In a spit decision, the First Circuit reversed a dismissal of a putative class action in a Massachusetts consumer protection case. Dumond v. Reily Foods Co., No. 18-2055 (1st Cir. Aug. 8, 2019)

The defendant New England Coffee Company sells a “Hazelnut Crème” coffee. The plaintiff sued because the coffee contains no nut – it’s all coffee, no nut, only nut flavored. The district court dismissed the complaint without leave to amend on the basis that the complaint wasn’t sufficiently specific. After rejecting that ground for dismissal and also rejecting a preemption argument, the majority noted that the defendants argued as an alternative ground to support the dismissal that the factual allegations complaint failed to state a plausible claim, and that’s the part of the decision that interests us.

Whether the label was deceptive, Judge Kayatta, writing for himself and Judge Torruella, opined was a question of fact. While the label said it was “100% Arabica coffee” and listed no hazelnut as an ingredient, Judge Kayatta said that perhaps a reasonable factfinder could conclude the name of the product was sufficient, without having to read the “fine print,” “much like one might easily buy a hazelnut cake without studying the ingredients list to confirm that the cake actually contains some hazelnut.”

Responding to the dissent, Judge Kayatta wrote: “Our dissenting colleague [Judge Lynch] envisions a more erudite reader of labels, tipped off by the accent grave on the word “crème,” and armed perhaps with several dictionaries, a bit like a federal judge reading a statute. We are less confident that ‘common parlance’ would exhibit such linguistic precision. Indeed, we confess that one of us thought “crème” was a fancy word for cream, with Hazelnut Crème being akin, for example, to hazelnut butter, a product often found in another aisle of the supermarket.”

Judge Kayatta further wrote: “None of this is to say that our dissenting colleague’s reading is by any means unreasonable. To the contrary, we ourselves would likely land upon that reading were we in the grocery aisle with some time to peruse the package.”

In her dissent, Judge Lynch said that she disagreed with the majority that this presented a “close” question – in her view “a reasonable consumer plainly could not view the phrase ‘Hazelnut Crème’ as announcing the presence of actual hazelnut in a bag of coffee which also proclaims it is ‘100% Arabica Coffee.’” Aside from noting that the package ingredient only said it included 100% Arabica coffee and never said it contained an actual nut, Judge Lynch explained how the word “Crème” means, both in the dictionary and in common parlance, a cream or cream sauce as used in cookery or a sweet liqueur, with the latter usually “used with the flavor specified” (citing Webster’s) – in short, “hazelnut Crème” clearly indicates a flavoring, not an ingredient. The majority’s hazelnut cake analogy was inapt because cakes are “made up of many ingredients.” .

My thoughts on this opinion are, first, it sounds like a lively chambers discussion, and second, I wonder about the degree to which each of the members of the panel does his or her own grocery shopping, and, if so, whether he or she reads labels, and whether this, consciously or not, influenced their thinking.

Since according to the majority opinion, either Judge Kayatta or Judge Torruella thought “Hazelnut Crème” meant hazelnut butter (really? in coffee? And despite the fact no dairy product was listed on the label?), did the majority reason that it follows that a reasonable consumer could be confused, because obviously the members of the majority are reasonable consumers? As noted above, the majority stated that “we” would “likely” realize there was no actual hazelnut in the coffee “were we in the grocery aisle with some time to peruse the package.” Are they saying that’s not the reasonable consumer standard –someone with time to peruse a package? It’s unreasonable to have them look at the ingredients? Or is the majority saying “likely” isn’t good enough to avoid a jury question?