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Oreo maker facing fraud lawsuit over 'made with real cocoa' statement

By Charmaine Little | Apr 26, 2019

BROOKLYN, N.Y. (Legal Newsline) – The manufacturer and creator of Oreo cookies, Mondelēz Global LLC, is facing a proposed class action lawsuit for its alleged deception in advertising the ingredients in the famous treat.

Kings County, New York, resident Charles Harris filed a suit against the cookie manufacturer in the U.S. District Court for the Eastern District of New York on April 17 over allegations of negligent misrepresentation and other counts.

In the lawsuit, Harris noted that the front of the Oreo packaging says “Milk’s Favorite Cookie” and “Always Made with Real Cocoa.” The latter statement is what Harris, who sued on behalf of himself and others similarly situated who purchased any kind of Oreo, is taking issue. 

Harris alleges the statement is false and misleading because the Oreos are not always made with real cocoa, but instead, based on the ingredients list, uses cocoa processed with alkali.

“Defendant has tapped into this consumer demand for ‘real ingredients’ by promoting the products as ‘always made with real cocoa,’” the lawsuit stated. 

The benefit of cocoa powder is that it has the taste of chocolate without fat, sugar or milk. But in Oreo’s case, Harris alleges the defendant uses alkalis to lower the acidity of cocoa powder, which makes it darker than non-alkalized cocoa powder and allegedly also takes away from the actual taste of cocoa.

“The claim of ‘always made real cocoa’ is intended to differentiate the cocoa in the products from other cocoa ingredients bearing the standard cocoa designation, i.e. ‘cocoa’ or ‘cocoa processed with alkali,’ and implies the cocoa present in the products is nutritionally and organoleptically superior,” the lawsuit states.

Harris alleged the average buyer would not actually think that alkali is contained in the cocoa because of the phrase on the front of the packaging. He alleged the maker of Oreo is being “deceptive and misleading” for advertising “real cocoa” without a mention of the included ingredients on the front of the package, the suit states.

“By misrepresenting medium fat cocoa as ‘real cocoa,’ consumers will expect the cocoa powder component to be nutritionally and organoleptically superior than it actually is,” the lawsuit states.

Harris alleged that including “milk’s favorite cookie” on the front adds to the perception that cocoa in the products are not processed.

"The emphasis on 'milk'–'milk’s favorite cookie'–reinforces the expectation that the cocoa contained in the products will not contain nor be processed with artificial, non-cocoa ingredients, because reasonable consumers are familiar with milk being perhaps nature’s simplest and original food, unprocessed and pure," the suit states.

The plaintiff is seeking trial by jury, to certify the class, an injunction against the defendant to correct the phrase as well as any money and fees the court sees fit. Harris is represented by Spencer Sheehan of Sheehan & Associates of Great Neck, New York.

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