October 24, 2021

Volume XI, Number 297

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October 22, 2021

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The Rise and Fall of “Vanilla” Labeling Challenges

Beginning in 2020, the advertising world saw an explosion of putative class-actions challenging the use of “vanilla” to describe products where the vanilla flavoring allegedly is not derived exclusively from the vanilla bean plant.  We previously blogged about several such cases. One plaintiff’s attorney alone, Spencer Sheehan, has filed—and continues to file—hundreds of these cases.  However, we suspect this trend will begin to subside, as courts have largely disposed of these cases at the pleading stage. Two recent decisions out of the Northern District of California and Eastern District of New York illustrate the challenges plaintiffs’ lawyers face in keeping these lawsuits afloat.  Garadi v. Mars Wrigley, No. 19-cv-03209-RJD-ST (E.D.N.Y. July 6, 2021)Fahey v. Whole Foods Market, Inc. et al., No. 20-cv-06737-JST (N.D. Cal. June 30, 2021).

In Fahey v. Whole Foods, plaintiff alleged that the labeling of Whole Foods’ 365 Organic Unsweetened Almond Vanilla Beverage was false and misleading because the vanilla flavor is derived from synthetic vanillin, rather than from the vanilla bean plant.  Similarly, in Garadi v. Mars Wrigley, plaintiffs alleged they were deceived by the word “vanilla” on the packaging of Dove-brand ice cream bars because the flavor does not come exclusively from vanilla beans or extract.  Plaintiffs in both cases contend they would not have purchased the products, or would have paid less, had they been aware of the true composition, and brought claims under the consumer protection laws of their respective states.

Citing district courts around the country, the court in Fahey held that the word “vanilla” standing alone (without any qualifying terms) would not be likely to mislead a reasonable consumer into believing that the product’s vanilla flavor came exclusively or predominantly from vanilla beans.  The court noted that its conclusion was bolstered by the fact that the product label lacked any phrases or images, such as “made with,” that would lead a reasonable consumer to understand “vanilla” to be referencing an ingredient rather than a flavor.  The court also concluded that survey data referenced by the plaintiff was not enough to overcome this deficiency, noting that plaintiff failed to provide any information about how the survey was conducted, what questions were asked, or how many consumers participated.  On these grounds, the court granted Whole Foods’ motion to dismiss.

In the same vein, the court in Garadi found that plaintiffs failed to plausibly allege that a reasonable consumer acting reasonably under the circumstances would be misled by the phrase “vanilla ice cream.”  Instead, the court found that the product’s label merely indicates that the ice cream is vanilla flavored.  Absent allegations that the ice cream does not taste like vanilla, the Garadi court also found plaintiffs’ claims to be ripe for dismissal.

These decisions are unsurprising, as numerous “vanilla” cases previously failed at the pleading stage.  However, while new “vanilla” cases may no longer be the “flavor of the month” among members of the plaintiff’s bar, we don’t expect flavor-related litigation to disappear any time soon. Plaintiffs’ lawyers have recently set their sights on claims involving other flavor profiles, such as “strawberry,” “fudge,” “smoked,” “lemon,” “butter,” and “lime.”

© 2021 Proskauer Rose LLP. National Law Review, Volume XI, Number 224
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About this Author

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
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
Law Clerk

Alyson Tocicki is a law clerk in the Litigation Department. She earned her J.D. from the UCLA School of Law, where she served as a Managing Editor of the UCLA Law Review and President of the Student Bar Association. While at UCLA, Alyson was a legal writing advisor to first-year students and received the Masin Family Academic Excellence Gold Award for the highest grade in Negotiation Theory & Practice. She also worked as a judicial extern for the Honorable Robert N. Kwan in the United States Bankruptcy Court for the Central District of California.

310-557-4578
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