• Earlier this month, a class-action lawsuit was filed against 7-Eleven, alleging that the company deceptively marketed its “Wasabi Delight Flavored Snack Mix” without including real wasabi in the product. Plaintiff’s counsel is the prolific food litigation attorney, Spencer Sheehan.
  • The complaint points to the product’s ingredient list as evidence that the product includes no real wasabi. Although the ingredient list includes a variety of ingredients that at first glance appear to dispute the claim that the product does not contain real wasabi (e.g., wasabi powder), the sub-ingredients reveal that they are not made from the wasabi plant. For example, the “wasabi powder” (a sub-ingredient of “crunch wasabi peanuts”) consists of maltodextrin and mustard seed.
  • The complaint alleges that real wasabi is valued by consumers for its nutritive and antioxidant properties and its distinctive taste, and that they pay a premium for it. The complaint also suggests that by failing to label the product as “artificially flavored” 7-Eleven deceives consumers and violates FDA’s flavoring regulation at 21 CFR 101.22.
  • As with many of these deceptive advertising lawsuits, the complaint produced no extrinsic evidence of consumer deception. While such evidence will ultimately be important, it is not necessarily required to survive a motion to dismiss which is governed by a permissive plausibility standard.