Last week U.S. District Judge Phyllis J. Hamilton granted Ghirardelli’s Motion to Dismiss a proposed class action involving the chocolatier’s packaging of its white baking chips.

Filing their case in September of last year in California state court, the class plaintiffs alleged that the products were deceptively labeled because the use of the term “white” insinuated that the chips contained white chocolate when it, in fact, did not. Ghirardelli removed the case to federal court and moved to dismiss, arguing that the mere use of the word ‘white’ says nothing about whether the product is chocolate,” but rather simply describes the color of the chips.[1]

Judge Hamilton agreed. On April 8, 2020, the court dismissed the case in its entirety without prejudice.  Applying the “reasonable consumer” standard — which requires a probability that a “significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled” — Judge Hamilton concluded that it would be unreasonable for the average person to rely on Ghirardelli’s use of the word “white” as an indication that the product contained chocolate, particularly where the term “chocolate” or “cocoa” was not used anywhere on the packaging. [2]  The court analogized the situation to the use of the term “white wine.” As Judge Hamilton observed, “white wine may define the characteristic of the wine’s color but does not inform the consumer whether the wine is a zinfandel or gewürztraminer.”

The court also observed that any potential confusion caused to consumers by the use of the color descriptor could be resolved by the ingredients list on the product packaging.

While courts are generally reluctant to address the reasonable consumer standard — characterized as a fact-based inquiry — outside the context of class certification or summary judgment, Judge Hamilton’s opinion demonstrates an increasing willingness by Judges to take the common sense based analysis into account at the pleading stage and dispense with complaints predicated on labels that fail to indicate plausible deception.

[1] Motion to Dismiss, Cheslow et al v. Ghirardelli Chocolate Company, No. 19-cv-07467, 8 (N.D. Cal. Dec. 4, 2019), ECF No. 14.

[2] Memorandum Opinion and Order, Cheslow et al v. Ghirardelli Chocolate Company, No. 19-cv-07467, 7 (N.D. Cal. April 8, 2020), ECF No. 34.