A federal court in California has entered an order certifying a class in consolidated lawsuits alleging that the company which produces Nutella® falsely advertises its product as healthy and beneficial to children despite making the hazelnut spread with “dangerous levels of fat and sugar.” In re Ferrero Litig., No. 11-205 (U.S. Dist. Ct., S.D. Cal., decided November 15, 2011). The court limited the class to California consumers, agreeing with the defendant that California law could not be applied to the claims of non-California class members who neither saw the advertisements nor purchased the product in the state. Because the defendant is a Delaware corporation that does business from its New Jersey headquarters and the product is made in Canada, the non-California class members would also have been unable to show that their claims arose out of conduct that occurred in California.
The court refused to certify an 11-year class, noting that nationwide TV ads for Nutella® began airing in August 2009, and that the statute of limitations for several of the class claims is three years. Accordingly, the court concluded that “the appropriate class period start date is August 2009.” Considering whether common issues predominate over individual ones, the court rejected the defendant’s contention that the case “involves class members’ individual expectations, dietary preferences, nutritional knowledge, and imperfect substitutes in the market,” but indicated that these issues may prove relevant to the merits of the case. In this regard, the court stated, “Plaintiffs present sufficient facts to show that all of the class members’ claims share a common contention: namely, that Defendant made a material misrepresentation regarding the nutritious benefits of Nutella®” that violated state consumer fraud laws.