McDonald’s Seeks to Dismiss Allegations That ts Vanilla Cone Misleads Consumers

On Monday in the Northern District of California, McDonald’s Corporation filed a motion seeking to dismiss a class-action complaint filed by a consumer claiming that the company’s vanilla ice cream misrepresented that the flavor comes from vanilla beans because it does not advertise that the flavor is artificial.  

According to the motion, the plaintiff “admits that McDonald’s ‘vanilla’ soft serve cone tastes like vanilla and contains vanilla. Yet she claims that by describing the Product as ‘vanilla’—for example, calling it a ‘Vanilla Cone’—McDonald’s misleads consumers into believing that the Product’s vanilla flavor comes exclusively from vanilla beans. This claim is utterly implausible.” 

McDonald’s asked the court to dismiss the complaint with prejudice, purporting that the plaintiff did not state an actionable claim, cited inapplicable FDA regulations, did not plausibly allege that a reasonable consumer would be confused, and lacks standing because she did not allege economic injury.  

The defendant also noted that the plaintiff’s counsel, Spencer Sheehan, has filed “approximately 110 lawsuits over the past 18 months asserting substantially the same claim against other vanilla-flavored foods and beverages.” One of these cases reportedly also challenges the marketing of McDonald’s vanilla soft serve ice cream in the Southern District of New York. 

McDonald’s reported that in the New York-based lawsuit the plaintiff attempted to include California consumers, but later limited the claims to consumers in New York. McDonald’s purported that “Mr. Sheehan is shifting his focus to California in response to a series of recent New York decisions holding that these vanilla claims fail as a matter of law because no reasonable consumer would interpret ‘vanilla’ statements on a product the way the plaintiffs claim they did.” 

The motion purported that California laws should lead to the same result as New York law and that the word vanilla does not necessarily mean the vanilla bean. It also explained that the complaint constantly criticizes the “labeling” of McDonald’s ice cream when the ice cream does not have a label, but is advertised on menu boards. It also said that in many locations the menu boards list the word “cone” rather than “vanilla cone.” The defendant explained that it never states in advertising or listing the product that it is made with vanilla or contains natural flavor. 

A hearing on the motion is scheduled on February 18 in front of Judge Richard Seeborg. McDonald’s is represented by Faegre Drinker Biddle & Reath