A New York resident has filed a false-advertising class action in a California federal court against the companies that make certain ice cream products labeled with the statement “0 g trans fat.” Carrea v. Dreyer’s Grand Ice Cream, No. 10-1044 (U.S. Dist. Ct., N.D. Cal., Oakland Div., filed March 11, 2010). Seeking to certify a nationwide class of ice cream purchasers, the plaintiff alleges false advertising under the Lanham Act and violations of the California Consumers Legal Remedy Act and the misleading and deceptive advertising provisions of the state Business and Professions Code. The plaintiff seeks a declaration that the defendants have committed the alleged violations, restitution, disgorgement, compensatory and punitive damages, interest, and costs. He also asks the court to order defendants to destroy all misleading and deceptive advertising materials and products.
According to the complaint, the plaintiff relied on the alleged misrepresentations to conclude “that the Products were in fact healthy and relied upon these representations in making his decision to purchase the Products.” He contends that the products contain “dangerous, unhealthy, non-nutritious partially hydrogenated oil and high levels of fat,” but does not allege any personal injury purportedly linked to the products’ consumption. The complaint refers to the Food and Drug Administration (FDA) warning letters that characterized as “misbranded” defendants’ Nestlé Drumstick® Classic Vanilla Fudge Product and “Dreyer’s Dibs Bite Sized Ice Cream Snacks Vanilla Ice Cream with Nestle Crunch Coating”™. More details about the FDA warning letters appear in issue 340 of this Update.