Class Action Claims Whole Foods’ 365 Ice Cream Bars Contain Less Chocolate Than Buyers Expect [UPDATE]
by Erin Shaak
Last Updated on April 19, 2022
Cerretti v. Whole Foods Market Group, Inc.
Filed: October 17, 2021 ◆§ 1:21-cv-05516
A lawsuit alleges Whole Foods’ 365-brand vanilla ice cream bars purportedly dipped in “organic chocolate” contain less chocolate than consumers are led to expect.
Illinois
Case Updates
April 19, 2022 – Lawsuit Dismissed, Plaintiff Can Try Again
The lawsuit detailed on this page was dismissed on April 8 after a federal judge found that the label of Whole Foods’ ice cream bars would not mislead a reasonable consumer.
U.S. District Judge Manish S. Shah stated in an opinion and order that the plaintiff’s interpretation of the ice cream bars’ label was unreasonable given Whole Foods described its product as “chocolate” and the ice cream bars do actually contain chocolate.
“Whole Foods never advertised its product as exclusively or 100% chocolate,” Judge Shah wrote.
While the plaintiff argued that the U.S. Food and Drug Administration’s definition of milk chocolate does not include vegetable oils, the judge noted that most consumers are not aware of that definition and would not expect a product to conform to it.
“In other words, that the FDA’s definition of milk chocolate excluded vegetable oils doesn’t make it reasonable to interpret Whole Foods’s packaging to mean that the chocolate coating on the ice cream bars was made up of only (or mostly) cacao ingredients,” the order stated.
Judge Shah also found that the plaintiff failed to provide Whole Foods proper pre-suit notice of her claims as required by Illinois law.
The judge gave the plaintiff until April 22, 2022 to file an amended complaint. If she fails to do so, the lawsuit will be dismissed with prejudice.
A proposed class action alleges Whole Foods’ 365-brand vanilla ice cream bars purportedly dipped in “organic chocolate” are misleadingly labeled in that they contain less chocolate than consumers are led to expect.
The 19-page case relays that chocolate is understood to be made from cacao beans with “a small amount of optional ingredients” such as dairy and sweeteners, with all definitions of chocolate “universally exclud[ing]” fats from non-cacao sources. The suit alleges, however, that the “chocolate” found in the coating of defendant Whole Foods Market Group’s ice cream bars contains mostly vegetable oils—a material fact that the case argues should have been disclosed to consumers on the product’s front label.
“Federal and state regulations require that where a food has some chocolate but is mainly vegetable oils, this should be disclosed to consumers,” the complaint says.
According to the filing, consumers are misled by Whole Foods’ replacement of cacao beans with vegetable oils for “several reasons,” including that cacao ingredients are significantly more expensive than vegetable oil. Moreover, cacao beans provide greater satiety than the cheaper alternative, meaning consumers feel more full after consuming roughly the same amount of calories, the lawsuit relays.
The suit goes on to claim that cacao ingredients lend to chocolate a “creamy and smooth taste” while vegetable oils leave a “waxy and oily mouthfeel” and aftertaste. Cacao beans also provide health and nutritional benefits that vegetable oils lack and are natural as opposed to synthetic, the case says.
The lawsuit claims that the “chocolate” representations on the ice cream bars’ label—which include a statement that the product is “Dipped in Organic Chocolate” and pictures of a chocolate-coated ice cream bar and chunks of chocolate—are misleading in that they cause consumers to expect the coating to contain more chocolate ingredients than it actually does.
Per the suit, the ice cream bars’ ingredients list reveals that the “Organic Chocolate” contains more vegetable oil than cacao ingredients—a material fact that the case says should have been disclosed to consumers on the product’s front label.
“Whether the coating of an ice cream bar is made only from chocolate ingredients or contains more vegetable oils than any chocolate ingredients, is basic front label information consumers rely on when making quick decisions at the grocery store,” the complaint asserts.
According to the lawsuit, Whole Foods’ apparent misrepresentations have caused consumers to purchase the 365-brand ice cream bars over competitors’ truthfully advertised products and pay a premium price for a dessert that was “materially less than its value as represented by defendant.”
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