Dashnau v. Unilever Manufacturing, Inc.

Background

Sharon Dashnau and Gregory Rodriguez-Appeldorn brought a proposed class action against Unilever Manufacturing (US), Inc. They challenged the labeling of Unilever’s Magnum chocolate-coated, vanilla-flavored ice cream dessert bars. The front label said “Double Chocolate Vanilla” and described the product as “Vanilla Bean Ice Cream Dipped In A Chocolatey Coating, Chocolatey Sauce And Milk Chocolate.”

The plaintiffs alleged that “vanilla bean ice cream” would lead reasonable consumers to believe that vanilla was the product’s characterizing flavor, that the product contained enough real vanilla to provide that flavor, and that the flavor came from natural vanilla or vanilla beans rather than other flavoring ingredients. They also alleged that the product contained only a minimal amount of real vanilla, while maltol and vanillin contributed to its flavor. According to the complaint, the product used ethyl vanillin, which the plaintiffs said came from petroleum byproducts rather than vanilla beans.

Dashnau alleged that she bought the product at a Walmart in Middletown, New York, during the summer and fall of 2019. Rodriguez-Appeldorn alleged that he bought it at a store in Westchester County on multiple occasions in 2019 and 2020. They claimed they expected the vanilla flavor to come only from real vanilla beans, that the product was worth less than the label suggested, and that they would not have bought it or would have paid less if they had known the alleged facts.

Claims and motion

The plaintiffs asserted claims under sections 349 and 350 of the New York General Business Law, which address deceptive consumer practices and false advertising. They also asserted claims for negligent misrepresentation, breach of express warranty, breach of the implied warranty of merchantability, violation of the Magnuson-Moss Warranty Act, fraud, and unjust enrichment.

Unilever moved to dismiss the First Amended Complaint under Rule 12(b)(6), which allows dismissal when a complaint does not state a legally sufficient claim. For purposes of the motion, the court accepted the complaint’s factual allegations as true and drew reasonable inferences for the plaintiffs, but it did not have to accept legal conclusions or unsupported assertions.

New York consumer-protection claims

The court held that the plaintiffs did not plausibly allege that the product’s labeling was materially misleading to a reasonable consumer. The court accepted, for purposes of the motion, the allegation that the product was not flavored exclusively with real vanilla. But it ruled that the words “Vanilla Bean Ice Cream” described the product’s flavor rather than making a specific claim about the ingredients or the source of that flavor.

The court distinguished labels that expressly say a product is “made with” a particular ingredient. It also distinguished cases involving labels such as “whole grain” or “made with aged vanilla,” which the cited courts treated as ingredient claims. The court concluded that this label did not say the product was “made with” or “made from” vanilla beans, did not promise that vanilla beans were the only or predominant source of the flavor, and did not represent that no other flavoring ingredients were used.

The court also found that the plaintiffs had not provided an empirical basis, such as reliable consumer evidence, for their assertion that reasonable consumers would understand the label to promise an exclusive source of real vanilla. References to federal labeling regulations did not establish that ordinary consumers knew those regulations or incorporated them into their marketplace expectations.

The court further found that the plaintiffs’ testing allegations did not establish that the product contained too little real vanilla to support the label. The complaint acknowledged that the product might contain some real vanilla. The court stated that detecting only one of several marker compounds could mean that the test was not sensitive enough to detect the others or that the flavor came from vanilla extract. The court concluded that the testing method, as described in the complaint, did not establish the alleged lack of real vanilla.

The court also rejected the theory that the label was misleading because it did not disclose that other flavors enhanced the vanilla taste. In the court’s view, using the term “vanilla” did not imply that the product contained no additional flavoring ingredients. The court therefore dismissed the claims under sections 349 and 350.

Remaining claims

The court dismissed the remaining claims because they depended on the same rejected theory that the product’s labeling materially misled consumers.

For negligent misrepresentation, the court additionally held that the plaintiffs did not allege the required special or sufficiently close relationship between themselves and Unilever. For the express-warranty claim, the plaintiffs did not adequately allege that the product failed to match a warranty contained on the label. The implied-warranty claim failed because the plaintiffs did not allege that the product was unfit for human consumption; it also failed to the extent it relied on the same labeling theory. The Magnuson-Moss Warranty Act claim failed because the plaintiffs had not adequately pleaded a breach of a written or implied warranty under state law.

The fraud claim also failed because the complaint did not plead facts creating a strong inference that Unilever intended to defraud consumers. The court dismissed the unjust-enrichment claim as duplicative because it was based on the same consumer-deception allegations as the other claims.

Ruling

Judge Kenneth M. Karas granted Unilever’s motion to dismiss. He dismissed the First Amended Complaint without prejudice because this was the first adjudication of the plaintiffs’ claims on the merits. The court allowed the plaintiffs 30 days to file a second amended complaint if they had a good-faith basis to do so. The court stated that failure to amend properly and on time would result in dismissal of the First Amended Complaint with prejudice. The Clerk was directed to terminate the pending motion.