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Pleading a Putative Food Misrepresentation Class Case? Avoid the Pitfalls

Chocolate-hazelnut spread – nutritious?  One mother seemed to think so.  A class-action lawsuit disputing the advertising and labeling of Nutella, the popular chocolate-hazelnut spread, has recently settled.  As part of the settlement, Nutella’s manufacturer, Ferrero USA, Inc., agreed to pay out over $3 million, change its marketing campaign, and modify the Nutella label to state fat and sugar contents on the front of the jar.

So-called "food misrepresentation" cases, like the Nutella case, have exploded in the last few years.  The claims vary widely but predominantly fall into three general categories: (1) claims that a product is "made with real fruit" when it is not; (2) claims that foods are "healthy" when they contain ingredients that are not "healthy"; and (3) "all-natural" claims on foods that contain "unnatural" ingredients.  Some claims are successful, while others should be avoided.

Let’s start with every kid’s favorite lunchbox treat, Fruit Roll-Ups.  The ingredients of strawberry-flavored Fruit Roll-Ups list "pears from concentrate" as its first ingredient, not strawberries.  But the statement "made with real fruit" as well as the word "strawberry" appear in large and colorful letters all over the packaging.  Would a reasonable consumer believe that the product was made of real fruit?  Yes.  See Lam v. General Mills, Inc., 2012 WL 1656731, at *6 (N.D. Cal. May 10, 2012). But, what about Kellogg's Froot Loops? Although the packaging depicts pictures of actual fruit, the cereal rings do not resemble any known fruit, and therefore no reasonable consumer would be deceived into thinking otherwise.  See Videtto v. Kellogg USA, 2009 WL 1439086, at *3 (E.D. Cal. May 21, 2009).

What kid (or grown-up) doesn't love the taste of Teddy Grahams?  Well, buyer beware.  Teddy Grahams actually contain highly refined sugar, white flour, high fructose corn syrup, and manufactured food additives.  In light of these ingredients, the Court in Red v. Kraft Foods, Inc., 754 F.Supp.2d 1137 (C.D. Cal. 2010) held that the representation that Teddy Grahams "helps support kids’ growth and development" could be misleading.  Id. at 1144.  Similarly, the phrase "vitamins + water = all you need" on the ubiquitous "Vitaminwater" is misleading as it leads consumers to believe that the product is solely composed of vitamins and water.  See Ackerman v. Coca-Cola Co., 2010 WL 2925955, at *15 (E.D.N.Y. July 21, 2010).  But, in comparison, a label stating "Made with a Blend of Nutritious Oils" does not, to a reasonable consumer, imply that the product contains only nutritious oils.  Rosen v. Unilever United States, Inc., 2010 WL 4807100, at *4 (N.D. Cal. May 3, 2010).

And, what about Snapple?  It bills itself as "all natural" and "Made from the Best Stuff on Earth."  Well, last time I checked, high fructose corn syrup isn’t "all natural."  According to the Eastern District of California, the label "Made from the Best Stuff on Earth" is likely to deceive a reasonable consumer.  Von Koenig v. Snapple Beverage Corp., 713 F.Supp.2d 1066, 1080 (E.D. Cal. 2010).  Similarly, the Central District of California held that guacamole and bean dip labeled as "all-natural" but containing substantial and dangerous levels of artificial transfat could potentially mislead consumers.  Henderson v. Gruma Corp., 2011 WL 1362188, at *11 (C.D. Cal. Apr. 11, 2011). 

We all rely on food labels to give us an accurate picture of the nutritional content of the foods we buy for ourselves and our families.  Food companies today are facing greater scrutiny of their product labeling and advertising—by regulatory agencies, consumer groups, and the plaintiffs’ bar.  The result has been a dramatic increase in putative class action lawsuits, a trend that will likely continue.

*This is a modified version of  Donna Solen and Monica Bansal's  article "Pleading a Putative Food Misrepresentation Class Case? Avoid the Pitfalls," which was published in the Summer 2012 American Association for Justice Class Action Litigation Group Newsletter.  Click here to view the article in its entirety.