Health-Conscious Plaintiff Prefers the Ice Cream Bar: Makers of Nutella Sued for Allegedly False and Misleading “Balanced Breakfast” Claim

By Peter M. Jaensch –

In what appears to be yet another example of a consumer fraud class action that cites alleged  violations of the FDC Act and its implementing regulations, on February 1, 2011, Athena Hohenberg filed a class action lawsuit in U.S. District Court for the Southern District of California against Ferrero U.S.A., Inc. (“Ferrero”), the manufacturer of the popular hazelnut and cocoa spread, Nutella®, alleging violations of California law based upon Ferrero’s allegedly false and misleading labeling and advertising of Nutella® as part of a “balanced breakfast.”  The Complaint also cites Ferrero’s use of photographs depicting mothers feeding Nutella® to their healthy-looking children, and statements on the label of the product that Nutella® is “‘[a]n example of a tasty yet balanced breakfast’ in association with a picture showing fresh fruits, whole wheat bread, and orange juice” as examples of false, deceptive, and misleading advertising of Nutella® in light of plaintiff’s allegation that Nutella® “contains about 70% saturated fat and processed sugar by weight” and “the same amount of saturated fat as a Twix Ice Cream bar.” Consequently, plaintiff claims, health-conscious consumers were duped into paying more for Nutella® than they would have been willing to pay had they known its true nutritional value.

In addition to unspecified damages, attorney’s fees, and punitives, Ms. Hohenberg seeks an order from the Court “compelling Ferrero to (1) cease marketing its products using the misleading tactics complained of [in the Complaint], (2) conduct a corrective advertising campaign, (3) restore the amounts by which Ferrero was unjustly enriched, and (4) destroy all misleading and deceptive materials and products.”

By the way, you can have your Nutella® and your ice cream too. CAUTION: Choco-Hazelnut Ice Cream is not a salad.