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.