product (as disclosed by the ingredient list) primarily consists of corn meal and contains onion only in the form of trace amounts of onion powder (onion powder is the third-most predominant ingredient). Interestingly, the complaint does not allege a violation of FDA’s food labeling regulations. Instead, the complaint acknowledges that the product is labeled as “naturally and artificially flavored,” but alleges that the disclosure on the front package is too small to be easily seen by consumers and, in any case, “fails to tell consumers the Product substitutes onion powder for real onions.”
  • The lawsuit is another in a string of recent lawsuits filed by Sheehan & Associates, P.C., which claim consumers are deceived by the labeling of products whose flavors are largely derived from ingredients other than the ingredient in question (e.g., onion), even in the absence of a clear FDA labeling violation (see also Kashi Strawberry bar and Tostito lawsuits).  Although compliance with FDA’s labeling regulations does not foreclose the possibility that a court could find a reasonable consumer has been deceived, it should in theory present a more difficult case for the plaintiff. Keller and Heckman will continue to monitor and report on these cases.
  •  On June 14, 2021, the U.S. District Court for the Northern District of California dismissed without prejudice (subscription to Law360 required) the first amended complaint in a consumer class action lawsuit against Trader Joe’s over the claim ‘Vanilla Flavored With Other Natural Flavors’ on the product label of the grocery chain’s Vanilla Almond Clusters cereal that the plaintiff alleged derived most of its vanilla flavor from vanillin and ethyl vanillin rather than vanilla bean.
  • The Court decided in favor of Trader Joe’s on the key issues that (1) Plaintiff’s state law claims are preempted because the label complies with the Food and Drug Administration’s (FDA) regulations defining when flavors can be described as “natural” and when they must be labeled “artificial,” and (2) Plaintiff has not plausibly alleged that a reasonable consumer would likely be misled by their labeling because no facts were alleged to support that a reasonable consumer could interpret the cereal’s label to mean that the flavor is derived exclusively from the vanilla plant.  In keeping with the decisions in numerous other cases, the Court found that use of “Vanilla Flavored” alone does not require a product so-labeled to be flavored exclusively with vanilla and with respect to “With Other Natural Flavors,” specifically found that vanillin is not automatically considered an artificial flavoring under FDA’s regulations as it may be either artificial or natural, depending upon its derivation.  With respect to ethyl vanillin, which the Plaintiff alleged was detected in the cereal at a concentration of 6.53 parts per billion by gas chromatography-mass spectrometry analysis, the Court objected to the lack of a control condition in the testing and the absence of information on whether “such an infinitesimal amount is material or significant.”  Thus, finding that the first amended complaint, as drafted, does not plausibly allege that a reasonable consumer would be deceived by the product label representations, the Court ruled that the Plaintiff’s statutory claims fail as a matter of law.
  • We have reported on a variety of vanilla flavoring class action lawsuits, many of which have not survived the motion to dismiss stage.  The Court in this case did not speak to the claim by Trader Joe’s in its January 19, 2021 motion to dismiss (subscription to Law360 required) that this vanilla flavoring lawsuit is one of 110 filed by the plaintiff’s counsel, Spencer Sheehan, in 18 months.  A second amended complaint may be filed within 20 days of the order.

 

  • On May 11, 2021, a proposed class action lawsuit was filed against Frito-Lay, alleging that its “Hint of Lime” Tostitos were misleadingly labeled because they contain only “Natural Flavors” and not appreciable amounts of lime.
  • In addition to the “Hint of Lime” designation, the front of the package also recommends that consumers “Squeeze in More Flavor With Some Salsa.” Plaintiff argues that these statements mislead consumers into believing that actual lime is squeezed into the product when in fact it contains only “natural flavors” according to the ingredient list.
  • Plaintiff’s argument appears to require accepting that a reasonable consumer would expect that a product with a “hint” of lime would contain more lime than that contained in “natural flavors” and ignores the fact that the “squeeze in” statement references salsa; while the “squeeze” may be a reference to squeezing lime, there is no doubt that the statement is more intelligible when read with the understanding that the salsa (not the lime) is adding flavor to the Tostitos.
  • Furthermore, according to the federal flavor labeling regulation, a product may be designated as “flavored” [with the ingredient in question] where it “contains natural flavor derived from such ingredient and an amount of characterizing ingredient insufficient to independently characterize the food.”  In other words, a product can be lime flavored where it is only flavored with “natural flavoring” derived from lime. Plaintiff characterizes a “Flavored Tortilla Chips” statement in the bottom corner of the packaging as a “disclaimer,” but alleges that this statement is hidden from the consumer’s view by the crumpling of the packaging; it is not clear what “disclaimer” is needed since it is readily apparent that Tostitos are a lime flavored product and not a product containing lime for nutritive value.
  • This is yet another case filed by Spencer Sheehan and associates, a firm well-known for filing class-actions in the food litigation space. Keller and Heckman will continue to monitor and report on this case and other flavoring litigation.
  • On April 11, 2021, a proposed class action lawsuit (Subscription to Law360 required) was filed against Whole Foods in the Southern District of New York alleging that the labeling of their “Lemon Raspberry Italian Sparking Mineral Water” was false and misleading because it contained only de minimis amounts of lemon and raspberry ingredient.
  • The product’s front label included images of lemons and raspberries and a flavor statement “With Organic Flavors,” while the ingredient list included “Organic Natural Flavors (Raspberry, Lemon).”
  • The lawsuit does not directly allege that the product’s labeling is contrary to the federal flavoring regulation (21 CFR 101.22), but rather alleges that because the ingredient list does not separately identify raspberry or lemon ingredients, flavor derived from these ingredients is only a de minimis part of the Organic Natural Flavor and does not meet the consumer expectation of “appreciable amounts” of these ingredients. The complaint also cites to lab analysis which allegedly showed that the product does not contain the range of compounds that would be expected if real raspberries and lemons were used. Furthermore, the complaint alleges that consumers expect raspberries and lemons to be included for their “nutritive purposes” including as sources of Vitamin C, potassium, omega-3 fatty acids, and manganese.
  • The case was filed by Sheehan & Associates, a firm which has become well known in the food litigation space and has filed hundreds of class-actions, including a number in litigation related to flavor labeling. Keller and Heckman will continue to monitor and report on this case and other food litigation news.