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FatBoy Improper “Vanilla” Ice Cream Designation Class Action

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Box of FatBoy Ince Cream Sandwiches

This is one more in a line of class actions challenging the designation of certain ice creams as “vanilla.” Casper’s Ice Cream, Inc. claims that its FatBoy brand ice cream sandwiches contain vanilla ice cream, but this complaint claims that this is improper based on the labeling rules for ice cream.

The class for this action is all consumers in all fifty states, who, presumably, bought the products with actionable representations during the statutes of limitations. The complaint also proposes susubclasses for the various states.

Casper’s makes the ice cream sandwiches with “vanilla” ice cream placed between two chocolate wafers. It is sold under the FatBoy brand name in packages of six.

The complaint quotes a Chicago Tribune article as saying that about two-thirds of “all ice cream eaten is either vanilla or vanilla with something stirred into it, like chocolate chips.” Because vanilla is expensive and in high demand, natural sources don’t produce enough of it, the complaint says, “leading manufacturers to devise methods to imitate vanilla’s flavor and appearance.”

The complaint says, “The ice cream flavor regulations are specific to the nature of this food and precede, by decades, the general flavoring regulations for non-ice cream foods.” For ice cream, the complaint says, a “‘natural flavor’ refers only to a natural characterizing flavor.” Similarly, “[a]rtificial flavor” in ice cream includes (1) a flavor not derived from the characterizing flavor, even if obtained from natural sources and made through natural processes and (2) a flavor not derived from the characterizing flavor that is used to simulate the characterizing flavor.”

This use of “natural” and “artificial,” the complaint says, “is unique to ice cream products” and does not apply to other food flavorings, which are covered under the general flavor labeling regulations.

The complaint reproduces the ingredient list for the FatBoy ice cream sandwiches. No vanilla is listed, but the final ingredient is “Natural Flavor.” According to the complaint, this is not a synonym for vanilla.

 “Where a product purports to have a characterizing flavor of vanilla but the ingredient list identifies ‘natural flavor’ as the exclusive flavoring ingredient … it means (1) the flavoring in the food or beverage is not exclusively vanilla and (2) the product contains non-vanilla flavors obtained from natural sources other than vanilla beans and made through natural processes.”

The complaint alleges that the ice cream sandwiches do not contain sufficient vanilla to be properly labeled as “vanilla ice cream” products.

The counts in the complaint include negligent misrepresentation, fraud, the violation of state laws, and unjust enrichment.

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