Thompson v. Schwan's Consumer Brands Inc.

Background

Cassandra Thompson filed a putative class action against Schwan’s Consumer Brands Inc. concerning Edwards frozen chocolate crème pies. The product packaging stated “NO Preservatives.” Thompson alleged that the pies contained sodium pyrophosphate, sodium tripolyphosphate, and polysorbates 60, 65, and 80. She alleged that these ingredients performed functions that prevented or slowed deterioration, including preserving shelf life, limiting microbial growth, preventing oxidation, and improving shelf stability.

Thompson alleged that the label was false or misleading because the product contained preservatives. She asserted claims under New York General Business Law §§ 349 and 350, New York’s Agriculture and Markets Law, and New York law governing breach of express warranty. She also alleged that the misleading label caused the product to sell at a premium price and that she would have paid less or not bought it had she known the product contained preservatives.

Motion to Dismiss

Schwan’s moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which allows dismissal when a complaint does not state a legally sufficient claim. Schwan’s argued that there was no private right of action under New York’s Agriculture and Markets Law and that Thompson had not adequately alleged that the ingredients were preservatives or that a reasonable consumer could be misled by the label.

Agriculture and Markets Law Claim

The court dismissed Thompson’s Agriculture and Markets Law claim with prejudice. Thompson did not dispute Schwan’s argument and stated that she withdrew the claim. The court agreed that the law gives New York’s Commissioner of Agriculture and Markets, rather than individual plaintiffs, the sole right to investigate and bring actions under the statute.

Meaning of “Preservative” and Remaining Claims

The court rejected Thompson’s broader proposed definition of “preservative,” which included ingredients that maintain or improve food’s safety, freshness, nutritional value, taste, texture, or appearance. The court held that the relevant definition was the Food and Drug Administration’s definition: an ingredient that, when added to food, tends to prevent or retard deterioration.

Applying that definition, the court held that Thompson adequately pleaded her remaining claims. The complaint alleged that the ingredients slowed deterioration through several functions, including stabilizing pH, preventing oxidation, inhibiting bacteria, yeasts, and molds, and improving shelf stability. The court also noted that the complaint alleged that the FDA expressly designates sodium tripolyphosphate as a preservative and that the ingredients were not among the FDA’s stated exclusions from the regulatory definition.

The court further held that the complaint adequately alleged that reasonable consumers could be materially misled by the “NO Preservatives” label if the product in fact contained ingredients that prevented or slowed deterioration. The court rejected Schwan’s argument that Thompson had to allege that the ingredients were not included merely to make the pie better on the first day.

Factual Disputes and Disposition

The court treated Schwan’s remaining arguments—such as whether freezing prevented the ingredients from performing preservative functions and whether their scientific effects were preservative in nature—as factual disputes. The court held that those issues should be resolved later, potentially with expert testimony, rather than at the pleading stage.

The court therefore granted Schwan’s motion to dismiss as to Thompson’s Agriculture and Markets Law claim and denied the motion as to all other claims. The order did not decide whether the ingredients actually are preservatives; it decided only that Thompson had adequately pleaded that they could qualify as preservatives under the applicable definition.