Organic 365 Ice Cream Bars “Chocolate” Coating Class Action

The central issue in this class action are Whole Foods Market Group, Inc.’s 365 brand Organic Vanilla Ice Cream Dipped in Organic Chocolate. But the complaint for this class action alleges that calling the substance around these ice cream bars “chocolate” is misleading, because the fat in it is not cocoa butter but vegetable oils.

Two classes have been defined for this action:

• The Illinois Class is all persons in Illinois who bought the product during the applicable statutes of limitations.
• The Consumer Fraud Multi-State Class is all persons in North Dakota, Kansas, Michigan, West Virginia, Wyoming, Minnesota, Rhode Island, and Delaware who bought the product during the applicable statutes of limitations.

Page 1 of the complaint shows the front of the product’s box, which shows chocolate-covered ice cream bars and chunks of chocolate. The largest word in the identification of the product is “Chocolate,” and the bars are described as being “Dipped in Organic Chocolate.”

The side panel claims that the bars “are made the old-fashioned way with the finest organic ingredients. We start with fresh cream and cane sugar, then dunk our rich ice cream into chocolate for a smooth, thick shell. Indulge in the pure decadence of our organic ice crearm bars.”

The Food and Drug Administration (FDA), the complaint says, “defines chocolate as made from cacao beans with a small amount of optional ingredients, including dairy (i.e., milk), sweeteners and flavorings.”

To make chocolate, cacao beans are processing into cacao nibs. The nibs are then ground into a cocoa mass or chocolate liquor, which can then be combined with dairy products, sweeteners, and flavorings. But the complaint alleges that “words are also defined by what they exclude” and that “[i]n the context of chocolate, all definitions universally exclude fats from sources other than cacao ingredients, namely, vegetable fats (oils).”

The complaint alleges, “Federal and state regulations require that where a food has some chocolate but is mainly vegetable oils, this should be disclosed to consumers.”

It claims that “consumers are misled when a food represented as containing chocolate replaces cacao beans with vegetable oils.” Cocoa butter, which “makes up one-fourth of chocolate,” costs three times as much as vegetable oils. It is more filling than oils and offers a creamier taste, the complaint says, while vegetable oils “contribute to a waxy and oily mouthfeel and leave an aftertaste.” Finally, the complaint claims that cocoa butter has health and nutrition benefits.

The complaint reproduces the ingredient panel, which shows, in order, “Organic Expeller Pressed Palm Kernel Oil, Organic Chocolate Liquor, Organic Cocoa Butter.” This means, the complaint claims, the product contains more oil than it does chocolate liquor or cocoa butter.

The complaint alleges, “What is described on the front and side label as ‘Chocolate’ is actually ‘Milk Chocolate and Vegetable Oil Coating.’” According to the complaint, the front labelling should reflect this, and the product should not be described by such words as “smooth” or “indulgent.”

Article Type: Lawsuit
Topic: Consumer
Tags: Contains Too Little of Featured Ingredients, Deceptive Advertising, Deceptive Labels