coconut milk could mislead by claiming “no cholesterol” where it’s too high fat for that label

Marshall v. Danone US, Inc., No. 19-cv-01332-RS, 2019 WL
4509045, — F. Supp. 3d — (N.D. Cal. Sept. 13, 2019)
Marshall brought a putative class action alleging false
advertising (the usual California claims) against Silk coconut milk, which on
its back lists substances that Silk does not contain, including, e.g., “dairy,”
“gluten,” and “cholesterol,” with “cholesterol” in larger font than some of the
other listed items. The symbol beside “cholesterol-free” is a heart allegedly
intended to show it is “broken,” which is also crossed out with a line
(allegedly indicating that, because the product is cholesterol-free, it will
not be damaging to heart health).  The nutrition
panel states that a serving of Silk contains 0 mg cholesterol, but 3 or more
grams of saturated fat, depending on the specific variety of the product.
However, under 21 C.F.R. § 101.62(d)(1), to bear the nutrient content claim “no
cholesterol,” “cholesterol-free,” or similar claims, a food must, among other
things, contain less than 2 grams of saturated fat per “Reference Amount
Customarily Consumed.”
“While there is no direct private right of action under 21
C.F.R. § 101.62(d)(1), it is at a minimum relevant for determining what can
plausibly be alleged to be deceptive under state law.”  Danone argued that consumers could only be
confused if they knew about the regulation, saw the cholesterol-free
statements, then didn’t see the nutrition panel.  Nope.  “What
section 101.62 serves to show is that the FDA, which has expertise in, and
responsibility for, determining what food labeling practices may mislead
consumers, believes that consumers may understand ‘cholesterol-free’ to convey
certain health benefits that in fact do not exist if the product contains
saturated fats above a certain level. Whether the FDA is right or wrong on that
point, or whether Danone may ultimately prevail on the merits for any number of
reasons, there simply is no doubt that plaintiff has stated a plausible claim
that the labels are misleading.”
Danone also argued that consumers generally understand
excessive consumption of saturated fat may impact cholesterol and
cardiovascular health. Nope.  “The FDA
apparently believes consumers will draw unwarranted conclusions about health
benefits of ‘cholesterol-free’ products despite that general understanding, and
therefore prohibits use of the term on products with saturated fat levels
exceeding 2 grams per serving.”  Nor was
Danone successful in arguing that the alleged implication of healthiness was
too vague.  “The precise conclusions consumers
might draw are not critical, at least at this stage,” given the FDA’s

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