Update: 9th Circuit Affirms Dismissal of Class Action vs. Ice Cream Maker

Last July in a Legal Pulse post, Food Advertising Class Action Feeding Frenzy?, WLF Summer Fellow John Kendrick mentioned a California-based class action suit filed against Dryer’s Grand Ice Cream (a Nestle brand). The suit alleged that the use of the terms “0 grams trans fat,” “Original Vanilla,” and “Classic” were false or misleading in violation of four California consumer protection laws. A federal district court dismissed the action last year.

Last Thursday, a terse per curiam opinion of the U.S. Court of Appeals for the Ninth Circuit affirmed the lower court.  The court found that using the term “0 grams trans fat” even though each drumstick contained a tiny amount of trans fat, was not only permitted, but required by federal food labeling law. Plaintiffs’ claims, the court held, were preempted. As for the use of certain terms on the packaging being misleading, the court wrote that no reasonable consumer would think those words convey Dryer’s cones were more healthy than their competitors’ cones. The judges added:

Finally, it strains credulity to claim that a reasonable consumer would be misled to think that an ice cream dessert, with “chocolate coating topped with nuts,” is healthier than its competitors simply by virtue of these “Original” and “Classic” descriptors.”

We hope that the Ninth Circuit’s appropriately brief ruling will act as a deterrent to future plaintiffs and their fee-seeking lawyers against filing equally ludicrous suits which ultimately cost consumers money.

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