Introduction
by Madeline A. Earles
Louisiana’s incredibly rich and diverse culture is often reflected through the unique cuisine throughout the state. Of Louisiana’s varying customs and traditions, a world-renowned gift remains at the heart of Louisiana cooking—Cajun cuisine. The ever-growing popularity of Cajun cuisine coupled with modern advancements in the culinary sphere has led to the use of Cajun seasoning without making a trip down the bayou to Cajun country. A multitude of brands sell the ill-defined, premade Cajun seasoning in a jar, each adding its own unique spin on the ingredients.[1] With each brand providing its own spin on the seasoning, one cannot truly define what Cajun seasoning is or distinctively list a specific ingredient flavor present in the product. The differing ingredients of these brands along with a lack of consensus on flavor allow Cajun seasoning brands—who are responsible for the formulation, manufacturing, marketing, naming, advertising, and sale of its products—great freedom in the distribution of such products. However, the United States District Court for the Southern District of New York’s rejection to dismiss reasonable consumer claims potentially affects this freedom where the flavor versus ingredient debate is set to continue.[2]
I. Kominis v. Starbucks Corporation
In Kominis v. Starbucks Corporation, a putative class action was filed against Starbucks Corporation (Starbucks) stating numerous causes of action relating to Starbucks’s practice of using misleading names on its beverages.[3] In their eleven causes of action, the plaintiffs instated a multitude of claims, including reasonable consumer claims, breach of express warranty claims, breach of implied warranty claims, an unjust enrichment claim, and a claim for common law fraud.[4] Following the commencement of the case, Starbucks moved to dismiss all eleven claims which the United States District Court for the Southern District of New York granted and denied in part—allowing the five aforementioned reasonable consumer claims to proceed.[5]
The plaintiffs’ reasonable consumer claims centered on Starbucks’s marketing of certain “fruit-based” beverages (the “Products”) as a coffee and beverage chain “responsible for the formulation, manufacturing, marketing, naming, advertising, and sale of its beverage products.[6] Collectively, the Products’ advertised names included specific fruit, but contained no such fruit: the “Mango Dragonfruit Lemonade Starbucks Refreshers” and the “Mango Dragonfruit Starbucks Refreshers” contained no mango; the “Strawberry Açaí Lemonade Starbucks Refreshers” and the “Strawberry Açaí Starbucks Refreshers” contained no açaí; and the “Pineapple Passionfruit Lemonade Starbucks Refreshers” and the “Pineapple Passionfruit Starbucks Refreshers” contained no passion fruit.[7] The Products were “predominantly made with water, grape juice concentrate, and sugar,” each lacking a key ingredient—fruit.[8]
Despite Starbucks’s failure to put the key ingredient into each of these Products, the plaintiffs alleged that they relied on Starbucks’s naming of the Products which influenced their decision to purchase the Products at a premium price with the intention of receiving such fruit in their beverages.[9] The misleading names and lack of produce caused the plaintiffs to assume an overcharge and “had they ‘and other consumers been aware that the Products were missing one of the named fruits, . . . they would not have purchased the Products or would have paid significantly less for them.’”[10] Not only did Starbucks’s misleading marketing cause financial strain on the plaintiffs, but it also created nutritional uncertainty when purchasing these Products.[11] The plaintiffs alleged that the missing fruit ingredients were paramount to their purchasing of the beverages, at least in part, because of the nutritional benefits from each of the respective fruits or fruit juices expected to be in the Products.[12] Lastly, the plaintiffs alleged that Starbucks knew or should have known that consumers would rely on false and deceptive names which appeared to contain ingredients not found in the Products.[13] This alleged knowledge or constructive knowledge put Starbucks in a position to charge higher prices than they would otherwise be able to charge based on the belief that the Products respectively contained mango, açaí, and passionfruit.[14]
In seeking a dismissal, Starbucks presented three main arguments: (1) the Products’ names represented the drinks’ flavors as opposed to their ingredients; (2) its advertising accurately represented the Products’ fruit content; and (3) any potential customer confusion would be cured by information made available to consumers from Starbucks’s baristas.[15] To survive this motion to dismiss, the plaintiffs had to demonstrate in their complaint that the claims were plausible, or in other words, “plead factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”[16] In order to meet this legal standard, the court will construe factual allegations in favor of the plaintiff if these factual allegations within the complaint are “enough to raise a right to relief above the speculative level.”[17] In meeting this plausibility standard, the plaintiffs in Kominis were able to demonstrate that their claims have sufficient merit to proceed on the five reasonable consumer claims.
The Court first addressed Starbucks’s product names and advertising by referencing the common term vanilla.[18] The Court referenced several cases in which the term vanilla has been the subject of litigation, and where it typically has been understood to represent a flavor without also representing that specific ingredient.[19] In colloquial and everyday speech, there is no comparable term that distinguishes the flavors of mango, açaí, or passionfruit from the fruit itself as the term vanilla bean potentially provides for vanilla.[20] Specifically, the Court stated it is “plausible that a reasonable consumer purchasing a fruit drink . . . is likely to expect that the drink actually contains the fruit mentioned in the drink’s name.”[21]
The Court further justified the plaintiffs’ confusion by noting that the Products’ names are listed with no affirmative statement of whether the fruit is contained in the ingredients, nor any disclosure that the Products are missing their promised ingredients.[22] Simply, Starbucks provides no ingredients list for the Products—merely a written statement above images of two of the Products saying, “crafted with refreshing lemonade,” and “sunny new drinks bursting with pineapple” above the image of another beverage.[23] The lack of an affirmative statement or disclosure coupled with images of the Products containing pieces of floating fruits, which are actually within the beverages and are something other than mango, açaí, and passionfruit, all lead a significant portion of reasonable consumers to find the Products’ names and advertising misleading.[24]
Additionally, the Court substantiated the plaintiff’s confusion by referencing other drinks within Starbucks’s menu.[25] For example, Starbucks’s “Pink Drink” and potentially the “Dragon Drink”—bolstered on the presumption that a reasonable consumer would not think the term “[d]ragon is in reference to dragon fruit”—reference no ingredient.[26] To emphasize Starbucks’s misleading advertising, the Court noted other Starbucks beverages which refer to both their ingredients and their flavors; particularly, the “Ice Matcha Tea Latte” which actually contains the matcha ingredient, and their “Honey Citrus Mint Tea” which contains both honey and mint as ingredients.[27]
Next, the Court addressed Starbucks’s allegation that any potential customer confusion would be cured by information made available to consumers from Starbucks’s baristas.[28] Plainly, this argument failed because it assumed the truth of the facts not asserted within the plaintiffs’ amended complaint.[29] However, even if it were true that Starbucks’s employees or baristas were aware of the full ingredient list of each of the Products, the United States Second Circuit Court of Appeals has held that a “reasonable consumer should not be expected to consult the Nutrition Facts panel on the side of a box to correct misleading information set forth in the large bold type on the front of the box.”[30] Utilizing an a pari argument [31], the Court concluded that Starbucks’s consumers, and the plaintiffs specifically, should not be expected to ask a store employee whether the Products with named ingredients actually contain those named ingredients.[32]
Because consumers had a reasonable expectation that the fruit terms mango, açaí, and passionfruit represent an ingredient, and are not generic labels that can be construed broadly such as the flavor vanilla, the plaintiffs adequately maintained the position that a significant portion of the general public consuming these Products could be misled by the names of the Products.[33] Therefore, these specific fruit terms used by Starbucks presented consumers with both the anticipation and assumption that the Products contained those ingredients, not just a flavorful burst of water, grape juice concentrate, and sugar.[34] Thus, the Court denied Starbucks’s motion to dismiss the first five causes of action—the reasonable consumer claims—which are expected to advance through the judicial process.[35]
II. Discussion
False and deceptive practice lawsuits are not uncommon as consumers expect brands to deliver on a promise for a specific ingredient and flavor.[36] As evidenced by Kominis, the Starbucks Refreshers lawsuit brought term specificity into litigation, attracting a flavor versus ingredient debate. Importantly, the Court has maintained the position that mango, açaí, and passionfruit are not flavored terms.[37] Starbucks’s intention in naming the Products is irrelevant, as the focus is on the reasonable consumer. A reasonable consumer would be correct to think that mango, açaí, and passionfruit, displayed alongside similar terms, describe both a flavor and an ingredient of the Products.[38] The Court has affirmatively held that a reasonable consumer can be misled by the name of a drink when it includes a flavor that is not an ingredient in a drink and when that flavor is not easily ascertained by the general public.[39]
Next, the Court provided an apparent cure to accurately name products for entities similarly situated to Starbucks in manufacturing, marketing, naming, advertising, and selling beverage products.[40] Starbucks may have avoided litigation had it provided an affirmative statement as to whether the Products contained the actual fruits listed in the Products’ names or were merely flavored like those fruits. By analogy, the Court referenced Mantikas v. Kellogg Company where a product’s packaging featured affirmative statements indicating the presence of something as an ingredient rather than a flavor.[41]
In Mantikas, the United States Second Circuit Court of Appeals reversed in part the dismissal of a claim where the cracker product subject to litigation was described as “whole grain” and “made with whole grain.”[42] In its reasoning, the Second Circuit applied the principle that a misleading statement must be viewed in light of its context on the product label or advertisement as a whole.[43] In applying this principle, the Court found that the statements were misleading because they communicated to the reasonable consumer that the grain in the product is “predominately, if not entirely whole grain” even when the rest of the cracker product’s packaging failed to indicate the share of grain content as whole grain.[44] The court concluded that this bolded statement sufficiently dispelled confusion throughout the rest of the cracker packaging.[45] However, there is no such affirmative statement indicated in Starbucks’s advertising of the Products.
Moreover, a disclosure statement could have mitigated the impact of the reasonable consumer claims.[46] The Court in Kominis specifically distinguished the case at bar from Angeles v. Nestlé USA, Inc.[47] In Angeles, a consumer claimed she was deceived by “lemon-flavored” water which did not contain appreciable amounts of actual lemon.[48] However, Angeles was dismissed because the packaging expressly stated “contains no juice” and the affirmative statement that the water in question was nothing more than “flavored mineral water” was sufficient to avoid misleading a reasonable consumer.[49] In contrast, there was no disclaimer nor disclosure in the Kominis case.[50] Starbucks failed to provide an affirmative statement that there was no mango, açaí, or passionfruit contained in the products, which could have cured such reasonable consumer confusion.[51]
Lastly, the Kominis Court has arguably identified a flavor spectrum or an identifiable test to determine when the naming of a product is accurate and when it begins to become misleading. [52] Taking Starbucks’s menu as a whole, the Court referenced other items whose names included no ingredient, as well as menu items that reference both an ingredient and a flavor.[53] Essentially, if the Products were simply named, “Yellow Lemonade Starbucks Refreshers” indicating no fruit nor flavor—as opposed to “Mango Dragonfruit Lemonade Starbucks Refreshers”—it would likely be within the flavor safety zone.[54] Similarly, if “Pineapple Passionfruit Starbucks Refreshers,” was renamed “Pineapple with Passionfruit Flavor Starbucks Refreshers,” which references both an ingredient and a flavor, Starbucks would likely be within the safety zone as well.[55] In practicing utmost caution, entities may even name products such as the “Strawberry Açaí Starbucks Refresher” as “Strawberry Starbucks Refresher” with an indication above the image stating that there are “hints of an açaí taste!”[56]
III. Looking Forward in Cajun Country
Considering the pending Kominis litigation, Cajun seasonings around the world may become subject to reasonable consumer litigation. Specifically, Cajun seasoning entities responsible for developing, naming, manufacturing, advertising, distributing, and selling of such products must reflect and determine whether this culture in a bottle is accurately advertised. Presently, it is unlikely that these Cajun seasoning entities are meeting this standard because the seasoning is neither a widely accepted flavor, such as vanilla, nor a specific ingredient, such as the fruits in Kominis. Arguably, one can put a picture to the name of a fruit, such as mango, açaí, or passionfruit; but there is no identifiable image when one thinks of Cajun seasoning. Additionally, while the pending Kominis litigation is centered on beverages, one may argue for a different standard when advertising and marketing flavors and ingredients in food products.
Nonetheless, the Kominis decision bolsters the distinction between flavors and ingredients in favor of reasonable consumers who are likely to be misled.[57] The words in the names of products are assumed to say what they mean, and the Products in Kominis plainly did not meet this standard.[58] Stemming from a multitude of cultures, and a variety of ingredients, it is truly hard to encapsulate Cajun seasoning in a bottle and create a consensus surrounding the flavor of Cajun seasoning. Thus, when advertising Cajun seasoning, entities comparable to Starbucks should err on the side of caution by listing the ingredients on their Cajun seasoning products in its advertising and marketing. The saying, “never trust a skinny cook,” should be upheld by consumers and remind them to remain cautious when trusting a consumable product advertisement
[1] See, e.g., Original Blend Cajun Seasoning Ingredients & Specs, Slap Ya Mama, https://store.slapyamama.com/collections/frontpage/products/slap-ya-mama-original-blend-seasoning-8-oz-canister?variant=33489077534806 [https://perma.cc/P2PK-EBZ2] (ingredients include: salt, black pepper, red pepper, granulated garlic); see also McCormick Gourmet Cajun Seasoning, McCormick Gourmet, https://www.mccormick.com/gourmet/spices-and-flavors/blends/cajun-seasoning [https://perma.cc/DKV4-TPJN] (Ingredients include: garlic, spices (including black pepper, cayenne pepper, oregano, and chili pepper), sea salt, onion, paprika, and red and green bell peppers.)
[2] See generally Kominis v. Starbucks Corp., No. 22-6673, 2023 WL 6066199 (S.D.N.Y. Sept. 18, 2023).
[3] Id. at *1.
[4] Id.
[5] Id.
[6] Id. at *2.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] Id.
[15] Id. at *5.
[16] Id. at *3 (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009).
[17] Kominis, 2023 WL 6066199, at *7 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
[18] Id. at *7.
[19] Id. at *7. See Nacarino v. Chobani, LLC, No. 20-7437, 2021 WL 3487117, at *5 (N.D. Cal. Aug. 9, 2021) (quoting, “[t]he label ‘vanilla’ most commonly denotes the flavor of the product. . . .”); Pichardo v. Only What You Need, Inc., 2020 WL 6323775, at *5 (S.D.N.Y. Oct. 27, 2020) (referencing, “[t]he label ‘Smooth Vanilla’ is not misleading because, [even] absent additional facts. . ., reasonable consumers associate the word ‘vanilla’ with a flavor, not with an ingredient.”); Cosgrove v. Blue Diamond Growers, 2020 WL 7211218, at *3 (S.D.N.Y Dec. 7, 2020) (“[t]hat association of ‘[v]anilla’ as a flavor and not an ingredient, is borne out by consumers’ practical use of the representation.”).
[20] Kominis, 2023 WL 6066199, at *7.
[21] Id.
[22] Kominis, 2023 WL 6066199, at *5.
[23] Id.
[24] Id. at *6.
[25] See id. at *5–6.
[26] Id. at *5.
[27] Id.
[28] See id. at *8.
[29] Id.
[30] Id. (referencing Mantikas v. Kellogg Co., 910 F.3d 633, 637 (2d Cir. 2018)).
[31] See Thomas W. Tucker, Interpretations of the Louisiana Civil Codes, 1808–1840: The Failure of the Preliminary Title, 19 Tul. Eur. & Civ. L. F. 57, 93 (2004) (“[T]o compare [products] a pari is to compare them with their common principle, or motive.”).
[32] Kominis, 2023 WL 6066199, at *8.
[33] See id. at *7.
[34] See id. at *8.
[35] See id.
[36] See generally Milan v. Clif Bar & Co., 489 F. Supp. 3d 1004, 1006 (N.D. Cal. 2020) (where a $10.5 million dollar settlement fund was established resolving class claims that the food company used deceptive labeling to trick buyers into thinking the bars are healthy, despite high sugar content); see also Siragus v. Taco Bell Corp., 2023 WL 4868140 (E.D.N.Y. 2023) (plaintiffs filed a putative class action for Taco Bell’s unfair and deceptive trade practices for falsely advertising the amount of beef and/or ingredients contained in various Taco Bell menu items).
[37] Kominis, 2023 WL 6066199, at *7.
[38] Id.
[39] See id.
[40] See id. at *5.
[41] Id. See Mantikas v. Kellogg Company, 910 F.3d 633, 637 (2d Cir. 2018).
[42] Mantikas, 910 F.3d at 637.
[43] Id.
[44] Id.
[45] Id.
[46] See Kominis, 2023 WL 6066199, at *6; see also Angeles v. Nestlé USA, Inc., 632 F. Supp. 3d 312 (S.D.N.Y. 2022).
[47] Angeles, 632 F. Supp. 3d at 317; see Kominis, 2023 WL 6066199, at *6.
[48] Angeles, 632 F. Supp. 3d at 317; see Kominis, 2023 WL 6066199, at *6.
[49] Angeles, 632 F. Supp. 3d at 317; see Kominis, 2023 WL 6066199, at *6.
[50] See Kominis, 2023 WL 6066199 at *5.
[51] See id.
[52] Id.
[53] Id.
[54] See id. at *2.
[55] See id.
[56] See id. at *5.
[57] See id.
[58] See id. at *6.