Food & Beverage Digest | August 2022

FOOD BEVERAGE D I G E S T J U LY 2 0 2 2 | 9 Motions To Dismiss Procedural Posture: Granted A Sparkling Water Fruit Suit Goes Sour Oldrey v. Nestlé Waters North America Inc ., No. 7:21-cv-03885 (S.D.N.Y. July 27, 2022). You reach for a naturally flavored sparkling water, crack open the cap, hear that slight fizz and hiss, and take your first sip of bubbles … only to find a “mix of extractives and essences” and no real fruit? Ugh! According to one NewYork consumer, that would be enough to make anyone spew their sip of sparkling water. And so in May 2021, a plaintiff filed a putative class action against a multinational bottler and manufacturer of sparkling water, attacking labeling representations that the beverage was “NATURALLY FLAVORED SPRING WATER WITH OTHER NATURAL FLAVORS” and made “With a Twist of Raspberry [and] Lime” such that consumers could “Taste the Real.” The product labeling also depicted real raspberries and limes, but according to the complaint, did not contain actual fruit. The plaintiff apparently said, “Lime not having it,” and argued she was misled and reasonably believed that the flavoring of the sparkling water was derived from real fruit while asserting claims for breaches of express and implied warranty, negligent misrepresentation, fraud, and unjust enrichment, as well as violations of New York’s General Business Law and the Magnuson–Moss Warranty Act. Despite the plaintiff’s carbonated conundrum, a NewYork federal judge recently popped the top on her claims and dismissed the suit. The court concluded that a reasonable consumer would not be misled by the sparkling water’s label because there was no reference to the product being“made with”or “made from” real raspberries or limes. And even if the product’s labeling claim “With a Twist of Raspberry [and] Lime” may have been ambiguous, the court held that any confusion would be cleared up by the ingredients listed on the back of the package, which listed only spring water, CO2, and natural flavors. Therefore, the plaintiff’s consumer protection claims were improper, as were her fraud and unjust enrichment claims. The plaintiff’s negligent misrepresentation claim was dismissed for failure to show that the defendant owed her a duty, while her warranty claims failed for lack of timely notice. And signaling that this plaintiff’s arguments were not berry good, the New York judge preemptively closed the case. Now, if this plaintiff wants to continue “ditch[ing] the sugary sodas,” she’ll have to swallow both her pride and a “mix of extractives and essences from various fruits.” Another One Bites the Dust: Court Tosses Pop-Tart False Ad Suit Russett v. Kellogg Sales Co ., No. 7:21-cv-08572 (S.D.N.Y. July 15, 2022). Following the dismissal of “almost identical” putative class claims by the same plaintiff regarding the labeling of Strawberry Pop-Tarts products (discussed in our April 2022 issue of the Digest ) , aNewYork federal court has dismissedwithprejudice another putative class action against the company. In its most recent iteration, the complaint alleged that the defendant’s Strawberry Pop-Tart products weremislabeled because they contained a higher percentage of pears and apples than strawberries. The court, however, found that no reasonable consumer would conceivably expect that fresh strawberries were the only ingredient in the products (as demonstrated by the product’s front packaging and ingredients list). The court emphasized that other courts have disposed of virtually identical claims on this basis. Ice Cream Claims Melt on Rocky Road to Damages Karlinski v. Costco Wholesale Corp ., No. 1:21-cv-03813 (N.D. Ill. July 21, 2022). An Illinois federal judge crushed a plaintiff’s chocolate-coated dreams when he dismissed a false labeling claim brought against a major bulk retailer. According to the complaint, the label on the defendant’s store-brand “Chocolate Almond Dipped Vanilla Ice Cream Bars” misled consumers into believing that the coating was made primarily of chocolate, when it was in fact made with chocolate and vegetable oils. The plaintiff contended that this labeling allowed the retailer to sell more of its product at higher prices, churning up a dispute that the court would ultimately put on ice. All the plaintiff’s claims melted before the court, which held that the plaintiff had not shown that his definitions of chocolate alignedwith the expectations of a reasonable consumer, that the plaintiff failed to show the coating does not primarily contain chocolate, and that there was no deception at issue in the case. For those expecting the argument that “vegetable oils are the opposite of chocolate” to open up a new frontier in product labeling cases, you might want to check on that brain freeze. As a cherry on top, long-time readers might appreciate the court’s admonishment of the consumer survey submitted by plaintiff’s counsel in this case, one Spencer Sheehan. The court dismissed Sheehan’s survey of consumers asking whether they expected the product to “contain more cacao bean ingredients than it did and would not be made with chocolate substitutes.”The court cited a proverbial kitchen-sink of cases to support the proposition that “[o]ther district courts have likewise grappled with substantially similar surveys made by the same attorney and have come to similar conclusions.”