Consumer Claims Melt Away Under District Court’s Scrutiny
In a recent decision, Beers v. Mars Wrigley Confectionery US, LLC, Judge Seibel of the District Court for the Southern District of New York dismissed all of Plaintiff Steven Beers’s claims under Sections 349 and 350 of the New York General Business Law (“GBL”). Judge Seibel concluded that Beers’s complaint, which took aim at the labeling on Dove brand ice cream bars, failed to plausibly allege that the disputed labeling was misleading to reasonable consumers. Beers reaffirms the basic principle that idiosyncratic or farfetched interpretations of product labeling do not give rise to GBL claims.
The Beers complaint concerned the labeling of Dove chocolate-coated vanilla ice cream bars (“Dove bars”), a product of Defendant Mars Wrigley Confectionery US, LLC. As seen below, the front label of Dove bars read “Silky Smooth Dove Bar®, Vanilla Ice Cream with Milk Chocolate” and included a picture of chunks of chocolate. Id. The back label similarly stated “Silky Smooth Dove Bar®,” and included a picture of chocolate and text stating: “Take a moment . . . to enjoy the rich flavor of vanilla ice cream dipped in silky smooth DOVE® Milk Chocolate.” Id. The packaging also contained an ingredient list for both the ice cream and the chocolate coating of the Dove bars—notably, the listed ingredients for the chocolate coating included, inter alia, coconut oil and palm oil. Id.
Beers’s grievance was with the phrase “milk chocolate,” which, he claimed, led him to “believ[e] . . . that the [Dove bars] contained only milk chocolate made from cacao beans.” Id. (emphasis added). When Beers read the product’s back-panel ingredient list, however, he discovered that the bars’ milk chocolate coating also contained ingredients that Beers considered “inconsistent with chocolate,” such as vegetable oils. Id. In other words, Beers did not dispute that the product contained some milk chocolate made from cacao beans, but objected to the inclusion of additional non-milk chocolate ingredients in the ice cream bar coating.
To support this creative theory of deception, Beers relied on a consumer survey purportedly reflecting that “[r]oughly two-thirds of respondents who viewed the [Dove bars’] front label,” i.e., the words “Silky Smooth Milk Chocolate” and images of chunks of chocolate, “expected it would contain chocolate from cacao bean ingredients and not chocolate substitutes.” Id. (some alterations in original). Beers claimed that he, too, had assumed that the product was free of “substitute” ingredients such as vegetable oils. Beers alleged that he had bought the product in New York on several occasions, and that, if he had known about these offending ingredients, he would not have purchased the product at the price that he did.
Beers’s GBL §§ 349 and 350 Claims
On February 17, 2022, the court dismissed Beers’s claims with prejudice. The court concluded that a reasonable consumer would not interpret the Dove bars’ labeling as a guarantee that the chocolate coating consisted of milk chocolate and nothing else. Accordingly, the court found that Beers’s complaint had not plausibly alleged a materially misleading statement, as required to state a claim under either GBL §§ 349 or 350.
First, the court noted that the “mere presence” of vegetable oils in the chocolate coating did not support Beers’ contention that Mars had used a “lower quality chocolate substitute” in the product. Id. at *3. The court observed that Beers had failed to allege that “coconut oil and palm oil were used in lieu of cocoa butter in making the milk chocolate,” and that the product labeling instead suggested that Mars used milk chocolate “combined with other elements to create the [Dove bar] coating.” Id.
Next, the court focused on the product labeling, dismissing as implausible the allegation that the “mere presence” of the words “with milk chocolate” and “silky smooth” suggested to the reasonable consumer that the product was made only or exclusively with milk chocolate. Id. at *4. This was particularly true given the nature of the product, i.e., an ice cream bar coated in chocolate. The court cited a related decision concluding that “‘a reasonable consumer would know that chocolate must be mixed with some significant amount of fat or oil to create a coating that would solidify around an ice cream bar.’” Id. (quoting Puri v. Costco Wholesale Corp., 2021 WL 6000078, at *7 (N.D. Cal. Dec. 20, 2021)).
The court emphasized that, where a product highlights a certain ingredient on the front label (e.g., “milk chocolate”), “the lack of modifiers, such as ‘only’ or ‘exclusively,’ [is important] in assessing the reasonableness of claimed consumer confusion.” Beers, 2022 WL 493555, at *4. Accordingly, where the Dove bar labeling stated only that the product contained “milk chocolate” (without modifiers), Beers could not plausibly claim that the milk chocolate was not “real” because the labeling “d[id] not lead the consumer to conclude anything about the particular form of milk chocolate or the absence of other ingredients.” Id. In other words, by accurately stating that Dove bars were made with “milk chocolate,” the labeling made no suggestion that the product “contain[ed] a greater proportion of a preferred ingredient than it actually d[id].” Id. According to the court, “it [wa]s nothing more than a conclusory leap to allege that a reasonable consumer read those statements to implicitly mean that the product necessarily contain[ed] no vegetable oils.” Id.
Finally, the court rejected Beers’s argument that the Second Circuit’s ruling Mantikas v. Kellogg Co., 910 F.3d 633 (2d Cir. 2018)—which we previously discussed here—precluded reliance on an ingredient list to correct a misleading representation on a front label. Beers, 2022 WL 493555, at *5. Unlike in Mantikas, Beers failed to plausibly allege that the Dove bars’ labeling contained misleading representations, where “[t]he representation that [Dove bars are] . . . a chocolate-covered ice cream bar ‘with milk chocolate’ is confirmed, not contradicted by the ingredient list.” Id. Mantikas was also distinguishable where the text on the Dove bars’ labels “[accurately] refer[red] to or emphasize[d] [the] product’s predominant ingredient, even if other ingredients are present,” i.e., “where milk chocolate is in fact the leading ingredient in the coating.” Id.
The court also rejected Beers’s reliance on the consumer survey to show consumer expectations regarding chocolate substitutes, where (i) no context was provided regarding the survey’s methodology or what questions were asked, and (ii) though the chocolate in Dove bars’ coating was mixed with vegetable oil, Beers did not represent “that the consumers in the survey would expect [Dove bars] . . . to contain no vegetable oil, or to contain no other ingredients apart from chocolate made from cacao bean ingredients.” Id. at *6.
Takeaways from Beers
Beers reaffirms the principle that courts have broad discretion to scrutinize food-labeling-related GBL claims at the pleading stage for objective reasonableness. That scrutiny is not limited to the words of the disputed labeling, but rather takes account of the full context. Beers demonstrates that a court may consider, among other things, (i) the product’s ingredient list, including whether the product actually contains the ingredient listed on the labeling or otherwise confirms a litigant’s allegations; (ii) the product’s labeling, including the presence or absence of modifiers in the disputed claim; and (iii) the expectations that objectively reasonable consumers would have for the particular product category.
Beers also confirms that vague references to consumer surveys cannot salvage otherwise implausible theories of consumer deception (we have previously examined attempts by litigants to rely on consumer surveys in pleadings here). A plaintiff invoking a consumer survey to shore up her claim of deception must, at a minimum, make clear who responded to the survey, what questions they answered, and how their responses support the theory of deception. Otherwise, survey-related allegations simply invite another “conclusory leap.” Beers reflects that there is no shortcut around Rule 12 pleading standards for plaintiffs peddling fanciful or idiosyncratic interpretations of labeling statements.