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In these dog days of summer, few things bring as much joy and relief as ice cream. What does ice cream have to do with drugs or medical devices?  Not much, we suppose.  Sure, ice cream can affect the brain and the body.  Our neurons vibrate with pleasure as they travel along a rocky road or groove with Cherry Garcia. Rumor has it that ice cream, like some antidepressants or antipsychotics, can result in a bit of weight gain.  (Color us skeptical, or at least stubbornly resistant, on that point.)  Ice cream can certainly seem addictive.  But we haven’t yet seen a lawsuit by someone complaining that they could not stop shoveling Chunky Monkey down their gullet. No, what makes ice cream — or, more specifically, ice cream litigation – relevant to our little corner of the law is the plaintiff strategy of claiming fraud when no one in real life was defrauded.

It is one thing to say a product is bad for you.  That plunges the jury into science. It is complicated. It is confusing. Intricate judgments must be made. But it is much simpler to accuse the defendant of lying.  Maybe the perfect product will never exist, but at least tell the truth about it.  Give consumers the facts so that they can make an informed judgment.  So the story goes, anyway. In some ways, ice cream litigation is more appetizing for plaintiffs than drug or device litigation. Drugs and devices are usually selected by doctors.   By contrast, there is no learned intermediary steering someone toward a pint of rum raisin. Let’s face it, ice cream is typically an impulse buy.   Still, ice cream consumer fraud cases raise the same issue that bedevils many of our DDL cases: what is a lie?

A little more than two months ago we blogged about a plain vanilla fraud case.  That is, the complaint in the case alleged that makers of vanilla ice cream were not honest about the source of the vanilla flavor.  The court correctly dismissed the complaint. No one was misled by the vanilla ice cream package. When it comes to ice cream, people care more about flavor than provenance or raw materials. (But don’t discount the possibility that some enterprising plaintiff lawyer will assemble an ice cream lawsuit around a Material Safety Data Sheet.  Ugh.)  Since we wrote that post, we learned that there is a plaintiff lawyer out there who calls himself the Vanilla Avenger. We’re not sure if he was the attorney in that vanilla case or the case we write about today.  We suspect he is not at all a Good Humor man.

When we talked with friends about the vanilla court’s tasty reasoning, what do you think was the most common comment we heard?  ‘I like chocolate better, anyway.’

Well, here comes a delicious opinion rejecting similar claims about chocolate ice cream.  In Yu v. Dreyer’s Grand Ice Cream, Inc., 2022 U.S. Dist. LEXIS 47043 (S.D.N.Y. March 16, 2022), the plaintiff filed a putative class action alleging consumer fraud about the ingredients in Haagen-Dazs Coffee Ice Cream Dipped in Rich Milk Chocolate, Almonds, and Toffee.  (If that product name doesn’t prompt you to race off to the frozen foods section of your local supermarket, you are made of considerably stronger stuff than we are. In fact, let’s lay our culinary cards on the table.  To prepare for this blogpost, the Drug and Device Law Daughter and this author sampled the Haagen-Dazs ice cream bars. The verdict:  extraordinarily scrumptious. We did not feel even a little bit defrauded. But we digress.)

The plaintiff alleged that the ice cream label was misleading under New York General Business Law because the representation that the ice cream was “dipped in rich milk chocolate” was false because the addition of vegetable oil “fundamentally changes the nature of the bar’s coating.”  The plaintiff also heaped on claims of breach of warranty, violation of the Magnuson-Moss Act, unjust enrichment, and common law fraud.  The plaintiff sought an injunction that would fix the label.  Interestingly, the plaintiff promised to resume purchasing the product “when she can do so with the assurance that the representations in its labeling are consistent with its ingredients.”

The plaintiff’s theory was that because the package “represents the product contains ‘rich milk chocolate’ without qualification, consumers expect that it only has chocolate ingredients, which is not the case.”  (We grit our teeth at that misplaced “only.”) Right away, and before we get to the court’s decision, we have three problems with this claim:  (1) we are frighteningly prolific consumers of ice cream, and we had no idea that vegetable oil is not a chocolate ingredient; (2) nor do we care; and (3) the Haagen-Dazs package has an ingredients list that includes vegetable oil. Fraud-schmaud.  

The defendant moved to dismiss the complaint.  It made several effective and winning arguments.  We like those arguments almost as much as we like the ice cream.  So, apparently, did the court, as it dismissed the claims.

First, the plaintiff premised its claim on alleged violations of our old friend, the Food Drug and Cosmetic Act (FDCA).  But the FDCA does not provide a private right of action.  Second, it was implausible to suggest that a “reasonable consumer would conclude that representations regarding chocolate on the Product’s label would imply that the Product’s coating did not contain any coconut or vegetable oil.”  The ingredient list was accurate and there was no reason to think that the “surrounding context” of the package somehow made that ingredient list disappear.  The plaintiff attempted to prop up her assertion regarding consumer expectations by alluding to what the court called a “mysterious” consumer survey.  It wasn’t clear who conducted the survey or what consumers were told.  In any event, the survey did not even remotely demonstrate that consumers would be surprised or disappointed by the presence of vegetable oil.  

More fundamentally, the court concluded that nobody buys chocolate ice cream “for health or nutritional benefits or satiety value.”  The label made no claims about those features.  Oddly, the complaint did not say that the plaintiff was disappointed by the taste of the product.  Remember, she said she’d happily buy more once the label was fixed (and, presumably, once she had won her suit and her lawyer had been paid).  Because there was no evidence that anyone was misled by the ice cream package, the plaintiff’s claims melted away.

To be sure, there were other problems with the plaintiff’s claims. The plaintiff did not plead facts showing that she had provided notice to the defendant, which New York requires for claims of breach of express warranty.  The claim for breach of the implied warranty of merchantability was a goner because the complaint “does not come close to alleging that the Product is ‘unfit to be consumed.’”  How could it?  Like the plaintiff, we intend to buy more of these fantastic ice cream bars.  Unlike the plaintiff, we do not require a rewrite of the package to nanny us with unnecessary and unread verbiage. The common law fraud claim flunks the particularity requirement of Fed. R. Civ. P. 9(b), the unjust enrichment claim is duplicative of and dependent on the others, and the plaintiff’s wish-washy statement of intention maybe to buy the product in the future was insufficient to confer standing on her to pursue this pointless lawsuit. 

All that being said, the court granted the plaintiff leave to amend her complaint to try again.  When it comes to ice cream, seconds or even thirds are frequently in order.  But here’s the bottom line or, if you will, the scoop: the Yu case represents much of what is wrong with civil litigation in this country. It is a clever lawsuit cobbled together by a lawyer to address a non-problem.  Meanwhile, we’re headed out to purchase another three-pack of the chocolate, almond, toffee ice cream bars.  It turns out that vegetable oil tastes great. And if we get an ice cream headache, that will be our own fault.