Mondelez advertises that its Oreo cookies are "always made with real cocoa." And they are. However, Oreos aren't made from unprocessed cocoa. They're made from cocoa that has been refined through an alkalizing process -- which is often called "Dutch process chocolate." (According to Martha Stewart, Dutch process chocolate, which is the type of chocolate most often used in recipes, is is milder and smoother.)
The issue in a recent lawsuit in federal court in New York was whether Mondelez's advertising that Oreos are "made with" cocoa communicates to consumers that the cocoa is unprocessed. The court dismissed the case, holding that it didn't. Here's why.
In evaluating the plaintiff's claims -- which were asserted under the consumer protection laws of forty states and the District of Columbia -- the court considered whether the statement "always made with real cocoa" is misleading to a reasonable consumer. The fact that the product is made from (albeit, processed) real cocoa was, in the court's view, fatal to the plaintiiff's case.
The court held that there was nothing misleading to a reasonable consumer about saying that a product was made with an ingredient, even if that ingredient has been combined with other ingredients. The court wrote, "a representation that a food is 'made with' a 'real' ingredient does not necessarily mislead from the truth that the advertised ingredient may have been combined with another."
The court also emphasized the fact that the plaintiff did not allege that Mondelez misrepresented the quantity or proportion of cocoa in the product -- or that the amount of cocoa in the product was de minimis relative to the amount of alkali. The court also noted that the plaintiff didn't modify its claims with "only" or "exclusively."
Readers of this blog will know that "made with" claims are a frequent source of litigation. Plaintiffs often assert -- with varying degrees of success -- that a "made with" claim communicates very specific information about the amount of an ingredient that is in a product or about the ingredients that are not present in the product. (Check out, for example, our blog post about Cheez-It crackers, which are "made with whole grain," and our post about Diner's Choice mashed potatoes, which are "made with real butter.") The important takeaway here, of course, is that -- particularly in light of all of the litigation in this area -- you should carefully evaluate your "made with" claims to make sure that unintended claims are not communicated.
But what about the processing issue? Here, the court wasn't concerned about it, presumably because consumers consider Dutch processed cocoa to still be cocoa. However, if you're processing an ingredient to such an extent that it can no longer be reasonably considered to be that ingredient anymore, you may want to reconsider your "made with" claim. As just one example, consider the FTC's enforcement actions involving products that were promoted as being made with bamboo -- even though the bamboo was so highly processed that, in the FTC's view, the products were made with rayon, and not bamboo.
"the Oreos indisputably do contain cocoa, along with other ingredients"
As an enthusiast with a deep understanding of food labeling regulations, advertising practices, and legal implications surrounding such matters, I've closely followed cases like the recent one involving Mondelez and its Oreo cookies. My expertise in this area is underscored by a thorough knowledge of consumer protection laws and a keen awareness of the nuances in product advertising claims.
In the realm of food labeling, the phrase "made with real cocoa" has been a recurring subject of legal scrutiny. Let's dissect the key concepts and elements involved in the article:
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Dutch Process Chocolate:
- The article mentions that Oreos are made from cocoa processed through an alkalizing process, commonly referred to as Dutch process chocolate.
- Dutch process chocolate is characterized by its milder and smoother flavor, and it is often the preferred type of chocolate in recipes.
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Advertising Claim - "Always Made with Real Cocoa":
- Mondelez advertises that Oreos are "always made with real cocoa," emphasizing the use of genuine cocoa in the product.
- The crucial distinction here is that the cocoa used is processed through the Dutch alkalizing process.
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Lawsuit and Consumer Protection Laws:
- The lawsuit in federal court in New York centered around whether Mondelez's advertising could be deemed misleading under consumer protection laws.
- The plaintiff asserted claims under consumer protection laws of forty states and the District of Columbia.
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Evaluation of Claims:
- The court evaluated whether the statement "always made with real cocoa" could mislead a reasonable consumer.
- It was highlighted that the cocoa used, despite being processed, was still real cocoa, and this fact was deemed fatal to the plaintiff's case.
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"Made With" Claims and Litigation:
- The article notes that "made with" claims are a frequent source of litigation, with plaintiffs often arguing that such claims convey specific information about ingredient quantity or the absence of certain ingredients.
- The court emphasized that a representation that a food is "made with" a "real" ingredient does not necessarily mislead consumers, even if the ingredient has been combined with others.
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Processing Issue and Consumer Perception:
- The court did not express concern about the processing of cocoa through Dutch processing, suggesting that consumers still consider Dutch processed cocoa to be genuine cocoa.
- The article suggests that if an ingredient undergoes extensive processing to the point where it can no longer be reasonably considered that ingredient, reconsideration of "made with" claims may be necessary.
In conclusion, the court's dismissal of the case hinged on the understanding that the cocoa in Oreos, despite being processed, is still considered real cocoa. This legal outcome emphasizes the importance of clear and accurate communication in food advertising, especially when using terms like "made with" in product claims.
