The Scoop on the “Vanilla” Class Action Jurisprudence
MITAL PATEL AND JENNIFER YOO*
Why These Cases Are Not Too Vanilla For This List
Class action litigation within the food and beverage industry continues to grow at a steady rate, with an emphasis on allegations involving the advertising and labeling on food products. Through the years, we have seen a litany of litigation against specific types of products within a given period of time. In recent history, butter ingredient claims, products claiming to have less sugar or calories, and chocolate products have been the subject of such class action litigation trends.
The most recent trend since February 2019 has transitioned to a focus on a wide range of vanilla products. At the time, chocolate confectioners were facing a number of class action cases arising from their use of “white chocolate” on labels. The vanilla cases first appeared to be a variation on this theme. However, the vanilla cases quickly took on an astonishing life of their own. There have been more than 100 class action lawsuits filed against retailers and food brands related to food products labeled “vanilla”—representing about a quarter of overall food litigation filings in 2019 and 2020. The products at issue in these cases include ice cream, herbal teas, yogurt, soymilk, almond milk, espresso drinks, protein drinks, and many others. The most notable cases allege that “vanilla” on a product label is a deceptive statement because there are other flavorings in the products besides vanilla extract that simulate vanilla.
Until 2020, there had been very little case law to predict how these cases would fare. Throughout the past year, New York courts have shaped the majority of the precedent that governs what Judge P. Kevin Castel aptly, if somewhat tongue-in-cheek, referenced in one opinion as “the vanilla jurisprudence.” As of March 2021, New York district courts have dismissed, as a matter of law, nine cases involving allegations that the word “vanilla” on various food product labels falsely communicates to a reasonable consumer that the flavor of the respective food product at issue is derived solely from real vanilla. In each of these cases, the courts found it irrelevant whether the product complied with the Food and Drug Administration’s (FDA) labeling regulations implementing the Federal Food, Drug, and Cosmetic Act (FDCA), finding “no extrinsic evidence that the perceptions of ordinary consumers align with these various labeling standards.”
Though the majority of these cases have been decided in New York over the last year, California courts have also issued some important rulings for companies defending these types of lawsuits. Based on this body of case law, the “reasonable consumer” defense continues to serve as an important standard to meet in this area of litigation.
The trend of “vanilla” litigation began in February 2019 in the Eastern District of New York when a lawsuit was filed against A&W root beer and cream sodas. In that case, the plaintiff alleged that the products’ “made with aged vanilla” label was false and misleading because the soda actually contains a chemical flavor that mimics the taste of vanilla.
The claims in the lawsuits themselves have evolved quite a bit since that initial case and have expanded to include mostly products that are labeled as “vanilla,” not just “made with” vanilla. At their start, the cases involved plaintiffs alleging that the products’ ingredient lists did not identify vanilla extract despite a representation that the products’ flavor was “vanilla.” These initial cases largely targeted vanilla-flavored dairy or alternative dairy products, including ice cream, almond milk, soy milk, and creamer. The cases then expanded to include granolas, flavored teas, yogurts, and cake mixes.
The plaintiffs commonly allege vanilla is a “high risk” product for “food fraud” and refer to vanillin, which can be naturally sourced from the vanilla or other plants, or can be synthetically manufactured. According to the allegations, non-vanilla bean vanillin should be disclosed as an “artificial flavor” pursuant to FDA regulations. Plaintiffs initially relied heavily on citations to chapter 21 of the Code of Federal Regulations implementing the FDCA to make their claims, alleging because the labels did not comply with federal regulations, they were, in turn, deceptive. When it became clear the courts were not convinced by these arguments, the suits then evolved to further rely on chromatography analyses, consumer surveys, and allegations that because the products do not contain enough vanilla, they do not taste of vanilla. Each strategy has been dismissed by various courts.
As further discussed below, the courts seem to agree that “vanilla” standing alone, as a flavor designator or descriptor of some other food product, does not convey to the reasonable consumer that the sole source of the vanilla flavor is the vanilla bean. Courts have found that consumers use a flavor name like vanilla to differentiate between other flavors, such as plain, chocolate, and strawberry, while shopping. As Judge Marrero of the Southern District of New York explained, “a reasonable consumer would associate the representation of ‘Vanilla’—with no additional language modifiers—to refer to a flavor and not to vanilla beans or vanilla extract as an ingredient.”
In Steele v. Wegmans, the first case to have kicked off New York’s cultivation of vanilla jurisprudence, Wegmans made the argument that private plaintiffs cannot enforce federal food law, and that violations of food regulations do not necessarily amount to deceptive practices. Wegmans also laid the foundation that these types of allegations about vanilla do not meet the reasonable consumer standard. Judge Louis Stanton of the Southern District of New York dismissed plaintiffs’ case, discrediting the mass spectrometry analysis relied on by plaintiffs and acknowledging that there are various natural substances which have a vanilla flavor and those interested in the actual ingredients can read the list, which mentions neither vanilla beans nor extracts.
Following Judge Stanton’s guidance, multiple courts followed suit, dismissing similar cases applying the same reasonable consumer standards. Most recently, the court in Dashnau v. Unilever Mfg. (US), Inc., dismissed another similar case, this time involving a chocolate-coated vanilla ice cream bar. In this case, the one distinguishing factor was that the label contained the words “vanilla bean ice cream.” However, even with this additional qualifying word, the court determined that such was not a claim akin to the “made with” ingredient claims in cases plaintiffs cited, but instead, this fell in line with the bevy of precedent already before the Southern District of New York.
Prior to Dashnau, the court in Cosgrove v. Or. Chai, Inc. dismissed the case and found the “vanilla” labeling on a chai tea latte vanilla mix that included representations that it contained natural flavors did not lead to consumers to believe that the company used vanilla beans as a primary or exclusive ingredient for vanilla flavoring. The courts in Parham v. Aldi Inc., Cosgrove v. Blue Diamond Growers, and Wynn v. Topco Assocs., LLC, found the same in cases with similar allegations, this time involving defendants’ vanilla almond milk products. Similar analyses have been applied to lawsuits involving vanilla soymilk, espresso, and protein drinks.
Despite vanilla jurisprudence mostly being built in New York, three courts in California have also started applying similar analyses set forth by the New York courts. In March 2021, a court in the Northern District of California dismissed the complaint in Harris v. McDonald’s Corp., wherein the plaintiff complained that McDonald’s use of the term “vanilla” on its menu boards and kiosks led customers to believe the vanilla ice cream products to be flavored exclusively with vanilla beans. The court concluded the claims were insufficiently pled and that plaintiffs cannot pass this threshold by asserting their own beliefs as a means to nudge their claim across the line from conceivable to plausible. Previously, in Zaback v. Kellogg Sales, the plaintiff claimed he relied on the use of the word “V’nilla” in the product’s name, the front of the product’s label displaying “naturally flavored” immediately below the words “V’nilla Almond,” and the back of the label depicting a vignette of a vanilla plant with only the word “Vanilla” below the vignette, and alleged that despite such representations, the product’s vanilla flavoring was not derived exclusively from vanilla beans. The court dismissed these claims, explaining that the plaintiff’s speculation was insufficient to “nudge [his] claims . . . across the line from conceivable to plausible,” and without further specification as to the facts of what plaintiff was alleging, the court did not see any viable claims. In Clark v. Westbrae Natural, Inc., the court, citing to New York precedent in dismissing plaintiff’s complaint, gave plaintiff another chance to revise his claims in part because “pictures that suggest the vanilla flavor is derived exclusively from the vanilla bean” could render a label misleading. Though the Clark court gave the picture some weight, at least one court ignored a flower vignette, concluding that the label would not mislead the reasonable consumer.
This area of food litigation is still evolving. New cases against vanilla products have been filed throughout 2021. And amidst some dismissals from the courts, a wave of voluntary dismissals has closed many cases before the courts can issue a decision. Nevertheless, there are many pending cases that are sure to continue to shape vanilla jurisprudence.
Implications and Impact
Consumer mislabeling class actions are no novelty in the California food industry, thanks to the state’s trio of consumer protection laws. Plaintiffs have their choice between California’s Consumer Legal Remedies Act, False Advertising Law, and Unfair Competition Law when alleging that consumers are misled by advertising on a product’s label. The growing body of “vanilla jurisprudence” in New York since the first A&W Sharpe case is an indicator that food and beverage class action litigation is stretching beyond the confines of the California courts. Vanilla class action suits have since been filed in other courts including Pennsylvania, Massachusetts, and New Jersey. Even when the vanilla cases melt away, the gates may have been opened to these jurisdictions that were not typical hot beds for food and beverage class action litigation.
While vanilla cases dominated food litigation in 2020, there may be an end in sight as the issued opinions suggest increased impatience on the topic. The aforementioned nine dismissals thus far represent a relatively small number of the filed cases. Over half of these cases have been voluntarily dismissed, which may or may not indicate a settlement between the defendants and the plaintiffs’ counsel pursuing the claims. The wave of voluntary dismissals suggests that perhaps an end may be in sight—at least in the New York courts. Though many of the cases have been voluntarily dismissed, some are still making their way through the courts and others are still being filed. No case, however, has reached class certification on a contested motion, suggesting that the case law in this area is likely to evolve if cases continue to move forward. The coming year will reveal how courts in other jurisdictions besides New York and California will wrestle with motions to dismiss on these claims and perhaps even motions for class certification.
The lesson from these cases and others is that flavor and ingredient-related representations continue to face considerable scrutiny. If businesses are updating labels or branding this year, it’s worth the time to review flavor descriptions and consider the arguments that plaintiffs are asserting to help understand and assess risk.
Even food and beverage manufacturers that are in compliance with FDA regulations can and have been targets of these lawsuits. The food and beverage industry should be aware that plaintiffs have commonly alleged a photograph of a food on packaging that is not the real source of a product’s flavor is misleading to consumers. Some manufacturers have tried to avoid lawsuits by including a disclaimer for “natural” or “artificially flavored” products on their packaging. It remains to be seen whether additional court dismissals will put an end to these “flavor of the year” lawsuits or if a new jurisdiction will soon become the new hotbed for class action food litigation.
* Mital Patel is an associate in the New York office of Foley Hoag LLP, where she practices patent and other intellectual property, false advertising, and commercial litigation. Jennifer Yoo practices advertising, marketing, and other commercial law in San Francisco.
 Wynn v. Topco, No. 19-cv-11104 (RA), 2021 U.S. Dist. LEXIS 9714 (S.D.N.Y. Jan 19, 2021).
 Cosgrove v. Blue Diamond Growers, 2020 U.S. Dist. LEXIS 229294, at *7 (S.D.N.Y. Dec. 7, 2020).
 472 F. Supp. 3d 47 (S.D.N.Y. 2020).
 No. 19-CV-10102 (KMK), 2021 U.S. Dist. LEXIS 58194 (S.D.N.Y. Mar. 26, 2021).
 No. 19-cv-10686 (KPF), 2021 U.S. Dist. LEXIS 32229 (S.D.N.Y. Feb. 22, 2021).
 No. 1:19-cv-08975 (PGG) (SDA), 2021 U.S. Dist. LEXIS 28892 (S.D.N.Y. Feb. 15, 2021).
 2020 U.S. Dist. LEXIS 229294 (S.D.N.Y. Dec. 7, 2020).
 No. 19-cv-11104 (RA), 2021 U.S. Dist. LEXIS 9714 (S.D.N.Y. Jan 19, 2021).
 Budhani v. Monster Energy Co., No. 20-cv-1409 (LJL), 2021 U.S. Dist. LEXIS 54551 (S.D.N.Y. Mar. 12, 2021) (vanilla coffee energy drink); Barreto v. Westbrae Natural, Inc., No. 1:19-cv-09677 (PKC), 2021 U.S. Dist. LEXIS 3436 (S.D.N.Y. Jan. 7, 2021) (vanilla soymilk); Twohig v. Shop-Rite Supermarkets, Inc., 2021 U.S. Dist. LEXIS 26489 (S.D.N.Y. Feb. 11, 2021) (vanilla soymilk); Pichardo v. Only What You Need, Inc., No. 20-cv-493 (VEC), 2020 U.S. Dist. LEXIS 199791 (S.D.N.Y October 27, 2020) (dismissing case substantially identical to this one, alleging misleading “vanilla” flavor designator on a protein vanilla-flavored drink).
 No. 3:20-cv-06533 (RS) (N.D. Cal. Mar. 24, 2021).
 No. 3:19-cv-02327 (S.D. Cal.).
 2020 U.S. Dist. LEXIS 224966 (N.D. Cal. Dec. 1, 2020).
 Clark v. Westbrae Nat., Inc., No. 20-cv-03221-JSC, 2020 U.S. Dist. LEXIS 224966, at *8 (N.D. Cal. Dec. 1, 2020).
 Pichardo v. Only What You Need, Inc., No. 20-CV-493 (VEC), 2020 U.S. Dist. LEXIS 199791, at *14 (S.D.N.Y. Oct. 27, 2020).
 Cal. Civ. Code §§ 1750, et seq.
 Cal. Bus. & Prof. Code §§ 17500, et seq.
 Cal. Bus. & Prof. Code §§ 17200, et seq.