June 17, 2020 - Lawsuit Dismissed, Plaintiffs Given Leave to Try Again
The proposed class action detailed on this page has been dismissed without prejudice, with U.S. District Judge Beth Labson Freeman granting on June 4Nestlé USA’s motion to dismiss while allowing the plaintiffsthe chanceto file an amended suit.
The court concluded the plaintiffs failed to allege facts that showNestlé’s labeling, advertising and product placement would deceive a reasonable consumer into believingthe product contains white chocolate. While the plaintiffs argued the words “white” and “premier” are misleading in that they imply the product contains white chocolate, the product’s label does not state that it contains white chocolate or even uses the word “chocolate,” the judge wrote.
“No reasonable consumer could believe that a package of baking chips contains white chocolate simply because the product includes the word ‘white’ in its name or label,” Judge Freeman wrote.
The plaintiffs have until July 20, 2020 to file an amended suit. Judge Labson Freeman’s order grantingNestlé USA’s motion to dismiss can be found here.
A proposed class action lawsuit looks to take Nestlé USA to task for allegedly labeling its Toll House “Premier White” morsels in a manner that deceives consumers into believing the product contains real white chocolate made with premier ingredients. According to the 31-page complaint, Nestlé’s “Premier White” morsels contain no real white chocolate and are made with “inferior ingredients” such as hydrogenated oils.
“There is nothing premier about fake white chocolate,” the case claims.
While Nestlé accurately represents the nine other products in its Toll House line of chocolate baking products, the company deceptively portrays on product labels and its website that its “Premier White” morsels are made with genuine white chocolate, the lawsuit alleges. When taken as a whole, the suit contends, the product’s labeling and advertising mislead customers, some of whom, according to voluminous consumer comments included in the lawsuit, caught on to Nestlé’s apparent ruse after realizing while baking that something about the defendant’s “white morsels” was a bit off:
“Another consumer complained, ‘I love white chocolate, but these don't melt[.] I was making white chocolate covered buckeyes and ran out of white chocolate melting discs. I had a couple bags of Nestle Toll House white chocolate chips and figured it would work the same. WRONG! I melted slowing in 30-45 second intervals, and it just ended up as one big clump. So disappointed.’
“Yet another consumer complained on Nestle's website, ‘Note: this is not white chocolate. I wish the label included the word 'imitation' or 'chocolate flavored' like the fake semisweet morsels do. Then I wouldn't have expected it to melt like white chocolate. I threw it out after trying to melt it for peppermint bark. I added whipping cream in an attempt to save the dry crumbles and it turned to creamy rubber. Not spreadable. They'd probably be good in cookies, if you're into imitation white chocolate. I'll know next time to look for a product that has cocoa butter in the ingredients list.’
“For example, one consumer complained, ‘I put the premier white morsels in my Wilton chocolate pro candy melting pot and it never melted. It was just a lumpy, clumpy blob.’
“Another consumer complained, ‘I had such a hard time melting and never got it melted down where I was able to use. I ended up just throwing the whole product away, and never finished my cake balls. After reading the reviews, I know it was [the] product and not me lol.’”
The case elaborates that FDA regulations on what constitutes white chocolate are clear and were issued in an effort to reduce “economic deception and promot[e] honesty and fair dealing in the interest of consumers.” The plaintiffs stress in the case, however, that they’re not alleging that Nestlé’s “Premier White” morsels are not in compliance with federal law or FDA standards. At issue, according to the lawsuit, is Nestlé’s misrepresentation to consumers of its “Premier White” morsels product as something it is not.
“The Product does not contain any white chocolate, cocoa butter, cocoa fat, or other cocoa derivative as required by the FDA,” the case reads. “Instead, the Product contains: Sugar, Palm Kernel Oil, Milk, Nonfat Milk, Hydrogenated Palm Oil, Soy Lecithin, and Natural Flavor. Despite the foregoing, the Product is advertised as if it contains white chocolate.”
The plaintiffs argue that in making the decision to purchase Nestlé’s “Premier White” morsels, they relied on the product’s advertising and labeling, which prominently display an image of a white chocolate chip cookie, and the placement of the product side-by-side with the defendant’s other chocolate morsels. Per the suit, the plaintiffs would not have purchased the “Premier White” morsels had they known the product contained “fake white chocolate.”
Included in the proposed class are consumers nationwide or, alternatively, in California, who bought Nestlé’s “Premier White” morsels for personal consumption within four years of the filing of the lawsuit. Initially filed in Santa Cruz County Court, the case now resides in California’s Northern District.