In Nutella Advertising Case, Whom Is the System Protecting?


The world is full of surprises, like the fact that Nutella chocolate spread is loaded with saturated fat and sugar and is not itself healthy.

Ferrero USA, Inc., the company that makes Nutella, learned the hard way that many American parents could not survive (nor perhaps could their children) without the aid and intervention of Captain Obvious. And so, following a recent settlement agreement with some confused parents, the maker of Nutella will modify its labeling, advertising, and website to clarify its nutritional value.

The problems arose from a line of advertisements and website content suggesting that Nutella could be part of a healthy breakfast. While many of us might understand that Nutella’s contributions to a healthy breakfast are the equivalent of Cheez Whiz’s contributions to a healthy side of broccoli, a couple of California moms said they were duped. They were surprised to learn that it was other elements of a breakfast – like a glass of milk, or the whole-grain bread the Nutella would top – that were healthy and that all Nutella did was to get children to the table.

The SoCal gals took their stupefaction to court, filing a class action for violations of state consumer protection laws in the U.S. District Court for the Southern District of California in early 2011. A literal reading of the advertisements (samples of which can be found on pages 19-27 of the complaint) should make it reasonably clear that Nutella, in and of itself, is not a nutritionist’s top pick. The ads qualify Nutella as a way to get children to eat healthy foods (see again, Cheez Whiz). But those qualifications were not clear enough to the plaintiffs, who were “shocked” that Nutella had the nutritional value of a candy bar.

Ferrero attempted to get the class action transferred to U.S. District Court in New Jersey, where a follow-on suit was filed, and also attempted to get the actions dismissed. The company’s tactics failed, leaving it with little choice but to pursue costly defense or to settle. The company chose the latter course and entered into a $3million-plus settlement for both cases. While the sum may seem staggering in comparison to the allegations, most of the settlement ($2.5 million) is dedicated to reimbursing consumers, in $4/purchase increments. The company has also agreed to clarify its nutritional value in its labeling, advertising and website.

What’s troubling is that Ferrero’s advertising was full of qualifications about the role Nutella can play in nutrition. It’s only the careless or dismissive or naïve parent who could have been “duped.” In the end, this appears to be yet another example of our system protecting willful blindness.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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