Vanilla in common parlance denotes, well, common.  And indeed, vanilla is one of the most common ingredients in food, whether as a primary flavor or a component of another flavor. But for centuries it was rare, a delicacy for the rich.  And even after new fertilization methods greatly expanded output, demand exceeded supply.  So, as far back as the 1800’s, chemists worked to expand supply of the flavor. Vanillin, the main flavor component of vanilla beans, eventually was made from pine bark, clove oil, rice bran, and lignin. Rhône-Poulenc, now Solvay, {a wonderful client, just FYI} commercialized a pure petrochemical route in the 1970s. Today, because of sheer impossibility, very few commercial products have vanilla taste that derives entirely from vanilla extract.

More recently, vanilla-related claims in ads and packaging have spawned litigation.  The latest: a federal judge dismissed claims that a protein drink maker’s products somehow mislead consumers into thinking they were flavored only with vanilla extract. Pichardo et al. v. Only What You Need Inc., No. 1:20-cv-00493 (S.D.N.Y. Oct. 29, 2020).

Plaintiffs alleged that the labeling on defendant’s vanilla flavored protein drink violated New York General Business Law §§ 349-50, because the vanilla flavor is not derived exclusively from the vanilla plant. Defendant moved to dismiss the First Amended Complaint under Rule 12(b)(6), arguing that plaintiffs have not adequately pled material misrepresentation.

The label on defendant’s product has a vanilla flower vignette and the words “Smooth Vanilla.” Plaintiffs allege that they purchased the product because they believed the vanilla taste came exclusively from the vanilla plant. Plaintiffs relied on a consumer survey they commissioned and which allegedly  demonstrated that, based on what appears on the product label, over 70% of respondents believed the flavor in such a product came “only from vanilla beans.” Plaintiffs concede that the product  contains some vanilla from the vanilla plant, but complain it also has source material other than vanilla.

Even with all that, plaintiffs had not alleged facts from which the court could infer that the label in question is materially misleading. The drink, labeled “Smooth Vanilla,” is a vanilla-flavored drink that
tastes like vanilla and is flavored, in part, with vanilla extract. The label on defendant’s protein drink does not state that it is “made only with vanilla extract” or even contain the words “vanilla extract.” There is no basis, therefore, to conclude that a reasonable consumer would be misled by the label to believe that all (or even most) of the vanilla taste comes from vanilla extract.

Be careful how you read polls. (too soon?) Even construing the survey in the light most favorable to plaintiffs, it did not plausibly support the claim. Plaintiffs contended that the consumer survey demonstrates that over 70% of the respondents believed the flavor in defendant’s product came “only from vanilla beans.”  The language used in the survey itself, however, shows that over 70% of the respondents believed the vanilla taste came from vanilla plants; 70% did NOT say that they believed the vanilla taste came only from vanilla plants. More significant, however, over 95% of the consumers expected the product to have a vanilla taste. And in fact, the product has a vanilla taste and contains some vanilla from vanilla extract.

The court distinguished a number of food label cases because a vanilla product that exclusively uses vanilla extract for vanilla flavor is not healthier — or materially different in any other way — than a vanilla product that uses vanillin from some other natural source. In contrast, stating that a protein drink is vanilla flavored when it is, even without clarifying the source of the vanilla, does not mislead because reasonable consumers would expect a vanilla taste, and that is exactly what they get.

Also, given plaintiffs’ acknowledgement that the vast majority of vanilla flavored commercial products do not derive their flavor entirely from vanilla extract, it is not plausible to allege that a reasonable consumer would understand that the vanilla flavoring in a beverage is derived entirely from  vanilla extract. So it was difficult to comprehend what is misleading when the “Smooth Vanilla” tastes like vanilla. Nor does the use of the term vanilla imply that there are no other flavoring ingredients. See Sarr v. BEF Foods, Inc., No. 18-CV-6409, 2020 WL 729883, at *4 (E.D.N.Y. Feb. 14, 2020).

Finally, plaintiffs had not adequately pled facts from which the court could plausibly infer that a reasonable consumer would find the amount of vanilla flavor that comes from vanilla extract (as
opposed to other sources of vanillin) is material. E.g., Boshnack v. Widow Jane Distilleries LLC, No. 19-CV8812, 2020 WL 3000358, at *3 (S.D.N.Y. June 4, 2020)(precise source of the water was immaterial because a reasonable consumer would not rely on this fact when deciding whether to purchase the product).  Plaintiffs had not explained why the amount of vanilla taste coming from vanilla extract was supposedly material. Plaintiffs allege in a conclusory way that they would not have purchased the product or paid as much if they had known the “true facts,” but they did not explain why that is reasonable consumer behavior.

Dismissed with prejudice, as further amendment would be futile.