Claim That “100% Real Chocolate” Can’t Include “Soy Lecithin and Natural Flavors” “Is Half-Baked, and Is 100% Dismissed”

Stephanie Foster has a sweet tooth, and she wanted to sink her teeth into a mouthful of chocolate. By the sound of things, Foster is a foodie. She didn’t want just any chocolate. She wanted 100% real chocolate.

Foster went shopping at nearby Target and Jewel Osco stores, searching for the best that the cacao bean had to offer. She bought several bags of chocolate chips manufactured by Nestle USA, Inc…. Each bag had a label promising any hungry consumer that the bag contained “100% real chocolate.” …

Foster apparently was none too pleased when she realized that the chocolate chips contained soy lecithin and natural flavors. As Foster sees things, chocolate that contains soy lecithin and natural flavors isn’t “100% real chocolate.” In fact, it’s not chocolate at all. So Foster brought Nestle to federal court. She sues on behalf of herself and a putative class [on various misrepresentation-related theories].

For the reasons below, the motion to dismiss is granted. The complaint is half-baked, and is 100% dismissed….

Foster thinks that “chocolate” means that it can “only have ingredients sourced from cacao beans,” meaning cocoa butter and cacao. But Foster points out that Nestle chocolate chips also contain soy lecithin or natural flavor.

Soy lecithin is a food additive made from genetically modified soy. It makes chocolate products more viscous, to mimic the consistency of chocolate products that contain only the more expensive cocoa butter.

And “natural flavors” are highly processed food additives that enhance the products’ sweet chocolatey taste. Foster says that Nestle uses natural flavors in the products to cut manufacturing and ingredient costs.

In short, Foster alleges that soy lecithin and natural flavors are “inexpensive substitutes for ingredients found in chocolate products that actually contain 100% real chocolate.” …

Foster’s claims … require a false or misleading statement that deceives a reasonable consumer…. No reasonable consumer would need protection from Nestle’s bag of chocolate chips….

Foster believes that she got duped by the phrase “100% real chocolate.” … As she sees things, chocolate doesn’t have soy lecithin or natural flavors. Chocolate “only ha[s] ingredients sourced from cacao beans, which include cacao (or cocoa) and cocoa butter.” …

That theory comes out of thin air. The complaint doesn’t cite anything for the notion that chocolate only contains ingredients that come from cacao beans, and nothing else. She doesn’t cite a definition of “chocolate.” She offers no source for her idiosyncratic understanding of the essence of chocolate. She doesn’t cite a consumer survey, either.

No reasonable consumer thinks that chocolate “only” contains the byproduct of cacao beans. For starters, cacao beans aren’t sweet. They need sugar. Sugar is a necessary ingredient of chocolate. And sugar doesn’t come from a cacao bean….

Chocolate is a composite product. It contains other ingredients, by definition.

The FDA has had a thing or two to say about the essence of chocolate. The FDA recognizes that chocolate is a mixture of many things. See 21 C.F.R. § 163.123 (defining “sweet chocolate” as a mixture of chocolate liquor and “optional ingredients” including cacao fat, sweeteners, spices, natural and artificial flavorings, dairy ingredients, and emulsifying agents). The FDA accepts that chocolate can include “natural and artificial flavorings” and “emulsifying agents.”

Soy lecithin—one of the ingredients that Foster challenges—is an emulsifying agent. See National Confectioners Association, Ingredients in Chocolate, https://candyusa.com/story-of-chocolate/what-is-chocolate/ingredients-in-chocolate/ (“Lecithin: An emulsifier, often made from soy, that makes the ingredients blend together.”).

The FDA also requires “milk chocolate” and “sweet chocolate” to contain a minimum amount of “chocolate liquor” to be legally labeled “chocolate.” In turn, chocolate liquor contains “cacao nibs” and “cacao fat.” And chocolate liquor may contain alkali ingredients (i.e., ammonium and potassium), neutralizing ingredients, “spices, natural and artificial flavorings, butter, milkfat, and/or salt.”

True, the FDA’s definition is hyper-technical, and contains some scientific mumbo-jumbo. The agency uses terms like “semiplastic,” “nutritive carbohydrate sweeteners,” and so on. But the key point jumps off the page: chocolate is a composite product…. Dictionaries agree that chocolate includes cacoa beans, plus a number of other ingredients.

The fact that chocolate contains more than cacao beans isn’t a news bulletin to anyone. “Chocolate is a solid mixture. In its basic form, it is composed of cacao powder, cocoa butter, and some type of sweetener such as sugar; however, modern chocolate includes milk solids, any added flavors, modifiers, and preservatives.” See What is chocolate?, MIT Laboratory for Chocolate Science, https://chocolate.mit.edu/science/. In fact, soy lecithin “is quite a common chocolate ingredient, even in the realm of craft chocolate.” …

[A] consumer doesn’t have to read the fine print on the back of the bag of chocolate chips to figure out that chocolate contains more than cacao beans. The front of the bag tells the consumer everything that he or she needs to know.

“Chocolate” appears on the front of the bag. And reasonable consumers know that chocolate is a composite product and contains several ingredients.

“What matters most is how real consumers understand and react to the advertising.” Figuring out that chocolate is more than cacao beans doesn’t require consumers to “question the labels they see and to parse them as lawyers might for ambiguities.”

Courts don’t have to treat consumers like eggshell-skull plaintiffs, wandering bewildered down the grocery aisle in the Land of Confusion. And at some point, it is not asking too much to expect a reasonable consumer to read the list of ingredients if they’re unsure….

No reasonable consumer would read the phrase “100% real chocolate” as a representation that the bag contains only the byproducts of cacao beans. A true chocolate lover wouldn’t believe that, and a reasonable consumer wouldn’t either….

Jared Reed Kessler and Ronald Y. Rothstein (Winston and Strawn LLP) represent Nestle.