Earlier this month, a class-action lawsuit was filed against 7-Eleven, alleging that the company deceptively marketed its “Wasabi Delight Flavored Snack Mix” without including real wasabi in the product. Plaintiff’s counsel is the prolific food litigation attorney, Spencer Sheehan.

The complaint points to the product’s ingredient list as evidence that the product includes no real wasabi. Although the ingredient list includes a variety of ingredients that at first glance appear to dispute the claim that the product does not contain real wasabi (e.g., wasabi powder), the sub-ingredients reveal that they are not made from the wasabi plant. For example, the “wasabi powder” (a sub-ingredient of “crunch wasabi peanuts”) consists of maltodextrin and mustard seed.

The complaint alleges that real wasabi is valued by consumers for its nutritive and antioxidant properties and its distinctive taste, and that they pay a premium for it. The complaint also suggests that by failing to label the product as “artificially flavored” 7-Eleven deceives consumers and violates FDA’s flavoring regulation at 21 CFR 101.22.

As with many of these deceptive advertising lawsuits, the complaint produced no extrinsic evidence of consumer deception. While such evidence will ultimately be important, it is not necessarily required to survive a motion to dismiss which is governed by a permissive plausibility standard.