A federal judge has thrown out a woman's lawsuit against candymaker Ferrara, saying she failed to prove Ferrara's Nips packaging which advertised it was “rich and creamy” misled her into believing the hard caramel candy contained real dairy cream.
Between December 2021 and January 2022, plaintiff Kianna Gardner claimed she bought a four-ounce box of Ferrara’s Nips candy at least once from her local Walmart store in Chicago. She asserted she purchased the caramel hard candy because she believed it contained real dairy fat that came from cream.
When she claims she discovered the product didn’t contain as much milk fat as she says she expected, Gardner filed suit in March 2022 in Chicago federal court. In that complaint, Garnder asserted the packaging was deceptive and misleading because it uses the terms “caramel” and “creamy," which she said implied the product contained milk.
Gardner brought the putative class action on behalf of herself and Illinois residents who purchased the product during the statutes of limitations. Gardner sought to represent a multi-state class of consumers from nine other states who purchased the product.
The judge said Gardner failed to allege the candy’s label was false, deceptive or misleading under the Illinois Consumer Fraud and Deceptive Business Practices Act or comparable laws from other states. U.S. District Judge Steven Seeger granted Ferrara Candy’s motion to dismiss on March 22 in Chicago federal court.
Gardner expected the candy to have more than a minimal "amount of dairy ingredients with milk fat" from the use of the phrase “Rich & Creamy” and believed the creaminess of the caramel came from dairy. However, she found many other items on the ingredient list instead, including corn syrup, sugar, reduced-fat milk, hydrogenated coconut oil, whey, and others. Gardner alleged that, based on the ingredient list, the product’s fat comes mainly from hydrogenated coconut oil, not dairy products. She admitted the product does have some amount of milk fat from dairy, but not as much milk fat as she expected nor the type of milk fat she expected.
The judge said a statement about the presence of an ingredient is not a promise about the amount of the ingredient. A claim cannot rest on a mere reference to an ingredient that is, in fact, an ingredient unless something else makes that statement misleading. Courts widely dismiss claims that a product contained only a de minimis amount of an ingredient when the packaging itself did not promise more.
The judge said Gardner read too much into the packaging, because the product did not promise a certain level of cream or other milk fat. The packaging didn’t promise Nips contained dairy at all. No reasonable consumer could believe the words “caramel” and “creamy” guaranteed a certain amount of cream, the judge said.
Gardner points to definitions of “caramel” from an assortment of dictionaries, all of which describe caramel as a candy made from milk fat. Ferrara’s candy does have milk fat in it, so it meets the dictionary definition, the judge said.
Further the judge noted Gardner's own complaint concedes that reduced-fat milk is the No. 3 ingredient in Nips, behind corn syrup and sugar. Corn syrup and sugar aren’t fat, so the leading ingredient that contains fat is, in fact, based on dairy, the judge said.
The judge found use of the word “creamy” wasn’t a hook to hang a claim on, either. The plaintiff thought an essential element of “creamy” is the presence of actual cream, but “cream” and “creamy” do not mean the same thing, the judge said, as one is a thing and the other an attribute. Also, many items may be creamy, but yet lack dairy. The word “creamy” can also describe things that aren’t food, too, such as hand lotion, the judge said.
"The Court’s holding that Gardner has not sufficiently alleged that a reasonable consumer would be misled by the Nips labeling is a kill shot to the Achilles Heel of the case," Judge Seeger wrote.
"The remaining claims share the same vulnerability. Every claim in Gardner’s complaint requires proof of a deceptive act or practice6 – the alleged misrepresentation of milk fat – so the entire complaint rises or falls with that analysis. No deception, no claims."
Another court in this district recently came to the same conclusion about a different brand of caramels from the same candy company in Biczo v. Ferrara Candy. No reasonable consumer would expect a caramel candy – even one described as “creamy” – to contain certain dairy ingredients or specific amounts of milk fat, Judge Seeger said.
Gardner has been represented in the case by attorney Spencer Sheehan, of Sheehan & Associates, of Great Neck, N.Y.
Ferrara has been represented by attorneys Sanjay S. Karnik, William P. Cole and Matthew R. Orr, of the firm of Amin Talati Wasserman, of Chicago and Los Angeles.