Search results for: vanilla

 

  • 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.
  • Spencer Sheehan is an extraordinarily prolific plaintiff’s lawyer who works primarily in the food space. By his own count, he filed 440 class actions between 2020 and spring 2023. He monopolized the field of filing lawsuits against vanilla flavored products for a period, and was the subject of an NPR profile featuring his suit against Strawberry Pop-Tarts (alleging that they were mostly apple and pear) as well as other high-profile articles.
  • As one judge in the Northern District of Illinois put it in May, Sheehan has a habit of pushing the same legal theories “time and again, in case after case, without much success.” The judge admonished Sheehan that his “losing streak should tell you something” and ordered him to file a spreadsheet showing every case he had filed based on a similar legal theory since 2020. Finally, noting the significant amounts of attorney’s fees Sheehan had caused companies to run up with his frivolous filings, the judge ordered Sheehan to show cause why he should not have to pay the defendant’s legal fees. The court has not taken any further action in the case since.
  • Instead, in July, the Northern District of New York noted frivolous cases filed by Sheehan in that district, in addition to two admonitions directed at him by judges in the Southern District of New York concerning the same conduct. In addition to the court’s allegations, Sheehan also had to face an amicus filing by another company he had targeted. According to that filing, Sheehan had responded to the company’s threats of a sanctions motion by saying, “So go file your rule 11 motion I hear such sanctions threats from people like you all day long.” The court issued its order holding him in contempt last week, but reserved decision on the nature of the final sanctions Sheehan will face.
  • Keller and Heckman will continue to follow and be available to assist with defending against class actions in the food and packaging space.
  • On March 10, 2023, the U.S. District Court for the Southern District of New York dismissed (Law360 subscription required) an amended complaint which alleged that Wegmans’s vanilla cake mix product was falsely and misleadingly labeled as “naturally flavored” and free of artificial flavors.
  • Per 21 CFR 101.22(i) a product that presents itself as having the characterizing flavor of vanilla may be labeled as “naturally flavored” if it contains natural flavor derived from vanilla bean (the “characterizing ingredient”) and no artificial flavors.
  • The complaint alleges that the product contains artificial ethyl vanillin, and thus that the representations regarding flavoring are incorrect. Plaintiffs support their assertions by citing to a laboratory analysis which purportedly shows the presence of 3.07 part per billion (ppb) of ethyl vanillin.
  • The Court held that the viability of Plaintiffs’ claims depended on their ability to plausibility substantiate the claims that ethyl vanillin is present in the product and that ethyl vanillin is an artificial flavor. The Court held that Plaintiffs failed to substantiate either claim, but it focused on the deficiencies regarding the former. Specifically, the Court held that the pleadings failed to substantiate the presence of ethyl vanillin because no information was included regarding “testing methodology, the date, time, or place of the testing, who conducted the testing, and what the exact product tested was.”
  • The motion to dismiss was granted with prejudice (without leave to amend) because the Court had already put Plaintiffs on notice of the deficiencies in the complaint and given them an opportunity to correct the deficiencies.
  • On August 30, U.S. District Judge Gary Feinerman dismissed a consumer class action lawsuit against Dreyer’s Grand Ice Cream Inc., the makers of Haagen-Dazs vanilla milk chocolate almond ice cream bars (subscription to Law360 required). The judge held that no reasonable consumer would understand the representations on the product label to mean that the ice cream coating contained only chocolate. Further, judge Feinerman found that plaintiff Lawrence Rice has no standing to pursue injunctive relief because he is aware that the product contains vegetable oil and therefore faces no risk of future harm or deception from the principal display panel’s failure to mention the ingredient.
  • As background, we previously reported on this case in July and November of 2021. Rice alleged that Dreyer’s failed to inform consumers that it used coconut oil as a substitute for some cacao beans to make the chocolate in the vanilla milk chocolate almond ice cream bars coating. He argued that it was false and misleading to characterize the coating as “milk chocolate” and alleged that the coatings should have been described as “milk chocolate with vegetable fat coating” because of the coconut oil that was used.
  • Rice’s claims were dismissed without prejudice for want of subject matter jurisdiction insofar as they seek injunctive relief and on the merits insofar as they seek monetary relief. Judge Feinerman gave the plaintiff until September 20 to file an amended complaint. If Rice does not replead, the dismissal will convert to a dismissal with prejudice and a judgment will be entered. Keller and Heckman will continue to monitor this case and report on any developments.
  • A class action lawsuit which asserted various false advertisement claims related to the vegetable oil content of Costco’s chocolate almond dipped vanilla ice cream bars (the “product”) has been dismissed.
  • The Plaintiff alleged that the product was misleadingly advertised as chocolate because the product’s coating contained more vegetable oils than chocolate and the inclusion of vegetable oil was not “prominently disclosed on the product’s front label” as required by 21 CFR 163.155(c). Plaintiff also alleged that the vegetable oil content reduced the chocolate’s quality. In support of his claims, Plaintiff cited to a study which found that 64% of the 6400 respondents who viewed the product label “expected that it would contain more cacao bean ingredients than it did and would not be made with chocolate substitutes.”
  • The Court rejected each of these arguments. It found that the product label did not claim that the coating was made of mostly or entirely cacao bean ingredients and that any alleged violation of FDA regulations was largely irrelevant because there was no evidence that consumers were “aware of the nuances of the FDA’s regulations.” Furthermore, it found that sugar and milk should be considered in the calculation of the proportion of chocolate in the product’s coating, and that when considering these ingredients, the product’s coating contained more chocolate than vegetable oil.  The Court found the cited study similarly unpersuasive because it did not answer the precise question at issue and the complaint was devoid of important details such as the questions asked and the methodology used. Finally, the Court found that there were insufficient allegations to support the claim that the chocolate was of an inferior quality.
  • This case is the latest in a string of recent dismissals of similar lawsuits. Notably, in this case, the court took the unusual step of dismissing with prejudice (i.e., without leave to amend) because “Plaintiff alleged an unreasonable interpretation of what ‘chocolate’ includes, and no set of alleged facts could change the Court’s ruling.”