This class action turns on what is meant by “real cocoa.” The complaint alleges that General Mills Sales, Inc. advertises certain of its cereals as being made with “real cocoa” but actually uses medium alkalized cocoa, a substance that it claims cannot be characterized as “real.”
Two classes have been defined for this action.
At issue in this case are certain of General Mills’s chocolate-flavored cereals, including Chocolate Cheerios, Cocoa Puffs, Chocolate Toast Cruch, Chocolate Chex, as well as other seasonal cereals, such as Count Chocula.
The complaint cites the chocolate claims made for the cereals. For example, Chocolate Cheerios claims to be “Made with real cocoa for chocolatey goodness. From cocoa bean to cowl, the real flavor of cocoa in your Cheerios is a chocolatey treat. Go ahead, indulge. With no artificial flavors or colors from artificial sources, and whole grain oats, you deserve it.”
The other cereals make similar claims:
However, the ingredient list for each of these four cereals shows that the only cocoa ingredient is “Cocoa Processed with Alkali.”
The complaint reviews the process of making cocoa powder. “Depending upon the end-use,” the complaint says, “not all of the fat from the cocoa butter (c. 50% fat will be extracted from the powder.” This results in three grade of cocoa powder: breakfast cocoa (22% or more), medium (10-12%), and low-fat cocoa (less than 10%).
At this point, it may or may not be alkalized: “Alkalization makes the cocoa powder less acidic though it modifies and reduces flavanols and detracts from the ‘real cocoa’ taste.” The complaint rejects the use of the designation “real cocoa” for this alkalized cocoa. “The presence or absence of alkalis [a]ffect the taste and color of the cocoa powder to such an extent that they are a characterizing feature and [a]ffect whether it will be purchased.”
The complaint claims that “‘real’ is understood to be the ingredient in its most simplified and reduced form…” It summarizes that when a company “misrepresents medium fat cocoa as ‘real cocoa,’ consumers will expect the cocoa powder component to be nutritionally and oganoleptically superior” when it is not. According to the complaint, “higher fat cocoa—above 22 percent—is referred to as breakfast cocoa, which has a more intense ‘chocolate-y’ flavor.” It claims that the cereals are therefore misbranded.