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Instant Dismissal: Court Dismisses Instant Oatmeal Case against Whole Foods Market

By Baldassare Vinti, Jeffrey Warshafsky & Reut N. Samuels on January 26, 2022
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Judge Rachel Kovner of the Eastern District of New York recently dismissed a putative class action challenging Whole Foods Market’s label claims that its Oats & Flax Instant Oatmeal contains “dehydrated cane juice solids” and is “100 % Whole Grain – 18g or more per serving.” Plaintiffs alleged these labels communicate that the oatmeal is sweetened using fruit juice rather than sugar, and that the product consists entirely of whole grains and no other ingredient. In dismissing plaintiffs’ claims, the court concluded that no reasonable consumer would be materially misled by these labels. Warren v. Whole Foods Market Group, Inc., No. 19-CV-6448 (E.D.N.Y. Dec. 3, 2021).

In considering the “dehydrated cane juice solids” claim, Judge Kovner determined that plaintiffs offered no reason why a reasonable consumer would conclude that “cane juice” refers to “a fruit juice ingredient as opposed to the common sweetener, sugar.” Judge Kovner noted the packaging contains no claims like “contains fruit” or “made with real fruit,” nor does the product’s name (Oats & Flax Instant Oatmeal) suggest it contains fruit. Further, the court observed the label only speaks of cane juice, not fruit juice, and juices can come from products besides fruit.

The court also found the reasonable consumer would not be tricked into believing the product is sugar-free or low in sugar. Although consumers may not be familiar with “dehydrated cane juice solids,” they would recognize sugar from the nutrition label listing “Sugar 11g.” The court also noted that the package lacked any affirmative representations that the product is “sugar-free,” “low in sugar,” or “without added sugar.”

Judge Kovner also rejected plaintiffs’ allegation that the “100% Whole Grain – 18g or more per serving” stamp necessarily implies that the product consists entirely of whole grains. The court commented that plaintiffs’ purported takeaway is “hard to square away with their assertion that they believed, based on the ingredients label, that the product contained ‘a fruit juice ingredient.’” Plaintiffs’ purported interpretation was also implausible because the stamp in question did not simply say “100% Whole Grain,” but added the detail of “18g or more per serving.” As a result, the court found the stamp communicated that the whole grain made up a portion of each serving of oatmeal, not the whole thing. Moreover, the court highlighted that the product’s name itself, Oats & Flax Instant Oatmeal, discloses the presence of “another, nongrain ingredient—flax.”

This decision reinforces the importance of considering context and common sense in determining reasonable consumer takeaways. When plaintiffs allege an objectively unreasonable takeaway with no connection to the text of the advertising (or two contradictory takeaways), their claims are ripe for dismissal.

***

Want to talk advertising? We welcome your questions, ideas, and thoughts on our posts. Email or call us at bvinti@proskauer.com /212-969-3249

Photo of Baldassare Vinti Baldassare Vinti

Baldassare (“Baldo”) Vinti is the head of Proskauer’s Intellectual Property Litigation Group.

Baldo is a first-chair trial lawyer known for navigating complex, bet-the-company intellectual property disputes across industry verticals and next-generation technologies. With over 25 years of experience, Baldo represents leading global companies…

Baldassare (“Baldo”) Vinti is the head of Proskauer’s Intellectual Property Litigation Group.

Baldo is a first-chair trial lawyer known for navigating complex, bet-the-company intellectual property disputes across industry verticals and next-generation technologies. With over 25 years of experience, Baldo represents leading global companies and universities in patent, trade secret, false advertising, consumer class actions and technology-related breach of contract litigation in federal and state courts as well as before the International Trade Commission.

Baldo is particularly sought after for his courtroom skill and strategic depth, having led trials, arbitrations and appeals in high-stakes disputes involving technologies ranging from pharmaceuticals and medical devices to encryption, digital media, diagnostics, mobile platforms and software. Baldo has represented global corporations, including Arkema S.A., British Telecommunications PLC, Church & Dwight Co., Inc., Henry Schein, Inc., Maidenform Brands Inc., Mitsubishi Electric Corp., Ossur North America Inc., Panasonic Corp., Sony Corp., Welch Foods, Inc. and Zenith Electronics LLC.

With a background in pharmacy, Baldo brings deep domain expertise to pharmaceutical litigation. He has a proven record of driving successful outcomes in complex pharmaceutical milestone payment, royalty and licensing disputes—often stemming from collaboration agreements, co-development deals, and M&A transactions—where the financial and strategic stakes run high.

In addition to representing corporate clients, Baldo works closely with university innovation and technology transfer offices to maximize the financial return of research investments. He develops tailored IP asset optimization strategies and aggressively enforces intellectual property rights to protect and monetize core innovations—whether through high-value licensing agreements, shaping and advancing spin-out company development, or successful litigation.

Baldo also provides strategic counsel on IP due diligence, complex licensing, IP structuring, patentability and freedom-to-operate analyses, and infringement and validity opinions. He advises boards and executive teams on aligning IP strategy with business objectives, mitigating risk and maximizing the value of innovation assets.

A frequent author and commentator on intellectual property topics, Baldo has been quoted in the National Law Journal, Bloomberg BNA, Law360, Westlaw Journal and Inside Counsel magazine. He is also a regular contributor to articles published in Medical Product Outsourcing magazine that deal with the medical device industry.

Baldo served as a judicial intern for Hon. John E. Sprizzo of the United States District Court for the Southern District of New York and for Hon. Charles A. LaTorella of the New York Supreme Court.

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Photo of Jeffrey Warshafsky Jeffrey Warshafsky

Jeff Warshafsky is a partner in the Litigation Department. A versatile commercial litigator and strategic advisor, Jeff specializes in consumer class actions, sports litigation, false advertising, trademark, and other intellectual property disputes.

Jeff defends companies in connection with consumer class actions involving advertising…

Jeff Warshafsky is a partner in the Litigation Department. A versatile commercial litigator and strategic advisor, Jeff specializes in consumer class actions, sports litigation, false advertising, trademark, and other intellectual property disputes.

Jeff defends companies in connection with consumer class actions involving advertising and privacy issues. He has handled dozens of class actions around the country for multinational companies across diverse sectors including consumer product companies, retailers, and sports leagues. Jeff also counsels clients to avoid being targeted in such actions, helps them respond to demand letters from plaintiffs’ counsel, and negotiates resolutions.

Additionally, Jeff represents clients in competitor versus competitor advertising disputes, including in Lanham Act cases and advertising self-regulation disputes before the National Advertising Division and the National Advertising Review Board. He also counsels companies on advertising substantiation issues, with an emphasis on complex scientific testing, such as clinical trials and sensory testing. Jeff regularly advises major sports leagues on complex business disputes.

Jeff maintains a robust pro bono immigration practice, assisting clients with asylum and U-Visa applications and in connection with removal proceedings. In addition to his active practice, Jeff is an editor of and contributor to the Firm’s false advertising blog, Watch This Space: Proskauer on Advertising Law.

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Photo of Reut N. Samuels Reut N. Samuels

Reut is an associate in the Litigation Department and a member of the Antitrust, Asset Management Litigation, and White Collar Defense & Investigations groups. Her practice focuses on complex commercial disputes, internal investigations, and government enforcement actions across a range of industries, including…

Reut is an associate in the Litigation Department and a member of the Antitrust, Asset Management Litigation, and White Collar Defense & Investigations groups. Her practice focuses on complex commercial disputes, internal investigations, and government enforcement actions across a range of industries, including technology, asset management, pharmaceutical, healthcare, consumer and agricultural products, and sports.

Reut also maintains an active and diverse pro bono practice, where she has handled voting rights and criminal justice reform matters.

Reut is a member of the firm’s Antitrust Technology Task Force and a frequent contributor to Proskauer’s Minding Your Business blog.

Reut undertook a five-month secondment while at the Firm, where she worked for the City of New York in the Torts Division, Special Litigation Unit.

Reut earned her J.D. from New York University School of Law and her B.S. from Cornell University. During law school, she worked at the US Attorney’s Office, Criminal Division in the Southern District of New York, as well as at the Manhattan District Attorney’s Office. Reut served as an Articles Editor for the Journal of Legislation and Public Policy.

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  • Posted in:
    Food, Drug & Agriculture
  • Blog:
    Proskauer on Advertising Law
  • Organization:
    Proskauer Rose LLP
  • Article: View Original Source

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