Myers v. Wakefern Food Corp.: Plain Vanilla Plaint

A complaint filed today in the Southern District of New York alleges that vanilla flavored coconut milk drinks sold by Wakefern Food Corp. (the company behind ShopRite grocery stores) are deceptively labeled to give consumers the false impression that they contain more than trace amounts of real vanilla. 

The putative class action, Myers v. Wakefern Food Corp, 7:20-cv-08470, claims that Wakefern’s Wholesome Pantry Coconutmilk product only contains a “de minimis” amount of vanilla “from real vanilla beans from the vanilla plant,” but that Wakefern nevertheless markets the product as “vanilla” flavored, along with images of vanilla beans and vanilla flowers on the packaging. According to the complaint, these representations are false and misleading because they fail to notify consumers that the drink in fact contains artificial flavors. (Side note: did you know that artificial vanilla flavoring has been derived from, among other things, coal tar, paper waste, pine bark and cow dung? Maybe stick to chocolate?).

An important factual issue in this case will certainly be how much real vanilla is in the drink. The plaintiff appears to have done some pre-filing homework to try to answer that question, stating that “the amount of vanilla flavoring from real vanilla is de minimis, compared to the amount provided by vanillin and artificial vanilla flavors.” The plaintiff also claims to have determined that the drink contains the artificial flavoring agents maltol and piperonal, neither of which are disclosed in the ingredients list on the package. The complaint alleges that the amount of maltol in the product indicates that it has been “added to the ‘Natural Flavors’” disclosed in the ingredients list. The complaint concludes that “the bulk” of the drink’s “vanilla taste” comes from artificial vanilla flavoring.

Interestingly, one of the plaintiff’s claims is that Wakefern cannot be using natural vanilla flavoring because it claims to be using “natural flavors.” According to the complaint, “Listing ‘Natural Flavors’ [in the ingredients list] means the Product’s vanilla taste is not derived exclusively or even predominantly from vanilla sources because if it did, it would only list ‘vanilla extract.’” The plaintiff in a similar suit against Kellogg concerning their Bear Naked Granola V'nilla Almond product made the same rather curious allegation (Zaback v. Kellogg Sales Co., 3:20-cv-00268, S.D. Cal., June 22, 2020). The court in that case granted Kellogg’s motion to dismiss in part because it found the allegation amounted to mere speculation and a misstatement of the law. 

Myers v. Wakefern Food Corp. is the latest salvo in the vanilla wars that have been raging for about a year and a half now. The plaintiff’s lawyer in Myers, Spencer Sheehan of Sheehan & Associates, P.C. in Great Neck, New York, told Newsday in November 2019 that he had filed 27 lawsuits that year on behalf of consumers who had been misled about vanilla flavoring in a variety of products. By April of 2020, Truth in Advertising.org had identified 34 vanilla fraud complaints filed up to that point in the year, for a total of nearly 80 new such cases filed since February 2019. 

This case is sure to face stiff resistance. Defendants in other vanilla fraud cases have had some success at the motion to dismiss stage. Some, like Kellogg, have successfully argued that the plaintiff failed to plead facts sufficient to demonstrate, if proven, that their products do not contain natural vanilla flavoring. Myers seems to be tackling that problem head on by suggesting that they have put on their lab coats and goggles and determined that the actual makeup of Wakefern’s vanilla coconut milk suggests that it contains only trace amounts of real vanilla.

The other main line of defense in these cases is typically preemption. With the exception of a Magnuson Moss Warranty Act claim, all of Myers’s claims against Wakefern are grounded in New York state causes of action such as false advertising, fraud, and negligent misrepresentation. The federal Food Drug and Cosmetic Act, however, preempts any state law requirement that is “not identical” to the labeling requirements of the Nutrition, Labeling and Education Act. As a result, any cause of action grounded in a requirement that is more stringent than those imposed by the FDA’s regulations will be preempted. There is no private civil right of action for breaches of the FDCA. 

Myers v. Wakefern Food Corp. comes on the heels of the dismissal of another Sheehan case in July. In that case (Steele v. Wegmans Food Markets, Inc., 19-cv-9227, (S.D.N.Y., July 14, 2020)), also filed in the Southern District, the plaintiffs in a putative class action claimed that Wegmans deceptively marketed its vanilla ice cream as deriving its flavor from real vanilla beans, rather than artificial flavors. The court dismissed the complaint for failure to state a claim, finding the label on the ice cream was not deceptive, and that plaintiffs failed to sufficiently allege that the ice cream did not contain real vanilla.

To succeed in Myers, Sheehan will have to overcome the obstacles that led to the dismissal of the Wegmans case. That may prove to be difficult, as the judge in the Wegmans case noted that the plaintiffs, like Myers, had conceded that the ice cream contained some real vanilla.