• On October 27, a California federal judge denied certification to a proposed class of consumers who were allegedly misled by Unilever’s marketing of Breyers’ Natural Vanilla ice cream (subscription to Law360 required). As previously blogged, lead plaintiff Lisa Vizcarra sued Unilever in April of 2020 for allegedly misleading consumers into thinking the ice cream contained natural vanilla flavors despite laboratory tests showing that the vanilla flavor was not derived from the vanilla plant. Vizcarra brought claims under the Consumer Legal Remedies Act and the Unfair Competition Law, and asked for injunctive relief. Unilever’s motion to dismiss was denied in July of 2020.
  • In the present proceeding, U.S. District Judge Yvonne Gonzalez Rogers held that Vizcarra did not meet the predominance and commonality requirements necessary for class certification. As written in the court order, Judge Gonzalez Rogers noted “Vizcarra has pointed to no common evidence showing that consumers understood the vanilla representations – which are comprised of the term ‘natural vanilla,’ and images of two vanilla beans, vanilla flowers, and a scoop of the ice cream with black specks – as indicating that the ice cream at issue would be flavored exclusively with vanilla from the vanilla plant.”
  • To support her allegations, Vizcarra used surveys conducted by expert witness, Dr. J. Michael Dennis, which purportedly showed that almost 80% of consumer respondents expected the vanilla flavor to come from the vanilla plant. However, Judge Gonzalez Rogers found the surveys to be flawed because “Dr. Dennis’ survey did not test the effect of vanilla representations, and instead tested the entire package, which contains other statements and elements that are not challenged in the complaint and, therefore, the survey says nothing as to whether the survey respondents’ expectations as to the ice cream at issue were caused by the vanilla representations as opposed to something else.”
  • Vizcarra’s lawsuit is one of dozens involving products that are claimed to contain deceptive and misleading information on their labels regarding vanilla. Keller & Heckman will continue to monitor and provide updates regarding vanilla products and other class action litigation in the food industry.

Aldi Freed From False-Ad Claims Over ‘Vanilla’ Almond Milk (subscription to Law360 required)

  • On September 21, 2021, the U.S. District Court for the Southern District of New York dismissed with prejudice the first amended complaint in a consumer class action lawsuit against the Aldi grocery chain.  The named plaintiff alleged the word ‘vanilla’ in the product name of Friendly Farms, Organic, Unsweetened Vanilla Almond Milk is misleading because the product’s vanilla flavor is not derived exclusively or predominantly from vanilla beans or vanilla extract.
  • Citing recent decisions in other vanilla flavoring class action lawsuits by the same counsel, the court found in favor of Aldi as follows:
    • The term ‘vanilla’ on vanilla-flavored products merely indicates flavor and not an ingredient source.
    • Design flaws render a 2020 survey commissioned by the plaintiff’s counsel practically useless, rather than proving as the plaintiff purports that 69.5% of 400 consumers believed the ‘vanilla’ representation on the label meant that the product’s flavor comes exclusively from vanilla bean.
    • Even if the plaintiff were correct about federal labeling regulations, there is no inference that the disputed labeling standards align with consumer perceptions.
    • Dictionary definitions of vanilla do not assist the plaintiff in demonstrating that consumers believe the vanilla flavor comes exclusively from ingredients derived from the vanilla plant.
  • We have reported on a variety of vanilla flavoring class action lawsuits, many of which have not survived the motion to dismiss stage.  We will continue to monitor any developments.

 

 

  •  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.

 

Two recently-filed class actions target Pepperidge Farm butter-flavored crackers and Nestlé vanilla-flavored coffee creamer:

  • Pepperidge Farm Butter Crackers (Law360 subscription required): A class of consumers filed suit against Pepperidge Farm, Inc. on May 31, 2021 in the U.S. District Court for the Southern District of Illinois claiming that the company’s “Golden Butter” crackers are misleadingly labeled because the product does not contain a meaningful amount of butter and uses primarily synthetic substitutes like vegetable oils. The claims are based on alleged violations of Illinois consumer protection law, federal warranty law, and unjust enrichment. As we previously reported, Pepperidge Farm faces a lawsuit based on similar claims in New York.
  • Nestlé Vanilla-Flavored Coffee-mate (Law360 subscription required): A class of consumers filed suit against Nestlé USA in the U.S. District Court for the Northern District of California on June 2, 2021 alleging that its natural vanilla-flavored Coffee-mate products are misleadingly labeled because the products purport to contain natural vanilla flavor when they instead contain primarily artificial vanilla flavor. The claims are based on alleged violations of California consumer protection law and unjust enrichment. Vanilla flavoring remains a popular target for class actions.

Two other cases in the consumer class action space have recently settled:

  • Pressed Juicery “Greens Juice” Settlement: Pressed Juicery, Inc. reached a $695,000 settlement agreement with a class of plaintiffs that sued claiming the company’s “Greens Juices” product contained sugary fruit juices as the primary ingredients instead of the green vegetables represented on the labels. Consumers that purchased qualifying product between May 1, 2014 and May 19, 2021 are eligible to file a claim and receive $1 per product purchased for up to 10 products. Claimants need not show proof of purchase. Final approval of the settlement is scheduled for October 8, 2021.
  • Blue Diamond Vanilla Flavoring Settlement: Blue Diamond Growers reached a $2.6 million settlement with a class of plaintiffs that sued claiming “Almond Breeze” brand nut-based dairy-alternative products that referenced vanilla flavor did not use real vanilla. Consumers that purchased qualifying products between April 15, 2014 and May 17, 2021 are eligible to file a claim and receive $0.50 per product without proof of purchase, or up to $1 per product with proof of purchase, for up to 10 products. A fairness hearing is scheduled for August 25, 2021, and claims must be submitted by November 23, 2021.
  • On March 24, 2021, the U.S. District Court for the Northern District of California dismissed (subscription to Law360 required) a consumer class action lawsuit against McDonald’s which had alleged various causes of action relating to McDonald’s sale of vanilla ice cream that the plaintiff alleged derived some portion of its vanilla flavor from vanillin rather than vanilla bean.
  • The Court found that the Plaintiffs had not established that their claim—that consumers were misled by the vanilla flavor labeling—was plausible as required to survive a motion to dismiss. Specifically, the court found that the allegations of consumer deception were merely conclusory and did not establish that it was “probable that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled.” The court noted the labeling regulations that govern the retail sale of vanilla ice cream added no support for Plaintiffs’ claims because they indisputably did not apply to sales at fast-food establishments. Additionally, and serving as an independent grounds for dismissal, the court found that Plaintiffs’ had not established that they had paid a premium for the vanilla ice cream; rather the court found it to be “counter-intuitive” in the market context presented.
  • We have reported on a variety of vanilla flavoring class action lawsuits, many of which have not survived the motion to dismiss stage. This case is another demonstration of the difficulty that plaintiffs have had in convincing the court that consumers expect vanilla flavored products to contain not only the flavor of vanilla but also the ingredient vanilla bean. An amended complaint may be filed within 30 days of the order.
  • 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.