A New York federal court has rejected yet another “vanilla” complaint. In Cosgrove v. Blue Diamond Growers, No. 1:19-cv-08993 (S.D. N.Y. 12/17/20), the court dismissed a proposed class action alleging that the defendant improperly labelled its vanilla almond milk product finding that the company did not mislead consumers with the product’s vanilla flavor label.
Plaintiffs contend the almond milk labeling was misleading because “it has less vanilla than the label represents, contains non-vanilla flavors which provide its vanilla taste and contains artificial flavors, not disclosed to consumers on the front label as required by law and consumer expectations.” Plaintiffs contended the product was tested and showed that only trace amounts of authentic vanilla are contained within the product and comparably larger amounts of vanillin (flavor) are used. The ingredient list on the back of the product’s packaging did not list either vanilla or vanillin as an ingredient.
It is well settled NY law that a court may determine as a matter of law that an allegedly deceptive advertisement would not have misled a reasonable consumer. Fink v. Time Warner Cable, 714 F.3d 739, 741 (2d Cir. 2013). Courts view each allegedly misleading statement in light of its context on the product label or advertisement as a whole. Determining whether a product label or advertisement is misleading is an objective test, and thus liability is limited to those representations likely to mislead a reasonable consumer acting reasonably under the circumstances.
Here, the court found the product was not misleading because a reasonable consumer would associate the representation of “Vanilla” — with no additional language modifiers — to refer to a flavor and not to vanilla beans or vanilla extract as an ingredient. See Pichardo v. Only What You Need, Inc., No. 20 Civ. 493, 2020 WL 6323775, at *5 (S.D.N.Y. Oct. 27, 2020). That association, of “Vanilla” as a flavor and not an ingredient, is borne out by consumers’ practical use of the representation. For example, said the court, here, the consumer in the grocery store is looking, first and foremost, for almond milk – not vanilla. The large font “Vanilla” on the front of this product allowed the consumer to quickly understand the flavor of the almond milk and differentiate between products.
The product made no additional representations about how that flavor is achieved. Thus, without more, the “Vanilla” representation would be misleading only if the product did not actually taste like vanilla, but Plaintiffs, as they had to, conceded it does. Accordingly, use of the “Vanilla” representation on the product was not misleading.
The court distinguished those cases in which the label of the product at issue either (1) made representations about an ingredient and not a flavor; (2) contained a representation about a flavor with additional modifiers; or (3) made representations about products for which consumers have a demonstrated reasonable belief regarding the inclusion of a particular ingredient.