Nestle seeks to dismiss suit over its ethical claims

A consumer class action accusing Nestle USA Inc. of deceptive advertising for claiming it supports ethical practices in cocoa farming should be dismissed, the confectionery behemoth argued.

"The 9th Circuit has squarely rejected the theory that chocolate companies have an obligation to affirmatively disclose details about conditions in West Africa on their product labels," Nestle lawyers argued in a motion July 1. "Plaintiffs' lawsuit repackages this defunct theory, arguing that the labels of unspecified 'chocolate products' affirmatively misrepresented the conditions under which cocoa may have been farmed."

Nestle's lawyers also rebuked plaintiff Renee Walker, who filed the putative class action last year, for overreach in using the state's unfair competition law and Consumers Legal Remedies Act to bring her claims. Walker v. Nestle USA Inc., 3:19-CV-00723 (S.D. Cal., filed April 19, 2019).

Walker is represented by Helen I. Zeldes, partner at Schonbrun Seplow Harris Hoffman & Zeldes LLP, partner George V. Granade of Reese LLP and partner Army Johnsgard of Coast Law Group.

Nestle is represented by partners Theodore J. Boutrous Jr., Perlette M. Jura, Christopher Chorba and Timothy W. Loose of Gibson, Dunn & Crutcher LLP.

The class action is one of a slew of lawsuits over the issue of unethical farming practices that have been filed against corporations including Mars Inc. and Hershey Co. that have been thrown out.

Walker's complaint focuses primarily on the logo on products referencing the Nestle's Cocoa Plan, which is often accompanied with the statement: "Sustainably Sourced Through Nestle Cocoa Plan Certified Through UTZ." The label sometimes includes more information about the company's initiative to support farmers. Walker claimed the statements were deceptive.

Nestle countered that nowhere on any of its product labels does the company claim to have dismantled the system of forced labor in the cocoa supply chain. Nor does Walker say which products she bought, where she bought them or which statements she saw that led to her filing the action, the motion argued.

Walker's personal viewpoints, subjective opinions, assumptions and dissatisfaction isn't grounds for misrepresentation under either unfair competition or consumer protection laws, defense counsel argued.

"No reasonable consumer could come to the same conclusion," according to the motion.

Last summer, early in the litigation, Nestle filed a motion to get the lawsuit thrown out via anti-SLAPP statute. Statements on product labels are "inextricably intertwined" with website content because they reference the website, the company argued.

U.S. District Judge M. James Lorenz of the Southern District of California denied the anti-SLAPP motion.

"The website content is not part of plaintiffs' false advertising claims, which attack product labeling," Lorenz wrote in his June 17 decision. "Even if the website contained sufficient information to dispel the allegedly deceptive message on the product labels, an issue as to which the court expresses no opinion, this would not undermine plaintiffs' claims."