It is hardly a compliment to describe something as “plain vanilla.” It refers to the simplest version of something, sans any extras. It is ordinary. It is not special. It is dull. And yet vanilla can be a remarkable, complex flavor. Our favorite morning Starbucks cold double shot comes with vanilla. If we get a milk shake, it will be vanilla. We still slip into Proustian nostalgia when we recall a bite of lobster in Madagascar vanilla sauce many years ago at the old Lucas Carton restaurant in Paris.

While some of the best vanilla does, indeed, come from Madagascar, it turns out that vanilla, like chocolate, traces back to Mexico. Any civilization that can come up with chocolate, vanilla, mole sauce, the very best version of Coca Cola, Pacifico, and tequila must have exquisite taste. Vanilla can also come from Tahiti. Make vanilla ice cream with an egg custard base, and now you have French Vanilla. Regular vanilla ice cream made without eggs is called Philadelphia style. These are all just names, we suppose. Whatever the name, vanilla can taste sublime. (That being said, the etymology of the word vanilla is surprisingly sexual.) Vanilla still outranks chocolate in ice cream flavor popularity in the U.S. So why the lack of respect?

According to Wikipedia, vanilla flavored ice cream “became widely and cheaply available with the development of artificial vanillin flavor.” And that gets us to today’s case, Wach v. Prairie Farms Dairy, Inc., 2022 U.S. Dist. LEXIS 90233 (N.D. Ill. May 19, 2022), which is an interesting food decision and apparently only the latest of several vanilla class actions. FDA law is also implicated, thereby supplying us with an excuse to write about ice cream in a drug and device law blog.

Vanilla flavor can come from a variety of sources, not just vanilla bean extracts. In the Wach case, the plaintiffs filed a class action alleging that consumers were defrauded when they purchased an ice cream labeled as “Premium Vanilla” with “Natural Flavors.” The plaintiffs’ theory was that such terms imply flavor derived from vanilla beans, not something else. According to the complaint, the vanilla flavor in the ice cream in question pretty much entirely came from something else. The complaint contained causes of action for consumer fraud (per statutes in Illinois, Wisconsin, and some other states), breach of express and implied warranties, violation of the Magnuson Moss Warranty Act, negligent misrepresentation, common law fraud, and unjust enrichment. The defendant filed a motion to dismiss. Because the court held that, even accepting the factual allegations of the complaint as true, the terms “Premium” and “natural flavors” were not deceptive, it dismissed the complaint.

The essence of the case was that consumer expectations would be dashed upon discovering that the “Premium” vanilla ice cream sourced its vanilla flavor from something other than vanilla beans The Wach court disagreed. First, the label nowhere promised that vanilla beans drove the flavor of the ice cream. Indeed, the words “vanilla bean” were absent from the package. Second, “[i]ce cream is routinely identified by its flavor, not by its ingredients.” Unless you have a remarkable palate, you won’t be able to tell the difference between vanilla ice cream made with vanilla beans versus made with something else. People who care about ice cream usually care about flavor. You can purchase bubble gum flavored ice cream (but why would you?). Nobody who does so expects such ice cream to be made from real bubble gum. (It would be rock hard.) Also, Chunky Monkey, as far as we know, contains no monkey bits. If ice cream consumers actually care about ingredients, they can read that part of the label.

The plaintiffs claimed that the “Natural flavors” designation was a lie, but had not alleged sufficient facts to make that claim plausible. It turns out that vanilla flavoring can be achieved via small amounts of other natural flavors, such as nutmeg. The plaintiffs alleged that the ice cream contained “atypically elevated levels” of guaiacol, a petrochemical precursor. That sounds bad. But guaiacol can come from artificial or natural sources. The complaint offered no “factual basis to suggest that the guaiacol detected in the Product was artificially derived.” Finally, the plaintiffs demanded that the defendant adopt the approach of some other ice cream brands and market its vanilla ice cream as “artificially flavored”. In support of this demand, the plaintiffs cited FDA regulations that arguably suggest an acknowledgement of artificial flavors in the label But plaintiffs were seeking private FDCA enforcement, which plaintiffs cannot do. To the extent the plaintiffs were suggesting that consumers would be aware of the FDA regulations and would thereby be misled by the ice cream label, the complaint was bereft of any factual allegations supporting such a (wildly improbable) suggestion.

As we mentioned earlier, this case is one of several vanilla ice cream consumer fraud cases. The Wach court made note of those precedents, and pointed out that vanilla litigation has left in its “wake a trail of dismissals.” With the Wach case, that trail of dismissals has gotten even longer. The plaintiff lawyers must be feeling something akin to an ice cream headache.