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Most Popular Ice Cream’s Legal History Isn’t So Plain Vanilla

April 21, 2020, 3:45 PM

While vanilla has long ranked as Americans’ favorite ice cream flavor, the frozen treat has also sparked disagreements that date to the start of the country and continue into modern times.

The controversy isn’t about vanilla versus chocolate, the one heard around birthday parties and swimming pools. It’s about vanilla versus vanilla, a subject on which Thomas Jefferson and another founding father differed.

Jefferson’s quarrel over this issue wasn’t with Alexander Hamilton, his usual foe. Instead, he and Benjamin Franklin differed as to what makes the best vanilla ice cream: what should—and shouldn’t—be in it.

Jefferson and Franklin both were said to have become devotees while in France. But while Jefferson favored “French” vanilla, a cooked treat made with egg yolks, Franklin is said to have tweaked the recipe and served Constitutional Convention delegates “Philadelphia” or American-style ice cream, made with cream and without cooking.

More than 230 years later, the fight over vanilla ice cream continues, but now it’s about what the name means to consumers, how much they pay for it, and how much real vanilla they should expect in every scoopful.

According to dozens of would-be consumer class actions, some of which read like history papers themselves, consumers allege they overpay for the ice cream because a considerable amount of it is deceptively called “vanilla.”

Similar suits challenge the “vanilla” names on yogurt, almond milk, and other food and drink products.

That name, the consumers and their attorneys say, makes them think the products are of higher quality and flavored exclusively with vanilla, which is the world’s second most expensive food flavoring, after saffron.

More than 50 such lawsuits have already been filed, including litigation over Wegmans private-label ice cream, Mars Wrigley’s Dove Bars, and Blue Diamond Growers’ Almond Breeze almond milk.

Most of the suits were filed within the last year, more are on the horizon, and it remains to be seen how the litigation will play out.

One of the most significant tests in the litigation asks whether a reasonable consumer would be deceived by the label. And on that question, opinions diverge, just as the founders did on what makes the best vanilla ice cream.

Second Most Costly Flavoring

Vanilla is at high risk for “food fraud,” because of its high production cost and because factors such as natural disasters and instability in Madagascar, where most vanilla is grown, affect supply and quality, the suits say.

Vanilla comes from the pods of orchids and is very labor-intensive to produce.

The price of raw vanilla is around $300 per kilogram for first grade Madagascar extraction, which is considered the benchmark product, according to David van der Walde, director of Aust & Hachmann (Canada) Ltd, which imports, stocks, and distributes natural vanilla products to major global markets.

That’s way up from prices as low as $20 in the early 2000s, but half the most recent peak of $600 reached in 2018, van der Walde said.

According to van der Walde, food and beverage companies are using less costly ingredients. They “can use less expensive vanilla, less expensive [other natural flavoring], and even much less expensive synthetics to get a reasonable facsimile of the final flavor while either following, bending or, as the lawsuits allege, outright breaking” federal labeling rules, he said.

Food and Drug Administration regulations called “standards of identity” govern what a food or drink must contain to be sold under a certain name, such as “ice cream” or “peanut butter.”

Vanilla is the only flavor that has its own standard of identity. And while that could make it easier for the FDA to enforce the use of the flavoring, standards of identity haven’t traditionally been a major area of concern for the agency, which has broad regulatory authority and focuses more on safety issues, including those related to pharmaceuticals and medical devices.

The high cost of vanilla, and the lack of regulatory oversight, have led to scores of “vanilla” labels that don’t comply because the products contain cheaper flavorings that come from sources other than vanilla, according to plaintiffs’ attorney Spencer Sheehan.

Wegmans Vanilla Ice Cream, for example, violates FDA regulations that require products called “vanilla” to be flavored exclusively with vanilla extract, vanilla concentrate, or vanilla beans, according to one of the lawsuits he’s filed. That gives rise to New York consumer protection law claims, the suit said.

The suit includes a screenshot of Wegmans vanilla ice cream as well as a gas chromatography-mass spectrometry report. That analytical chemistry technique revealed the Wegmans ice cream to contain vanillin and maltol, which are non-vanilla flavors that simulate, extend, and enhance vanilla, according to the complaint.

Sheehan, of Sheehan & Associates PC in Great Neck, N.Y., has been filing the vanilla suits along with Michael Reese of Reese LLP in New York City.

Wegmans: ‘Vanilla’ Means ‘Tastes Like Vanilla’

But Wegmans said alleged violations of the federal law and regulations aren’t per se deceptive practices under New York’s consumer law. And private plaintiffs can’t enforce the federal law, it said: Only the FDA can do that.

In any event, no reasonable consumer would believe that “vanilla” as an ice cream name means it’s the only flavor, the grocery chain said.

“The actual message communicated to consumers by ‘vanilla ice cream’ is that the carton they are holding contains ice cream that tastes like vanilla, as opposed to chocolate, strawberry, or mango,” the company said in a Monday motion seeking dismissal.

“It is as if Plaintiffs alleged that an apple pie, which often contains additional flavors such as cinnamon and nutmeg to complement the main flavor of apple, is required to be labeled ‘apple and cinnamon and nutmeg pie’ because every single flavor present must be disclosed,” Wegmans said.

The company also takes issue with the plaintiffs’ regulatory interpretation, saying there is “no basis in law, regulation, or common sense” for the contention that an ice cream characterized as vanilla must contain only vanilla-imparting flavors.

And the chemical analysis is flawed and provides no support for the plaintiffs’ allegations, Wegmans says.

A food labeling defense attorney said the vanilla suits illustrate a “disconnect” between “relatively arcane regulations and what consumers think and care about.”

Most people would think labeling ice cream or other products as “vanilla” is truthful if vanilla is in there, Anthony J. Anscombe of Steptoe & Johnson LLP in Chicago said.

Consumers make decisions based on factors such as taste and past experience, said Anscombe, who defends food and beverage companies against marketing suits but isn’t involved in the vanilla litigation.

But one consumer advocate and a law professor believe otherwise.

Because vanilla flavorings are the only flavorings subject to an FDA standard of identity, “it may be presumed that consumers have a specific expectation that foods and beverages marketed as ‘vanilla’ are derived from vanilla beans unless clearly and conspicuously labeled otherwise,” Bonnie Patten, executive director of truthinadvertising.org, said. TINA.org tracks advertising and consumer litigation.

The vanilla suits involve “a specific, expensive ingredient that consumers don’t know much about,” Diana Winters, assistant director of the Resnick Center for Food Law & Policy at California’s UCLA School of Law, said.

Simply listing vanilla as an ingredient may signify higher quality, she said. The suits have identified a practice manufacturers may be doing that’s deceptive, she said.

Mars Wrigley has said it doesn’t comment on pending litigation. Blue Diamond didn’t respond to a request for comment.

Industry groups the International Dairy Foods Association and the Consumer Brands Association both declined to comment on the litigation.

Meanwhile, more suits are on the way, Sheehan says.

To contact the reporter on this story: Julie Steinberg in Washington at jsteinberg@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Steven Patrick at spatrick@bloomberglaw.com

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