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Consumer Finance Observer – Summer 2020 Edition

RIP “White” Chocolate Litigation (2012-2020)

By: Alexander M. Smith 

White chocolateWhile some varieties of food labeling lawsuits (such as lawsuits challenging the labeling of “natural” products) show no sign of dying off, other trends in food labeling litigation have come and gone. Last year, for example, appeared to mark the end of lawsuits challenging the labeling of zero-calorie beverages as “diet” sodas. And this year may witness the end — or, at least, the beginning of the end — of lawsuits challenging the labeling of “white” candy that is not technically “white chocolate,” at least as the FDA defines that term.

Although it is difficult to pinpoint the beginning of “white” chocolate litigation, the leading case for many years was Miller v. Ghirardelli Chocolate Co., 912 F. Supp. 2d 861, 864 (N.D. Cal. 2012). There, the court declined to dismiss a lawsuit challenging the labeling of Ghirardelli’s “Classic White” baking chips. The court concluded that the plaintiff had plausibly alleged that a variety of statements on the packaging — including “Classic White,” “Premium,” “Luxuriously Smooth and Creamy,” “Melt-in-Your-Mouth-Bliss,” and “Finest Grind for Smoothest Texture and Easiest Melting” — collectively misled the plaintiff into believing that the product was made with “real” white chocolate, even though it was not. Id. at 873-74. Emboldened by this decision, plaintiffs in California, New York, and elsewhere began filing a wave of similar class actions challenging the labeling of “white” chocolate, baking chips, and other candy. Since the beginning of this year, however, courts have begun dismissing “white” chocolate lawsuits with increasing frequency.

In Cheslow v. Ghirardelli Chocolate Co., for example, the plaintiffs — like the plaintiffs in Miller — challenged the labeling of Ghirardelli Classic White Premium Baking Chips as misleading. --- F. Supp. 3d ---, 19-7467, 2020 WL 1701840, at *1 (N.D. Cal. Apr. 8, 2020). Although the plaintiffs alleged that the product’s labeling misled them into believing that the product contained white chocolate, the court found this theory of deception implausible and dismissed the complaint. In reaching that conclusion, the court noted that the labeling did not include the terms “chocolate” or “cocoa” and that the term “white” referred to the color of the chips, rather than the presence of white chocolate or the quality of the chips. Id. at *4-5. Much as the term “white wine . . . does not inform the consumer whether the wine is a zinfandel or gewürztraminer,” the court reasoned that the adjective “white” was not probative of whether the chips contained white chocolate. Id. at *5. Likewise, even if some consumers might misunderstand the term “white” to refer to white chocolate, the court concluded that this would not salvage the plaintiffs’ claims; according to the court, the fact that “some consumers unreasonably assumed that ‘white’ in the term ‘white chips’ meant white chocolate chips does not make it so.”  The court also rejected the plaintiffs’ remaining theories of deception: it concluded that the term “premium” was non-actionable puffery (id. at *5-6); it held that the image of white chocolate chip macadamia cookies on the package did not “convey a specific message about the quality of those chips” (id. at *7); and it held that consumers could not ignore the ingredients list, which made clear that the product did not include white chocolate and resolved any ambiguity about its ingredients (id. at *7-8). And while the plaintiffs attempted to amend their complaint to bolster their theory of deception, the court concluded that their new allegations — including a summary of a survey regarding consumer perceptions of the labeling — did not render their theory any more plausible and dismissed their lawsuit with prejudice. See Cheslow v. Ghirardelli Chocolate Co., --- F. Supp. 3d ----, 2020 WL 4039365, at *5-7 (N.D. Cal. July 17, 2020).

Likewise, in Prescott v. Nestle USA, Inc., the court concluded that the labeling of Nestle Toll House Premier White Morsels would not “deceive a reasonable consumer into believing that the Product contains white chocolate,” particularly given that “the Product’s label does not state that it contains white chocolate or even use the word ‘chocolate.’” No. 19-7471, 2020 WL 3035798, at *3 (N.D. Cal. June 4, 2020). As in Cheslow, the court concluded that “[n]o reasonable consumer could believe that a package of baking chips contains white chocolate simply because the product includes the word ‘white’ in its name or label,” and it held that some “consumers’ subjective opinions that Nestle’s labeling is misleading” did not render their allegations plausible. Id. at *4.  And the court likewise concluded that “Nestle’s use of the word ‘premier’ on the label of its ‘Toll House Premier White Morsels’ is mere puffery that cannot form the basis of a claim under the reasonable consumer standard . . . .” Id.

And most recently, in Rivas v. Hershey Co., the court concluded that the plaintiff could not plausibly allege that the labeling of “Kit Kat White” candy bars misled consumers into believing that they contained white chocolate. No. 19-3379, 2020 WL 4287272, at *4-6 (E.D.N.Y. July 27, 2020). Although the court dismissed the lawsuit on jurisdictional grounds, it reached the merits of the plaintiff’s claims in determining that amendment would be futile because the phrase “Kit Kat White” was not even conceivably misleading. In so holding, the Court emphasized that, “[c]rucially, there is no statement anywhere on Kit Kat White’s packaging . . . that describes the product as containing white chocolate.” Id. at *5. Instead, the court reasoned, the term “white” was simply a “modifying adjective” that described the bars as “white in color.” Id. And even if Kit Kat White bars are displayed next to Kit Kat bars that contain real chocolate, the court concluded that a reasonable consumer would not therefore conclude that they also contained white chocolate—particularly given that the labeling describes the product as “crisp wafers in crème.” Id.

It is possible, of course, that the Second or Ninth Circuits may weigh in and conclude — like the court in Miller — that the labeling of these “white” candy products plausibly suggests that they contain white chocolate. But the recent flurry of opinions dismissing these lawsuits may nonetheless suggest that the trend of “white chocolate” litigation is coming to an end.