A federal court in New York recently granted a motion to dismiss claims that ice cream labeled “vanilla” misleads consumers into believing the product’s flavor comes exclusively from vanilla beans or extract, when in fact other natural flavors contribute to the vanilla taste. The decision may be a harbinger of what is to come in similar cases challenging the label description of vanilla and other flavors in products ranging from ice cream to soy milk to energy drinks. The decision also shows that alleged regulatory violations and product testing do not necessarily support a plausible claim of consumer deception.
The Ninth Circuit recently rejected a plaintiff’s request for attorneys’ fees under the so-called catalyst theory where the changes the defendant made in an effort to effectively moot the case were different from the changes the plaintiff had demanded in the litigation. The decision illustrates that a creative fix to an alleged issue may deter a plaintiff’s counsel from pursuing the case without entitling them to a fee award under the catalyst theory.