Eugina Harris filed an amended complaint on Friday, repeating allegations that McDonald’s vanilla ice cream cone fraudulently advertises to be vanilla, when it only contains artificial flavors. This amended complaint was filed about one month after the Northern District of California granted McDonald’s motion to dismiss.
The amended complaint addresses issues brought up in the ruling by Judge Richard Seeborg, specifically that Harris in the initial class-action complaint did not sufficiently support claims of misrepresentation and economic injury. Additionally, the plaintiff, according to the court, had not sufficiently shown that the representation of McDonald’s vanilla ice cream would mislead a reasonable consumer, and that the plaintiff needed to show that this would be plausible for the claim to continue. In the order in favor of dismissal, the plaintiff was given leave to amend the complaint within 30 days.
McDonald’s Corporation alleged in its defense that labeling its products as vanilla is not misleading because the flavor of the product is vanilla. Additionally, the defendant said it has not claimed in its representation that the flavor comes from vanilla beans.
Friday’s amended complaint reiterated claims that the soft serve vanilla cone at McDonald’s “falsely and misleadingly” is marketed as a product flavored with real vanilla. The plaintiff claimed on behalf of the putative class that the representations of its vanilla cone “lead a significant number of consumers to believe that real vanilla is the primary ingredient that flavors the products.”
The filing further alleged that the representation of the vanilla cone, when the product does not contain vanilla but has other artificial flavors, breaches federal regulations specific to vanilla. Additionally, the plaintiff cited multiple times when McDonald’s has claimed to use “quality ingredients,” specifically in its Securities and Exchange Commission filing. The plaintiff also claimed that McDonald’s website says that the soft serve ice cream contains “no artificial flavors, colors or preservatives.”
“Rather than delivering quality, authentic vanilla ice cream in each Product, Defendant delivers an artificially boosted flavor purporting to be primarily sourced from real vanilla,” the plaintiff averred. “By deceptively representing the source of its vanilla flavoring, Defendant is able to generate a greater number of sales and produce a larger profit than it would if it didn’t make its deceptive vanilla representations.”
The plaintiff claimed that if she had known that the vanilla in the cone comes from “non-vanilla plant sources,” she would have either not purchased the product or would have paid less for it. Additionally, the filing cited studies showing that between 62 and 76 percent of consumers avoid artificial flavors, and prefer products where the flavor comes from the ingredients used.
Harris is represented by Borison Firm LLC and Sheehan & Associates P.C.. McDonald’s is represented by Faegre Drinker Biddle & Reath LLP.
Many similar lawsuits alleging that vanilla, cheese, butter or other food items are misrepresented on their packaging have been filed recently, primarily by Sheehan & Associates. As Law Street reported, Sheehan on average files between two and three lawsuits alleging fraud each week, primarily regarding food companies. Over the weekend, Sheehan’s firm also filed a suit against Apple.
