court doesn’t find consumer protection claim over “sweet cream” plausible without survey; dictionaries insufficient

Sneed v. Ferrero U.S.A., Inc., — F.Supp.3d —-, No. 22 CV
1183, 2023 WL 2019049 (N.D. Ill. Feb. 15, 2023)

Courts in consumer protection cases reject surveys with abandon when they don’t agree with the results, but may also demand them. The court dismissed Sneed’s allegations that Ferrero’s
Kinder Joy eggs were misleading because the label describes the candy as “sweet
cream topped with cocoa wafer bites,” when, in fact, the “cream” is made of
vegetable oils, skim milk powder and whey proteins. Sneed’s argument that
“cream” means a dairy product with a high fat content of at least 18% milkfat relied
on five dictionary definitions and one FDA regulation.

But her complaint recognized the existence of a food
substance known as “artificial cream,” where the milkfat is replaced with
vegetable oils. That meant the question was misleadingness: whether “cream” “has
such a singular and pervasive meaning among the general consuming public that
most consumers believe it to only mean a dairy product with 18% milkfat content
and are therefore likely to be misled by Kinder Joy’s packaging.”

She didn’t successfully allege this. “Although allegations
about the results of consumer surveys are not required as a matter of federal
notice pleading, allegations about how the general consuming public understands
the term ‘cream’ is the kind of thing that makes plausible the conclusory
allegation that ‘sweet cream’ is misleading.” Dictionaries weren’t enough, nor
was it enough that more than half of the package is white and has two large
“drops” of milk and that the front of the package says “sweet cream.” The
ingredient list on the back didn’t include “milk,” “whole milk,” or any other
indication that it is a dairy product with at least 18% milkfat. Plus, there
exist other candies on the market labeled “cream” which are instead made of
artificial cream—Goetze’s “Caramel Creams” (made since 1895), “Cookies ‘n Cream
Bites,” and Twizzlers’ “Filled Twists” that are “orange cream pop” flavor. Dismissed
without prejudice.


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