Truffles are renowned as one of the rarest delicacies in the world. Perhaps not quite as rare, but still fairly uncommon, is the dismissal with prejudice of a false advertising class action without the plaintiffs being afforded even a single opportunity to amend their complaint.
We are pleased to report today on a victory that a Proskauer team, led by Larry Weinstein and Jeff Warshafsky, obtained on behalf of Monini North America, Inc., in the defense of a class action false advertising lawsuit in the Southern District of New York, before Senior District Judge Louis Stanton. As discussed below, Judge Stanton’s decision confirms that under both New York and California law, food and beverage makers may describe their products as being “substance flavored,” even if the product does not contain the substance, so long as the product label clearly discloses the product’s ingredients.
In May 2017, plaintiffs Vinay Jessani and Wendy Burnett sued Monini alleging violations of New York and California consumer protection law, as well as claims for breach of warranty, fraud and negligent misrepresentation. Their class action complaint alleged that Monini, the U.S. subsidiary of one of the largest Italian olive oil manufacturers, falsely advertised that its “White Truffle Flavored Extra Virgin Olive Oil” was flavored by actual white truffle when, in fact, it is flavored by a synthetic aroma and contains no actual white truffle.
Monini moved to dismiss, and briefing was completed three weeks ago. Last week, Judge Stanton dismissed the complaint in its entirety with prejudice, holding that no reasonable consumer would understand the product’s label as meaning that it contains white truffle.
“Courts routinely conclude that where a product describes itself as substance-flavored despite not containing the actual substance, and the ingredient list truthfully reflects that fact, as a matter of law the product would not confuse a reasonable consumer acting reasonably under the circumstances, and thus does not sustain a consumer fraud claim,” Judge Stanton wrote. Monini’s label claimed that the product tasted like white truffle, but nowhere did it state that it contained white truffle. Further, the label’s ingredient list disclosed that the ingredients were “extra virgin olive oil 98%” and “aroma 2%”; white truffle was not listed as an ingredient. Under these circumstances, Judge Stanton held, no reasonable consumer would be misled.
Plaintiffs’ warranty- and fraud-based claims fared no better because the label’s representation that the product is “white truffle flavored” was indisputably true; the complaint conceded that the product’s synthetic aroma gave it the taste and smell of white truffle.
As noted, Judge Stanton dismissed the complaint with prejudice. Although this is an unusual step in a false advertising class action, this case turned on the plain meaning of the product label. No amendment to the pleadings could change the fact that Monini’s product label accurately disclosed its contents.
While this lawsuit met a quick end, several other similar lawsuits filed by Plaintiffs’ counsel remain pending against other sellers of truffle-flavored olive oils. One case, making nearly identical allegations against Trader Joe’s, was filed in the Southern District of New York the same day as the case against Monini. Trader Joe’s was recently ordered to answer the complaint and to engage in discovery. Two other similar cases, filed against Sabatino and Urbani, are under way in California. Proskauer is not representing any of these other ‘truffle oil’ sellers, but we will keep an eye on these cases as they move forward. Watch this space for developments.
Want to talk advertising? We welcome your questions, ideas, and thoughts on our posts. Email or call us at firstname.lastname@example.org /212-969-3240 or email@example.com /212-969-3671. We are editors of Proskauer on Advertising Law and partners in Proskauer’s False Advertising & Trademark practice.