On June 4, a California federal judge dismissed a putative class action complaint challenging Nestle USA, Inc.’s labels on its “Nestle Toll House’s Premier White Morsels.”  Prescott, et al. v. Nestle USA, Inc., Case No. 19-cv-07471-BLF (N.D. Cal. June 4, 2020).

Plaintiffs alleged that Nestle’s labeling and advertising misled consumers into believing that the product contained white chocolate. As stated in the complaint, plaintiffs argued that Nestle violated FDA labeling standards by attempting to pass its “Premier White Morsels” as white chocolate through use of the words “white” and “premier,” even though the product did not contain any cocoa or cocoa derivatives. However, the product’s label did not state that it contained white chocolate, or even use the word “chocolate.”

U.S. District Judge Beth Labson Freeman noted that similar claims brought by the same plaintiffs were dismissed against Ghirardelli Chocolate Co. in April. In agreement with the Ghirardelli dismissal, Judge Freeman held that the word “white” alone does not lead reasonable customers to believe that the product is white chocolate. Likewise, she stated that the word “premier” was nonactionable puffery.

Judge Freeman also denied plaintiffs’ request for an injunction against Nestle, ruling that plaintiffs could not be harmed in the future given that they pled they would not have purchased the morsels had they known they were not white chocolate.

Lastly, Judge Freeman denied Nestle’s request to dismiss the complaint with prejudice. Plaintiffs were granted leave to amend the complaint, and stated that they plan to file an amended complaint with a “large-scale, statistically significant” consumer survey that shows 90% of consumers are deceived by Nestle’s white morsel marketing.