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Volume XII, Number 336

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Chocolate False Advertisement Lawsuit Dismissed

  • A class action lawsuit which asserted various false advertisement claims related to the vegetable oil content of Costco’s chocolate almond dipped vanilla ice cream bars (the “product”) has been dismissed.

  • The Plaintiff alleged that the product was misleadingly advertised as chocolate because the product’s coating contained more vegetable oils than chocolate and the inclusion of vegetable oil was not “prominently disclosed on the product’s front label” as required by 21 CFR 163.155(c). Plaintiff also alleged that the vegetable oil content reduced the chocolate’s quality. In support of his claims, Plaintiff cited to a study which found that 64% of the 6400 respondents who viewed the product label “expected that it would contain more cacao bean ingredients than it did and would not be made with chocolate substitutes.”

  • The Court rejected each of these arguments. It found that the product label did not claim that the coating was made of mostly or entirely cacao bean ingredients and that any alleged violation of FDA regulations was largely irrelevant because there was no evidence that consumers were “aware of the nuances of the FDA’s regulations.” Furthermore, it found that sugar and milk should be considered in the calculation of the proportion of chocolate in the product’s coating, and that when considering these ingredients, the product’s coating contained more chocolate than vegetable oil.  The Court found the cited study similarly unpersuasive because it did not answer the precise question at issue and the complaint was devoid of important details such as the questions asked and the methodology used. Finally, the Court found that there were insufficient allegations to support the claim that the chocolate was of an inferior quality.

  • This case is the latest in a string of recent dismissals of similar lawsuits. Notably, in this case, the court took the unusual step of dismissing with prejudice (i.e., without leave to amend) because “Plaintiff alleged an unreasonable interpretation of what ‘chocolate’ includes, and no set of alleged facts could change the Court’s ruling.”

© 2022 Keller and Heckman LLPNational Law Review, Volume XII, Number 207
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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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