Ag and Food Law Daily Update: March 23, 2022 - National Agricultural Law Center

A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions HERE.

Judicial: Food Labeling

In Zurliene v. Dreyer’s Grand Ice Cream, Inc., No. 3:21-CV-747-DWD, 2022 WL 816636 (S.D. Ill. Mar. 17, 2022) and Yu v. Dreyer’s Grand Ice Cream, Inc., No. 20 CIV. 8512 (ER), 2022 WL 799563 (S.D.N.Y. Mar. 16, 2022), both plaintiffs brought cases alleging that various ice cream products distributed under the Häagen-Dazs brand were misleading because they contained oil in the chocolate coatings that the front label of the products stated was milk chocolate. Both plaintiffs failed to bring claims which could withstand motions to dismiss. Zurliene’s claim was preempted by the Food, Drug, and Cosmetic Act (“FDCA”) and Yu’s failed to allege reasonable consumers would be misled by the products labeling. The courts dismissed both cases.

In LISA BARDSLEY, individually & on behalf of all others similarly situated, Plaintiff, v. NONNI’S FOODS LLC, Defendant., No. 20 CIV. 2979 (NSR), 2022 WL 814034 (S.D.N.Y. Mar. 16, 2022), the plaintiff claimed that defendant’s “Limone Biscotti” product was misleading because the lemon flavor was not derived exclusively from lemons. The court found that under New York’s General Business Law (“GBL”) that the plaintiff sufficiently alleged that the product’s packaging was misleading and that it was possible that a reasonable consumer could be led to believe that the product’s lemon flavor was from lemon zest oil. The court also found that plaintiff’s claims were not preempted by the FDCA because the claims did not seek to impose additional or different requirements. Plaintiff only alleged that defendant failed to include the words “with other natural flavor” in compliance with the FDCA. The court dismissed all other claims brought by the plaintiff except for the consumer protection claim under GBL.

In KARI WARREN, individually & on behalf of all others similarly situated, Plaintiff, v. THE STOP & SHOP SUPERMARKET, LLC, Defendant., No. 20 CIV. 8718 (NSR), 2022 WL 815300 (S.D.N.Y. Mar. 16, 2022), plaintiff brought a claim alleging that defendant’s “Graham Crackers – Honey” were misrepresented to consumers because it was sweetened primarily with sugar, not honey, and it was made from enriched flour and not graham flour. The court found that a reasonable consumer would not find the honey label to be misleading and differentiated it from the Campbell v. Whole Foods Market Group case because of the specifics of the label. However, the court found that plaintiff did adequately allege that a reasonable consumer may fine the word graham in the label misleading. The court also could not conclude whether the claims were preempted by federal law at the time of the motions. The court dismissed all of plaintiff’s claim except for the consumer protection claims under GBL involving the use of the word graham.

In VICKI ELDER, individually & on behalf of all others similarly situated, Plaintiff, v. BIMBO BAKERIES USA, INC., Defendant., No. 3:21-CV-637-DWD, 2022 WL 816631 (S.D. Ill. Mar. 17, 2022), plaintiff alleged that defendants “All Butter Loaf Cake” product was deceptively labelled. The court found that under the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”) a reasonable consumer might be led to interpret the phrase “All Butter” as ambiguous and that the plaintiff plausibly alleged deception under the ICFA. The court held that the ICFA claim was not preempted by the FDCA because the complaint never invoked the FDA’s nutrient-content claim regulations. Plaintiff adequately alleged negligent misrepresentation, because of this, plaintiff’s fraud and unjust enrichment claims were adequately alleged as well. Plaintiff’s claim for injunctive relief and breach of warranty were dismissed.

In Patenaude v. Orgain, LLC, No. CV 21-40018-TSH, 2022 WL 798274 (D. Mass. Mar. 16, 2022), plaintiff argued that defendant’s vanilla flavored milk was deceptive and misleading because it contained no vanilla. The court held that the word vanilla without any qualifying terms does not lead a reasonable consumer to believe that the vanilla flavor comes exclusively or predominately from vanilla beans. Additionally, plaintiff provided no testing to back up his allegation that the product contained no vanilla. The court dismissed the case.