Case: 1:21-cv-05219 Document #: 20 Filed: 08/03/22 Page 1 of 9 PageID #:143
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE NORTHERN DISTRICT OF ILLINOIS
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`EASTERN DIVISION
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`LATONYA JACKSON, individually and on
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`behalf of all others similarly situated,
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`Plaintiff,
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`Case No. 1 :21-cv-05219
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`v.
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`KRAFT HEINZ FOODS COMPANY,
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`Hon. Charles R. N orgle
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`Defendant.
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`ORDER
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`[1 1] is granted with prejudice.
`Defendant's motion to dismiss
`Civil case terminated.
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`STATEMENT
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`Plaintiff Latonya Jackson brings this putative class action against Defendant, Kraft Heinz
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`Foods Company. Defendant sells a product called "Bagel Bites" ("the Product"), frozen bite-size
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`pizza bagels containing mozzarella cheese and tomato sauce, among other ingredients. Dkt. I ,r 1.
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`Plaintiff claims the Product's label is misleading to consumers because it omits that (1) starch,
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`nonfat milk, and whey are added to the "REAL" mozzarella cheese, and (2) tomatoes are replaced
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`class and a an Illinois proposes with non-tomato thickeners including cornstarch. Id. ,r 3. Plaintiff
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`multi-state class, including all persons in the States of Iowa and Arkansas. 1 Id. ,r 96. Plaintiff
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`asserts the following claims individually and on behalf the proposed classes: ( 1) violations of the
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`Illinois Consumer Fraud and Deceptive Business Practices Act ("ICFA"), 815 ILCS 505/1,
`et seq.;
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`(2)violations of the Consumer Fraud Acts of the States in the Consumer Fraud Multi-State Class;
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`1 The States in the proposed Consumer Fraud Multi-State Class are limited to those States with similar consumer
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`fraud laws: Iowa (Consumer Fraud and Private Right of Action for Consumer Frauds Act, Iowa Code Ann. § 714.16
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`and Arkansas (Arkansas Deceptive Trade Practices Act, Ark. Code § 4-88-101, Dkt. 1 � 96, n.6.
`et seq.)
`et. seq.).
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`Case: 1:21-cv-05219 Document #: 20 Filed: 08/03/22 Page 2 of 9 PageID #:144
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`(3) breaches of express warranty, implied warranty of merchantability, and the Magnuson Moss
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`Warranty Act (“MMWA”), 15 U.S.C. § 2301, et seq.\ (4) negligent misrepresentation; (5) fraud;
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`and (6) unjust enrichment. Defendant moved to dismiss the complaint under Federal Rule of Civil
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`Procedure 12(b)(6). Dkt. 11. The Court notes this action is nearly identical to Lemke v. Kraft Heinz
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`Food Co.. No. 21-CV-278, 2022 WL 1442922 (W.D. Wis. May 6, 2022), which was decided by
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`Judge William M. Conley of the United Slates District Court for the Western District of Wisconsin
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`on a motion to dismiss presenting substantially the same arguments as those considered here.^
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`Because Plaintiff has not plausibly pleaded a deceptive act, the Court grants Defendant’s motion
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`and dismisses each count with prejudice.
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`I. BACKGROUND
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`Defendant manufactures, markets, and sells the Product with the following labeling:
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`INGREDIENTS: BAGEL HALVES (ENRICHED
`ELOUR WHEAT ROUR. ENZYME. ASCORBIC
`ACIO.NIACINt
`JCED IRON. THIAMINE;
`MONONITRATE, RIBOFLAVIN, FOLIC ACID],
`WATER, SALT, INVERT CANE SYRUR YEASTi
`SOYBEAN OIL) TOPPING (CHEESE BLENrf
`^(CHEESE [MOZZARELLA CHEESE (CULTURED
`MILK, SALT. ENZYMES), MODIFIED FOOD
`STARCH, NONFAT MILK, WHEY PROTEIN
`CHEDDAR CHEESE
`(CULTURED milk; 'SALT, ENZYMES. ANNA1T0'
`COLOR), MONTEREY JACK CHEESE
`(CULTURED MILK. SALT. ENZYMES)]) SAUCE
`(WATER. TOMATO PASTE. INVERT CANE
`Sm?, MODIFIED CORN STARCH. SALl
`MErHYLCELLULGSE, CITRIC ACID, POT^SiU#
`CHLORIDE. AMMONIUM CHLORIDE, SPICE,
`YEAST EXTRACT, NATURAL FLAVOR. CALCIUM^
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`Dkt. 1 fTI 1, 6. Plaintiff complains specifically about the Product’s label’s unambiguous description
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`of the product as “mini bagels with mozzarella, cheddar, Monterey Jack cheeses and tomato
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`- The Court notes further that the Western District of Wisconsin presumably has far more expertise in cheese and
`what reasonable cheese consumers expect in cheese products.
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`Case: 1:21-cv-05219 Document #: 20 Filed: 08/03/22 Page 3 of 9 PageID #:145
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`sauce.
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`Id. ^ 1. Plaintiff theorizes that the label promises consumers three cheeses, but the
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`ingredient list shows they receive a "topping,” consisting of a “cheese blend,” cheddar cheese and
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`Monterey Jack cheese, id. ^ 6. The “cheese blend” includes mozzarella as an ingredient. Id
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`Plaintiff complains that though the Product contains mozzarella cheese, the front label omits that
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`it is combined with starch, nonfat milk, and whey to make a “cheese blend,” and these “cheaper,
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`filler” ingredients adulterate the cheese by reducing its milkfat. Id. Yl\ 13-14. Plaintiff theorizes
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`this omission is misleading because the “cheese blend” describes a lower quality, or imitation,
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`mozzarella cheese and claims “the ingredient list fails to disclose that the Product does not contain
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`mozzarella cheese.” Dkt. 1
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`7, 47-51. Plaintiff contends reasonable consumers do not expect
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`starch, whey, and nonfat milk when promised "mozzarella" and “REAL” cheese, but rather expect
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`mozzarella to mean cheese from milkfat. Id. 23-24, 42.
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`Plaintiff challenges the Product’s label’s use of the “REAL” dairy seal, a trademark owned
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`by the National Milk Producers Federation (“NMPF”), which has a vetting process to authorize
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`use of the REAL to third parties. Id.
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`26-30, 34. In a small box in the upper-right-hand corner.
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`the Product’s front label (left) displays the REAL seal (right) with the words “MADE WITH”:
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`Defendant’s Front Label
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`REAL” Daii-v Seal
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`Id. The REAL Seal can be used where a food contains dairy ingredients that meet federal standards
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`of identity. Id ^ 36. Plaintiff alleges the Product does not qualify for the traditional REAL seal
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`because the “cheese blend’' contains starch, but Defendant “misappropriated” the original REAL
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`Seal by adding the statement, “MADE WITH” the REAL Seal Id.
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`39-40. Plaintiff alleges
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`nothing pertaining to NMPF’s stance on Defendant’s use of the REAL Seal. Plaintiff claims that
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`the use of the REAL seal misleads consumers as to the quality of the Product. Id. ^ 45.
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`Plaintiff suggests it is misleading to call the Product’s tomato sauce, “tomato sauce,”
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`because it contains non-tomato thickening agents—specifically modified corn starch and
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`methylcellulose—designed to give the impression the sauce contains more tomatoes than it does.
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`Id. 55-65. Plaintiff suggests consumers of tomato sauce understand tomato sauce to be a tomato
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`product that is not as thick as tomato puree but thicker than tomato juice, with flavor enhanced
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`through herbs and spices. Id. % 55. The USDA defines tomato sauce as “the concentrated product
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`prepared from . . . whole tomatoes; [residue from preparing tomatoes for canning or from partial
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`extraction of juice]; reconstituted or remanufactured tomato paste; or any combination of these
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`ingredients to which is added salt and spices.” Id ^ 56. The Product’s “sauce” contains the
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`following ingredients: water, tomato paste, invert cane syrup, modified corn starch, salt.
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`methylcellulose, citric acid, potassium chloride, spice, yeast extract, natural flavor, and calcium
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`lactate. Id. H 6.
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`II. STANDARD
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`To survive a motion to dismiss under Rule 12(b)(6), the complaint must contain a “short
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`and plain statement of the claim showing that the pleader is entitled to relief” Fed. R. Civ. P. 8(a);
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`Bell Atlantic Corp. v. Twomblv, 550 U.S. 544, 554-557 (2007). The complaint “must provide
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`enough factual information to ‘state a claim to relief that is plausible on its face’ and ‘raise a right
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`lo relief above a speculative level. Doe V. Village of Arlinaton Heights. 782 F.3d 911,914 (7th
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`Cir. 2015) (quoting Twomblv. 550 U.S. at 555, 570). “A claim has facial plausibility when the
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`plaintiff pleads factual content that allows the court to draw the reasonable inference that the
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`defendant is liable for the misconduct alleged.” Id (cleaned up). In reviewing the Plaintiffs claim.
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`the court must construe all of the plaintiffs factual allegations as true, drawing all reasonable
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`inferences in the plaintiffs favor. Virnich v. Vorwald. 664 F.3d 206, 212 (7th Cir. 2011).
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`III. DISCUSSION
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`Central to all of Plaintiff s claims is the notion that the Product's label misleads consumers
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`by representing that the Product contains ‘‘mozzarella cheese.
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`REAL cheese,” and “tomato
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`sauce,” but omitting that it contains additives. However, a product that says it contains mozzarella
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`cheese and tomato sauce when the Product does, in fact, contain mozzarella cheese and tomato
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`sauce is not misleading to the reasonable consumer simply because its label does not list its
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`additives. Weaver v. Champion Petfoods USA Inc
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`3 F.4th 927, 937 (7th Cir. 2021)
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`(“[Defendant's] representations that its food is made with fresh regional ingredients are not clearly
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`misleading—its food does,
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`in fact, contain some
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`ingredients that are
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`fresh and sourced
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`regionally.”). Plaintiffs ultimate theory of deception fails because Plaintiff has not plausibly
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`shown that the Product’s label would mislead a reasonable consumer of the Product and because
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`nothing about the Product's label is false, misleading, or deceptive as a matter of law. Ultimately,
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`the Court finds all of Plaintiff s claims, each based on the same misconceived theory of deception,
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`fail to plausibly state a claim upon which the Court may grant relief
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`A. Illinois Consumer Fraud and Deceptive Business Practices Act
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`The ICFA “protect[s] consumers .
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`. against fraud, unfair methods of competition, and
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`other unfair and deceptive business practices.” Robinson v. Toyota Motor Credit Corp.. 201 111.2d
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`403 (2002). Deceptive or unfair practices include any “misrepresentation or the concealment,
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`suppression or omission of any material fact.’’ 815 ILCS 505/2. To survive a Rule 12(b)(6) motion,
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`plaintiffs bringing deceptive conduct claims under the ICFA must allege with particularity that the
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`“defendant committed a deceptive ... act with the intent that others rely on the deception, that the
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`act occurred in the course of trade or commerce, and that it caused actual damages.” Vanzant v.
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`Hill’s Pet Nutrition. Inc.. 934 F.3d 730, 736 (7th Cir. 2019) (citing Sicgal v. Shell Oil Co.. 612
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`F.3d 932, 934-35 (7th Cir. 2010)). Plaintiff must plausibly allege that the front labels likely lead a
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`significant portion of reasonable consumers to falsely believe something that the back labels belie.
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`Bell V. Publix Super Markets. Inc.. 982 F.3d 468, 476 (7th Cir. 2020). What matters most is how
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`real consumers understand and react to the advertising. Id.
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`Although an ICFA claim may “involve disputed questions of fact not suitable to a motion
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`to dismiss, a court may dismiss the complaint if the challenged statement was not misleading as a
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`matter of law.” Iborrola v. Kind. LLC. 83 F. Supp. 3d 751 (N.D. 111. 2015) (citing Bober v. Glaxo
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`Wellcome PLC, 246 F.3d 934, 940 (7th Cir. 2001)). A court may find a statement is not misleading
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`as a matter of law where plaintiffs claims are “fanciful interpretations of labels or other
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`advertising.” Bell. 982 F.3d at 477. A statement or label misleads when it conveys untrue
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`information about a product, or when, although literally true, it implies something that is false.
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`Bell. 982 F.3d at 479 (cleaned up); see e.g.. Bober. 246 F.3d at 938 (statements claiming that drugs
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`were different medications were not deceptive because that claim was “completely true”).
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`Here, Plaintiffs claims fail because she has not plausibly pleaded that Defendant
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`committed a deceptive act. Plaintiff challenges the label’s unambiguous description of the Product
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`*}●> u‘REAL” cheese, and “tomato sauce.” Dkt. 1
`as containing “mozzarella.
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`23-24, 55-65. These
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`statements are deceptive, in Plaintiffs view, because they omit that the Product’s cheese blend
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`and sauce also contain additives and thickening agents. Omission of any material fact can
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`constitute deception. 815 ILCS 505/2; Bell, 982 F.3d at 479. However, while Plaintiff contends
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`reasonable consumers do not expect starch, whey, and nonfat milk when promised “mozzarella"
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`and “REAL” cheese (or thickening agents when promised “tomato sauce”), Plaintiff alleges
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`nothing of what reasonable consumers of the Product, i.e. Bagel Bites, expect. Dkt. 1
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`23-24,
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`55-65. Expectations differ when one purchases mozzarella cheese or tomato sauce alone, from
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`when one purchases a frozen bagel pizza snack. It seems that when purchasing “junk food” (or
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`■processed food,” to use Defendant’s term) like frozen pizza, the reasonable consumer would
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`expect at least some “junk’’ (or “processed”) ingredients. At the very least, any consumer would
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`at first glance of the Product know that it is not pure mozzarella cheese or tomato sauce, but a
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`frozen pizza bagel containing various other ingredients. To suggest that a reasonable consumer
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`expects pure {i.e. without additives) mozzarella or tomato sauce when buying a bite-size frozen
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`bagel pizza ignores the true nature of the product as a sum of pizza ingredients, including but not
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`limited to, mozzarella and tomato sauce. Weaver. 3 F.4th at 937 (“[Rjeferences to ingredients used
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`do not imply that ingredient is used exclusively.”). Such a suggestion is a fanciful interpretation
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`of the Product’s label that obfuscates who the real consumers are and how they would understand
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`and react to the label. Bell. 982 F.3d at 477. Plaintiff has not plausibly pleaded the front label likely
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`leads a significant portion of reasonable consumers to falsely believe something that the back label
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`belies. Id. at 476.
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`Additionally, the Product contains, as its label suggests, mozzarella and tomato sauce (i.e.
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`a “product prepared from .
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`. tomato paste[.]”), and is in fact “made with ‘REAL’ cheese” {i.e. “a
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`food that contains dairy ingredients that meet federal standards of identity”). Dkt. 1
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`6, 30, 36,
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`55-56; ^ 21 CFR § 133.157. Presumably, NPMF, which vets and authorizes third-party use of
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`its REAL Seal trademark, would have something to say were this not the case, but Plaintiff alleges
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`nothing in that regard. While “true statements can have misleading implications,” here, there is no
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`implication beyond what the unambiguous description of the Product on the label actually says—
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`that the Product contains mini bagels with mozzarella cheese (which is REAL cheese) and tomato
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`sauce. Kraft. Inc, v, F.T.C.. 970 F.2d 311, 322 (7th Cir. 1992) (enforcing FTC order to cease and
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`desist advertising campaign claims which deceptively implied that consumers received the same
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`amount of calcium contained in five ounces of milk by consuming product made with five ounces
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`of milk). Because nothing on the label is untrue or implies something false, it cannot mislead
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`as a
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`matter of law. Bober. 246 F.3d at 938. Plaintiffs theory of deception is not plausible given (1) the
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`nature of the Product and the reasonable expectations of its consumers, and (2) because of the truth
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`of the statements on its label.
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`B. Out-of-State Consumer Fraud Acts; Common Law, and MMWA claims.
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`Plaintiffs claims for violations of out-of-state consumer fraud statutes; breach of express
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`warranty, implied warranty of merchantability, and MMWA; negligent misrepresentation; fraud;
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`and unjust enrichment are each premised on the same theory of deception as her ICFA claim. Dkt.
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`1^111 (“Defendant intended that Plaintiff and each of the other members of the Consumer Fraud
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`Multi-State Class would rely upon its deceptive conduct[.]”);
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`(“The Product. . . expressly
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`and impliedly warranted to plaintiff and class members that it contained mozzarella cheese,
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`without added fillers, and tomato sauce thickened by tomatoes.”); 124 (“Plaintiff and class
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`members reasonably and justifiably relied on these negligent misrepresentations and
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`omissions[.]”);^ 126 (“Defendant misrepresented and/or omitted the attributes and qualities of the
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`Product, that it contained mozzarella cheese, without added fillers, and tomato sauce thickened by
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`tomatoes.”); y 130 (“Defendant obtained benefits and monies because the Product was not as
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`represented and expecled[.]”)- Accordingly, because the Product’s labeling is not false,
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`misleading, or deceptive as a matter of law, Plaintiffs other claims also fail. ^ Wach v. Prairie
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`Farms Dairy, Inc.. No. 21 C 2191,2022 WL 1591715, at *6 (N.D. III. May 19, 2022) (finding that
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`Plaintiffs common law and MMWA claims fail because they were premised on the incorrect
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`assertion that the Product’s labeling is false, deceptive, and misleading).
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`IV. CONCLUSION
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`Plaintiff has not plausibly alleged a significant portion of reasonable consumers of the
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`Product would be misled by the true and unambiguous statements on the Product’s label, and an
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`amendment to her pleadings cannot change that. Defendant’s motion to dismiss is granted with
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`prejudice.
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`Runnion ex rel. Runnion v. Girl Scouts of Greater Chicago and Northwest Indiana.
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`786 F.3d 510, 520 (7th Cir. 2015) (A district court should generally grant leave to amend a
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`complaint after granting a motion to dismiss unless any amendment would be futile.).
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`IT IS SO ORDERED:
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`ENTER:
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`DATE: August 3, 2022
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`CHARLES RONALD T)(ORGL^ Judge
`United States District Court//
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