Last year, we wrote about Jessani et al v. Monini North America, a case in the Southern District of New York in which the court dismissed as a matter of law plaintiffs’ complaint alleging that Monini falsely advertised its “White Truffle Flavored Extra Virgin Olive Oil” product as containing actual white truffle. The case turned on a reasonable consumer’s takeaway from the product label, which represented that the product was “white truffle flavored” and depicted a sliced white truffle on the front label, but nowhere stated that it contained white truffle. Notably, truffles were not listed on the ingredient list.

Proskauer’s Larry Weinstein and Jeff Warshafsky represented Monini before both the Southern District of New York and the Second Circuit. Jeff argued the Second Circuit appeal on October 22, 2018. This past Monday, the Second Circuit panel unanimously affirmed the lower court’s ruling in favor Monini. Jessani et al v. Monini North America, 2018 WL 6287994, (2d Cir. Dec. 3, 2018).

The Second Circuit squarely rejected plaintiffs’ contention that whether a reasonable consumer is likely to be misled by a product label is not appropriate for resolution on a motion to dismiss. The Court held that courts can in appropriate circumstances determine as a matter of law that an advertisement would not mislead reasonable consumers, and agreed with the District Court that reasonable consumers would not have been misled by Monini’s label because the label merely represented that the product is “white truffle flavored” and truffles are not listed on the ingredient list.

Critical to the decision was plaintiffs’ concession that white truffles are “the most expensive food in the world” and are highly perishable, combined with the undisputed fact that defendant’s product was modestly priced and mass produced:

In this context, representations that otherwise might be ambiguous and misleading are not: it is simply not plausible that a significant portion of the general consuming public acting reasonably would conclude that Monini’s mass produced, modestly-priced olive oil was made with “the most expensive food in the world.”

Id. at *1 (internal citation and footnotes omitted).

The Second Circuit’s decision affirms that manufacturers are free to identify their product’s characterizing flavor – and even may depict it visually as Monini did with a large image of a sliced white truffle on the front label – provided that the label is clear, when viewed in context, as to what ingredients are contained in the product.



Want to talk advertising? We welcome your questions, ideas, and thoughts on our posts. Email or call us at /212-969-3240 or /212-969-3671.  We are editors of Proskauer on Advertising Law and partners in Proskauer’s False Advertising & Trademark practice.