Is the packaging on hazelnut and cocoa spread Nutella® misleading and harmful? According to Athena Hohenberg, who filed a lawsuit against Ferrero USA (the owner of Nutella) on February 1 in a federal district court in California, it is. But the merit of Ms. Hohenberg’s claim is dubious, and her proposed regulatory means – litigation – makes for bad public policy.
The complaint
According to Ms. Hohenberg, Ferrero USA misled her into thinking that Nutella is a “healthy and nutritious brekafast.” Consequently, Ms. Hohenberg made Nutella a regular part of her family’s breakfast. Only later did she learn from friends that Nutella actually contains amounts of fat and sugar. Ms. Hohenberg insists that she, and all California consumers of Nutella, be granted restitution for false advertising.
The principle offenses
How did Ferrero mislead Ms. Hohenberg? Simply by saying on the Nutella label: “An example of a tasty yet balanced breakfast: a glass of skim milk, orange juice and Nutella on whole wheat bread,” with an accompanying image of the breakfast items.
Ms. Hohenberg also blames a number of Nutella commercials and images that show “happy and healthy” children eating Nutella. The children – Hohenberg claims – could not really be happy and health if they were in fact eating Nutella.
Reasonable?
Hohnberg interpreted the language and image on Nutella’s label to mean that Nutella is – by itself – a balanced breakfast. This blatantly ignores the other food objects in the picture and the part of the statement about the “skim milk, orange juice … whole wheat bread.” Rather, the picture as a whole merits the statement, and Nutella is a component. In the picture, Nutella is used as a spread on toast – not as a stand-alone meal – and in this sparing respect, Nutella contributes to the balanced nature of the meal as well as the “tastiness.” The saturated and unsaturated fat content of Nutella per 200 calories is 11 and 3.5 grams, respectively, approximately the same as 200 calories of peanut butter (Nutella contains no trans fats). The meal depicted on the label is very much a “balanced breakfast” (although this author would also recommend some protein).
The plaintiff’s interpretation of the commercial is similarly questionable. How does eating Nutella preclude children from being happy and healthy? As has just been shown, Nutella in limited quantities does not constitute an excessive amount of fat or sugar, and happiness in children has never been linked to the health quality of food (in fact, the two are usually negatively related).
Reasonable? Part II
Ms. Hohenberg’s purported confusion (and thereby her alleged suffering) is further undermined by the simple fact that the images and words referenced in her complaint are immediately next to the nutrition label which contains complete and truthful information regarding Nutella’s fat content, sugar content, protein, etc. According to Ms. Hohenberg’s brief, “Plaintiff was a reasonably diligent consumer looking for products for herself and her family household that were generally healthy and nutritious.” It would seem, however, that even the slightest bit of diligence would have led Ms. Hohenberg to the label, where should would have been undeceived.
What is to be done?
This claim represents the latest in a recent upsurge of suits brought against the food industry under the Federal Food, Drug, and Cosmetic Act (“FFDCA”) and California’s Bus. & Prof. Code secs. 17200 et seq. (See this WLF paper on a suit brought against VitaminWater). Under this regulatory sue-as-you-go system, companies will forever be looking over their backs for customers who are confused – legitimately or not – by their advertisements. To ensure truthful advertisements for consumers and a smooth regulatory process for business, advertisements should be dealt with at the federal level by the FDA and the Agency’s regulatory activity should preempt state “consumer protection” class actions like Ms. Hohenberg’s.
Her complaint against the alleged false advertising of Ferrero seems a bit stretched, but regardless of its merit, the complaint evidences the need for a clear, regular, and authoritative process for determining the legality of food advertisements.
More on this lawsuit at Overlawyered and FDA Law Blog.