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  • 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.
  • 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.