Food & Beverage Digest - June 2022

FOOD BEVERAGE D I G E S T J U N E 2 0 2 2 | 7 Where Has All the (Real) Rum Gone? Brown v. Zamora Company USA LLC , No. 1:22-cv-02703 (N.D. Ill. May 22, 2022). A grumbling consumer has a real case of the doldrums. What indecorum has our consumer ready to rumble, you might ask? Rumor has it that the defendant allegedly engaged in a spectrum of misconduct about its small batch … rum, of course. Rummaging through a scrum of regulations, the consumer claims the rum has additives—like glycerin, vanillin, caramel color, and added sugar—that purportedly push the defendant’s product out of the rumclass. On top of that, the consumer harrumphs, glycerin, vanilla, caramel color, and added sugar are not custrumarily employed in rum in accordance with established trade usage. Finally, and picking up the drumbeat of earlier rum cases, the consumer alleges that the product’s claim that it is “aged for up to 7 [or 10] years” crumbles because the rum contains a blend of differently aged rums and only the oldest is actually aged for the full 7–10 years. The consumer filed a putative class action in federal district court, seeking to certify Illinois and multistate consumer fraud classes and trumpeting that the defendant is liable for violations of consumer protection laws, breach of warranty, misrepresentation, and unjust enrichment. It’s a real rum conundrum. Well, allegedly. Honey! I Shrunk the … Amount of Honey? Hunt v. General Mills Sales Inc. , No. 1:22-cv-02835 (N.D. Ill. May 29, 2022). It’s true that Nature Valley’s Oats ’n Honey granola bars contain both honey and oats. But taking one Illinois consumer by surprise, the granola bars also contain other ingredients! Perhaps this consumer was too busy wiping crumbs off of her draft complaint to take a look at the ingredients label to discover that there are, indeed, other ingredients in this crunchy snack. (If only there were a place on food labels that disclosed what ingredients were included in a … oh, wait.) But ingredients labels be damned! According to this health nut, “It is misleading to promote a product as made with certain limited ingredients, even where an ingredient list will contain all ingredients.” The plaintiff contends that the granola bars’ labels “tell” consumers that the product is made of just two ingredients—honey and oats—and that honey is the primary sweetener ingredient in the product. The complaint also claims that the “Nature Valley” brand name leads consumers to expect the granola bars to be made solely with oats and honey because “these are natural ingredients, from nature .” Refusing to stop there, the complaint goes on to lament the ills that sugar has in our society, discussing how more consumers are turning to honey as a healthier sweetener alternative (and no, this is not a “no sugar added” complaint). But , the complaint does helpfully explain that both doctors and nutritionists concur that consuming excess sugar contributes directly and indirectly to health problems. All of this leads up to the plaintiff’s primary allegation—that the granola bars contain a de minimis amount of honey. As for the specifics of the “other representations and omissions” that are “false and misleading,” you’ll just have to take this plaintiff’s word for it. Maybe we can see them if we drink enough imitation rum. In any event, the plaintiff here claims that had she known the truth, she would not have bought the product or would have paid less for it. Thus, she seeks to certify an Illinois and multistate consumer fraud class to pursue claims under the various states’ consumer protection and consumer fraud statutes, as well as breach of warranty, negligent misrepresentation, fraud, unjust enrichment, and preliminary and injunctive relief. Motions to Dismiss Procedural Posture: Granted You Wanna Pizza Dis? Wisconsin Court Says, “Hard Pass” Lemke v. Kraft Heinz Foods Co. , No. 3:21-cv-00278 (W.D. Wisc. May 6, 2022). Pizza in the morning, pizza in the evening, pizza at supper time. When pizza’s on a bagel, you can eat pizza any time—even when a plaintiff claims your beloved Bagel Bites don’t contain real mozzarella cheese or tomato sauce. According to a complaint filed by the prolific Sheehan & Associates, Kraft misrepresents that its mini pizza bagels contain real mozzarella cheese and tomato sauce when they really use a mozzarella cheese blend that includes part- skim milk and sauce that uses thickening agents to reduce the amount of actual tomato ingredients. But a Western District of Wisconsin judge didn’t bite, rejecting the plaintiff’s pie-in-the-sky allegations. (Sorry for all the cheesy puns, hopefully you’re not laugh-tose intolerant). The judge found that the part-skim cheese in the product conformed to the definition and standard of identity prescribed for mozzarella cheese, and the defendant’s use of a cheese blend wasn’t deceptive because the defendant never claimed the product used 100% mozzarella. As to the saucier allegations, the district judge noted that there is no standard of identity for tomato sauce, and the FDA’s Policy Guide merely required the sauce and constituent ingredients to be properly displayed on the ingredient list. The decision also delivered a parting jab at Sheehan, noting that the court agreed with recent decisions of the federal courts in Illinois and New York “rejecting other suits brought by plaintiff’s counsel for advancing an interpretation of a product’s packaging that is ‘unreasonable and unactionable’”—including suits we have covered involving vanilla ice cream, “golden butter” crackers, and Strawberry Pop-Tarts. Procedural Poster: Denied in part Failure to Provide Notice Is No Goud-A Kinman v. The Kroger Co. , No. 1:21-cv-01154 (N.D. Ill. May 27, 2022). A good-sized wedge of a lawsuit against a national grocer went up in smoke. The Northern District of Illinois gutted claims brought by prolix plaintiffs’ lawyer Spencer Sheehan that the defendant’s “smoked” sliced gouda cheese was not smoked over hardwood, but was instead