NEW YORK (Legal Newsline) - The maker of Combos snacks has lost a key ruling in a class action lawsuit against it that claims the "cheese" filling is made with other stuff.
Claims made under the New York General Business Law against Mars Wrigley will move forward after New York federal judge Analisa Torres on Aug. 28 partially rejected the company's motion to dismiss the case.
Controversial class action lawyer Spencer Sheehan filed the suit on behalf of three plaintiffs who complain that, though marketed as made with real cheese, the filling is mostly vegetable fats and cheese byproducts.
Many of the hundreds of consumer deception class actions filed by Sheehan never make it past a motion to dismiss, but Torres' ruling could set him up to seek certification of a class, which would make litigation much more expensive for the defendant.
Sheehan, who has been called a "wrecking ball" by a federal judge and has drawn criticism from others, adequately alleged a "reasonable consumer" would be misled by the claims on Combos. Packaging states the filling is "made with REAL CHEESE" and shows a block of cheese.
However, the second- and third-most predominant ingredients, past the flour for the outside cracker, are palm oil and dairy products solids. Though there is some real cheese, Second Circuit case law from a lawsuit over grain in Cheez-Its says Mars could still be misleading consumers.
"(T)he misleading quality of the message is not effectively cured by implicitly disclosing the predominance of enriched white flour in small print on an ingredients list on the side of the package," the Second Circuit ruled in that case.
Torres followed that reasoning in finding a reasonable consumer could be misled.
"Here, likewise, the fine-print disclosure that the product contains mostly palm oil and 'dairy products solids' - and less than 2% of 'Bakers and Cheddar Cheese Blend' - does not cure the relatively predominant advertisement that the product's filling is 'made with REAL CHEESE.'
"Nor does an ambiguous reference to 'natural flavor' on a separate portion of the package render the 'real cheese' claim not misleading."
Mars had argued in its motion to dismiss that Sheehan had failed with "real cheese" lawsuits against Kraft Heinz in Illinois and Wisconsin and moved on to New York, hoping for better results.
"Plaintiff claims that she selected Combos as her snack food of choice because she was seeking the nutritional value of real cheese," the Mars motion to dismiss says.
"According to Plaintiff, she was misled as to the quantity of real cheese included in the product, despite that the information panel discloses that the filling's predominate ingredient is dairy product solids."
A similar Florida case by lawyer William Wright was voluntarily dismissed last month while facing Mars' motion to dismiss.
Sheehan advertises on Facebook to find new plaintiffs, like a woman who used Ricola cough drops for more than 20 years before deciding to sue.
Sheehan first gained notoriety as the "vanilla vigilante," filing a host of lawsuits that claimed vanilla flavoring in products did not contain traditional vanilla.
Sheehan has sued because the strawberry flavoring in Pop-Tarts comes from pears and apples and is dyed red. He complained Bagel Bites have cheese that is a blend made with skim milk and feature tomato sauce that contains ingredients consumers wouldn't expect (the judge hearing that case called his claims "unreasonable and unactionable").
Last year, he lost a lawsuit that said the fudge in fudge-covered Oreos should adhere to traditional definitions of "fudge" by containing more milk fat and not palm oil and nonfat milk.
He faces civil contempt proceedings in New York, plus a lawsuit filed against him by Ashley Furniture for naming it as a defendant in a lawsuit that had nothing to do with the company.
And he's on the hook for $180,000 in attorney fees incurred by Big Lots to defeat a Florida class action that made the same claims as an earlier loser in New York had made.