On April 8, 2020, a California federal judge dismissed a putative class action complaint challenging Ghirardelli Chocolate Co.’s labels on its cocoa-free white baking chips. Cheslow, et al. v. Ghirardelli Chocolate Co., Case No. 19-cv-07467-PJH, 2020 U.S. Dist. LEXIS 62044 (N.D. Cal. Apr. 8, 2020).

Plaintiffs asserted they purchased Ghirardelli’s “Premium Baking Chips Classic White Chips” under the impression that they contained “real” white chocolate, and that the product label, advertising, and marketing (including use of the term “premium”; references to “white” chips; and inclusion (until at least June 2019) of the term “chocolate” on product packaging and website) would mislead and deceive a reasonable consumer to believe the product contained “real” white chocolate.  Plaintiffs alleged that due to the absence of cocoa butter/cacao fat, however, and the use of purportedly inferior ingredients such as hydrogenated and palm oils, the product contains “fake” white chocolate instead.

Judge Phyllis J. Hamilton (Northern District of California) granted Ghirardelli’s motion to dismiss, noting, among other things: the words “chocolate” and “cocoa” did not appear anywhere on the product label, at the time of the order (other than as part of Ghirardelli’s logo, which did not apply); the word “white” in “White Chips” defined the color of the food and not the quality of the product (“white wine may define the characteristic of the wine’s color but does not inform the consumer whether the wine is a zinfandel or gewürztraminer”); and the use of “premium” constituted mere puffery.

While the motion was dismissed without prejudice and plaintiffs were granted leave to amend their complaint, Judge Hamilton noted that
“[b]ecause defendant’s product packaging would not change in an amended complaint, the court is skeptical that the complaint can be amended to state a claim.”