• Say “Cheese,” But Not A Word More!
  • October 7, 2016
  • Law Firm: Phillips Nizer LLP - New York Office
  • “100% Grated Parmesan Cheese.” Several consumers claim this seemingly straight forward product description is misleading, so misleading in fact that crafty lawyers have dragged Kraft and other cheese manufacturers into court on false marketing claims. So many parmesan cheese class action lawsuits have been filed (sixteen and counting) that the U.S. Judicial Panel on Multidistrict Litigation has lumped these actions into a single massive case.

    What’s wrong with saying “100% Grated Parmesan Cheese” when referring to my favorite pasta primavera topping? According to the class action plaintiffs, this grated parmesan cheese contains substantial amounts of cellulose (wood pulp) which acts as an anti-clumping agent (so the grated cheese stays grated). This, the plaintiffs say, means that the grated parmesan cheese sold by the defendants is not “100%” grated parmesan cheese.

    Since I am not involved in any of the parmesan cheese class action lawsuits, there is at least entertainment value in the cases. But for consumer products manufacturers, there are lessons to be learned. Some marketing claims may land you in court!

    Consider one goal of the Federal Trade Commission. Its website (https://www.ftc.gov/about-ftc) says its mission is:

    To prevent business practices that are anticompetitive or deceptive or unfair to consumers; to enhance informed consumer choice and public understanding of the competitive process; and to accomplish this without unduly burdening legitimate business activity.

    Let me paraphrase here, the FTC wants to keep manufacturers and retailers honest with the consuming public about the products they sell. Word choice is important because some words can be interpreted differently by different consumers and thus misleading because of an ambiguity.

    An amazing fashion company I work with uses GOTS certified organic cotton for one of its product lines. Is it okay for that company to say that the product is 100% organic? Unless every component of these garments is organic (dyes, trims, buttons, etc.), the answer is no. The correct advertising claim should say that the products are made from GOTS certified organic cotton without implying that product as a whole is organic.

    “All Natural” is another potentially problematic claim, even where the product is intended to be made from all-natural components. Consumer product companies that don’t carefully control their supply chains are at the mercy of suppliers who may (knowingly or not) substitute synthetic ingredients for natural ingredients. I am told by people who know about these things that many synthetically derived ingredients act the same as the natural ones. But some consumers are willing to swear under oath that their purchasing decisions are guided by whether a product is “all-natural” and are willing to join class action lawsuits when a purchased product does not live up to the “all-natural” claim.

    Let me mention another recent case. Trader Joe’s, which markets certain oatmeal and cereals as containing “maple” (TJ’s Frosted Maple and Brown Sugar Shredded Bite-Sized Wheats and TJ’s Oatmeal Complete Maple and Brown Sugar) is being sued in federal court. Can you guess what’s not on the ingredient list?