Tillamook County Creamery Association makes ice cream in approximately fifty-one flavors. The complaint for this class action alleges that many of these products involve ice cream that is said to be vanilla flavor but is not, at least not according to labeling requirements.
The class for this action is all consumers in all state who bought any of the products containing actionable representations during the statutes of limitations. The complaint also proposes a New York State Subclass.
The Tillamook ice cream products include Premium cartons, Special Batch cartons, ice cream bars, and ice cream sandwiches. Many of the products are marketed as containing vanilla ice cream, for example, Old Fashioned Vanilla, Vanilla Bean, Chocolate Chip, Mountain Huckleberry, and Malted Moo Shake. But the complaint claims that at least some of these items are part of widespread “food fraud.”
Why vanilla? Vanilla is the second-most expensive flavoring in the world, after saffron.
The complaint claims, “For ice cream, any flavor not derived from the characterizing flavor is considered an artificial flavor.” By this standard, an ice cream that is supposed to be vanilla-flavored should be flavored exclusively by vanilla flavor or vanilla extract from the vanilla plant, because that is what consumers expect.
If it contains vanilla as a natural characterizing flavor and an artificial one, and the natural vanilla predominates, then the complaint claims it should be called “vanilla flavored ice cream. If, on the other hand, only artificial flavor is used or if the artificial flavor predominates, then the complaint claims that it should be called “artificially flavored vanilla ice cream.” But this is not how the flavor is presented in the Tillamook line of ice creams.
The complaint takes Old Fashioned Vanilla as an example. The carton describes it as “Rich vanilla ice cream made with our special blend of the very best vanillas.” The image includes yellowish scoops of ice cream with a vanilla flower tucked into the bowl. But the ingredient list includes “natural vanilla flavor” and “natural flavor.”
The complaint claims that “natural flavor” is not a synonym for vanilla flavor or vanilla extract. The “listing of ‘natural flavor’ is not another way to refer to the exclusively vanilla ingredients consumers expect, and the law requires”—that is, vanilla flavor or vanilla extract. The complaint alleges that the ice cream is better characterized as “vanilla with other natural flavors.”
According to the complaint, with “vanilla ice cream, it is (1) unlawful to include flavoring that is not derived from the characterizing flavor, vanilla and (2) misleading to simulate, reinforce and ‘extend’ the taste of vanilla through ‘Natural Flavor’…”