This class action centers on the labeling for Enlightened brand frozen dairy dessert, made by Beyond Better Foods, LLC. The front of the container calls it “The Good-for-You Ice Cream”—but is it entitled to call itself ice cream? Or should other terms be more prominently displayed on the container’s front?
The main class for this action is consumers in all states who bought any of the products with actionable representations during the class period. A New York State class has also been proposed.
The complaint notes that, until the 1990s, any product that aspired to be called ice cream had to meet specific requirements. These were related to ingredients, performance characteristics, properties, and, in particular, a minimum percentage of milkfat. An ice-cream-like food that contained less than 10% milkfat was to be labeled “ice milk”.
However, the Food and Drug Administration (FDA) now permits a greater range of foods to be labeled as ice cream as long as certain other words precede the words “ice cream,” depending on the food’s nutrients.
The words include (a) “reduced fat,” if the food has 25% less fat than a certain reference product; (b) “light,” if the food has 50% less fat than the reference product or one-third fewer calories if fewer than 50% of the calories are from fat, (c) “low fat,” if the food contains less than three grams of fat per serving, or (d) “nonfat” or “fat free,” if the food contains less than half a gram of fat per serving. Limited adjustment is permitted to the content of the food to make up for the lack of milkfat.
The complaint claims that the Enlightened ice cream products use a maltodextrin, or kind of corn starch ingredient, to replace the milk fat. It is listed on the ingredient label as soluble corn fiber. The complaint claims that the use of this corn fiber “in the present amounts renders the representations as ‘low fat ice cream’ false, misleading and deceptive.” When the company uses a vegetable source for ingredients, the complaint alleges, “the fundamental dairy character of the food is changed” so that consumers are not getting what they expect.
Also, the complaint calls the products misleading because of the designation “The Good-for-You Ice Cream” leads consumers to think they’re getting ice cream. The information that the product is “low fat ice cream” or “light ice cream” is displayed in tiny type at the bottom of the label, not prominently or in bold type.
Finally, the complaint claims that erythritol is falsely described as a “natural sweetener” on the ingredient label. While erythritol does exist naturally in some foods, the complaint says, the substance used in the ice cream products is synthetic.
The complaint claims negligent misrepresentation, fraud, and breaches of warranty, among other things.