• On February 5, Starbucks became the most recent food producer to be sued for deceptive and misleading labeling on its vanilla Frappuccino. Glen Skalubinski filed a proposed class action against Starbucks claiming the company misled customers into believing its Frappuccino drink contained real vanilla as an ingredient, when it contained only natural vanilla flavoring. Skalubinski argued that by failing to disclose that vanilla was not an ingredient, Starbucks violated federal and state food labeling laws and regulations.
  • Specifically, Skalubinski points to the Frappuccino’s front label. According to the complaint, “[t]he Product’s front label prominently and conspicuously displays the words ‘vanilla With Other Natural Flavors.’ The prominent and conspicuous display of the word ‘Vanilla’ on the Product’s front label misleads reasonable consumer to believe that the Product contains vanilla as the Product’s characterizing ingredient that delivers the Product’s promised characterizing vanilla flavor.” The plaintiff further argues that the front label should have disclosed that it contained no real vanilla. Peter Wasylyk, attorney for Skalubinski, said that “consumers should be able to rely on accurate information on a food product’s labeling to inform them what ingredients a product contains. That information should be on the front label.”
  • The complaint points to a few competitor products that plaintiff argues is correctly labeled. The coffee product labels declare “VANILLA FLAVORED WITH OTHER NATURAL FLAVORS” on its front label and the words “NATURAL FLAVORS” on its ingredient list. Essentially, Skalubinski is arguing that he and other consumers were misled by the missing word “flavored” on the front label, despite the fact that the front label declares that the product is naturally flavored and “vanilla” is not listed as an ingredient in the ingredient list, but does declare “natural flavors.”
  • Skalubinski’s lawsuit is one of many vanilla-related labeling lawsuits. For instance, as we previously reported, Topco Associates LLC, Westbrae Natural, Inc., Trader Joe’s Company, and McDonald’s have all been recently sued over vanilla labeling, however notably, most cases have either been dismissed or are pending a motion to dismiss ruling. You can access our past reporting on vanilla labeling lawsuits here.
  •  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 December 1, 2020, the United States District Court Northern District of California granted Westbrae Natural, Inc.’s (“Defendant”) motion to dismiss the plaintiff’s lawsuit.  In the complaint, the plaintiff alleged that the use of the word “vanilla” on the label of Defendant’s organic unsweetened vanilla soymilk misrepresents to consumers that the soymilk’s vanilla flavor is derived exclusively from the vanilla bean plant.  The plaintiff also claimed that the soymilk is made with no or negligible amounts of natural vanilla and should be labeled “artificially flavored.”
  • In the motion to dismiss, Defendant argued that the plaintiff failed to allege that a reasonable consumer would be deceived by the “vanilla” label into believing that the soymilk’s vanilla flavor is derived exclusively from the vanilla bean.  The court agreed with the Defendant and stated that the “label does not contain any other words or pictures that suggest the vanilla flavor is derived exclusively from the vanilla bean.”
  • As support for his allegations, the plaintiff presented a 2020 survey in the complaint, which allegedly showed that 69.5% of 400 consumers believed that the “vanilla” representation on the label meant that the soymilk’s flavor comes exclusively from the vanilla bean.  The court stated that the results of the 2020 survey do not make plaintiff’s claims plausible and that a survey, alone, does not satisfy the reasonable consumer test.  The court gave plaintiff 20 days to refile his complaint to address its shortcomings.
  • This lawsuit follows several lawsuits filed in 2020 where plaintiffs accused businesses of misrepresenting the vanilla flavoring in multiple food and beverage products.  We will continue to monitor any developments.

 

  • Our readers may recall that a lawsuit filed June 26, 2020 against The Hain Celestial Group, involving Organic Plus Vanilla Soy Milk, avoided some of the pleading issues that doomed some of the numerous class action lawsuits, filed mostly by a single firm, involving other products that are claimed to contain deceptive and misleading information on their labels regarding vanilla.  Plaintiffs alleged that the disclosure of “Vanilla Flavor With Other Natural Flavors” in the soy milk’s ingredient list indicated that the product contained non-vanilla flavor and that this non-vanilla flavor contained vanillin.  The plaintiffs also 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.
  • A November 23, 2020 memorandum filed in support of The Hain Celestial Group’s motion to dismiss, (subscription to Law360 required), characterizes the plaintiffs’ case as one of “over 91 other lawsuits their counsel have filed against producers of vanilla-containing products” and asserts they are attempting to “hold-up” food companies for expensive settlements based on what “they believe is a technical violation of FDA flavoring regulations.”  In addition to arguing that the plaintiffs’ false advertising claims are preempted to the extent they assert that the product labeling does not comply with the Federal Food, Drug, and Cosmetic Act’s (FDCA) food labeling requirements and is, therefore, automatically deceptive, the defendant’s memorandum directly attacks the plaintiffs’ conclusion that “vanilla” in the product name violates FDA’s food labeling regulations, arguing that under FDA’s regulations, the statement of identity in the product’s name is “Soymilk” and “Vanilla” is a flavor designation, not subject to the standards of identity cited by the plaintiffs.
  • It is yet to be seen whether the New York federal court hearing this case will reach the issue of whether the soy milk labeling complies with the FDCA and FDA’s characterizing flavor regulations.  FDA has not issued any warning letters that would clarify the matter of product labeling involving vanilla.  Keller & Heckman will continue to monitor and provide updates regarding vanilla products and other class-action litigation in the food industry.

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.
  • Numerous class action lawsuits have been filed, mostly by a single firm, involving products that are claimed to contain deceptive and misleading information on their labels regarding vanilla.  We have reported, for example, on a lawsuit filed June 26, 2020 against Hain Celestial Group involving soymilk, which specifically alleges that the challenged product contains vanillin (an artificial vanilla flavor), and is distinguished from a case dismissed in June against Kellogg for granola bars, where the claims were deemed too speculative because the Plaintiffs relied solely on the declaration of “natural flavors” in the ingredient list, as opposed to a listing for “vanilla” or “vanilla extract,” to conclude that a non-vanilla flavor was present.
  • Most recently, on July 16, 2020, in a case against Unilever (subscription to Law360 required), a California federal judge rejected procedural arguments in a motion to dismiss claims that Breyers Natural Vanilla Ice Cream is falsely marketed and labeled as containing vanilla flavor derived exclusively from the vanilla plant and is misleading consumers by failing to state that it also contains artificially flavored vanilla, as revealed in laboratory testing of the ice cream.  In a similar case involving Wegman’s vanilla ice cream, which was dismissed last week, the Plaintiffs did not allege the product was labeled as being exclusively flavored with vanilla bean or vanilla extract.  The New York federal judge in the Wegman’s case determined that data relied on by the plaintiff may not have been sufficiently sensitive to determine that vanilla was not present in the ice cream.  Additionally, perhaps misconstruing FDA’s labeling regulations, the judge questioned whether the labels were deceptive because they did not state that vanilla bean or vanilla extract were used, although Plaintiffs had argued that to be truthful the product should have been labeled as “flavored” vanilla ice cream.
  • Keller & Heckman will continue to monitor and provide updates regarding vanilla products and other class-action litigation in the food industry.
  • On July 14, 2020, a New York federal judge dismissed a lawsuit against Wegmans Food Market (“Wegmans”) concerning allegedly deceptive labeling of its vanilla ice cream.  The plaintiffs had alleged that the ice cream was deceptively labeled because it is flavored using flavors from sources other than vanilla bean or vanilla extract but was not described on the principal display panel as being “flavored” vanilla ice cream.
  • U.S. District Judge Louis Stanton dismissed the claims after determining that the analysis provided by the plaintiffs may not have been sensitive enough to detect all markers of vanilla and, therefore, could not prove that vanilla was not in the product.
  • In his opinion (subscription to Law360 required), Judge Stanton also questioned whether the labels for the ice cream were deceptive, as neither the label nor ingredients state that the ice cream uses vanilla bean or extract.  We note that, if asked, FDA may not have agreed that the labeling of this product was in compliance with flavor labeling and ice cream labeling regulations.
  • As we have previously reported, there have been many similar lawsuits alleging deceptive and misleading labels regarding vanilla products.

 

  • 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.
  • 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.
  • 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.