On October 13, 2020, a plaintiff filed a proposed class action in the United States District Court Southern District of New York alleging that Froneri US, Inc.’s Haagen-Dazs ice cream bars are falsely advertised as being dipped in milk chocolate despite the presence of vegetable oil among their ingredients.

In the lawsuit, plaintiff argues that “the unqualified, prominent and conspicuous representation” that the ice cream bar product is dipped in “milk chocolate” is false, deceptive, and misleading because the purported chocolate contains ingredients consumers do not expect in chocolate – vegetable oils.  Moreover, the plaintiff claims that the Haagen-Dazs ice cream bar products bear false advertisement, as the ice cream bars do not designate the chocolate as “milk chocolate and vegetable oil coating” on the front label.

By way of background, Congress directed the Food and Drug Administration to establish standards and rules to combat the marketing of foods from which traditional constituents are removed or new or different (often cheaper and artificial) ingredients are substituted.  In terms of chocolate products, this may entail the substitution of more valuable ingredients like cacao fat and replacement with less valuable, lower quality ingredients like vegetable oils.  Pursuant to 21 C.F.R. section 163.124(b), the optional ingredients in milk chocolate include cacao fat, nutritive carbohydrate sweeteners, spices, natural and artificial flavorings, dairy ingredients, and emulsifying agents, but not vegetable oils.

Plaintiff claims that the “chocolate (from cacao beans) provides greater satiety and a creamy and smooth mouthfeel compared to other ingredients which substitute for chocolate, like vegetable oils, that provide less satiety, a waxy and oily mouthfeel and leave an aftertaste.”   We will continue to monitor any developments.