Organic 365 Ice Cream Bars “Dipped in Chocolate” Labeling Class Action

Whole Foods Market Group, Inc. sells ice cream bars that are purportedly dipped in chocolate and covered with almonds, under the Organic 365 brand. The complaint alleges that the representation of the outer layer as “chocolate” or chocolate coating” is “false, deceptive, and misleading because the purported chocolate contains vegetable oils.”

The class is all those who live in New York who bought the product during the applicable statute of limitations.

The complaint does not identify the company that made the product: “Though [Whole Foods] may not be the actual manufacturer of the Product, it subcontracts third[ ] parties to manufacture the Product at its express instructions” in Whole Foods’ “private label Organic 365 Everyday Value Brand, for which [Whole Foods] has exclusive control of the final labeling.”

On the second page of the complaint is an image of the product box. The largest words on the box are “Chocolate & Almond.” The box also carries the words “Organic vanilla ice cream dipped in organic chocolate & organic almonds,” “Chocolate Coating,” and “Decadent.”

The complaint briefly reviews the process of making chocolate from cacao beans. Beans are processed into cacao nibs, which in turn are processed to create cocoa mass or chocolate liquor, which is made up of cocoa solids and cocoa butter.

The complaint alleges, “Chocolate provides greater satiety and a creamy and smooth mouthfeel compared to other ingredients which substitute for chocolate, like vegetable oils, which provide less satiety, [and] a waxy and oily mouthfeel and leave an aftertaste.”

The chocolate labeling requirements exist because, the complaint says, “it is uniquely vulnerable to being adulterated, one of the most popular and one of the most costly foods.”

According to the complaint, “the optional ingredients in milk chocolate include cacao fat, nutritive carbohydrate sweeteners, spices, natural and artificial flavorings, dairy ingredients and emulsifying agents.” The complaint implies that vegetable oils should not be included because they presumably replace more expensive ingredients like cacao fat.

The complaint reproduces the ingredient panel from the product, which includes “Organic Expeller Pressed Palm Kernel Oil,” which occurs in the list before “Organic Cocoa Butter.” The fact that the ingredients are in this order means that the food contains more of the palm kernel oil than of the cocoa butter.

The complaint suggests that the labeling should say that the coating is “milk chocolate and vegetable fat coating” on the front of the box. It quotes federal regulations as saying, “Alternatively, the common or usual name of the vegetable derived fat ingredient may be used with the name of the food, e.g., ‘milk chocolate and ___ oil coating,’ the blank being filled in with the common or usual name of the specific vegetable fat used.”

Without this disclosure, the complaint claims, the branding and packaging are meant to “deceive, mislead, and defraud” consumers.

Article Type: Lawsuit
Topic: Consumer

Most Recent Case Event

Organic 365 Ice Cream Bars “Dipped in Chocolate” Labeling Complaint

October 12, 2020

Whole Foods Market Group, Inc. sells ice cream bars that are purportedly dipped in chocolate and covered with almonds, under the Organic 365 brand. The complaint alleges that the representation of the outer layer as “chocolate” or chocolate coating” is “false, deceptive, and misleading because the purported chocolate contains vegetable oils.”

Organic 365 Ice Cream Bars “Dipped in Chocolate” Labeling Complaint

Case Event History

Organic 365 Ice Cream Bars “Dipped in Chocolate” Labeling Complaint

October 12, 2020

Whole Foods Market Group, Inc. sells ice cream bars that are purportedly dipped in chocolate and covered with almonds, under the Organic 365 brand. The complaint alleges that the representation of the outer layer as “chocolate” or chocolate coating” is “false, deceptive, and misleading because the purported chocolate contains vegetable oils.”

Organic 365 Ice Cream Bars “Dipped in Chocolate” Labeling Complaint
Tags: Chocolate Regulations, Deceptive Advertising, Deceptive Labels