Trader Joe’s truffle flavored oil was too cheap for reasonable consumers to think it real

Brumfield v. Trader Joe’s Co., 2018 WL 4168956, No. 17 Civ.
3239 (LGS) (S.D.N.Y. Aug. 30, 2018)
Brumfield alleged that Trader Joe’s “Black Truffle Flavored
Extra Virgin Olive Oil” contains no actual black truffle, but instead contains 2,4-dithiapentane,
a petroleum based synthetic injection that imitates the taste and smell of
truffles, in violation of New York and California law as well as the Magnuson-Moss
Warranty Act. “Truffles are a very rare and expensive type of fungus, which
have sold for as much as $100,000 per pound.” 
[They are also delicious.]  All
the claims were dismissed for failure to allege an actionable misrepresentation.
“Black truffle” is printed in large black letters on the
product; “flavored” and “extra virgin olive oil” are printed in smaller cursive
letters underneath.

The court found that the product was clearly labeled “Black
Truffle Flavored,” which didn’t necessarily entail the use of actual black
truffles.  [I’m not sure I agree that this is particularly clear.  The best argument is that the EVOO label is also in that font, so a consumer who wanted to make sure that it was olive oil would have to read it all.] Given the rarity and cost of
truffles, a reasonable consumer wouldn’t expect the $4.99 bottle of olive oil
at Trader Joe’s to contain actual truffles.  Plaintiffs didn’t reach plausibility by
alleging that “Trader Joe’s sells numerous products labeled ‘X-flavored’ that
actually contain the referenced flavor as an ingredient,” because “reasonable
consumers are not so naïve
as to believe that including actual ‘X’ in the product is the only way to make
the product ‘X-flavored.’” Nor did it help to allege that Trader Joe’s “is
renowned for selling gourmet products at relatively low prices,” and consumers
are unlikely to know how expensive truffles are or how much truffle is required
to make real truffle oil.” “A hypothetical reasonable consumer of truffle
flavored oil would know something about the expense and rarity of truffles,
signaling that the $4.99 price for Trader Joe’s truffle flavored oil is too
good to be true for actual truffle infused oil.”

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