November 29, 2021

Volume XI, Number 333

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CA Judge Denied Vanilla Ice Cream Class Certification

  • On October 27, a California federal judge denied certification to a proposed class of consumers who were allegedly misled by Unilever’s marketing of Breyers’ Natural Vanilla ice cream. As previously blogged, lead plaintiff Lisa Vizcarra sued Unilever in April of 2020 for allegedly misleading consumers into thinking the ice cream contained natural vanilla flavors despite laboratory tests showing that the vanilla flavor was not derived from the vanilla plant. Vizcarra brought claims under the Consumer Legal Remedies Act and the Unfair Competition Law, and asked for injunctive relief. Unilever’s motion to dismiss was denied in July of 2020.

  • In the present proceeding, U.S. District Judge Yvonne Gonzalez Rogers held that Vizcarra did not meet the predominance and commonality requirements necessary for class certification. As written in the court order, Judge Gonzalez Rogers noted “Vizcarra has pointed to no common evidence showing that consumers understood the vanilla representations – which are comprised of the term ‘natural vanilla,’ and images of two vanilla beans, vanilla flowers, and a scoop of the ice cream with black specks – as indicating that the ice cream at issue would be flavored exclusively with vanilla from the vanilla plant.”

  • To support her allegations, Vizcarra used surveys conducted by expert witness, Dr. J. Michael Dennis, which purportedly showed that almost 80% of consumer respondents expected the vanilla flavor to come from the vanilla plant. However, Judge Gonzalez Rogers found the surveys to be flawed because “Dr. Dennis’ survey did not test the effect of vanilla representations, and instead tested the entire package, which contains other statements and elements that are not challenged in the complaint and, therefore, the survey says nothing as to whether the survey respondents’ expectations as to the ice cream at issue were caused by the vanilla representations as opposed to something else.”

  • Vizcarra’s lawsuit is one of dozens involving products that are claimed to contain deceptive and misleading information on their labels regarding vanilla.

© 2021 Keller and Heckman LLPNational Law Review, Volume XI, Number 307
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About this Author

Keller and Heckman offers global food and drug services to its clients. Our comprehensive and extensive food and drug practice is one of the largest in the world. We promote, protect, and defend products made by the spectrum of industries regulated by the U.S. Food and Drug Administration (FDA), the European Commission and Member States authorities in the European Union (EU) and similar authorities throughout the world. The products we help get to market include foods, pharmaceuticals, medical devices, veterinary products, dietary supplements, and cosmetics. In addition...

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