• The judge in a proposed class action lawsuit before the Northern District of California dismissed the plaintiff’s initial complaint alleging the term “Veggie” on Kellogg’s Morningstar Farms brand products, such as Veggie Burgers, Veggie Dogs, and Veggie Chik’n, is misleading.  The January 19, 2022 order explains that the claim that reasonable consumers interpret “Veggie” to mean that the products are made exclusively or primarily of vegetables is simply not plausible where the dictionary definition demonstrates the term “Veggie” can be used to describe a vegetarian product or the presence of vegetables and there is no allegation that the packaging or marketing otherwise conveyed the presence of vegetables in the products.

• In an April 20, 2022 motion to dismiss with prejudice the plaintiff’s first amended complaint, Kellogg addresses new allegations as follows:

  • Kellogg asserts that a new survey commissioned by the plaintiff’s attorneys constructs a false dichotomy by asking consumers to categorize Morningstar Farms products as either “Vegetable-based” ingredients “made of actual vegetables such as carrots, cauliflower, or potatoes,” or “Other Plant-based” ingredients “made of other non-vegetables such as grains or oils,” rather than asking respondents how they interpret the term “veggie” or to define a “veggie” product.

  • As for the plaintiff’s allegation that the term “veggie” is a “call-out” understood by reasonable consumers to signal that Morningstar Farms products are “primarily made of vegetables rather than other non-vegetable plant-based ingredients,” Kellogg asserts this theory of deception has already been rejected as inconsistent with the established understanding of “veggie.”

  • Regarding the plaintiff’s citations to several trademark applications describing Morningstar Farms products as “vegetable protein food patties,” “textured vegetable protein,” “vegetable-based meat substitutes,” and “preserved, processed, dried, frozen and cooked vegetables,” Kellogg notes the plaintiff does not allege to have seen or relied upon these trademark applications and argues they have no bearing on how consumers understand the term “veggie” on the product labeling.

  • Kellogg additionally argues that plaintiff does not allege to have seen or relied upon June 2000 website copy, which claimed Morningstar Farms products were “[m]ade with sun-ripened vegetable goodness” and no longer appears on Kellogg’s website and is absent from product labels.

  • Rather than suggesting Morningstar Farms Grillers are made with vegetables, Kellogg asserts that the phrase “veggies look good with grill marks,” which appears, in an advertisement, next to an image of veggie burgers and vegetable skewers cooking on a barbecue, confirms that they are a meatless substitute for hamburgers, as it emphasizes that “they are burgers” and that they are “lower in cholesterol and fat than a beef burger,” thus proving that the defining feature of a “veggie” product is the fact that it is vegetarian—not that it is made from vegetables.

  • Kellogg also characterizes website copy from a retailer (referring to Morningstar Farms Veggie Chik’n Nuggets as “Vegetable Nuggets”) and a restaurant menu (referring to a “Morningstar Farms Vegetable Patty”) as isolated examples that do not displace consumers’ prevailing understanding that the term “veggie,” as used to describe a vegetarian meat substitute, refers to the absence of meat rather than the presence of vegetables

In addition to the above arguments, Kellogg asserts that even if the term “veggie” could arguably be considered ambiguous as to each product’s ingredient content, the labeling resolves that ambiguity by stating all of the product’s ingredients in order of predominance, and the plaintiff’s first amended complaint should be dismissed with prejudice under this reasoning.  To preempt any possible argument based on a Ninth Circuit ruling that an ingredient list cannot be used to correct a misleading claim on the front of the package, Kellogg notes that there is “no deceptive act to be dispelled” for Morningstar Farms products, which do not include any pictures or other representations of the specific plant-based ingredients present in each product.

• Although there are no direct parallels with laws enacted in several states, such as Missouri’s law, discussed here, which prohibit marketing a product as “meat” if it is not derived from livestock or poultry, since there is no alleged confusion about whether the Morningstar Farms products are made from meat or poultry, Kellogg’s motion to dismiss may have been strengthened by a discussion of  how “veggie burger” and similar terms have been used to describe plant-based products generally in recent battles over “fake meat” labeling laws.