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If this case sounds hauntingly similar to the “Oreo Cookies” story, which we recently wrote about, you are correct.
On October 12, 2020, Plaintiffs sued Haagen-Dazs ice cream maker, Froneri US Inc., for falsely advertising that their vanilla ice cream bars are “dipped in rich milk chocolate” – despite containing the additional ingredient of vegetable oil.
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Plaintiffs, led by named plaintiff and consumer, Lauren Yu, argue that Froneri “hides” vegetable oils and other ingredients in the small label on the back of the box, while claiming that the bars are dipped in “rich milk chocolate” on the front of the box. According to the complaint, Consumers expect that “milk chocolate” will contain ingredients such as natural cocoa, dairy products and other sweeteners, spices and natural and artificial flavorings – but not vegetable oils. And, “[c]onsumers do not expect to have to resort to the fine print on a product’s ingredient list to find information they are accustomed to seeing on the front label.”
The Complaint alleges that Froneri’s proclamation opposes the U.S. Food and Drug Administration’s regulations that establish labeling standards to protect consumers from [chocolate] products that contain “less valuable, lower quality ingredients like vegetable oils” and is uniquely vulnerable to being adulterated.
The Complaint proposes a class action for all New Yorkers who bought the ice cream bars within the statute of limitations. The legal challenges include fraud, negligent misrepresentation, breach of express and implied warranty, unjust enrichment and violations of New York consumer protection laws and the Magnuson Moss Warranty Act.
So, is this claim likely to prevail in court?
This case is not likely to succeed if the court follows its prior decision in Harris, et al. v. Mondelez Global LLC, Case No. 19-cv-2249, aka “Oreo Cookies”. Consumers sued the Oreo maker for misrepresenting that Oreos contain real cocoa on its front label. Yet, the court concluded that the Oreo maker cannot possibly mislead consumers simply by representing that it makes Oreos with “real” cocoa, when they actually contain cocoa.
As in Harris, Froneri did not misrepresent that the bars are dipped in milk chocolate, even though they also contain additional ingredients. As always, keep watch of your food labels – including the small label on the back of the box, and don’t make a federal case out of it!