October 26, 2020

Volume X, Number 300

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October 26, 2020

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October 23, 2020

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Proposed Class Action Lawsuit Alleges Ice Cream Producer Falsely Advertised Ice Cream Bars

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.

© 2020 Keller and Heckman LLPNational Law Review, Volume X, Number 290
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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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