In the first Ninth Circuit decision addressing federal food labeling law preemption and the outer limits of the Ninth Circuit’s 2008 Williams v. Gerber decision, Mayer Brown won an important victory for Dreyer’s Grand Ice Cream when a three-judge panel unanimously affirmed the District Court’s dismissal of a consumer class action complaint alleging false advertising of Drumstick and Dibs products. The court ruled that plaintiff’s state law claims were preempted by federal food labeling law and that a reasonable consumer would not be misled by the labels.

The complaint alleged that Dreyer’s violated three California and one New York state consumer protection laws by misleading consumers about the ingredients and nutritional and health attributes of its Drumstick and Dibs products through statements on the product labels, specifically that Dreyer’s made misleading statements that its products were made from original ingredients, contained zero grams of trans fat, and, consequently, were better than similar ice cream and other frozen dessert products. The decision noted that “[i]t is implausible that a reasonable consumer would interpret ‘Original Sundae Cone,’ ‘Original Vanilla,’ and ‘Classic,’ to imply that Drumstick is more wholesome or nutritious than competing products…” and “[f]inally, it strains credulity to claim that a reasonable consumer would be misled to think that an ice cream dessert, with ‘chocolate coating topped with nuts,’ is healthier than its competitors simply by virtue of these ‘Original’ and ‘Classic’ descriptors. In sum, we conclude that Carrea’s state law claims fail to satisfy the “reasonable consumer” standard….”

Among other things, the Drumstick decision reaffirms that it is entirely appropriate for these types of cases to be assessed and dismissed as a matter of law at the pleading stage if the state law claims are in any way inconsistent with federal labeling law or if plaintiff’s theory of false advertising is not plausible.
The Mayer Brown Litigation & Dispute Resolution team included: partner Carmine Zarlenga (who argued the appeal) and special counsel Charles Rothfeld (both Washington, DC) and partner Dale Giali and associates Steve Rich, Drea Weiss and Michael Shapiro (all Los Angeles).