On Monday, Dreyer’s Grand Ice Cream, Inc. filed a motion to dismiss a class action complaint in the Northern District of Illinois that alleged the Dreyer’s Grand Ice Cream’s ice cream bar packaging violated the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA).
According to the motion, the defendant manufactures a variety of Häagen-Dazs ice cream bars, including the “Vanilla Milk Chocolate Almond Ice Cream Bars” at the center of the current lawsuit.
The named plaintiff, Lawrence Rice, filed the original complaint individually and on behalf of all others similarly situated, alleging the defendant violated the IFCA with its labeling of its “Vanilla Milk Chocolate Almond Ice Cream Bars” by stating the bars are “dipped in rich milk chocolate.” The plaintiff alleged that consumers are currently and likely to be deceived by the “dipped in rich milk chocolate” statement because the milk chocolate is actually a “MILK CHOCOLATE AND VEGETABLE OIL COATING” made with coconut oil. The plaintiff argues that himself and the other plaintiffs expected “a Product with a coating that contained chocolate ingredients and not an appreciable amount of chocolate substitutes.” Further, the plaintiff states the failure to meet this expectation amounts to consumer deception under the ICFA, relying on an FDA regulation defining a standardized ingredient with the name “milk chocolate and [insert name of vegetable] oil coating.”
In the motion to dismiss, the defendant argues that the plaintiff lacks a plausible theory of consumer deception. Specifically, the defendant states the defendant does not allege that the ice cream bars don’t contain milk chocolate, that the ingredient panel listing “Milk Chocolate” as the number one ingredient in the bars’ coating is inaccurate nor that the label expressly disclaims the presence of vegetable or coconut oils. Further, the defendant argues that nothing about the labeling could lead a reasonable consumer to believe the ice cream bars do not include vegetable oil as the vegetable oils are disclosed on the ice cream bars label four times.
The defendant further argues that the plaintiff’s ICFA claim is a preempted attempt to privately enforce FDA regulations. The defendant states this reliance on FDA regulations is incorrect because violation of an FDA regulation is not synonymous with consumer deception, the Food, Drug, and Cosmetic Act does not create a private right of action and the plaintiffs interpretation of the FDA regulations is legally incorrect as it conflates provisions of the FDA regulations.
The defendant goes on to state the FDA regulation cited by the plaintiff is inapplicable because it applies to the formalized definition of chocolate for a standardized identity under FDA regulations, but ice cream bars and the ice cream bars at issue do not have a standardized identity under FDA regulations. Instead, the complaint states that ice cream bars have a statement of identity which requires the front package of the product to tell the consumer what the product is, but not what all of its elements, ingredients and characteristics are.
The defendant moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim in which relief can be granted. The defendant is represented by Mayer Brown LLP and the plaintiffs by Sheehan & Associates.
