A new trend in false advertising lawsuits targets specific characterizing flavor claims on the labels of foods and beverages. For example, Frito-Lay was recently sued in California federal court alleging the company’s “Tostito’s Hint of Lime” tortilla chips falsely implies that natural lime is a primary flavoring ingredient and that consumers were misled by various misrepresentations of lime on the product packaging. Kellogg, Hershey, and Bimbo Bakeries were all sued because the “fudge” in their respective products allegedly are produced with vegetable oil substitutes instead of butter and milk, which the complaint alleges is known to consumers as the traditional way of making fudge.
Typically, in these false or misleading flavoring ingredient lawsuits, a plaintiff attempts to represent a class of consumers and alleges they were charged a premium price for the products because of the specific ingredient, based on the misleading representation. The plaintiff generally must also allege that they would not have purchased the product in the first place if they had known that the specific ingredient was missing.
Many claims are brought under state consumer protection statutes such as the California Consumer Legal Remedies Act, Unfair Competition Law and False Advertising Law or Illinois Consumer Fraud and Deceptive Business Practices Act. Three-quarters of all food class actions in federal courts occur in California, New York, Florida, and Illinois. Plaintiffs may also rely on the Federal Food, Drug, and Cosmetic Act federal standard to attempt to assert the labeling is false or misleading.
In most cases, the court evaluates the advertising claim based on the reasonable customer test. This test is a common-sense approach regarding what a customer may reasonably expect based on the advertisement. And Courts have been willing to dismiss claims where no reasonable consumer would have been misled. For example, the Ninth Circuit recently held that reasonable consumers would not interpret labels “as promising something that is impossible to find” when considering a “100% New Zealand Manuka Honey” claim. Moore v. Trader Joe’s Co., 4 F.4th 874, 882–83 (9th Cir. 2021). Similarly, the Eastern District of New York recently held that, as alleged, no reasonable customer would interpret a label stating, ‘Vanilla Ice Cream’ as only containing vanilla from the vanilla bean, as opposed to expecting that vanilla would be the characterizing flavor. Garadi v. Mars Wrigley Confectionery US, 2021 WL 2843137, *3–4 (E.D.N.Y. July 6, 2021). And the Southern District of Illinois dismissed claims regarding “No Artificial Flavors” advertisements because even though the product contained “refined cane sugar [which] is highly processed, no reasonable consumer would consider sugar to be an artificial flavor.” Jamie Jackson and Trenton McDonald v. SFC Global Supply Chain, Inc., 2021 WL 3772696 (S.D. Ill. Aug. 25, 2021).
We also continue to see numerous lawsuits based on claims regarding ‘natural’ ingredients (Forsher v. The J.M. Smucker Company, 2020 WL 1531160 (N.D. Ohio Mar. 31, 2020)), ‘free of’ ingredients (VanLaningham v. Campbell Soup Co., 2020 WL 5893523 (S.D. Ill. Oct. 5, 2020)), and ‘real’ ingredients (Beers v. Mars Wrigley Confectionary US, LLC, 7:21-cv-00002 (S.D.N.Y. filed Jan. 1, 2021). Food-related class actions can present unique and complex legal challenges, especially in regards to jurisdiction, venue, standing, preemption, materiality and reliance at the pleading stage, as well as at the class certification stage.