The complaint for this class action alleges that Lidl US, LLC improperly advertises a Lidl brand french ice cream as being “vanilla” in flavor.
The class for this action is all consumers in New York and the other forty-nine states, presumably those who have bought the Lidl products with actionable representations.
The representations on the front label include “French Vanilla Ice Cream,” “Made with Vanilla and Fresh Cream,” and an image of a vanilla bean and vanilla flower.
The “french” ice cream designation is not at issue in this case. What is at issue is whether the flavor can be designated simply as “vanilla” without qualifications.
According to the complaint, the designation of the flavor as simply “vanilla” implies that the flavor comes exclusively from the vanilla plant. However, vanilla is a popular flavor but rare and expensive in its plant form. The complaint asserts that the demand for vanilla-flavored products cannot be met by natural sources of vanilla and that makers of such products have therefore searched for methods of imitating vanilla’s flavor. While this is legal, labeling rules exist that the complait alleges that Lidl’s product does not meet.
One way to imitate vanilla’s flavor is to use vanillin, a synthetic flavoring that can be obtained from the vanilla bean. However, these days, “only 1-2% of vanillin in commercial use is vanillin obtained from the vanilla bean…” The complaint says, “if a product is represented as being characterized by vanilla yet also contains non-vanilla vanillin, the labeling and packaging must declare the presence of vanillin and identify it as an artificial flavor.”
The complaint alleges that even vanillin from natural sources is produced in a manner that would lead the Food and Drug Administration (FDA) to classify it as synthetic.
What does the ingredient panel say? It does not list any vanilla sources but only “Natural Flavor.”
According to the complaint, for labeling purposes, there are three categories of vanilla ice cream. Category I is ice cream where the flavoring is entirely from vanilla beans. This may be labeled simply as “Vanilla Ice Cream.”
Category II is where the ice cream has a natural characterizing vanilla flavor and an artificial flavor simulating it, but where the natural vanilla flavor predominates. This may be labeled as “Vanilla Flavored Ice Cream.”
Category III is similar to this, only here the artificial flavor predominates. This may be labeled as “Artificially Flavored Vanilla Ice Cream.”
Also, vanilla has its own flavoring requirements, which are stricter than other flavoring requirements. The complaint quotes from an FDA letter which states, “A product identified as ‘Vanilla Ice Cream’ is subject to the category I ice cream requirements and, therefore, must contain only the characterizing flavor derived from vanilla beans.” The complaint appears not to find this likely, since no vanilla beans, vanilla extract, or any similar product is listed as an ingredient.