The uptick in product labeling lawsuits has been anything but vanilla in 2021. After the avalanche of lawsuits in 2019 and 2020 targeting products marketed as containing vanilla-flavoring were largely dismissed by federal courts nationwide, many predicted that vanilla product labeling lawsuits would have ceased, or at least decreased. But, as previously reported by the Bilzin Sumberg team1, these lawsuits continue to flood the courts—though still unsuccessfully.
Recently, yet another federal district judge in the Southern District of New York dismissed with prejudice a putative class action lawsuit against international grocery store chain, Aldi.2
In his complaint, the Plaintiff alleged that Aldi’s store brand almond milk, which contains the word “vanilla” on the front of the carton, misled consumers because the milk’s vanilla flavoring did not come exclusively from vanilla beans.3 Notably, the Plaintiff acknowledged that the product’s ingredient list did not list vanilla flavoring, but rather listed “natural flavor,” a term used for a flavor that may contain synthetically produced vanilla flavoring, such as vanillin, as the only vanilla-related ingredient.4 The plaintiff sought to represent a class “consist[ing] of all purchasers of the Product who reside[d] in New York during the applicable statutes of limitations.” 5
Affirming the magistrate judge’s report and recommendation, Judge Paul Gardephe dismissed the case with prejudice.6 Citing eight other previously dismissed vanilla labeling lawsuits in New York with nearly identical allegations filed this year and last year alone, the Court concluded amendment would be futile.7 As the Court explained, “a reasonable consumer would understand that the word ‘vanilla’ on the front of the carton describes how the Product tastes, not what it contains, especially in circumstances where the ingredients listed on the Product do not mention vanilla at all.”8
The Court also rejected the Plaintiff’s suggestion that the consumer survey he relied on (the very same survey commissioned by the Plaintiff’s counsel in a nearly identical lawsuit filed in the same district earlier this year) distinguished his case from prior cases.9 The Court found the survey was “sufficiently flawed” because it improperly concluded that consumers’ answers that the vanilla flavoring “comes from vanilla beans from the vanilla plant” meant that the consumers thought that vanilla flavoring comes 100% or exclusively from the vanilla plant—a question that consumers were not asked.10 The Court further noted that the survey improperly presumed that the product’s label conveyed something about the vanilla flavoring’s origin.11
As 2021 comes to a close, product labeling lawsuits continue to flounder in federal courts. Nonetheless, best practices for food manufacturers and retailers 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 lawsuits. The Bilzin Sumberg team will continue to monitor trends in the coming year.
2) Parham v. Aldi, Inc., 19 Civ. 8975 (PGG), 2021 WL 4296432 (S.D.N.Y. Sept. 21, 2021) (Order).
3) Order, at *1.
4) Parham v. Aldi, Inc., 1:19-cv-08975 (PGG) (SDA), 2021 WL 709632, at *1 (S.D.N.Y. Feb. 15, 2021) (Report and Recommendation).
5) Order, at *2.
6) Order, at *10.
7) Order, at *9.
8) Order, at *4 (quoting Report and Recommendation, at *3).
9) Order, at *5-6, 8.
10) Order, at *7-8.
11) Order, at *8.