If you advertise pizza -- well, actually, "pizza rolls" -- will consumers expect that the product has a certain amount of real cheese?  That was the issue in a recent case brought in federal court in Illinois.

General Mills makes Totino's Pizza Rolls.  As the Totino's website explains, "Imagine a pizza.  Now imagine it bite-sized, baked to a golden finish, and filled with delicious toppings." 

On the product packaging, which was at issue in this case, the product is named "Totino's Pizza Rolls." The product is described as "Pizza in a Golden Crust."  And, the corner of the product identifies the product as "Cheese."  Under that, it says, "Naturally Flavored."  The packaging also has pictures of the pizza rolls, including one that apparently has been cut open so that you can see what appears to be the tomato sauce and cheese inside. 

Does the product contain real cheese?  Yes, it does.  It contains both rehydrated fat free mozzarella cheese as well as rehydrated enzyme modified cheese.  According to the plaintiff's allegations, however, the main cheese-like ingredient in the product isn't real cheese, but is actually "imitation mozzarella cheese," which is made from vegetable oil.  

The plaintiff sued General Mills, asserting a variety of claims, including claims under the Illinois Consumer Fraud Act (the "ICFA").  Essentially, the plaintiff argued that the packaging was misleading because she expected that the cheese in the pizza rolls would be "mainly traditional cheese from dairy ingredients instead of imitation cheese from vegetable oil." 

On a motion to dismiss, the court considered whether the packaging was either deceptive or unfair within the meaning of the ICFA.

In order for the packaging to be deceptive, the plaintiff would need to establish that it was "likely to deceive reasonable consumers" and that there was "a probability that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled."  The plaintiff argued here that, based on the product packaging, reasonable consumers would expect that the pizza rolls would contain primarily real cheese -- not imitation cheese. The court didn't think, however, that consumers have any particular expectations about what type of cheese is on their pizza.  The court wrote, "None of the dictionary definitions plaintiff offers defines pizza as containing a certain amount of traditional cheese, though . . . . What's more, the federal regulations don't contain a standard of identity for pizza."  And, to the extent that a consumer could have been confused about this, the court said that, "plaintiff hasn't explained why 'Naturally Flavored' wouldn't dispel any expectation of predominantly real cheese that a reasonable consumer might have." 

A practice is unfair under the IFCA if it "offends public policy," "is immoral, unethical, oppressive, or unscrupulous," or "causes substantial injury to consumers."  Here, the court looked at whether the packaging offends by violating federal labeling requirements, and determined that it didn't. 

While General Mills got a good result in this case, there are a few important take-aways here for advertisers to consider.  First, when advertising a product, consider what consumers' reasonable expectations are about that product. If a product typically has certain ingredients, or functions in a certain way, but your product is different, consider whether consumers will be confused if you don't explain that.  Second, don't ignore the importance of the visuals you use.  Imagery often communicates very strong messages about what a product contains or what it does.  Remember, you're responsible for both the express and implied claims communicated by your advertising, and visuals can certainly communicate both.  

Smith v. General Mills Sales, No. 22 CV 1529 (N.D. Ill.  2023).