Oreos, promoted as “Milk’s Favorite Cookie,” are the subject of this class action. The question at issue is a line that its maker, Mondelez Global, LLC, puts on the front of packages of Oreos: “Always Made With Real Cocoa.” The complaint claims that they are not.
The Nationwide Class for this action is consumers in all states who bought any of the products with the actionable representations (“Made with Real Cocoa”) during the statutes of limitations. A New York State Class has also been proposed.
The cookies come in a number of varieties and flavors: original, thin, dark chocolate, mint, peanut butter, extra filling, reduced fat, and seasonal and holiday flavors. They also come in a variety of package sizes.
Consumers these days look for ingredients that are “real” and less processed, with fewer artificial ingredients. The word “real” is important these days. Even with foods that are indulgences and not eaten for nutritional purchases, consumers prefer to have “real” ingredients with less processing.
However, the complaint says that the “real cocoa” claims are false, because Oreos “do not contain this component in the amount, type and/or form which a reasonable consumer would expect based on the claims.” How so? The ingredient list reveals that the cocoa in the cookies is “Cocoa (Processed with Alkali).”
According to the complaint, cocoa is made by crushing the edible parts of the cocoa plant (the nibs) into a fine paste, releasing the cocoa butter in them. The resulting liquor is pressed between hydraulic plates to form hard press cakes and some of the cocoa butter is removed.
Depending on how much is removed, the press cakes become different grades of chocolate. Those with a high amount of cocoa butter, 22% or more, are known as “breakfast cocoa.” Just plain “cocoa” is made with a medium amount of cocoa butter, 10-12%. The lowest grade is low-fat cocoa, with less than 10% cocoa butter.
After the press cakes are made into powder, they can be further treated through alkalization. The alkalis reduce the acidity of the cocoa powder, but, the complaint says, “detracting from the ‘real cocoa’ taste.”
The complaint says that the designation “Always Made with Real Cocoa” “implies the cocoa present in the [Oreos] is nutritionally and organoleptically superior.” Further, the complaint claims that the designation “real,” modifying “cocoa,” “represents the cocoa powder is included in its most simplified form.” It claims, “The Products’ use of the optional alkali ingredients significantly distinguishes its cocoa component from cocoa powder which does not contain alkali.”
The complaint lists consumer protection laws from New York and other states that it claims the company has violated. It also alleges negligent misrepresentation, fraud, and unjust enrichment.