Two food cases caught my eye this week and got me thinking about all the litigation around food labels and product names and what they communicate to a reasonable consumer. (Some of our many earlier blog posts on this topic are here and here and here.)
One case is a putative class action against Trader Joe’s involving its Honey Nut O’s cereal, filed in Massachusetts federal court. The plaintiff alleges that the branding and packaging of the cereal is false and misleading because the cereal’s primary sweetener is sugar, not honey. Plaintiff further alleges that excessive sugar consumption is responsible for the country’s obesity and diabetes epidemic and that, therefore, consumers prefer what they perceive to be a more natural and more healthful alternative. The complaint states: “Based on the common marketplace perception that honey is healthier and more natural than sugar, consumers place a greater value on products that are sweetened with honey instead of sugar and are willing to pay a higher price for such products.”
In other words, plaintiff’s complaint is not that Trader Joe’s is misleading people into buying a product that is actually more likely to make them diabetic and fat but that Trader Joe’s is misleading people into buying a product that is not primarily sweetened with something that they perceive to be less likely to make them diabetic and fat. Follow that?
Another case involving consumers’ understanding of a product name and its label is the case against Blue Diamond Growers. In that case, the plaintiff, on behalf of a putative class, claimed that Blue Diamond mislabeled its almond beverages as “almond milk” when they should be labeled “imitation milk” instead because they substitute for and resemble dairy milk but are nutritionally inferior to it.
In that case, the district court concluded that “[n]o reasonable consumer could be misled by [Blue Diamond’s] unambiguous labeling or factually accurate nutritional statements” and the 9th Circuit affirmed. Further, the district court concluded, and the 9th Circuit agreed, it is not plausible that a reasonable consumer would “assume that two distinct products have the same nutritional content.” In other words, reasonable consumers do understand the difference between an almond and a cow.
To be sure, these two cases involve different issues and their outcomes may differ as well. But both serve as a very clear reminder that product names and food labels continue to be fertile territory for consumer class action lawyers on a variety of theories.
Bowl of cereal and (plant-derived) milk, anyone?