Consumer Class Actions and Mass Torts : Class Action Lawyer & Attorney : J. Russell Jackson : Skadden Law Firm : Complex Class Actions : Consumer Class Actions & Mass Torts Law Blog

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I really thought it would be more difficult to find a subject for this second "Torts Twits" feature.  But then this complaint landed in my lap, and I knew I had April's award winners.

I don't know who the bright light was behind this dim-witted lawsuit, so I won't single out any one of the gaggle of lawyers with their names on the complaint.  But they come from these firms:  Cohn Lifland Pearlman Herrmann & Knopf LLP in Saddle Brook, NJ; Wolf Popper LLP in NYC; and Clark, Hunt, Ahern & Embry in Cambridge, MA.

And what, pray tell, is the consumer fraud that is so important that these lawyers have made a federal case of it?  Breyer's Smooth & Dreamy Ice Cream proclaims on its label that it contains one-third fewer calories than "regular ice cream," but it apparently does not contain one-third fewer calories than the corresponding flavor in Breyer's All Natural Original Brand.

Now get this straight:  plaintiffs are not saying that the ice cream fails to disclose its calorie count.  Or that it falsely states its calorie count.  Rather, plaintiffs' complaint compares the calorie counts of two different Breyer's brands and concludes that, because the average difference in calories is 14.2% for the various flavors, the statement that Smooth & Dreamy contains one-third fewer calories than regular ice cream is false.

Of course, when I think of regular ice cream, I don't think of Breyer's.  I think of what I eat when I'm not dieting.  It -- like Breyer's -- is also a Unilever brand:  Ben and Jerry's.  When you compare the calorie count of Ben & Jerry's to Breyer's Smooth & Dreamy, the results are really interesting.  For example, one serving (a half cup) of Ben & Jerry's Vanilla ice cream is 230 calories.  According to the complaint, one serving of Smooth & Dreamy Creamy Vanilla is 110 calories.  So Smooth & Dreamy Creamy Vanilla is much more than one-third fewer calories than regular ice cream.  And plaintiffs' complaint is full of hot air.

But plaintiffs claim Unilever has violated the New Jersey Consumer Fraud Act, breached express warranties, and been unjustly enriched.  Accordingly, they plead that they and a putative nationwide class are entitled to the amounts they spent on Smooth and Dreamy, a constructive trust on Unilever's revenues from the sale of Smooth & Dreamy, restitution, disgorgement of profits, injunctive relief, and -- last, but certainly not least -- attorneys' fees and costs.

This lawsuit is a pathetic example of how consumer fraud acts can be abused to hold up companies for tribute, like highwaymen of old.  This is NOT activism to solve a problem.  Anyone who has dieted knows that the first thing you pay attention to when trying to lose weight is the calorie count.  The percentage of reduction from "regular" foods may be interesting, but it doesn't inform you whether you can eat a serving and remain within your daily allotment of calories.  Even if Breyer's statement were false -- WHICH, AS A SIMPLE CALORIE COUNT PROVES, IT IS NOT -- it would not be the cause of any actual harm to consumers.  It is the calorie count that gives consumers the information they need to make dietary decisions.

Let's hope this lawsuit is dismissed on the pleadings, so that Breyer's and Ben & Jerry's can spend their money making delicious new flavors, not defending against frivolous claims.