The complaint for this class action quotes an article in the Chicago Tribune when it says, “By some estimates, two-thirds of ‘all ice cream eaten is either vanilla or vanilla with something stirred into it, like chocolate chips.’” But is it really vanilla? The complaint alleges that in the case of Dreyer’s and Edy’s, both made by Nestle Dreyer’s Ice Cream Company, vanilla is not what a reasonable consumer expects.
The class for this action is all consumers in all fifty states who bought any products containing the actionable representations during the statutes of limitations. Subclasses have been proposed for the individual states.
Vanilla is the second-most expensive flavoring in the world (after saffron). This tempts makers of ostensibly vanilla-flavored foods to add inferior ingredients instead of real vanilla, the complaint says: “Some adulterant substitutes mimic the real vanilla flavor and replace valuable botanically-derived natural vanillin with less expensive and lower quality components… In other circumstances, there is the addition of ‘small amounts of a non-authentic substance to mask inferior quality ingredient[s]’ or give the impression a product contains more of the higher quality ingredients than it actually does…”
The complaint warns that “the ingredient list is used not as a source of consumer information, but as the latest battlefield of deception.”
Standards exist for correct labeling of vanilla products, to keep consumers from being fooled or defrauded. Vanilla derived from vanilla beans should be “designated as vanilla flavor or vanilla extract on the ingredient list.”
However, the complaint reproduces three ingredient lists. In two cases, no vanilla is listed; the ingredient panel only identifies “Natural Flavor.” One lists “Natural Flavors (with vanilla extract).” The complaint claims that “Natural Flavor” is not a synonym for real vanilla.
The standards for vanilla indicate three possible vanilla-vanillin combinations: vanilla-vanillin extract, vanilla-vanillin flavoring, and vanilla-vanillin powder. The vanillin in these combinations is “produced from non-vanilla bean material, like wood pulp or coal tar[,]” the complaint claims.
The complaint contends, “For the purposes of ice cream flavor labeling, vanillin (from non-vanilla sources) cannot be designated as a ‘natural flavor,’ because it implies it derives from vanilla beans, whose flavor it simulates.”
According to the complaint, the company gets around labeling requirements in another way: the products are not exactly labeled “vanilla ice cream.” Instead, the word “vanilla” is separated from the word “ice cream.” Consumers will believe that the product is vanilla ice cream, but the company retains some deniability.
Another problem is that the products are advertised as being made with “fresh milk and cream.” The complaint says that most consumers will believe that “fresh” means “just prepared” but that in reality the ice cream has been subjected to preservation treatments and has a shelf life in the freezer of several months.