A California resident has filed a putative nationwide class action with a statewide subclass against a yogurt maker that sells “Greek-Style Yogurt” which allegedly contains ingredients that the Food and Drug Administration (FDA) has banned from use in yogurt. Smith v. Cabot Creamery Coop., Inc., No. 12-4591 (U.S. Dist. Ct., N.D. Cal., filed August 31, 2012). According to the named plaintiff, the company sells its product as “authentic Greek yogurt” thus allowing it to “charge a substantial price premium. . . . But the price premium for Cabot Greek is even larger, because Cabot Greek has no value whatsoever. Because the product is adulterated, it cannot legally be sold at any price. It is worthless.”

The plaintiff contends that by using whey protein concentrate and milk protein concentrate as filler materials to thicken the product, the company does not incur the time and expense required to produce real Greek yogurt. Among other matters, the plaintiff claims that adding these ingredients to the product violates the FDA’s “standard of identity” for yogurt. The complaint cites a 2002 FDA warning letter indicating that “[T]he current standard makes no allowance for the use of whey protein concentrate as a basic ingredient in yogurt.” The plaintiff also claims that these ingredients are not generally recognized as safe, thus making the yogurt adulterated. A second defendant is the company that purportedly supplies whey protein concentrate (WPC) with a disclaimer—“Purchaser is solely responsible for ensuring that product supplied is in conformity with all relevant food legislation and should determine whether suggested data, formulations or procedures are suitable for their own purposes”—which, the plaintiff alleges, shows that “it is aware that adding WPCs to dairy products is prohibited by FDA regulations and federal law.”

The complaint includes counts for breaches of express warranty, implied warranty of merchantability and implied warranty of fitness for a particular purpose; unjust enrichment; violation of California’s Consumers Legal Remedies Act, Unfair Competition Law and False Advertising Law; negligent misrepresentation; and fraud. The plaintiff seeks compensatory and punitive damages, restitution, interest, injunctive relief, attorney’s fees, and costs.