Contributing Author: Patricia Astorga
Ferrero USA Inc. faces a putative consumer class action for a misleading advertising campaign promoting the nutritional value of Nutella as a breakfast food despite its high saturated fat and processed sugar content. In a complaint filed on Feb. 1, 2011 in the U.S. District Court for the Southern District of California, Ferrero was accused of unfair competition, false advertising, violating a California consumer law and breach of express and implied warranties.
According to the complaint, the company used deceptive marketing tactics to tout the health value of Nutella, including a label that claims the product is “an example of a tasty yet balanced breakfast.” The label includes a picture of Nutella surrounded by healthy items such as fresh fruit, whole wheat bread, and orange juice. The complaint also points to a television commercial showing a mother feeding Nutella to healthy children.
According to the complaint, the lead plaintiff relied on such advertising in buying the product for herself and her four-year-old child. She was later “shocked to learn that Nutella was in fact not a ‘healthy’ ‘nutritious’ food but was instead the next best thing to a candy bar, and that Nutella contains dangerous levels of saturated fat, the consumption of which has been shown to cause heart disease and other serious health problems.” The complaint further alleges that Nutella contains about 70 percent saturated fat and processed sugar by weight and more than 55 percent processed sugar–which can lead to childhood obesity and diabetes.
Plaintiff seeks an order barring Ferrero from marketing Nutella as a healthy food choice and requiring the company to engage in a corrective advertising campaign. In addition, the complaint calls for Ferrero to disgorge profits from its deceptive advertising campaign and to destroy all misleading materials and products.
Ferrero, on the other hand, “stand[s] behind the quality and ingredients of Nutella hazelnut spread and the advertising [it does] for [its]product,” according to a spokesperson.
Given the recent rise in litigation surrounding false advertising claims in products marketed as “healthy” food choices, this class action could have a significant impact on similar outstanding claims and future claims. We will continue to monitor developments in this area.