Whole Foods Market Group, Inc. owns the 365 Everyday Value Brand. Earlier this month, a class action was filed challenging the “vanilla” designation of some of its almondmilk products. This class action makes similar allegations about the “vanilla” designation of some of its soymilk products.
The Nationwide Class for this action is all consumers in all states where Whole Foods has its retail stores who bought a product containing actionable representations during the statutes of limitation. A New York State Subclass has also been proposed.
Vanilla is an expensive flavor, one which is in great demand. The complaint says, “This demand could not be met by the natural sources of vanilla, leading manufacturers to devise methods to imitate vanilla’s flavor and appearance.”
At issue in this case is 365’s Vanilla Soymilk. The word “vanilla” is prominently displayed on the front of the carton. The complaint notes that according to the product’s front label, the characterizing flavor is vanilla, and also imply that “they contain a sufficient amount of the characterizing food ingredient, vanilla flavoring or vanilla extract, to independently characterize the Products.”
The ingredient list however, tells a different story. As reproduced in the complaint, it lists “…natural flavors, … organic vanilla extract…” The complaint notes, “‘Natural Flavor” is ahead of the vanilla ingredient, ‘Organic Vanilla Extract,’ on the ingredient list, which means the Products have more non-vanilla natural flavor than real vanilla.”
According to the complaint, “A non-misleading front label description could be ‘Natural Vanilla Flavored [Soymilk]’ or ‘Vanilla Flavored [Soymilk]’ provided the Product does not contain added vanillin from sources other than vanilla beans.”
A combination of flavors from both real vanilla and natural non-vanilla sources that is meant to simulate or reinforce vanilla, the complaint says, is known as “Vanilla with Other Natural Flavors” or “Vanilla WONF.” The complaint alleges, “If the vanilla extract and natural flavor in the Products actually referred to a ‘Vanilla WONF,’ its front label would be misleading if the description was only ‘Vanilla [Soymilk] With Other Natural Flavor.’”
If the flavors are a vanilla-vanillin combination, the complaint quotes from federal regulations saying that the name of the ingredient on the ingredient list should be “followed immediately by the statement ‘contains vanillin, an artificial flavor (or flavoring),’” even when the vanillin contained in the product is made from natural substances through a natural process.
The complaint claims, “The proportion of the characterizing component, vanilla has a material bearing on price or consumer acceptance of the Products because it is more expensive and desired by consumers.” Thus the complaint alleges that the labeling should fairly represent the ingredients and their proportions, whatever those may be.