October 25, 2020

Volume X, Number 299

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No “White” Lie: Plaintiffs Fail to Show Reasonable Consumer Would Expect “White Morsels” to Contain White Chocolate

After the recent dismissal  of nearly identical claims, the same consumer plaintiffs have once again been thwarted in their attempt to challenge labeling and advertising that supposedly misleads consumers into believing the product contains white chocolate. Prescott v. Nestle USA, Inc., No. 19-CV-07471-BLF (N.D. Cal. June 4, 2020).

Here, the plaintiffs alleged that Nestle’s use of the words “white” and “premier” to describe its Toll House’s Premier White Morsels would deceive a reasonable consumer into thinking that the product actually contains white chocolate, when it does not. Plaintiffs asserted claims under three California laws: the UCL, FAL, and CLRA.

In dismissing Plaintiffs’ claims, Judge Beth L. Freeman cited the “highly persuasive” decision in Cheslow v. Ghirardelli Chocolate, No. 19-CV-07467-PJH (N.D. Cal. Apr. 8, 2020), dismissing “nearly identical claims” asserted by the same plaintiffs against Ghirardelli regarding its Premium Baking Chips Classic White Chips.

As we noted in our blog post covering the Cheslow decision, challenges to literally true advertising in class action cases are particularly vulnerable to a motion to dismiss. In cases where the ingredient list resolves any potential misinterpretation of a literally true claim, consumer plaintiffs face an uphill battle. Judge Freeman’s decision in Prescott reinforces this idea.

In addressing the use of the word “white” on the product labeling, the Court echoed the Cheslow court’s analysis of modifying adjectives on food labels. Judge Freeman discussed Cheslow’s reliance on Becerra v. Dr. Pepper/Seven Up, 945 F.3d 1225 (9th Cir. 2019), which found that in light of the commonly understood definition of the word “diet” when used as an adjective, the word “diet” in “Diet Dr. Pepper” spoke to the product’s lack of calories, and did not promise weight loss or management. Applying this reasoning, the court held that “[n]o reasonable consumer could believe that a package of baking chips contains white chocolate simply because the product includes the word ‘white’ in its name or label.”

Judge Freeman also found little merit in plaintiffs’ argument that the use of “premier” was misleading. Relying on the Cheslow court’s finding that the use of “premium” in the context of “Premium Baking Chips” and “premium ingredients” constituted puffery, the court similarly reasoned that “premier” in the context of “Toll House’s Premier White Morsels” was “mere puffery that cannot form the basis of a claim under the reasonable consumer standard.”

In a creative attempt to bolster their allegations, plaintiffs included in their First Amended Complaint a number of consumer comments taken from topclassactions.com, which supposedly reflected that other consumers likewise thought the product contained white chocolate. However, the court found that such “subjective opinions…posted in the context of asking to join this lawsuit are irrelevant” to “the [applicable] reasonable consumer standard as discussed in Becerra and Cheslow.”

This case is the first we have seen where plaintiffs have tried to rely on consumer postings on a class action recruitment website to support their allegation that reasonable consumers will be deceived by the challenged advertising. However, given Judge Freeman’s persuasive reasoning as to why such postings are irrelevant, we doubt this will become a trend. Judge Freeman’s order indicated that leave to amend was appropriate, as the decision was “the first guidance offered by the Court.” Watch this space for further developments.

© 2020 Proskauer Rose LLP. National Law Review, Volume X, Number 206
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About this Author

Eric Wertheim Litigation Attorney Proskauer Law Firm
Associate

Eric Wertheim is an associate in the Litigation Department. Before joining Proskauer, Eric attended Northwestern Pritzker School of Law where he was an associate editor of the Northwestern University Law Review. During law school, he participated in Northwestern’s Bluhm Legal Clinic Center on Wrongful Convictions, working with clients seeking post-conviction relief based on claims of actual innocence. Eric also served as a judicial extern to the Honorable Mary Rowland at the United States District Court for the Northern District of Illinois.

212-969-3493
Jeffrey H Warshafsky, Proskauer Law firm, Litigation Attorney
Associate

Jeffrey H. Warshafsky is an Associate in the Litigation Department, resident in the New York office. He is a commercial litigator with a particular emphasis on false advertising, trademark, and counterfeiting disputes. Jeff also advises clients on trademark portfolio management, anti-counterfeiting strategies, cybersquatting prevention, and other Internet-related trademark infringement matters.

212-969-3241
Lawrence I Weinstein, False Advertising and Trademark Copywright Law, Proskauer
Partner

Larry Weinstein is a Partner in Proskauer's Litigation Department. He is co-head of the firm’s Intellectual Property Litigation Group, and also co-head of the firm’s False Advertising & Trademark Practice. Larry is both a distinguished trial lawyer and counselor, whose practice covers a broad spectrum of intellectual property law, including Lanham Act false advertising and trademark cases, consumer class action cases, NAD and FTC proceedings, and trade secret and copyright litigations, as well as sports, art and other complex commercial cases.

212-969-3240
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