The maker of America’s world-famous “sandwich cookie,” Mondelez Global LLC, has dodged a class action accusing it of misleading consumers with packaging slogan “Always Made with Real Cocoa.” On July 28, 2020, a New York District Court judge dismissed the suit, holding that the plaintiffs did not show that Oreo misrepresented the cocoa content on its front label.
In April 2019, Oreo consumers from twelve states (including New York, California, Florida, Texas, Idaho, Colorado, etc…) filed this suit alleging that Mondelez had misled consumers by adding “alkali” into its cocoa content. The plaintiffs argued that alkali “diminishes the quality and taste of the cocoa.” And, they further argued that, a “reasonable person would understand ‘real cocoa’ to refer to cocoa in an ‘unadulterated, nonartificially processed form.’” The Oreo buyers said that although the addition of alkali makes pure cocoa taste less acidic and milder, the non-alkalized cocoa has the “health benefits” that consumers desire. (Seriously, health benefits!?).
Plaintiff’s arguments left Hon. Edward R. Korman unpersuaded. Plaintiffs would have to prove that Mondelez’s conduct could deceive a “reasonable consumer.” Here, plaintiffs do not dispute that Oreos are in fact made with real cocoa which is the pitfall of their case. So, Mondelez cannot possibly mislead consumers simply by “represent[ing] [that] its Oreos are made with ‘real’ cocoa when they in fact contain cocoa.”
These labeling cases can be tricky, and here we learned that omission is not the same as outright deception, and if you really want to know what’s in your food, it’s a good idea to read the whole list of ingredients, not just the company tag lines, especially when they’re only technically correct.
https://www.law360.com/articles/1296312/oreo-maker-dodges-class-action-over-cocoa-labeling (subscription required)