Consumer mislabeling class actions are no novelty in the California food industry, thanks to the state’s trio of consumer protection laws. Plaintiffs have their choice between California’s Consumer Legal Remedies Act (Cal. Civ. Code §§1750, et seq.), False Advertising Law (Cal. Bus. & Prof. Code §§17500, et seq.), and Unfair Competition Law (Cal. Bus. & Prof. Code §§17200, et seq.) when alleging that similarly situated buyers are misled by false advertising on a product’s label. The number of these suits specifically pertaining to flavoring of food and beverage products has risen dramatically in the last several years.The most recent targets of these suits are Hostess and McDonald’s.

In August, 2020, Elena Lauchung-Nacarino filed a proposed class action against Hostess over their donettes brand Carrot Cake Mini Donuts. Lauchung-Nacarino v. Hostess Brands, Inc., No. 3:20-cv-05971 (N.D. California). She alleged that consumers were misled into believing that the product contained real carrots. Hostess maintained that the ingredient list did not contain carrots, carrots were not pictured on the packaging, and that “carrot cake” referenced only the flavor of the doughnuts. At the time plaintiff purchased the doughnuts, there was even a disclaimer on the product stating that the doughnuts were “naturally and artificially flavored.”

On February 19, U.S. District Judge Sallie Kim of the Northern District of California granted dismissal of the suit, after plaintiff agreed to drop the claims, along with any potential class claims. Both parties agreed to bear their own attorneys’ fees and costs.

McDonald’s has not yet been so lucky.

In another proposed class action in the Northern District of California, plaintiffs allege that consumers were duped into believing McDonald’s vanilla cones get their flavor only from real vanilla plants. Harris v. McDonald’s Corporation, No. 3:20-cv-06533 (N.D. California). McDonald’s countered in its motion to dismiss that no reasonable consumer at a fast-food restaurant would assume “vanilla” menu items to have vanilla plant as its sole flavoring ingredient. McDonalds cited to several recent decisions that support their contentions, including rulings over protein shakes, soy and almond milk, and ice cream.

Plaintiffs’ attorney has filed over 100 lawsuits against companies over vanilla flavored products, alleging that they don’t contain enough vanilla bean plant to be labeled as such.

The court heard the parties’ arguments on McDonald’s motion to dismiss on February 18, 2021, but the motion has yet to be decided by Judge Richard Seeborg.

Even food and beverage manufacturers that are in compliance with FDA regulations can be targets of these lawsuits. The food and beverage industry should be aware that plaintiffs have commonly alleged a photograph of a food on packaging that is not the real source of a product’s flavor is misleading to consumers. Some manufacturers have tried to avoid lawsuits by including a disclaimer for “natural” or “artificially flavored” products on their packaging. It remains to be seen whether additional court dismissals will put an end to these “flavor of the month” lawsuits.