“Made with Real Milk” (Fat?) Lawsuit Dismissed

Yesterday a district court dismissed a class-action lawsuit which alleged that Ferrara Candy Company misled consumers into believing that their Brach Milk Maid caramels were made with milk fat by labeling their caramels with the phrases “Made With Real Milk” and “Rich and Creamy” and depicting a pitcher of milk. As indicated by the ingredient list, the products were made with skim milk, butter oil, and whey, but the primary source of fat was hydrogenated palm kernel oil.

The Court held that because the products were made with skim milk, butter oil, and whey, and there were no representations as to the type of milk the products were made with, the claim “made with real milk” was true, and the alleged equivalence between “made with real milk” and “made with real milk fat” was Plaintiff’s own unsupported interpretation. Indeed, although not pivotal to the decision, the Court noted that the milk and milk derived ingredients in the product (e.g., butter oil) would have contributed some milkfat to the product. The Court also cited to cases which held that a labeling claim regarding one ingredient (e.g., milk) does not preclude the presence of other ingredients (e.g., vegetable oil). Additionally, the Court held that the “Rich and Creamy” claim was a subjective description of quality which was not measurable and therefore constituted non-actionable puffery.

The case adds to a line of cases construing claims regarding the presence of ingredients narrowly. We will continue to monitor and report on class action lawsuits affecting the food industry.