Federal courts continue to demonstrate lacking patience for nationwide product labeling class actions premised on purported label misstatements regarding the sourcing of vanilla flavoring.
Recently, food retailer Topco Associates successfully moved to dismiss a class action lawsuit in the Southern District of New York alleging that the labeling on its Vanilla Almondmilk misled customers to believe that the vanilla flavor is sourced from natural vanilla bean extract, rather than artificial and synthetically produced flavors such as vanillin. The plaintiffs argued that this deception induced them, and the putative class they sought to represent, to pay a premium for a product they thought contained natural vanilla flavors.
The district court rejected the plaintiffs’ theory, observing that, “the word ‘vanilla’ . . . is likely to be interpreted by a reasonable consumer as a description of the flavor or taste rather than the ingredients.”
The reasonable consumer standard has served as a death knell for many product labeling actions filed in recent years. Cases involving Blue Diamond’s vanilla almond milk and Westbrae Natural’s vanilla soymilk were recently dismissed on similar grounds.
Even those cases that can pass muster under the reasonable consumer standard must overcome additional challenges. For example, certain consumer protection statutes require plaintiffs to establish that they relied on the representation (notwithstanding that they consumed, enjoyed, and possibly repurchased the product). Moreover, establishing a viable price premium damages model that correlates with the theory of harm alleged (in Topco, that almond milk made with natural vanilla bean extract in fact commands a higher retail price) has become another substantial hurdle for plaintiffs.
While the trend in case law is encouraging for food manufacturers and retailers, best practices require frequent review of product labels to ensure compliance with applicable regulatory frameworks, as well as recent standards articulated by courts addressing consumer product misrepresentation and omission cases.
 Wynn v. Topco Associates, No. 19-cv-11104, ECF No. 44 at *10 (S.D.N.Y. Jan. 19, 2021) (Opinion and Order).