A California resident who purportedly bought the hazelnut spread Nutella® to provide a nutritious snack or breakfast for her 4-year-old daughter has filed a putative class action against its manufacturer alleging violations of consumer protection laws. Hohenberg v. Ferrero U.S.A., Inc., No. 11-0205 (U.S. Dist. Ct., S.D. Cal., filed February 1, 2011).
Seeking to represent a nationwide class of consumers who purchased the product since 2000, Athena Hohenberg claims that she relied on the company’s product advertisements and representations that Nutella® is a “healthy breakfast” and “nutritious.” According to the complaint, she did not learn until December 2010 “through friends what ingredients were in the Nutella® that she was feeding her family. She was shocked to learn that Nutella® was in fact not a ‘healthy’ ‘nutritious’ food but instead was the next best thing to a candy bar,” containing “about 70% saturated fat and processed sugar by weight.”
Characterizing herself as a “reasonably diligent consumer,” Hohenberg also asserts that she “is not a nutritionist, food expert, or food scientist; she is a lay consumer who did not possess the specialized knowledge Ferrero had which otherwise would have enabled her to associate high levels of saturated fat and refined sugar with disease.” She contends that even with reasonable diligence, she “could not have discovered Ferrero’s deceptive practices earlier because, like nearly all consumers, she does not read scholarly publications or other materials describing the negative impact of consuming foods high in saturated fat and refined sugars.”
Seeking damages in excess of $5 million, the plaintiff alleges unlawful and fraudulent business acts or practices, false advertising, violations of the Consumer Legal Remedies Act, and breaches of express warranty and implied warranty of merchantability. She requests an order enjoining Ferrero from making health or balanced nutrition claims for the product, corrective advertising, disgorgement, the destruction of “all misleading and deceptive advertising materials and products,” restitution, damages, punitive damages, costs, expenses, and attorney’s fees.