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November 15, 2021
The maker of Häagen-Dazs ice cream has filed a motion to dismiss a lawsuit that claims packaging on “milk chocolate” bars is misleading to consumers.
In a proposed class action lawsuit against Dreyer’s Grand Ice Cream Inc., New York attorney Spencer Sheehan alleged the packaging on the “vanilla milk chocolate almond ice cream bars” is misleading because the product contains certain oils.
“The representation of the product’s coating as ‘milk chocolate’ and drizzled in rich milk chocolate with pictures of chocolate is misleading, and at best, a ‘half truth,’ because the chocolate contains ingredients not found in real chocolate—‘coconut oil,” according to the lawsuit, filed July 18 in the U.S. District Court for the Northern District of Illinois.
The lawsuit cited several reasons consumers are misled when a food represented as a chocolate replaces cacao beans with vegetable oils. For instance, cacao beans are more expensive and more filling than vegetable oils, according to the complaint. The lawsuit also contrasted the purported health benefits of chocolate with adverse effects linked to vegetable oils.
“Vegetable oils raise cholesterol, contain artery-clogging trans-fats and saturated fats, and are linked to higher rates of heart disease,” the complaint asserted.
The named plaintiff, Illinois resident Lawrence Rice, would not have purchased the Häagen-Dazs ice cream—which cost $6.59 for a package of three bars—if he had known its representations were false and misleading, the lawsuit asserted.
The plaintiff is seeking to privately enforce FDA regulations, which it cannot do in a lawsuit, and consumers could not be misled because the label is truthful, lawyers representing Dreyer’s wrote in their motion to dismiss the lawsuit. The presence of oils is disclosed four times in the ingredient list, they noted.
“In short, the ice cream bar delivers exactly what the front label promises,” Mayer Brown LLP lawyers stated in the Nov. 8 motion on behalf of Dreyer’s. “There is no basis to be surprised that the ice cream bar contains vegetable oil—which, as it turns out, is necessary to bind the melted chocolate coating to the frozen ice cream and to make the coating crunchy—because Dreyer’s discloses the oil’s presence and never makes any contrary representations.”
The motion also contended the plaintiff misinterprets FDA regulations, which “expressly allow oil to be used in an ice cream bar’s chocolate coating provided that the ingredient statement—where each ingredient is named in full—identifies the presence of the oil.”
The lawsuit is the fourth time Sheehan has alleged the same theory of deception in a complaint against Dreyer’s, according to the company’s lawyers. Sheehan voluntarily dismissed one of the cases in the Southern District of New York after a motion to dismiss was fully briefed, the court filing added.
Asked to comment on the motion to dismiss in the Northern District of Illinois, Sheehan said he isn’t surprised Dryer’s is seeking to “defend misleading and unlawful conduct.” He added his legal team would respond to the motion based on the court’s scheduling.
The case is before U.S. District Judge Gary Feinerman.
Associate editorial director, Natural Products Insider, Informa Markets Health and Nutrition
Josh Long has been a journalist since 1997, holds a J.D. from the University of Wyoming College of Law, and was admitted to practice law in Colorado in 2008. Josh is the legal and regulatory editor with Informa's Health and Nutrition Network, specializing on matters related to Natural Products Insider. Ping him with story ideas at [email protected].
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