Monday, August 23, 2021

Vanilla claim comes closer than most b/c of label image, still falls short

Budhani v. Monster Energy Co., 2021 WL 1104988, No. 20-cv-1409 (LJL) (S.D.N.Y. Mar. 22, 2021)

Monster “sells espresso energy drinks blended with European milk and purporting to be flavored with vanilla under their Monster brand.” E.g., the Espresso Monster Vanilla Cream Triple Shot says “Vanilla Cream,” “Triple Shot,” and has an image of the vanilla flower on the front label. But it allegedly had only trace/de minimis amounts of vanilla from the vanilla bean, not predominantly/exclusively vanilla. Plaintiff’s survey allegedly showed that over 56% of respondents believed that the flavor in Defendant’s Product “came from vanilla beans from the vanilla plant.”



Even that wasn’t enough, despite the court’s conclusion that the presence of a vanilla bean image could plausibly mislead consumers, because plaintiff failed to sufficiently plead falsity.

Previous cases held that the word “vanilla,” by itself, indicates a flavor, and dismissed complaints when the labels in question made no further representation as to any ingredient(s) or the source of that flavor. “In each of these cases the court noted that a different result might follow if the defendant had used additional language that made representations about an ingredient and not a flavor or contained additional modifiers or where consumers have a demonstrated reasonable belief about the inclusion of a particular ingredient.” By contrast, courts in the Second Circuit “have sustained claims where the language of a product label, in context, referred not only to a flavor but also indicated the presence of an ingredient.”

The product in suit didn’t have “made with” language, which has been significant in the past, or other verbal indicia of using recognizable ingredients such as touting a commitment to “clean food” and “menu transparency,” or promoting the nutritional values of vanilla from vanilla beans. But defendant did use the image of a vanilla flower, “prominently, next to the image of a coffee bean, and alongside the use of the word ‘vanilla.’” That image and context plainly suggested the presence of extract from a vanilla bean. And Monster admitted that the coffee bean images were intended to convey ingredients, not just flavors or “facsimiles.” So too with the word “cream.” The text on the side of the can confirmed both of those things, with some marketing blather ending in “Three shots of espresso[] blended with milk and enhanced with Monster’s Espresso Energy Blend.”

So: a reasonable consumer “could understand it to convey that the Product contains some non-negligible amount of extract derived from a vanilla bean, but would not understand the Product’s vanilla flavor to be derived predominantly or exclusively from vanilla bean extract.” Thus, it was plausibly deceptive if, as alleged, the product contained only trace amounts of vanilla from vanilla beans. As the Second Circuit has already held, a defendant can’t “lead consumers to believe” that its products were made with an ingredient “so long as [the product] contained an iota of [that ingredient].”

Monster argued that most vanilla-flavored products aren’t made exclusively or primarily from vanilla beans, so no reasonable consumer would believe that of its product.  “At this stage, however, the Court cannot assume that a reasonable consumer will necessarily be knowledgeable about the compounds that create the vanilla taste, the artificial and natural sources from which they derive, and where the compounds are obtained for commercial use.”

Although the survey and other allegations about what consumers want and believe wouldn’t alone be enough to sustain the complaint in the absence of the court’s conclusions about the label itself, they did reinforce the court’s reasoning.

However, reasonable consumers wouldn’t conclude that vanilla bean extract was the predominant or exclusive source of the vanilla flavor, because the label didn’t say anything about that, and the ingredient list included “natural flavors.”

Now: “A plaintiff cannot simply obtain discovery into a product’s ingredients by making the conclusory assertion that the defendant is falsely representing those ingredients.” It was not enough to allege that a chemical analysis showed differences in compounds in Simply Organic Madagascar Vanilla Extract—represented to be vanilla derived from vanilla bean—with the compounds in the drink that “are responsible for the bulk of vanilla’s flavor.” Plaintiff alleged that “the Product contains an abnormal excess of vanillin ... which is a strong indicator it contains vanillin from non-vanilla sources.” That wasn’t enough to plead that there was only a trace or de minimis amount of vanilla from vanilla beans in the drink.

Pleading that the label violated FDA standards for food labeling also failed, since the FDCA doesn’t provide for private enforcement, and NY, unlike California, hasn’t adopted all federal food rules as its own to be enforced via the UCL. “To state a GBL claim, the challenged act must be ‘inherently deceptive,’ and ‘such acts cannot be re-characterized as ‘deceptive’ simply on the grounds that they violate another statute which does not allow for private enforcement.’ ”

Other common-law causes of action also failed, though plaintiff had leave to replead the Section 349 & 350 claims.


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