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  • The United States District Court of the Eastern District of New York received a class action complaint on May 31, 2022 regarding the usage of the term “natural” in Nordic Naturals’ dietary supplement products. Plaintiffs allege that use of “natural” for said products constitutes false advertising as the products contain synthetic ingredients, including but not limited to gelatin, soy lecithin, riboflavin, citric acid, and more. Plaintiffs argue that knowledge of the synthetic nature of the ingredients would require “a scientific investigation” beyond the knowledge of the reasonable consumer and that the average consumer would have a reasonable expectation that the dietary supplement products contained only natural ingredients.
  • “Natural” claims in food and dietary supplement labeling have often been a target for class action litigation. Our site has previously covered “natural” cases involving the term’s usage to describe lunch meats and bacon, apple sauce, vanilla flavoring in soy milk, and other products.
  • While FDA has never formally defined “natural” by regulation, the Agency has traditionally taken the position that term means that “nothing artificial or synthetic (including all color additives regardless of source) has been included in, or has been added to, a food that would not normally be expected to be in that food.” In response to several citizen petitions, as well as references in various Federal Court decisions requesting that the agency provide more formal guidance in this regard, FDA requested comments on the use of the term “natural” on food labeling in 2015.  The Agency received over 7,000 comments but has taken no formal action since the close of the comment period in May of 2016. Keller and Heckman will continue to monitor this case, as well as further action by FDA for any developments.
  • On Tuesday, March 15, 2022, U.S. District Judge Edgardo Ramos dismissed a July 2021 putative class action alleging that Dreyer’s falsely claimed that its Haagen-Dazs ice cream bars are coated in “milk chocolate.”  The complaint alleged that the representations on the label of certain Dreyer’s ice cream bars sold under its Häagen-Dazs brand were misleading, because “the phrase ‘rich milk chocolate’  on the Product’s label is deceptive [as] it implies that the Product’s coating contains only cacao ingredients rather than vegetable or coconut oil [ ]” – ingredients that are not permitted in standard of identity milk chocolate.  However, Judge Ramos concluded that the label on the Haagen-Dazs coffee ice cream bar did not purport that the product was made “only,” “exclusively” or “100% with chocolate.” Judge Ramos noted that the bars’ ingredient list disclosed the presence of vegetable oil used in the bar’s chocolate shell.
  • We reported on a similar complaint in July 2021 where an Illinois consumer filed a complaint alleging that Dreyer’s failed to inform consumers that it “uses coconut oil as a substitute for some cacao beans to make the chocolate in the vanilla milk chocolate almond ice cream bars.” This complaintant argued that “where a food has some chocolate but is mainly vegetable oils” it falls under the SOI for “milk chocolate and vegetable fat coating” and should be labeled accordingly.  Dreyer subsequently filed a motion to dismiss the claim, arguing that consumers receive, “exactly what the front label promises.” To date, no judgement has been entered for this complaint.
  • Keller and Heckman will continue to monitor these types of class action challenges and report on any developments.
  • On February 17, 2022, the U.S. District Court of the Southern District of New York dismissed a lawsuit against Mars Wrigley Confectionery US, LLC (Mars) which alleged that Mars’ chocolate-coated vanilla ice cream bars (called Dove bars) deceived consumers by including vegetable oils in the bars while also making representations regarding the milk chocolate content of the bars.
  • Specifically, the labels of Dove bars stated that they were “made with milk chocolate” and that the vanilla ice cream had been dipped in milk chocolate. Plaintiff alleged that, based on these representations, consumers would not expect the product to contain “lower quality chocolate substitutes” such as coconut oil and palm oil.
  • The court dismissed these allegations as conflating the content of the milk chocolate ingredient with the content of the milk chocolate coating. As disclosed on the ingredient list, the predominant ingredient in the Dove bars was milk chocolate made with cocoa butter, and it was the chocolate coating, not the milk chocolate itself, which contained the vegetable oils. Nothing in the product labeling, including the “made with milk chocolate representation” indicated to a consumer that the product was made exclusively with milk chocolate and there was also no indication that the vegetable oils had been used to replace cocoa butter in the milk chocolate.
  • As previously reported, on July 18, 2021 a proposed class action lawsuit was filed against Dreyer’s Grand Ice Cream Inc. (“Dreyer’s”), the makers of Haagen-Dazs vanilla milk chocolate almond ice cream bars.  The complaint alleges that it is false and misleading to characterize the coating as “milk chocolate” and alleges that the coatings should be described as “milk chocolate with vegetable fat coating” because coconut oil is used.
  • On November 8, 2021, Dreyer’s filed a Motion to Dismiss the claim, arguing that the product delivers “exactly what the front label promises” and that the packaging discloses the presence of oils at least four times in its ingredient list, “the precise place that consumers know to look for objective detailed information about a product’s ingredients.”
  • In support of its position that the labeling is not deceptive, Dreyer’s asserts, “The name of the product is not an ingredient list or an ingredient exclusion list, and no reasonable consumer would think otherwise.” Dreyer’s further argues that private plaintiffs cannot sue to enforce FDA regulations and that violating an FDA food regulation is not, in itself, synonymous with consumer deception.  Keller and Heckman will continue to monitor this case and report on any developments.
  • On July 18, a proposed class action lawsuit (Subscription to Law360 required) was filed against Dreyer’s Grand Ice Cream Inc., the makers of Haagen-Dazs vanilla milk chocolate almond ice cream bars. The complaint claims that the company misleadingly packages the product as containing “milk chocolate,” when it actually contains “milk chocolate with vegetable fat coating.”
  • Illinois consumer Lawrence Rice alleged that Dreyer’s failed to inform consumers that it uses coconut oil as a substitute for some cacao beans to make the chocolate in the vanilla milk chocolate almond ice cream bars. In the complaint, Rice states that the Standards of Identity (SOI) for “milk chocolate” at 21 CFR 163.130 require that milk chocolate be made from cacao beans with a small amount of optional ingredients, like dairy and nutritive carbohydrate sweeteners, but that vegetable fats (oils) are excluded. Rather the complaint argues that “where a food has some chocolate but is mainly vegetable oils” it falls under the SOI for “milk chocolate and vegetable fat coating” at 21 CFR 163.155 and should be disclosed to the consumer.
  • In the complaint, Rice states that the product label presents a “half-truth” and compares the ice cream bar packaging, which contains pictures of chocolate chunks, a vanilla flower, and almonds, against the ingredient list, which declares coconut oil as the least predominant ingredient but is not included in the label graphics. Rice argues that “[t]he product does not contain imitation vanilla or almond alternatives, which makes it especially misleading that it contains alternatives to chocolate in the form of vegetable oil.”
  • Rice looks to represent a class of similarly situated Illinois residents who also purchased the ice cream bars. He is asking for the court to award monetary and statutory damages, as well as injunctive relief directing Dreyer’s to cure product labels of the alleged misrepresentations.
  • 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 August 9, 2020, a class action lawsuit was filed against Hostess Brands, LLC, alleging that the company had deceptively marketed its product as a “carrot cake donette” when in fact it contained no real carrots.
  • Plaintiffs alleged that consumers would expect the product to contain real carrots because it was described as a “carrot cake” without qualifying this name with any of the terms prescribed by the flavoring regulation (e.g. “flavored, naturally flavored, artificially flavored”). They further alleged that it was apparent that the product did not contain any real carrots because the ingredient list did not disclose carrots and instead disclosed that the product contained “natural and artificial flavor.” Plaintiffs alleged that the “natural flavor” meant that at best the product contained an ingredient derived from real carrots, and that, in any case, consumers would not expect the product to contain any “artificial flavor.”
  • Plaintiffs are represented by Sheehan & Associates P.C. which has filed many lawsuits in the food flavoring litigation space, in particular against companies marketing vanilla products. Keller & Heckman will continue to monitor and provide updates regarding class-action litigation in the food industry.