In Harris v McDonald’s, Case No. 20-cv-06533-RS (US DC ND CA, March 2, 2021), the Northern California District Court sided with the growing trend of cases holding that “vanilla” does not necessarily mean “contains vanilla bean” and dismissed plaintiff’s class action complaint with leave to amend. Plaintiff Harris filed the class action lawsuit last September, after learning the fast food chain’s vanilla cones are not made from authentic vanilla beans. She argued that consumers are being deceived and paying a premium for ingredients that are not natural. McDonald’s markets the ice cream as being a premium product, with natural flavorings, Harris said in the initial complaint. She claims that she took the use of “natural” to mean the ice cream contained vanilla beans not vanillin, its synthetic counterpart.
McDonalds pushed back, arguing that it’s “utterly implausible” for a reasonable consumer to believe their vanilla ice cream’s flavor came from vanilla beans. “A reasonable consumer ordering a soft serve cone at a quick-service restaurant understands, based on experience and common sense, that the term ‘vanilla’ on the menu board refers only to the flavor, not the ingredients,” the company asserted in its motion to dismiss. And the trial court agreed.
The Court dismissed the complaint “because Harris has not pleaded facts showing more than a sheer possibility that reasonable consumers would be misled, the motion to dismiss will be granted.” The Court further explained that “Harris alleges that McDonald’s use of ‘vanilla,’ with no additional modifiers, to describe its product is misleading. That assertion, however, plainly is a legal conclusion that is not deemed true even on a motion to dismiss. See Twombly, 550 U.S. at 555, 564 (noting that the plaintiffs’ assertion of an unlawful agreement was a ‘legal conclusion’ and, as such, was not entitled to the assumption of truth). While Harris’s further contention as to what reasonable consumers would infer from the use of the term ‘vanilla’ on McDonald’s menu boards and kiosks is couched as an allegation of fact, it too is conclusory, as it lacks a factual foundation to support any determination as to what reasonable consumers do (or do not) believe.”
As a further example, the Judge pointed out – tongue in cheek to be sure — that “Rocky Road” is not a literal description of the ice cream’s content. “While it is beyond dispute that no reasonable consumer would understand that a fanciful name for an ice cream flavor – rocky road, for example – is a literal descriptor of the ingredients, it is not so clear that a consumer never would assume that flavors like strawberry, chocolate, and vanilla contain, respectively, strawberry, chocolate, and vanilla.” The Court concluded “Harris cannot proceed simply by asserting her own belief and conclusions about consumers’ beliefs without additional facts to “nudge” her claim “across the line from conceivable to plausible.” Twombly, 550 U.S. at 570. The motion to dismiss must be granted.”