The mother of a four-year-old child is the named plaintiff in a class action that alleges deception concerning the popular hazelnut spread Nutella. Hohenberg v. Ferrero U.S.A., Inc., No. 11-0205 (S.D. Cal. filed Feb. 1, 2011) is notable as a consumer class action that, if successful, could lead to a number of analogous class actions premised on deceptive claims about the healthiness of food products. Moreover, because suggestive imagery — rather than overt claims — about Nutella’s health benefits is alleged to be the principle source of the deception, Hohenberg (which seeks an injunction to discontinue the allegedly deceptive ads) could potentially serve as a guide for other claims based on photographs, music, or other advertising components that might indirectly convey a message that is alleged to be deceptive.
In Hohenberg, the plaintiff alleges that Nutella’s maker, defendant Ferrero U.S.A., misleads consumers into believing Nutella is healthy by juxtaposing images of Nutella with fresh fruits and sheaves of wheat in advertisements. In doing so, plaintiffs claim that Ferrero is effectively concealing the fact that Nutella is nearly three-quarters saturated fat and that it contains none of the nutritional properties associated with the other foods pictured in Nutella ads.
A favorable outcome for plaintiffs in Hohenberg could lead to numerous applications of the theory that images, aside from those that occur in standard video and print advertisements, could convey a deceptive message giving rise to a false advertising claim. For instance, many packaged foods feature a depiction of a “serving suggestion,” with the packaged food item complemented by sides and garnishes. A direct application of the reasoning in Hohenberg could, for example, lead to allegations that images of vegetable side dishes on a macaroni and cheese package obscure the high fat content within. Although there has been occasional litigation concerning serving suggestion disclaimers (see http://packaginglaw.com), there is a surprising dearth of guidance in the caselaw, likely attributable to some combination of failed lawsuits and pre-certification settlements.
Should Hohenberg proceed to the point of generating substantive rulings, it is likely to help define how wordless imagery can be deceptive. Discovery rulings could prove particularly interesting, since internal company documents often contain frank assessments of consumers’ responses to advertising and other imagery.