Cerretti v. Whole Foods Mkt. Grp.
| Decision Date | 08 April 2022 |
| Docket Number | 21 CV 5516 |
| Parties | Kayla Cerretti, Plaintiff, v. Whole Foods Market Group, Inc., Defendant. |
| Court | U.S. District Court — Northern District of Illinois |
Defendant Whole Foods Market Group, Inc. manufactures and markets organic chocolate ice cream bars. Plaintiff Kayla Cerretti bought some of those bars, expecting the coating on the ice cream to be exclusively chocolate. Cerretti alleges that Whole Foods deceived her because the chocolate coating contained more non-chocolate ingredients than actual chocolate. Cerretti wants to represent a class of consumers and brings claims for violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, breach of express and implied warranties, negligent misrepresentation, fraud and unjust enrichment. Whole Foods moves to dismiss under Rule 12(b)(6). For the reasons discussed below, the motion is granted.
To survive a motion to dismiss under Rule 12(b)(6), a complaint must state a claim upon which relief may be granted. Fed.R.Civ.P. 12(b)(6). The complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In reviewing a motion to dismiss, a court must construe all factual allegations as true and draw all reasonable inferences in the plaintiffs favor. Sloan v. Am. Brain Tumor Ass'n, 901 F.3d 891, 893 (7th Cir. 2018) (citing Deppe v. NCAA, 893 F.3d 498, 499 (7th Cir. 2018)).
Whole Foods sold "Organic Chocolate Ice Cream Bars" under its 365 brand. [1] ¶ l.[1] The front of the product's packaging described the bars as "Organic Vanilla Ice Cream Dipped in Organic Chocolate," and showed the dessert surrounded by chunks of chocolate:
(Image Omitted) Id. A side panel on the box said that Id. ¶ 2. Whole Foods was known for organic and high-quality grocery products, and the company said that it sought out the “finest natural and organic foods” and maintained “the strictest quality standards.” Id. ¶¶ 90-93.
Kayla Cerretti bought Whole Foods ice cream bars, expecting that the coating on the ice cream would only be chocolate. [1] ¶¶ 100-05, 126. Cerretti believed that if the ice cream's coating included any chocolate substitutes, they would not exceed the amount of actual chocolate ingredients like chocolate liquor and cocoa butter. Id. ¶¶ 105, 126. According to the product's ingredients list, however, the chocolate in Whole Foods's ice cream bars was more palm kernel oil than it was organic chocolate liquor or organic cocoa butter by weight, although it did include those ingredients. Id. ¶¶ 52-53. Relying on Whole Foods's representations, Cerretti paid more for Whole Foods's ice cream bars than she would have if she had known what was really in the chocolate. Id. ¶¶ 75, 106-08. The ice cream bars were worth less than they appeared and Whole Foods knew that its product wasn't consistent with the company's advertising. Id. ¶¶ 73-77, 108, 143.
Dictionaries define chocolate as a food prepared from cacao beans, often combined with other ingredients, including sweeteners. See [1] ¶¶ 4-9. The Food and Drug Administration defines “milk chocolate” as a food made by “mixing and grinding chocolate liquor with one or more ... optional dairy ingredients, ” along with optional sweeteners or other ingredients. Id. ¶ 10; 21 C.F.R. § 163.130(a). All definitions of chocolate exclude fats from sources other than cacao ingredients. [1] ¶ 12. Cacao ingredients, which are natural rather than synthetic, cost more and are more filling than vegetable oils. [1] ¶¶ 32-35, 45-48. Replacing cocoa butter in chocolate with vegetable oils degrades the flavor, creating a “waxy and oily mouthfeel” and an aftertaste as opposed to the “creamy and smooth” taste of chocolate. Id. ¶¶ 37-39.
The adulteration of chocolate-by including starches and vegetable fats-has a long history. [1] ¶¶ 18-19. When large confectionary companies sought to redefine chocolate by replacing cacao ingredients, thousands of Americans responded critically, and industry figures spoke out against the redefinition. Id. ¶¶ 20-28. In a consumer survey of 400 Americans who saw a product described as coated or dipped in chocolate pictured with chocolate ingredients, sixty percent of respondents expected that they would not be provided lower-quality chocolate substitutes. Id. ¶¶ 29-30.
The Illinois Consumer Fraud Act prohibits “unfair or deceptive acts or practices ... in the conduct of any trade or commerce.” 815 ILCS 505/2.[2] Deceptive or unfair practices include any “misrepresentation or the concealment, suppression or omission of any material fact.” Id. To state a claim under the Act, Cerretti must show “that the defendant committed a deceptive or unfair act with the intent that others rely on the deception, that the act occurred in the course of trade or commerce, and that it caused actual damages.” Vanzant v. Hill's Pet Nutrition, Inc., 934 F.3d 730, 736 (7th Cir. 2019) (citing Siegel v. Shell Oil Co., 612 F.3d 932, 934-35 (7th Cir. 2010)). The elements of a common-law fraudulent misrepresentation claim largely overlap with a deceptive-practices claim under the ICFA, [3] and include “a false statement of material fact.” Newman v. Metro. Life Ins. Co., 885 F.3d 992, 1003 (7th Cir. 2018) (quoting Doe v. Dilling, 228 Ill.2d 324, 342-43 (2008)). Cerretti must plead both her deceptive-practices statutory and common-law fraud claims with the detail required by Rule 9(b), including the “who, what, when, where, and how” of the fraud. Vanzant, 934 F.3d at 736 (citing Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 737 (7th Cir. 2014)); Newman, 885 F.3d at 998.
At issue here is the element of a deceptive act or misrepresentation. See [11-1] at 9-13.[4] Whole Foods called its product “Organic Chocolate Ice Cream Bars, ” described the bars as “Organic Vanilla Ice Cream Dipped in Organic Chocolate, ” decadent, and smooth, and the bars were pictured amidst chunks of chocolate. See [1] ¶¶ 1-2, 49-51. Cerretti claims that these representations were misleading because (1) the coating on the ice cream “has less chocolate than consumers expect, ” (2) the chocolate “contains more chocolate substitutes than cacao ingredients, ” and (3) the coating wasn't only chocolate. See Id. ¶¶ 3, 52, 59.
To show that Whole Foods misrepresented its product, Cerretti needs to allege that the product packaging was “likely to deceive reasonable consumers, ” and that “a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled.” Bell v. Publix Super Markets, Inc., 982 F.3d 468, 474-75 (7th Cir. 2020) (quoting Beardsall v. CVS Pharmacy, Inc., 953 F.3d 969, 972-73 (7th Cir. 2020)). Where a plaintiff alleges “unreasonable or fanciful interpretations” of labels or advertising, dismissal on the pleadings can be justified. Id. at 477 (collecting cases). The context of the entire packaging of the ice cream bars along with “all the information available to consumers and the context in which that information is provided and used” is relevant, but an accurate list of ingredients does not necessarily mean that a front label isn't deceptive. Id. at 476-78 (citing Davis v. G.N. Mortg. Corp., 396 F.3d 869, 884 (7th Cir. 2005)).
Cerretti was misled by Whole Foods's packaging, but her interpretation of the labeling on the ice cream bars was unreasonable. Whole Foods called its product “chocolate” and showed the dessert amidst chunks of chocolate. [1] ¶¶ 1-2. As plaintiff acknowledged, the product actually contained chocolate. See Id. ¶¶ 52-56.
Whole Foods never advertised its product as exclusively or 100% chocolate. See Id. ¶¶ 1-2. Defendant called the bars smooth and decadent, id. ¶¶ 2, 50-51, but those representations were about the product's qualities, not its ingredients. The product contained an accurate ingredients list. See Id. ¶ 52.[5] With that context, Whole Foods's packaging wasn't likely to deceive a significant portion of reasonable consumers. See Chiappetta v. Kellogg Sales Co., No. 21-CV-3545, 2022 WL 602505, at *4 (N.D. Ill. Mar. 1, 2022) (); Mitchell v. Whole Foods Mkt. Grp., Inc., 20 Civ. 8496 (ER), 2022 WL 657044, at *2-8 n.14 (S.D.N.Y. Mar. 4, 2022) (); Bell, 982 F.3d at 478 ().
Cerretti wants to ground her interpretation of Whole Foods's representations on dictionary definitions, consumer preferences, survey results, and federal regulations. See [15] at 9-19. None of plaintiffs' allegations shows that Whole Foods was lying, however. Definitions of chocolate universally exclude fats from sources other than cacao ingredients, [1] ¶¶ 4-7, 10-12, but plaintiff hasn't alleged that consumers were aware of those definitions or would expect a chocolate...
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...a chocolate-tasting fudge product made from oils and whey would mislead a reasonable consumer"); Cerretti v. Whole Foods Mkt. Grp., Inc., 2022 WL 1062793, at *3 (N.D. Ill. Apr. 8, 2022) (while the coating on the ice cream had less chocolate than consumers expect and the chocolate contained ......