Deceptive Marketing By Companies:Uptrend Of Vanilla Flavor Cases

A number of recent cases seek to combat what plaintiffs claim is a surge of deceptive marketing by companies in the food space. In particular, there have been a number of claims concerning the use and labeling of vanilla flavoring, targeting everything from vanilla-flavored dairy and alternative milk products to flavored teas and cake mixes. Understanding trends in the “Vanilla Cases” may help companies anticipate legal developments dealing with other flavors. Let’s take a look the trajectory of vanilla jurisprudence, recent trends, and takeaways for clients facing allegations of misleading flavoring claims.

The Claims

Starting around February 2019, courts were flooded with similar lawsuits alleging that consumers were being misled by products labeled as vanilla-flavored that contained vanilla flavors not derived from the vanilla bean. The argument goes that when a consumer sees a label that advertises “vanilla” yogurt, they expect 100 percent of the vanilla in the product to be derived from a vanilla bean, and not from the synthetic Vanillin.

Many cases have been dismissed based on the reasonable consumer defense. As the Ninth Circuit wrote, “a reasonable consumer does not check her common sense at the door of the store.”[1]

Trends

Despite the over 200 vanilla cases filed in the last three years, courts have published relatively few decisions. However, several trends are clear from the available holdings:

  • “Vanilla,” without other modifiers is likely not misleading because it refers to a flavor, not an ingredient.[2]

  • Vanilla paired with another word like “extract,” “made with,” “contains,” or “beans” could make the label misleading if the product does not exclusively use vanilla beans for vanilla flavoring.[3]

  • Images that suggest the vanilla flavor is derived only from the vanilla bean, like the image of a vanilla bean, might be misleading.[4]

  • Vanilla can be listed as a natural or artificial flavor depending on how it is derived.[5]

Several courts have signaled a low tolerance for vanilla cases. In late 2021, a federal district judge dismissed with prejudice a class action alleging misleading vanilla labeling claims.[6]  The court denied the plaintiff’s request to amend the complaint citing earlier vanilla flavoring cases with the same allegations that were dismissed in New York the two years prior.[7]  Judges have also rejected vanilla labeling claims for fraud, breach of express and implied warranty, and unjust enrichment that were premised on the “groundless assertion that defendant’s label is materially misleading.”[8]  In addition, about a third of the vanilla suits brought in 2021 were voluntarily dismissed by plaintiffs.

Vanilla suits shouldn’t be written off entirely, though. Two recent cases show a potential split in the vanilla bean road:

  • Denial of Motion to Dismiss. In February 2022, a California federal judge held that a class action complaint against a yogurt manufacturer over possible non-vanilla flavoring in its vanilla yogurt could move forward, finding that the plaintiff’s allegation that scientific testing revealed that the flavoring was mostly likely synthetic and made mainly from ingredients other than the vanilla bean on the label was enough for the case to proceed.[9]

  • Dismissal with Leave to Amend. In January 2022, a New York federal judge dismissed with leave to amend a proposed class action claiming that vanilla cake gave the impression that the cake was flavored mainly from vanilla beans. The judge was skeptical as to whether the plaintiffs could find a good faith basis upon which to amend their complaint.[10]

What is the Risk to Product Manufacturers?

If courts find a violation of labeling law, the damages available to the plaintiff can pose a significant financial risk to product manufacturers. The “price premium” attached to allegations of false labeling means that consumers may be entitled to damages that equal the difference between what the consumer thought they were getting and what they actually received. If a product manufacturer is facing a class action complaint, the price premium can be set by consumer surveys and statistical analyses. If a case survives a motion to dismiss, a class settlement may be costly. For example, Blue Diamond agreed to pay $2.6 million to resolve claims that its vanilla-flavored almond milk and yogurt products, among others, were mislabeled because the labels allegedly led consumers to believe the flavor was derived from real vanilla.[11]

Plaintiffs also are using similar arguments when it comes to other flavors or ingredients like chocolate, strawberry, honey, whole grain, cheese, and fudge. Plaintiffs have targeted labels that claim a product is “100 percent” a flavor (e.g., “100% Grated Parmesan Cheese”[12]), uses “fresh and regional ingredients,”[13] show images of fruit that share the flavor of the product (e.g., images of strawberries on a strawberry flavored treat[14]), or otherwise refer to an ingredient that might be the source of the flavor. Product manufacturers may want to anticipate such arguments and take them into account when designing their product labels.

ENDNOTES

[1] Dana Weiss v. Trader Joe’s Company, No. 19-55841 (9th Cir. 2021).

[2] Cosgrove v. Blue Diamond Growers, No. 1:19-cv-08993 (S.D.N.Y. 2021).

[3] Sharpe v. A&W Concentrate Co., No. 1:19-cv-00768 (E.D.N.Y. 2020); Budhani v. Monster Energy Co., 527 F. Supp. 3d 667, 678 (S.D.N.Y. 2021) (citing Pichardo v. Only What You Need, Inc., No. 20-CV-493 (VEC) (S.D.N.Y. 2020).

[4] Compare Clark v. Westbrae Natural, Inc., No. 3:20-cv-0322l (N.D. Cal. 2021) (The Court gave plaintiff another chance to revise his claims in part because “pictures that suggest the vanilla flavor is derived exclusively from the vanilla bean” could render a label misleading) with Pichardo, No. 20-CV-493 (VEC) (Court dismissed complaint with prejudice, finding that a reasonable consumer would not be misled by the label, which, in part, displayed an image of a vanilla flower.)

[5] Budhani, 527 F. Supp. 3d at 683 (S.D.N.Y. 2021); see also Barreto v. Westbrae Natural, Inc., No. 19-cv-9677(S.D.N.Y. 2021); Twohig v. Shop-Rite Supermarkets, Inc., 519 F. Supp. 3d 154 (S.D.N.Y. 2021).

[6] Cosgrove v. Oregon Chai, Inc., 19 Civ. 10686 (KPF) (S.D.N.Y. Feb. 22, 2021).

[7] Id.

[8] Mohammed Garadi et al. v. Mars Wrigley Confectionery US LLC, No. 1:19-cv-03209 (E.D.N.Y 2021).  

[9] Javed v. Fairlife LLC, No. 3:21-cv-04182 (N.D. Cal. Jan. 12, 2022).

[10] Santiful v. Wegmans Food Markets Inc., No. 7:20-cv-02933 (S.D.N.Y. Jan. 28, 2022) (citation omitted).

[11] Biegel, et al. v. Blue Diamond Growers, No. 7:20-cv-03032 (S.D.N.Y 2021).

[12] Bell v. Publix Super Mkts., 982 F.3d 468 (7th Cir. 2020).

[13] Weaver v. Champion Petfoods USA Inc., No. 20-2235 (7th Cir. 2021).

[14] Brown v. Kellogg Sales Co., No. 1:20-CV-7283-ALC (S.D.N.Y. 2022).


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