Last week, Dryers defeated two putative class actions filed by the same law firm, Spencer Sheehan, alleging that representations on the packaging of Häagen-Dazs chocolate-dipped ice cream bars misled consumers about the product’s chocolate coating.  In both cases, plaintiffs alleged that the representation that the ice cream is dipped in “rich milk chocolate” is false, since the addition of vegetable and coconut oil to the chocolate coating “fundamentally changes the nature of the bar’s coating.”  According to plaintiffs, chocolate is “a food prepared from ground roasted cacao beans,” that are ground to produce cocoa mass or chocolate liquor and then combined with dairy ingredients, sweetener, and flavorings—not vegetable oil.  Plaintiffs also pointed to FDA regulations defining chocolate and related labeling requirements to argue that food companies may not market their products as chocolate when they are mixed with non-cacao plant oils. 

Dryers filed motions to dismiss both cases, and the Southern District of New York and the Southern District of Illinois granted the motions, but on different grounds.  While S.D.N.Y. held that no reasonable consumer would be misled by the product packaging, S.D. Ill. concluded that the Federal Food Drug and Cosmetic Act preempted the state claims at issue.  Neither court found the plaintiffs’ appeals to FDA regulations availing. 

In Yu v. Dreyer’s Grand Ice Cream, Inc., 2022 WL 799563 (S.D.N.Y. Mar. 16, 2022), the court explained that violations of FDA regulations could not establish consumer deception absent any facts suggesting that “reasonable consumers are aware of these regulations” and “incorporate [them] into their marketplace expectations.”  Because the plaintiff failed to plead such facts, a consumer deception claim based on violations of FDA regulations could not withstand Dryers’ motion to dismiss.  To the extent that the plaintiff claimed deception without reference to FDA regulations, the claim also failed because, absent some suggestion by Dryers that the coating contained only chocolate, no reasonable consumer would read the “rich milk chocolate” claim to mean that the product coating did not contain coconut and vegetable oil.

By contrast, the court in Zurliene v. Dreyer’s Grand Ice Cream, Inc., 2022 WL 816636 (S.D. Ill. Mar. 17, 2022) held that, even if there were a plausible claim for consumer deception under Illinois law, state causes of action are preempted under FDA regulations.  Under the Federal Food Drug and Cosmetic Act, states may not “directly or indirectly establish . . . any requirement for a food . . . that is not identical to” FDA regulations.  Because the court concluded that the ice cream bars’ packaging conformed to FDA chocolate labeling regulations, it dismissed plaintiffs’ state law causes of action as essentially calling for labeling requirements different from and therefore preempted by federal law.

These decisions will be instructive in other lawsuits, many brought by Sheehan, challenging certain label claims as suggesting a product is made with dairy ingredients when the ingredients list shows that the predominant fat ingredient is oil.