SAN JOSE, Calif. (Legal Newsline) – A federal judge has thrown out one of the many lawsuits filed by a New York lawyer who takes offense to the food industry’s description of its products.
San Jose judge Edward Davila rejected the claims of attorney Spencer Sheehan made against Costco over its Kirkland brand chocolate almond dipped vanilla ice cream bars. The suit said Sheehan’s plaintiff, Ankush Puri, expected the chocolate coating to be made from chocolate from cacao beans.
But the coating contains mostly vegetable oils and minimal cacao ingredients, the suit says. This violates the Food and Drug Administration’s definition of chocolate, Sheehan claimed.
“According to Puri, the basis for this theory of liability is the Sherman Law and (Federal Food, Drug and Cosmetic Act’s) definition of ‘chocolate’ as ‘made chiefly from cacao beans with a small amount of optional ingredients’ as described in 21 C.F.R. §163.13(a),” Davila wrote.
“Puri also relies on FDA regulations that ‘ limit the representation of food as ‘chocolate’ where it contains a de minimis amount of cacao bean ingredients and is mostly vegetable oils.’
“The problem here is that neither of Puri's cited regulations support a viable theory of liability. The Court is unable to locate 21 C.F.R. § 163.13, and it appears that no such regulation exists.”
That section concerns cacao products but doesn’t contain the definition of chocolate cited by Sheehan, Davila wrote.
“(C)laims as currently pled are preempted because they seek to impose requirements different from or in addition to the FDCA’s requirement,” Davila wrote.