Class Action Suit Claims Breyers Delights Is Deceptively Labeled as ‘Light Ice Cream’

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Unilever United States, Inc. is the latest company to face a proposed class action lawsuit alleging one of its top-selling ice cream products isn’t ice cream at all. Filed in New York federal court, the 16-page complaint charges Unilever’s Breyers Delights products—touted as “light ice cream” and “low-fat ice cream”—do not contain enough milkfat nor other specific ingredients to be lawfully labeled as ice cream.

“[Unilever] misrepresented the composition of the Products by describing and identifying them as ‘low fat ice cream’ when they in fact consisted of ingredients not consistent with consumer expectations and FDA regulations for the identification of said product,” the complaint summarizes.

According to the short but dense lawsuit, any product with “ice cream” in its name, until the 1990s, had to meet particular requirements with regard to dairy ingredients, milkfat percentage, and physical attributes, such as texture, melting and freezing points, spreadability, and shelf life. Shortly thereafter, the suit goes on, the FDA put in place regulations permitting “modified versions of standardized foods,” thereby giving rise to some products now permitted to be called “ice cream” so long as an “express nutrient content claim” was made on the product label “relating to the characterizing ingredient of milk fat.” At the end of the day, the case says, modified versions of standardized foods had to be equivalent to their traditional counterparts from a “nutritional and performance standpoint.”

Milkfat, however, is a little tougher to replace in modified foods such as ice cream, where the general reduction of fat content can affect just about everything, according to the complaint:

“Milk fat increases the richness of flavor, is a good carrier and synergist for added flavor compounds, because most flavors, natural and artificial, are fat soluble.

Milk fat produces a characteristic smooth texture by lubricating the palate, helping to give body to the ice cream.

Milk fat produces desirable melting properties, because it inhibits the formation of large ice crystals.

This impacts the ice cream’s shelf life because its moisture content may increase significantly with the reduction of fat, which can lead to the formation of large ice crystals because the higher level of free moisture makes the product less freeze-thaw stable.”

Most importantly, though, removing fat from ice cream can be problematic because other ingredients must then be added to “keep water content within reasonable limits,” the suit says. And why would water content be a concern for Breyers ice cream?

“Too much water means too much ice is in the frozen product,” the lawsuit explains, “resulting in it being excessively hard, cold and icy with weak body and poor keeping quality.”

It’s here where the case gets into “fat replacers” or “fat analogs” added to ice cream products to not only imitate the functions of traditional milkfat, but to contribute to traditional ice cream characteristics such as mouthfeel. Soluble corn fiber is the fat replacer of choice for the defendant, the case says, to such an extent that its representations of Breyers Delights as “low fat ice cream” are false, misleading and deceptive.

“The inclusion of the fat analog soluble corn fiber is not an acceptable inclusion to a modified ice cream product, because fat analogs used in dairy products must be from a dairy source,” the case reads. “By replacing or exchanging the role played by milkfat in ice cream products with a corn fiber, consumers are misled because they expect ice cream to be a dairy product and possess attributes of such a product.”