Since 2019, a staggering number of “flavor” lawsuits have been filed, with dozens of putative class actions filed in a single month and more than 100 in 2021 alone.  While some lawyers appear to have an insatiable appetite for filing these suits, courts appear to find them mostly unpalatable.  The complaints  allege that packaging on food and beverage items is false and misleading because the challenged products do not contain certain ingredients or because the flavor is achieved by using ingredients other than or in addition to what consumers “expect” to be the source of the flavor.  Manufacturers of plant and dairy milks, yogurts, ice creams, creamers, cereals, chips, cakes, cookies and brownies have faced such claims.  Vanilla, lime, butter, milk, strawberry, smoked, chocolate and fudge flavors have all been dragged into court.  All of this litigation begs the question – will the gluttonous plaintiff’s class action counsel ever be satiated?  It seems that, by and large, the federal courts are not swallowing the case theme.  Two back-to-back decisions from the Southern District of New York, Boswell v. Bimbo Bakeries USA, Inc. and Kamara v. Pepperidge Farm, Inc., chucked flavor claims on the basis that a reasonable consumer could not be misled by the product labels.  In Boswell, the court dismissed plaintiff’s claims that she was misled by the packaging on Entenmann’s “All Butter Loaf Cake.”  The district court noted that this was “the latest in a long string of putative class actions brought by the same lawyer” and identified six prior cases that had been dismissed.

In purging Boswell’s claims without leave to amend, the court noted that it was not bound to accept non-factual matter or conclusory statements in the complaint as true and must consider whether the claim is facially plausible.  The plaintiff sought to pursue claims under New York’s consumer protection laws and the district court held that to state such a claim “a plaintiff must allege that a defendant has engaged in (1) consumer-oriented conduct that is (2) materially misleading and (3) that plaintiff suffered injury as a result of the allegedly deceptive act or practice.  To satisfy the second element, “a plaintiff must plausibly allege that the deceptive conduct was ‘likely to mislead a reasonable consumer acting reasonably under the circumstances.’”  The district court noted that “context is crucial” in determining whether a reasonable consumer would have been misled by a particular advertisement.  Thus, a court must consider “the challenged advertisement as a whole, including disclaimers and qualifying language.”

The district court concluded that Boswell failed to meet her burden, noting that the label description “All Butter” is ambiguous. The court recognized that “[t]aken literally, the description could be understood to mean that the product is entirely butter — although no reasonable consumer would adopt that reading because the product is obviously not a stick of butter and ‘All Butter’ modifies ‘Loaf Cake.’  Put differently, any reasonable consumer would be aware that the product is, notwithstanding the label ‘All Butter,’ likely to contain other ingredients commonly found in cake, such as flour, sugar, milk, and eggs[.]”  In addition, the court noted that “All Butter” could merely be descriptive of flavor, denoting that the product tastes only of butter and does not include a second flavor such as almond, chocolate or cinnamon.  The district court concluded that because the false advertising claims failed that Boswell’s claims for negligent misrepresentation, breach of express and implied warranty, fraud and unjust enrichment also failed because the product label does not represent the contents on the container, among other reasons.  The court dismissed the complaint without leave to amend because the problem with Boswell’s claims was substantive such that amendment would be futile.

Days after the Boswell decision, the plaintiff’s claims in Kamara met a similar fate.  In the case, a “Golden Butter” cracker product was challenged because, in addition to butter, the product contained “a lesser quantity of vegetable oils.”  The consumer alleged that “Golden Butter” on the packaging was misleading because “a reasonable consumer would have falsely concluded that the crackers were ‘all or predominantly made with butter.’”

The court concluded  that the allegations were implausible and dismissed the complaint as unsavory.  The court found it persuasive that the packaging indicated that the product contained butter, and a review of the ingredients list confirmed that butter predominated over other oils and fat sources in the crackers.

The decisions in Boswell and Kamara confirm that the reasonable consumer standard continues to apply and provides a basis to attack implausible claims at the pleadings stage.  While the case theory seems to be fizzling, the appetite for these cases by the plaintiffs’ bar is not.  Food and beverage manufacturers continue to face the risk of a challenge and should consider evaluating the overall context of statements on their labels to help minimize the risk of facing similar claims.