Judge Edward R. Korman of the Eastern District of New York dismissed a lawsuit with prejudice on Tuesday, which claimed that Oreo packaging is misleading consumers with the phrase “Always Made With Real Cocoa.” The judge ruled that Charles Harris’s putative class action claim failed because the information on the packaging was accurate and reasonable consumers were not misled.
The order said that because the plaintiffs did not dispute that the Oreos are made with cocoa, “which is fatal to their case.” Mondelez Global LLC, a snack producing company represented by Jenner & Block, has no packaging message on its Oreos stating that they are made exclusively with real cocoa, and the order says consumers could reasonably assume the cocoa is mixed with other ingredients. Thus, the judge ruled in favor of the defendants saying the unjust enrichment and misleading advertisement claims against them were not adequate.
The plaintiffs included consumers from 12 states who purchased Oreos and claimed that because the cocoa in Oreos is refined using an alkalizing process, the quality of the cocoa is diminished and the taste is changed, making the advertising claim false. They alleged that a reasonable consumer would not consider this real cocoa and that Oreos are able to be sold at a higher price because of this misrepresentation. The plaintiffs are represented by Reese LLP, Righetti Glugoski, and Nathan & Associates, and Spencer Sheehan.
“In Plaintiffs’ view, Defendant’s failure to caveat that the cocoa is processed with alkali is misleading to a reasonable consumer. Rather, they allege that reasonable consumers ‘expect “real cocoa” to be a quality of cocoa that is not processed with alkali,’” the order stated. The plaintiffs also claimed that non alkalized cocoa has health benefits, which are not present in the Oreos.
The judge further rejected the plaintiffs’ request to amend the complaint if the motion to dismiss was granted, because the plaintiffs did not state any new allegations which could be added to an amended complaint. The order said that granting permission to amend would be “futile.” The plaintiffs previously withdrew claims of fraud, negligent misrepresentation and breach of warranty.