Advertisers took home a win on one of the latest consumer class actions to make you scratch you head and ask “REALly?”  On August 4, the U.S. District Court for the Northern District of Illinois dismissed a putative class action against a major food manufacturer alleging that its popular frozen food was mislabeled. Specifically, the class argued the product label omitted that (1) starch, nonfat milk, and whey were added to the “REAL” mozzarella cheese, and (2) tomatoes were replaced with non-tomato thickeners including cornstarch.  Plaintiff challenged the product label’s use of the “REAL” dairy seal, a trademark owned by the National Milk Producers Federation (“NMPF”), which has a vetting process to authorize use of the REAL seal to third parties. The Court concluded that “a product that says it contains mozzarella cheese and tomato sauce when the [p]roduct does, in fact, contain mozzarella cheese and tomato sauce is not misleading to the reasonable consumer simply because its label does not list its additives.”

The Court called Plaintiff’s reading of junk food labels “a fanciful interpretation of the Product’s label that obfuscates who the real consumers are and how they would understand and react to the label.”  More to the point, the Court explained “[t]o suggest that a reasonable consumer expects pure (i.e. without additives) mozzarella or tomato sauce when buying a bite-size frozen bagel pizza ignores the true nature of the product as a sum of pizza ingredients, including but not limited to, mozzarella and tomato sauce.”  The Court acknowledged that while “true statements can have misleading implications,” here, there is no implication beyond what the unambiguous description of the Product on the label actually says—that the Product contains mini bagels with mozzarella cheese (which is REAL cheese) and tomato sauce.

Because the Plaintiff failed to allege a deceptive act against the defendant food manufacturer, its state law claims for consumer fraud failed.  Absent an underlying wrongdoing, the Court dismissed Plaintiff’s remaining claims for out-of-state consumer fraud statutes; breach of express warranty, implied warranty of merchantability, and Magnuson Moss Warranty Act; negligent misrepresentation; fraud; and unjust enrichment.  To wit, “because the Product’s labeling is not false, misleading, or deceptive as a matter of law, Plaintiffs other claims also fail.” In reaching its decision, the Court highlights two important components of claims analysis: context and validity.  To the first point, the Court did not consider the statement without regard to the type of product, reasoning that the language was not misleading given the “nature of the Product and the reasonable expectations of its consumers.”  In addition, the Court considered the product label and ingredients as a whole, rather than read the descriptions at issue independently.  The Court further adopted the perspective of the “reasonable consumer” who would be purchasing processed foods, placing the interpretation in the eyes of the “reasonable consumer” in this situation. As to the second point, the product description and seal were indeed true on their face.  The ingredient list supported both claims.  The fact that additives were also included in the product did not make the description and seal untrue.  Thus, context and validity play a role in determining what is REAL in the ad space.