On Wednesday, the Northern District of California granted a motion to dismiss in favor of McDonald’s Corporation in a lawsuit alleging that its soft serve vanilla ice cream does not actually contain vanilla, although the restaurant’s menu labels the ice cream as “Vanilla.”
Judge Richard Seeborg ruled in favor of the motion to dismiss, deciding that the plaintiffs had not alleged “sufficient facts to support a plausible claim of misrepresentation and economic injury.” The judge did give the plaintiff, Eugenia Harris, permission to amend the complaint within the next 30 days.
In the complaint and further pleadings, the plaintiff claimed that labeling the ice cream as “Vanilla” was misleading because the product either contains trace amounts of vanilla or no vanilla at all. This purportedly is a breach of California’s false advertising and unfair competition laws.
McDonald’s, in its motion to dismiss, claimed that its representation of the product was “not misleading because the product undisputedly exhibits the flavor known as ‘vanilla,’ and nothing in McDonald’s presentation of the product would give reasonable consumers cause to believe that flavor comes exclusively or predominantly from vanilla beans.”
The court explained, in ruling in favor of McDonald’s, that the plaintiff had not shown that there was “more than a sheer possibility” that the representation would mislead a reasonable consumer. The judge said that the plaintiff at this stage would not need to prove that she could meet the standard, but would need to show that it would be plausible.
Wednesday’s order said, “while Harris’s further contention as to what reasonable consumers would infer from the use of the term “vanilla” on McDonald’s menu boards and kiosks is couched as an allegation of fact, it too is conclusory, as it lacks a factual foundation to support any determination as to what reasonable consumers do (or do not) believe.”
Seeborg analyzed each of the arguments in the motion for dismissal filed by McDonald’s and decided that some had merit, but others would not have been sufficient if they were on their own. Specifically, the court said McDonald’s allegations that the plaintiff had not supported “plausible economic injury” would also be cause for dismissal but that McDonald’s request for dismissal of one claim because the defendant was not given proper pre-suit notice was not sufficient because it received notice from another member of the putative class.
Harris is represented by Borison Firm and Spencer Sheehan. McDonald’s is represented by Faegre Drinker Biddle & Reath.
