EAST ST. LOUIS – U.S. District Judge David Dugan dismissed a class action complaint of label litigator Spencer Sheehan on March 17, as the fourth federal judge to disappoint Sheehan in 29 days.
Dugan found Dreyer’s Grand Ice Cream, producer of Haagen-Dazs vanilla milk chocolate ice cream bars, didn’t mislead buyers.
Earlier decisions in Sheehan’s losing streak pertained to Dove Bars, Pop-Tarts, and Whole Foods ice cream bars.
He sued Dreyer’s for Patricia Zurliene of Breese in June, stating she bought the product from Dierberg’s in Edwardsville.
According to the lawsuit, Zurliene saw a chunk of chocolate on a front label that said, “Dipped in, then drizzled in rich milk chocolate.”
Zurliene allegedly expected the milk chocolate part of the product would only contain chocolate and not substitutes.
“The ingredient list reveals that what is described on the front label as milk chocolate is actually milk chocolate and vegetable oil coating,” the suit claimed.
The product allegedly contained coconut oil in place of cacao ingredients.
“Consumers of a premium ice cream bar under the Haagen-Dazs label will not be so distrustful to scrutinize the fine print of the ingredient list to confirm the front label is accurate,” the suit claimed.
Dreyer’s allegedly sold more of the product and at higher prices than it would have in the absence of misconduct.
In November, Dreyer’s counsel Dale Giali of the Mayer Brown in Los Angeles moved to dismiss Zurliene’s complaint.
Giali argued that the ingredient list specified that milk chocolate was made with sugar, whole milk powder, chocolate, cocoa butter, soy lecithin, and vanilla extract.
Sheehan responded in December that, “Merely because consumers are not buying the coating separately does not excuse defendant from truthfully identifying it as containing milk chocolate and vegetable oils.”
On Feb. 17, District Judge Cathy Seibel of the Southern District of New York dismissed a complaint that Mars Wrigley substituted oil for chocolate in Dove Bars.
On March 1, District Judge Marvin Aspen of the Northern District of Illinois dismissed a complaint that Kellogg’s strawberry Pop-Tarts didn’t contain enough strawberries.
On March 4, District Judge Edgardo Ramos of the Southern District of New York dismissed a complaint that Whole Foods substituted oil for chocolate in ice cream bars.
Dugan followed the pattern, finding a judge may dismiss a consumer complaint if the challenged statement was not misleading as a matter of law.
He found federal food and drug regulations required Dreyer’s to list ingredients either on the front of the package or the side.
He found Zurliene’s argument that coconut oil should be listed on the front was a step beyond the regulations.
He gave Sheehan 14 days to amend the complaint.
Sheehan practices in Great Neck, New York.