State Consumer Protection Laws
The U.S. District Court for the Northern District of California grants defendant Campbell Soup Company’s (“Campbell”) motion to dismiss and grants in part and denies in part defendants SunMaid Growers of California’s (“Sun-Maid”) and Plum, PBC’s (“Plum”) motion to dismiss. Defendants manufactured and sold baby food pouches intended for children six months and up under the brand name “Plum Organics.” Plaintiffs alleged that Sun-Maid acquired the Plum Organics brand from Campbell in May 2021, and that Campbell had acquired the brand in May 2013. Plaintiffs claimed that Food and Drug Administration (“FDA”) regulations prohibit companies from making any “nutrient content claims” on food packaging “intended specifically for use by infants and children less than 2 years of age.” Plaintiffs further alleged that the product packaging included unlawful nutrient content claims because the front labels included statements such as “3g Protein,” “4g Fiber,” and “200mg Omega-3 ALA from Chia.” The products had other front-label statements such as “Good Source of Vit. C,” “Nutrient-Dense Blend,” and “Exposure to key nutrients in the first 1000 days is critical for a child’s development,” among others. Plaintiffs asserted that “[t]hese claims deceive and mislead reasonable consumers into believing that the Products will provide more benefits than their competitors, and induces parents to purchase the Products despite a lack of evidence that an increased intake for the nutrients advertised are appropriate or recommended for infants and toddlers less than two years of age.” Plaintiffs claimed that they paid premiums for the products and brought claims for purported violations of California’s Consumer Legal Remedies Act, False Advertising Law, and Unfair Competition Law, as well as for common law fraud, deceit, and/or misrepresentation. First, the court dismissed claims against Campbell with leave to amend. In opposition to the motions to dismiss, the plaintiffs argued that various theories provide a basis for piercing the corporate veil. However, the court rejected this arguments because the plaintiffs did not plead anything about these allegations in their amended complaint, and the court refused to consider new allegations made in the opposition brief. The court, then, held that the plaintiffs had standing because they alleged that they paid a price premium or would not have otherwise purchased the products but for the challenged representations. The court reasoned that the plaintiffs’ theory of injury was plausibly and adequately pled, given that the FDA’s strict regulation of nutrient content claims meant that the relevant question was “not just whether the information is literally true, but also whether the placement of that information misleads consumers regarding its significance from a nutritional standpoint.” The court also held that the plaintiffs had standing to pursue injunctive relief because they claimed that they “continue[ ] to desire to purchase baby and toddler food products” and that “[i]f the Products did not contain unlawful and misleading labels, [they] would likely purchase the Products again in the future.” On the merits, the court found that the statements such as “3g Protein” and “4g Fiber” were express nutrient content claims because they were direct statements about the level of nutrient in the food. The court found that statements such as “Nutrient-Dense Blend” and “Exposure to key nutrients in the first 1000 days is critical for a child’s development” were made in conjunction with the direct statements on the products, and were implied nutrient content claims because they suggested that the products’ nutrient contents may be useful in maintaining healthy diet. The court also relied on a recent case involving the same issue presented here, Davidson v. Sprout Foods Inc., 2022 WL 2668481 (N.D. Cal. July 11, 2022). The court further held that the plaintiffs plausibly alleged that the nutrient content claims at issue may not be made on products marketed to children under the age of two because, while the accurate statements about the amount of a nutrient may be allowed on products intended for people over the age of two, there was exception to the rule that nutrient content claims may not be made on food intended for infants and children under the age of two. (Paschoal v. Campbell Soup Co., 2022 WL 4280645 (N.D. Cal. Sept. 15, 2022)).
The U.S. District Court for the Southern District of California grants with prejudice the defendants’ motion to dismiss in a case alleging that the defendants falsely advertised that their “Wet Ones” antibacterial hand wipes “kill 99.99 percent of germs,” when, in fact, the wipes were ineffective against more than .01 percent of germs found on hands, that the defendants falsely advertised that the wipes are “hypoallergenic” and “gentle on the skin,” when, in reality, they contained numerous irritating or allergenic ingredients. Plaintiff failed to plead more than speculative and conclusory allegations that the wipes were ineffective and failed to plead that any of the unaffected diseases identified in the complaint were diseases that typically are prevented by ensuring that one’s hands are clean. Thus, the court concluded that the plaintiff had not alleged a plausible theory of consumer deception. In addition, the court previously had dismissed the plaintiff’s false advertising theory premised on the “hypoallergenic” and “gentle on the skin” representations as insufficiently pled, both because a reasonable consumer would not assume that a “hypoallergenic” product contains no potential allergens, and because the plaintiff failed to allege that she suffered an allergic reaction or that the wipes have a higher likelihood of causing an allergic reaction as compared to other available products. (Souter v. Edgewell Personal Care Co., 2022 WL 4088614 (S.D. Cal. Sept. 6, 2022)).
The U.S. District Court for the Southern District of Illinois grants defendant General Mills, Inc.’s motion to dismiss. Plaintiff purchased General Mills’ “Fudge Brownie Mix” product under the “Betty Crocker” brand. Plaintiff alleged that the product’s use of the word “fudge” was misleading because reasonable consumers expect a product with “fudge” in the name to have a non-deminimis relative amount of dairy ingredients containing milk fat, but the “Fudge Brownie Mix” did not. The complaint cited the dictionary definition of “fudge,” along with recipes from “confectionary experts.” Plaintiff also alleged that using dairy ingredients, rather than vegetable oils, results in a better tasting product, and that she would not have purchased the product or would have paid less for it had she known the product lacked fudge ingredients. Based on these allegations, the plaintiff asserted claims for, among other things, violations of the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”) and the Iowa and Arkansas consumer fraud acts, and claims for negligent misrepresentation and common law fraud. The court granted the motion to dismiss in its entirety. First, it determined that the product’s label was not misleading under the ICFA, because the complaint implicitly conceded that fudge is not always made with butter and milk; rather, the complaint’s definitions and recipes only established that fudge is “typically” made with milk or butter. Citing recent Central District of Illinois, Southern District of New York, and Northern District of Illinois decisions, the court concluded that, because General Mills never claimed that its fudge was made using a specific recipe or with milk and butter, no reasonable consumer would conclude that fudge brownie mix necessarily contains milk and butter. Next, for the same reasons, the court determined that the plaintiff’s Iowa and Arkansas consumer fraud claims and the common law fraud-based claims failed. (Burns v. Gen. Mills Sales, Inc., 2022 WL 3908783 (S.D. Ill. Aug. 30, 2022)).
Consumer Class Actions
The U.S. District Court for the Northern District of California grants defendant Kellogg Sales Company’s motion to dismiss with prejudice in a putative class action alleging that Kellogg misleadingly labels “MorningStar Farms Veggie” products with the term “veggie” because they are not “made primarily of vegetables,” but rather, are allegedly made primarily of wheat, gluten, oil, and corn syrup solids. Kellogg, in its motion to dismiss the initial complaint, argued that no reasonable consumer would be misled by the use of the term “veggie” because reasonable consumers understand that the term refers to vegetarian or meat substitute foods and does not mean that the product is made primarily of vegetables as opposed to grains and oils. The court agreed, and dismissed with leave to amend to provide plaintiff an opportunity to allege facts supporting the theory that reasonable consumers could be misled into thinking the products were made from vegetables. Plaintiff, then, filed a first amended complaint, asserting the same causes of action based on the same theory, but added surveys commissioned for the case, that, according to the plaintiff, demonstrated that California consumers “are ‘misled’ by the Veggie Products’ VEGGIE labeling into believing the products they are purchasing are ‘primarily made of vegetables rather than non-vegetable plant-based ingredients.’” Kellogg, again, argued that the term “veggie” would not mislead reasonable consumers in the manner alleged. The court agreed that the first amended complaint’s allegations were implausible. Even if the term was ambiguous, “looking to the packaging of the Veggie Products confirms that no significant amount of reasonable consumer would be misled.” Images on the packaging do not indicate a vegetable is present, but instead, mostly show the products mimicking meat. The court did not find that the survey provided plausibility for plaintiff’s allegations, stating “plaintiff’s survey asked the wrong question – what plant-based ingredients the consumers believed were primarily in a product. The right question is whether use of the term VEGGIE in light of the types of products challenged and those Products’ packaging conveyed that the Veggie Products were meat-alternative or whether those sources conveyed the challenged Products were made with vegetables as opposed to other ingredients.” Further, any ambiguity would be dispelled by the packaging, “which describes the products as free of meat and contains photos pf products that do not obviously contain vegetables or present that they contain any plant-based ingredient in particular,” and includes an ingredient list. Finally, the court found that the labelling was not unlawful. The use of the term was not false and misleading in violation of federal food labelling law or California’s Sherman Law. The court also found that the labeling did not violate 21 C.F.R. § 101.18 because the product did not plausibly refer to any particular ingredient, or even veggies as a class of ingredients. Finally, the court found the label did not violate 21 C.F.R. § 102.5 because “veggie” did not plausibly refer to vegetables in the products, as opposed to meat alternatives. (Kennard v. Kellogg Sales Co., 2022 WL 4241659 (N.D. Cal. Sept. 14, 2022)).
The U.S. District Court for the Northern District of Illinois grants in part and denies in part defendant 7-Eleven, Inc.’s motion to dismiss Illinois Consumer Fraud and Deceptive Business Practices Act claims. Plaintiff alleged that 7-Eleven’s “24/7 Life” products were falsely advertised as “recyclable,” because—although the products were made out of plastics that could be recycled—few recycling facilities take the type of plastic used in the products, and some of the products lacked the recycling designations (“RIC labels”) that provide recycling facilities the information necessary to recycle them. The court rejected 7-Eleven’s argument that the plaintiff did not suffer a concrete injury sufficient to confer Article III standing. The complaint sufficiently alleged an economy injury in that the plaintiff would not have purchased the 24/7 Life products had she known they were not recyclable. In addition, the plaintiff had standing to represent a putative class that included purchasers of other products that she herself did not buy, but who suffered a substantially similar injury after buying those products based on similar alleged misrepresentations. However, the court agreed with 7-Eleven that the plaintiff lacked standing to seek injunctive relief because she no longer faced a risk of similar future harm as she knew the truth about the products. The court also dismissed the plaintiff’s consumer-protection claims to the extent they were premised on the theory that few recycling facilities take the type of plastic used in the challenged products. The court reasoned that “recyclable” means that the product can be recycled, and says nothing about the likelihood of recycling or the availability of recycling facilities. In contrast, the plaintiff did allege a plausible theory of deception based on the absence of the necessary RIC labels, without which the products were not in fact “recyclable.” (Curtis v. 7-Eleven, Inc., 2022 WL 4182384 (N.D. Ill. Sept. 13, 2022)).
The U.S. District Court for the Central District of Illinois grants in part and denies in part defendant Ricola USA, Inc.’s motion to dismiss a putative class action complaint alleging several claims stemming from the labeling of the defendant’s throat lozenges. Plaintiff alleged that, based on the product’s front label—which included representations such as “cough suppressant,” “oral anesthetic,” “effective relief,” “made with Swiss Alpine Herbs,” and pictures of ten herbs—she and other consumers reasonably would expect the herbal ingredients to provide the functionality for the cough suppressant and oral anesthetic. However, the plaintiff alleged that the herbs depicted on the front label were exclusively inactive ingredients, and the active ingredient, listed only on the back, was menthol. Plaintiff asserted that she would not have bought the product or would have paid less for it had she known “the truth.” Plaintiff’s complaint asserted claims under the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”), as well as common law claims for negligent misrepresentation and fraud. First, the court held that the plaintiff adequately pled a claim under the ICFA, and denied the defendant’s motion to dismiss this count. Plaintiff argued, and the court agreed, that the front label deceived her into believing that the lozenges were “herbal remedies,” and that the clarity provided by the back label cannot overcome deceptive omission of any front label reference to the active menthol ingredient. The court held that a material omission is actionable under the ICFA, and that the omission on the front label in this case was material because “a buyer would have acted differently knowing the information.” The court also considered whether the claim of deception by the front label can overcome the inclusion of menthol on the back label. In so doing, it considered a Seventh Circuit case that held that a plaintiff’s ICFA claim survived a motion to dismiss where she plausibly alleged that the front labels “likely lead a significant portion of reasonable consumers to falsely believe something that the back labels belie.” The court held that the plaintiff plausibly alleged that a reasonable consumer would believe the defendant’s lozenges were powered by “Swiss Alpine Herbs” rather than ordinary menthol. Thus, the court denied the defendant’s motion to dismiss the ICFA claim. However, the court dismissed the plaintiff’s negligent misrepresentation and common law fraud claims. In dismissing the negligent misrepresentation claim, the court simply pointed out that Illinois law does not allow “an aggrieved party to recover under a negligence theory for solely economic damages.” In dismissing the fraud claim, the court found that the plaintiff failed to allege that the defendant intended to defraud her. Plaintiff alleged that the defendant’s intent was evinced by its knowledge that the product was not consistent with its representation. However, the court held that this allegation was simply conclusory and insufficient to state a claim. (Davis v. Ricola USA, Inc., 2022 WL 4131588 (C.D. Ill. Sept. 12, 2022)).
The U.S. District Court for the Southern District of New York grants defendant KIND LLC’s motions to strike two of the plaintiffs’ experts, to decertify three state consumer classes, and for summary judgment in multi-district litigation challenging “all natural,” “healthy” and “non-GMO” label statements on the defendant’s snack bar and granola products. Plaintiffs previously had voluntarily dismissed challenges to the “healthy” label statement, following the FDA’s withdrawal of a warning letter on that issue. Following certification of California, Florida, and New York consumer classes as to “all natural” and “non-GMO” label statements, and after completion of expert and fact discovery, the plaintiffs dismissed their challenges as to the “non-GMO” statement. Also following the initial certification decision, the plaintiffs proffered completed expert opinions on damages and on the meaning of and materiality of the “all natural” label statement. Based on this record, the defendant moved to strike the plaintiffs’ experts, decertify the classes, and for summary judgment. The court held that the plaintiffs failed to make a sufficient evidentiary showing (i) of a reasonable consumer’s understanding of “all natural,” or (ii) that the defendant’s products were incompatible with the “all natural” label statement. The court agreed with the defendant that the plaintiffs’ experts conducted a biased and inadmissible consumer survey on the meaning of natural, and offered opinions on “naturalness” that were irrelevant to the plaintiffs’ claims or the defendant’s products. Finally, the court agreed with the defendant that each of the consumer classes that previously had been certified must be decertified because the plaintiffs had dismissed their challenges to the “non-GMO” label statement, which was an integral part of the initial certification order. The court did not rule on the defendant’s motion to strike the plaintiffs’ damages expert, or rule on the plaintiffs’ motion to strike the defendant’s experts, ruling that those motions were moot in light of the court’s decision. (In re Kind LLC “Healthy and All Natural” Litigation, -- F. Supp. 3d --, 2022 WL 4125065 (S.D.N.Y. Sept. 9, 2022)).
The U.S. District Court for the Southern District of Illinois dismisses without prejudice the plaintiff’s putative class action complaint, which alleged that defendant Conagra Brands, Inc. deceptively labeled its pudding as “Made With Real Milk” and “Smoother,” making consumers believe the product was made with “whole milk.” The court dismissed the state deceptive advertising claim, finding that the plaintiff “jumps” to the “fanciful” interpretation that “reasonable consumers will be deceived into thinking that pudding contains a significant amount of milkfat.” Similarly, the plaintiff failed to allege a fraud claim due to this “fanciful” interpretation. The common law negligent misrepresentation claim was barred by the plaintiff’s seeking “relief for disappointed commercial expectations.” (Wienhoff v. Conagra Brands, Inc., 2022 WL 4103974 (S.D. Ill. Sept. 8, 2022)).
The U.S. District Court for the Northern District of California grants in part and denies in part defendant Nurture, Inc.’s motion to dismiss a putative class action alleging that Nurture’s “Happy Tot” baby food pouches contained nutrient content claims that are prohibited by FDA. Nurture argued that the plaintiff lacked Article III and statutory standing to challenge label statements on products she did not see or purchase. The court, however, found that the plaintiff had standing to sue for unpurchased pouch and puff products because the “claims appear to be similar in nature both in name and in ingredients . . . the alleged implied nutrient content claims are substantially similar, and Plaintiff has standing to pursue claims regarding unpurchased food pouches and puff products.” Conversely, the plaintiff lacked standing to sue regarding bowls, bars, cereals, baking mixes, greek yogis, creamies, and cookies because they were not sufficiently similar. Next, the court assessed the plaintiff’s unlawfulness claim. Nurture argued that its labels did not violate FDA regulations. FDA prohibits nutrient content claims on products intended for specific use by children below two years of age. The court found that the complaint adequately alleged that the products were marketed for children under the age of two. Nurture argued that two of its label claims—“Omega-3s (ALA) from Chia seeds to help your toddler get the most out of every bite. Here’s to a happy &healthy start!” and “Beta-Glucan helps support your tot’s immune system. Prebiotic Fiber helps support digestive health. Here’s to a happy & healthy start!”—did not violate FDA regulations because the challenged statements were structural claims rather than nutrient content claims. The court agreed that these two statements were not nutrient content claims because they described the function of the nutrient rather than the product itself. The court applied this reasoning to additional statements challenged by the plaintiff, such as “with iron to help support brain development,” concluding that “[c]laims about iron are not unlawful” because the FDA permits nutrient content claims about minerals in foods intended for use by children. As to claims that the nutrient content claims were misleading, the court, first, addressed the plaintiff’s theory that the claims lead consumers to believe that an increased intake of the advertised nutrient is important, “when, in fact, such claims are prohibited because of the lack of evidence to support such a claim.” The court did not find this theory compelling; the complaint offered no support for the claim that there was a lack of evidence as to whether the nutrients identified provide a benefit to children, and there were no statements about the contents of the challenged products or an implication that they products contained specific levels. Plaintiff’s second theory—that the claims could mislead consumers to believe that the products are superior to products that do not display nutrient claims—also failed. The court found that the nutrient content claims “are facially true, and do not invoke comparisons to other products.” (Sanchez v. Nurture, Inc., 2022 WL 4097337 (N.D. Cal. Sept. 7, 2022)).
The U.S. District Court for the Northern District of California grants defendant Perfect Bar LLC’s motion to dismiss. Plaintiffs purchased “Perfect Bar” products and read the amount of protein they contained. Specifically, the front label of the “Perfect Bar in Dark Chocolate Chip Peanut Butter” flavor stated, “15G PROTEIN,” and the front label of the “Perfect Peanut Butter Cups Dark Chocolate” flavor said, “7G PROTEIN.” Plaintiffs alleged that they thought these representations indicated the amount of protein that their bodies could utilize, but alleged that not all proteins are the same in their ability to meet human nutritional requirements, so a simple statement about the number of grams does not actually inform consumers about how much usable protein they are receiving. According to the plaintiffs, based on the Protein Digestibility Corrected Amino Acid Score (“PDCAAS”) scale, the products, in fact, only have 40-50% of the protein labeled. Plaintiffs alleged that, had they known this, they would have paid less for the products or not bought them at all. Based on these allegations, the plaintiffs brought a putative class action and asserted claims under California law for violations of the Consumers Legal Remedies Act (“CLRA”), False Advertising Law (“FAL”), and Unfair Competition Law (“UCL”), and common law fraud. The court granted the defendant’s motion to dismiss in its entirety. First, it analyzed the plaintiffs’ first theory, that Perfect Bar’s front-label protein claims do not comply with 21 C.F.R. §§ 101.9(c)(7)(i) and 101.13(n), Food and Drug Administration (“FDA”) regulations, serving as a predicate for violating the “unlawful” prong of the UCL. The Court determined that such a theory was not expressly preempted, because the plaintiffs plausibly alleged that the frontlabel protein claims were unlawful without corresponding PDCAAS figures on the nutrition facts panel, and that alleged conduct is prohibited by FDA regulations. The Court similarly rejected Perfect Bar’s Buckman preemption argument, as the plaintiffs’ theory paralleled federal requirements. However, the court agreed with Perfect Bar that the plaintiffs failed to allege that they relied on (or even read) the nutrition facts panel. The court, therefore, granted the motion to dismiss as to claims based on this theory, with leave to amend to add allegations of reliance. The court, then, analyzed the plaintiffs’ second theory, i.e., that not including the PDCAAS figure was deceptive and/or misleading. The court determined that this theory was expressly preempted because the FDA regulations expressly allow a manufacturer to put a nitrogen-method figure on the nutrition facts panel without any other information about protein anywhere on the product. Leave to amend was not given. Finally, for similar reasons, the court determined that the plaintiffs’ theory that Perfect Bar’s nitrogen-method front-label protein claims were misleading in and of themselves also was expressly preempted. Leave to amend was also not given with respect to this theory either. Plaintiffs have filed a motion seeking leave to file a motion for reconsideration of the dismissal order. (Roffman v. Perfect Bar, LLC, 2022 WL 4021714 (N.D. Cal. Sept. 2, 2022)).
The U.S. District Court for the Western District of North Carolina denies defendant Bank of America’s (“BOA”) motion to dismiss, allowing the plaintiff’s class action claims under North Carolina’s Unfair and Deceptive Trade Practices Act (“UDTPA”) to proceed. Plaintiff alleged that BOA misrepresented to accountholders that they must use BoA’s services to transfer funds and must pay a transfer fee, while, in reality, the accountholder could have initiated the transfer on another platform and avoided the fee. In ruling on the UDTPA claim, the court held, “[c]onvincing consumers to pay for an illusory or valueless service is a core deceptive business practice barred by consumer protection laws across the country.” Moreover, the court rejected BOA’s argument that it is not deceptive to advertise its own services, while failing to disclose to consumers that it was free elsewhere, because “reasonable consumers aren’t expected to know they don’t have to pay a bank transfer fee.” (Bruin v. Bank of Am., N.A., 2022 WL 4007273 (W.D.N.C. Sept. 1, 2022)).
The U.S. District Court for the Southern District of Iowa grants in part and denies in part defendant Bowmar Nutrition, LLC’s motion to dismiss the plaintiffs’ complaint. Plaintiffs brought a putative class action, claiming a violation of state consumer fraud acts after it was discovered that the defendant’s products purportedly contained less protein than what they advertised, both in marketing materials and on product labels. Defendant’s motion to dismiss argued that the plaintiffs had an adequate legal remedy available to them, therefore making injunctive relief unavailable under the applicable consumer fraud acts, and argued that the plaintiffs did not assert plausible claims occurring after the time they became aware of the alleged marketing misrepresentations. The equitable claims under California law that were made by the plaintiffs in their initial complaint were originally dismissed for the plaintiffs’ failure to show that the claims would provide additional relief to the legal remedies available to them. And, though they claimed in their second amended complaint that the defendant’s deceptive labeling made it “impossible” for them to achieve their health goals, the court ultimately agreed with the defendant that the plaintiffs’ harm, in fact, could be remedied adequately through damages. In so deciding, the court found persuasive the Ninth Circuit’s decision in Sonner v. Premier Nutrition Corp., 971 F.3d 834 (9th Cir. 2020), which established that a plaintiff must lack an adequate remedy at law for restitution to be recoverable. Here, the court found that the plaintiffs, by asserting they would have neither paid full price nor generally purchased the defendant’s products, in fact, had demonstrated that an adequate legal remedy was available to them, and because injunctive relief under the applicable consumer fraud acts required an inadequacy of legal remedies, the restitution claims were dismissed with prejudice. In considering the motion to dismiss the plaintiffs’ claims relating to products purchased after the time they were made aware of the marketing misrepresentations, the court noted that, based on the complaint, it appeared the plaintiffs were aware of the marketing misrepresentations when the purchases occurred. However, the defendant’s failure to brief the issue in a meaningful way until its reply left the plaintiffs unable to appropriately respond. As such, the defendant’s untimely-made argument did not properly support or provide an appropriate basis for a dismissal. Thus, this portion of the motion to dismiss was denied. (Bass v. Bowmar Nutrition, LLC, 2022 WL 4182203 (S.D. Iowa Aug. 30, 2022)).
The U.S. District Court for the Northern District of Illinois grants defendant Dreyer’s Grand Ice Cream, Inc.’s (“Dreyer’s”) motion to dismiss without prejudice. Plaintiff brought a putative class action alleging that the front label of Dreyer’s Häagan-Dazs-brand “Vanilla Milk Chocolate Almond” ice cream bars was deceptive because it did not disclose the presence of vegetable oil. Those ice cream bars purportedly contained vegetable oil as well as milk chocolate, almonds, and vanilla ice cream. The product’s front label described the bars as “vanilla ice cream dipped in rich milk chocolate and almonds,” and displayed pictures of chocolate chunks, almonds, and a vanilla flower. While the front label did not mention vegetable oil, the ingredients list on the back stated that the product’s chocolate coating consisted of a “milk chocolate and vegetable oil coating with almonds.” Plaintiff alleged that, because the front label did not disclose the presence of vegetable oil, he was misled into believing that the product did not contain vegetable oil, and that, had he been aware that the product contained vegetable oil, he would not have purchased it or would have paid less. Plaintiff brought claims for, among other things statutory and common law fraud and negligent misrepresentation. The court held that, because the plaintiff was aware of the presence of vegetable oil and would not purchase the product again, he lacked standing to seek injunctive relief. On the merits, the court held that a reasonable consumer would not understand the front label to convey that the ice cream’s coating consisted only of chocolate and almonds. The court cited recent decisions dismissing materially similar claims against manufacturers of other ice cream bars. (Rice v. Dreyer’s Grand Ice Cream, Inc., -- F.Supp.3d --, 2022 WL 3908665 (N.D. Ill. Aug. 30, 2022)).
