Another Chocolate Class Action Lawsuit Dismissed

On April 8, 2022, the U.S. District Court for the Northern District of Illinois Eastern Division dismissed a class action lawsuit which alleged that Whole Foods had deceptively advertised its “Organic Chocolate Ice Cream Bars” as a chocolate product even though, according to the ingredient list, it contained more palm kernel oil than organic chocolate.

The court held that the Plaintiff’s interpretation of the labeling was unreasonable. Specifically, the court noted that Whole Foods had accurately disclosed the ingredients in the ingredient list and had never advertised its product as exclusively or 100% chocolate, nor made any representation regarding the proportion of cacao ingredients to other ingredients in the chocolate coating. Interestingly, while the court accepted that definitions of chocolate, including FDA’s definition of “milk chocolate” in 21 CFR 163.130, “universally exclude fats from sources other than cacao ingredients,” it did not find this fact dispositive since plaintiff had not alleged that “consumers were aware of those definitions or would expect a chocolate coating on ice cream to conform precisely to those definitions.”

This case, along with other similar decisions (See e.g., Mars Chocolate Case and Kellogg Strawberry Pop-Tart Case) suggest that challenges to the addition of “other” ingredients (e.g., vegetable oils) into a product advertised and named according to another primary ingredient (e.g., cocoa) are unlikely to succeed where the defendant has (1) not made a claim about the relative proportions of the ingredients and (2) accurately disclosed the ingredients on the ingredient list.