Is “French Dessert” Necessarily Made in France?

US Co. Falsely Marketing ‘French’ Dessert, Class Action Says

• We have reported on the mixed outcomes in proliferating class action lawsuits that challenge allegedly misleading geographical connotations on various food product labels.  Such lawsuits allege that plaintiff consumers paid premium prices for products after being misled to believe the products were sourced from a specific country or region that they were not.  Judges in such cases must perform a very fact specific analysis to determine whether geographic phrases or images could lead a reasonable consumer to believe a product is made in a particular place. 

• On March 16, 2023, a proposed class action lawsuit was filed in the Northern District of California against Petit Pot, Inc. alleging the company has misleadingly named its product as “French Dessert” and used misleading French words and imagery to “exploit the intimate relationship between the country of France and its classic dessert, the Pot de Crème.”  The products at issue are various flavors of Pot de Crème made in California.  One of the given examples of allegedly misleading packaging has the words, “Petit Pot, PISTACHIO, ORGANIC & Creamy, FRENCH DESSERT,” and includes a USDA Organic seal, as well as a picture of a green pudding in a glass jar surrounded by cracked pistachios, along with a cartoon image printed beside the brand name ‘Petit Pot’ of a small blue, jar-shaped figure wearing a dark blue striped top and a red beret.  The plaintiff claims to have believed the products were made in France based on the allegedly misleading product name, “French Dessert,” the use of the French words “Petit Pot” (which translates as “Little Pot” in English), the “French” look of the product’s mascot, and the use of a glass jar (characterized as a unique feature of dairy products in France).  The plaintiff also asserts that boxes containing multiple units of the dessert contribute to the deception of the products being made in France by featuring the French word for “magic” in the printed phrase, “A Taste of Magique,” and an image of a shop door with a sign displaying, “Ouvert,” which is French for “Open.” 

• While the defendant has not yet answered the complaint, they will likely assert that “French” identifies a style rather than a place (i.e., France).  It is not clear what a judge will make of the use of a glass jar and French words interspersed with English words on the product label, however, and if these facts could distinguish the Petit Pot lawsuit from a 2021 case, discussed here, of a yoghurt made in New York where the court found references to “Icelandic” in the “Icelandic Provisions” brand name and the phrase “Traditional Icelandic Skyr” against a snow-covered backdrop on the front label to be akin to “in the style of Iceland,” which signals that the product is not made in the place that is named.