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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