Our blog discussed the filing on August 9, 2020 of a class action lawsuit alleging the marketing of “Carrot Cake Mini-Donuts” violates various New York consumer protection laws.  Specifically, the plaintiff alleged a qualifying term is prescribed by FDA’s flavoring regulation (e.g. “flavored, naturally flavored, artificially flavored”) and that the absence of a qualifier led consumers to expect the product to contain real carrots, whereas, based on the ingredient statement’s disclosure of “natural and artificial flavor,” without listing carrots, it was apparent that the product did not contain any real carrots.

As reported Hostess Brands, LLC and Hostess Brands, Inc. argued, in a motion to dismiss on December 1, 2020, that “carrot cake” refers to the taste of the donuts, rather than the presence of carrots as an ingredient, and that the absence of carrots in the ingredient statement, along with there being no picture of carrots on the label, shows there are no actual carrots in the pastries.  The defendants further argued that claims of deception due to the absence of a disclaimer in the product name are undermined by the plaintiff’s admission of having begun purchasing the donuts before a “naturally and artificially flavored” disclaimer was temporarily removed for a brief period in 2020.

It is not clear whether the defendants concede that a disclaimer is required by the Federal Food, Drug, and Cosmetic Act’s (FDCA) food labeling requirements since their brief to the court did not directly address this aspect of the plaintiff’s allegations.