In Re Ferrero Litigation
2011 U.S. Dist. LEXIS 70629
S.D. Cal.2011Background
- Consolidated consumer class action against Ferrero U.S.A. alleging Nutella labeling/advertising misleads about healthiness; claims under UCL, FAL, CLRA, breach of express warranty, and breach of implied warranty of merchantability.
- Plaintiffs allege Nutella is promoted as healthy for children but contains high fat and sugar.
- Allegations include deceptive statements on Nutella labeling and advertising; website representations are at issue.
- Plaintiffs concede they relied on labeling/TV ads, not website statements; standing to challenge website claims is contested.
- Court addresses Rule 12(b)(6) sufficiency, standing to challenge website claims, and preemption under the NLEA; analyzes puffery and consumer deception.
- Court allows amendment within 30 days if plaintiffs cure deficiencies.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to challenge website statements under UCL/FAL/CLRA | Plaintiffs rely on overall ad campaign, not website alone | No actual reliance on website statements by plaintiffs | Plaintiffs lack standing to challenge website statements; preemption/standing addressed for other claims. |
| Preemption under NLEA for alleged omissions | Omissions alleged as deceptive, not labeling adequacy | NLEA preempts non-identical state labeling requirements | To extent based on Nutella label (vanillin), preempted; other challenged disclosures may proceed. |
| Reasonable consumer/puffery suitability of statements | Statements are concrete, not puffery; could deceive a reasonable consumer | Many statements are puffery or non-actionable | Not dismissed at pleading stage; some statements may be actionable within context. |
| CLRA claim sufficiency | Allegations detail the representations and sections violated | Labels/conclusions insufficient | CLRA claim survives; pleading adequate under Twombly standard. |
| Breach of express and implied warranties | Advertising/packaging create express warranty; merchantability defined by label promises | Nutella fit for ordinary purpose; not breach of implied warranty | Express warranty viable; implied warranty of merchantability survives under the label-based definition. |
Key Cases Cited
- Kwikset Corp. v. Sup. Ct., 51 Cal.4th 310 (Cal. 2011) (actual reliance required for UCL/FAL standing under misrepresentation)
- Tobacco II Cases, 46 Cal.4th 298 (Cal. 2009) (requires actual reliance for misrepresentation-based UCL claims)
- Williams v. Gerber Products Co., 552 F.3d 938 (9th Cir. 2008) (deception requires reasonable consumer test; puffery limits)
- Cohen v. DIRECTV, Inc., 178 Cal. App. 4th 966 (Cal. App. 2009) (standing for CLRA claims; reliance on misrepresentation)
- Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097 (9th Cir. 2003) (heightened pleading for fraud-based UCL/FAL/CLRA claims)
- Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv., 911 F.2d 242 (9th Cir. 1990) (puffery vs. actionable statements; context matters)
- Keith v. Buchanan, 173 Cal. App. 3d 13 (Cal. App. 1985) (advertising statements can form express warranties)
- Toyota Unintended Acceleration Cases, 754 F. Supp. 2d 1145 (C.D. Cal. 2010) (advertising claims may create express warranty)
- Leoni v. State Bar, 39 Cal.3d 609 (Cal. 1985) (broad interpretation of UCL/FAL includes true but misleading statements)
- Chacanaca v. Quaker Oats Co., 752 F. Supp. 2d 1111 (N.D. Cal. 2010) (FDCA/NLEA preemption considerations in labeling)