Case 7:21-cv-00002 Document 1 Filed 01/01/21 Page 1 of 12
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`Sheehan & Associates, P.C.
`Spencer Sheehan
`60 Cuttermill Rd Ste 409
`Great Neck, NY 11021-3104
`Telephone: (516) 268-7080
`spencer@spencersheehan.com
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`United States District Court
`Southern District of New York
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`Steven Beers, individually and on behalf of
`all others similarly situated,
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`Plaintiff,
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`7:21-cv-00002
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`- against -
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`Class Action Complaint
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`Mars Wrigley Confectionery US, LLC,
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`Defendant
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`Plaintiff alleges upon information and belief, except for allegations pertaining to plaintiff,
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`which are based on personal knowledge:
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`1. Mars Wrigley Confectionery US, LLC (“defendant”) manufactures, labels, markets
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`and sells ice cream bars purporting to be covered in milk chocolate under the Dove brand
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`(“Product”).
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`2.
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`The relevant front label representations include “Silky Smooth,” “Dove Bar,”
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`“[Vanilla Ice Cream] with Milk Chocolate,” several chunks of chocolate and a bar being dipped
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`into milk chocolate.
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`Sheehan & Associates, P.C.
`Spencer Sheehan
`60 Cuttermill Rd Ste 409
`Great Neck, NY 11021-3104
`Telephone: (516) 268-7080
`spencer@spencersheehan.com
`
`
`United States District Court
`Southern District of New York
`
`Steven Beers, individually and on behalf of
`all others similarly situated,
`
`Plaintiff,
`
`7:21-cv-00002
`
`- against -
`
`Class Action Complaint
`
`Mars Wrigley Confectionery US, LLC,
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`Defendant
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`Plaintiff alleges upon information and belief, except for allegations pertaining to plaintiff,
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`which are based on personal knowledge:
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`1. Mars Wrigley Confectionery US, LLC (“defendant”) manufactures, labels, markets
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`and sells ice cream bars purporting to be covered in milk chocolate under the Dove brand
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`(“Product”).
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`2.
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`The relevant front label representations include “Silky Smooth,” “Dove Bar,”
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`“[Vanilla Ice Cream] with Milk Chocolate,” several chunks of chocolate and a bar being dipped
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`into milk chocolate.
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`Case 7:21-cv-00002 Document 1 Filed 01/01/21 Page 2 of 12
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`3.
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`The unqualified, prominent and conspicuous representations of the Product as “Milk
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`Chocolate” is false, deceptive and misleading because the “chocolate” portion of the ice cream bar
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`contains ingredients consumers do not expect in chocolate – vegetable oil.
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`Case 7:21-cv-00002 Document 1 Filed 01/01/21 Page 3 of 12
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`4.
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`Chocolate is made from cacao beans, which are not consumed by themselves – they
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`are subject to fermentation, drying and roasting, which produces cacao nibs.
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`5.
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`The nibs are then ground to produce cocoa mass or chocolate liquor, which is
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`separated into components of cocoa solids and cocoa butter.
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`6.
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`Consumers want chocolate in chocolate products to come from a real source (i.e.,
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`from cacao beans.
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`7.
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`Chocolate provides greater satiety and a creamy and smooth mouthfeel compared to
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`other ingredients which substitute for chocolate, like vegetable oils.
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`8. Vegetable oils provide less satiety than chocolate, a waxy and oily mouthfeel and
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`leave an aftertaste.
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`9.
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`Cocoa butter makes up about one-fourth of chocolate but costs more than three times
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`as much as vegetable oil.
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`10. However, the taste of chocolate only from cacao beans is significantly different than
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`when made from cacao beans and vegetable oils, since even a small amount of vegetable oil
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`changes the mouthfeel from creamy and smooth to waxy and oily.
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`11. This taste sensation is the opposite of what consumers expect from a food labeled as
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`“milk chocolate.”
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`12. Numerous studies have indicated that chocolate may be beneficial to the heart and
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`arteries because of flavonoids, plant compounds from the cacao bean that contain antioxidants.
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`13. These flavonoids are activated when the cacao bean is transformed into cocoa butter.
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`14. Additionally, cocoa butter does not raise cholesterol or have any artery-clogging
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`trans-fats which are present in vegetable oils
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`15. Though cocoa butter and vegetable oils both contain fat, the fat in cocoa butter is
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`Case 7:21-cv-00002 Document 1 Filed 01/01/21 Page 4 of 12
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`unsaturated and relatively healthy for the heart, in contrast to saturated fats in vegetable oils.
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`16. Consumption of vegetable oils is linked to numerous health problems, like increased
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`chances of heart disease.
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`17. Cocoa butter consumption in chocolate does not raise the levels of cholesterol the
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`way vegetable oils do.
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`18. According to “Adulteration – The Dark World of ‘Dirty’ Chocolate,” “mixing
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`unnatural ingredients with chocolate – with the intent of extending the quantity of raw product and
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`defrauding customers – has a long history.”1
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`19. The technical name for a blend cacao ingredients with vegetable oils is a “chocolate
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`compound,” where chocolate liquor is replaced with cocoa powder, and cocoa butter with
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`vegetable oil.
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`20. Since consumers were constantly being misled by chocolate products that contained
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`lower quality ingredients, standards exist to prevent this practice, without disclosing it prominently
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`to consumers.
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`21. This means consumers can trust a representation of “milk chocolate” to contain
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`chocolate ingredients (chocolate liquor) without vegetable oils. See 21 C.F.R. § 163.13(c).
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`22. The other ingredients in milk chocolate include cacao fat, sweeteners and dairy
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`ingredients like milk, but not vegetable oils. 21 C.F.R. § 163.124(b).
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`23. Vegetable oils can be combined with chocolate, but because its addition
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`fundamentally changes the nature of the food, the front label is required to disclose this, i.e., “milk
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`chocolate and vegetable [palm/soy/coconut] oil coating.” 21 C.F.R. § 163.155(c).
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`24. These requirements prevented foods from being labeled as “milk chocolate” if they
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`1 Chapter 47 in Chocolate – History, Culture, Heritage.
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`Case 7:21-cv-00002 Document 1 Filed 01/01/21 Page 5 of 12
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`contained ingredients which substituted for chocolate.
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`25. The average consumer spends fifteen seconds deciding to purchase a specific
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`product, and consistent, truthful labeling gives them confidence to make quick buying decisions.
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`26. Over ten years ago in response to a proposal to modify the chocolate standards to
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`allow vegetable oils, industry leader Mars Wrigley was adamant in its opposition:
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`At Mars, the consumer is our boss, and American consumers are passionate about
`chocolate. They don’t want anyone to change the chocolate they’ve enjoyed for
`generations…As a privately held company, we have the freedom to invest in the
`highest quality chocolate and deliver what consumers want.2
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`27. This opinion is consistent with a consumer survey of over four hundred Americans
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`across demographic groups.
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`28. Roughly sixty-five (65) percent of respondents, when viewing the term “Milk
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`Chocolate” on the front label, expected the Product would only contain chocolate and not contain
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`any vegetable oils.
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`29. These consumers will not feel they need to double check the ingredient list because
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`there is no ambiguity.
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`30. The lack of any front label qualifying terms gives them the impression that milk
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`chocolate means what it says – no vegetable oil ingredients.
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`31. However, the front label representations are misleading and at best, a “half-truth,”
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`because the chocolate contains ingredients not found in real chocolate – “Coconut Oil.”
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`2 Mars US Announces Support for Current Chocolate Standard of Identity, Press Release, September 17, 2007.
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`Case 7:21-cv-00002 Document 1 Filed 01/01/21 Page 6 of 12
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`INGREDIENTS:…COATING: MILK CHOCOLATE (SUGAR,
`COCOA BUTTER, SKIM MILK, CHOCOLATE, LACTOSE,
`MILKFAT,
`SOY
`LECITHIN, ARTIFICIAL
`FLAVOR),
`SEMISWEET
`CHOCOLATE
`(SUGAR,
`CHOCLATE,
`CHOCOLATE PROCESSED WITH ALKALI, COCOA BUTTER,
`MILKFAT, SOY LECITHIN, NATURAL AND ARTIFICIAL
`FLAVORS), COCONUT OIL, PALM OIL.
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`32. Defendant’s ingredient list identifies the “milk chocolate” as “Coating,” which
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`means it knows the front label should not state “milk chocolate.”
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`33. Though the “Coating” contains milk chocolate and semisweet chocolate, it includes
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`coconut oil and palm oil.
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`34. Chocolate provides greater satiety and a creamy and smooth mouthfeel, compared to
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`vegetable oils like coconut and palm oils, which provide less satiety, a waxy and oily mouthfeel
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`and leave an aftertaste.
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`35. Chocolate also provides health benefits and at a minimum, does not provide the
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`negative health effects associated with vegetable oils.
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`36. The presence of chocolate is understood by consumers to mean a food does not
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`contain vegetable oils, and has a material bearing on price and consumer acceptance of the Product.
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`37. Had plaintiff and class members known the truth, they would not have bought the
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`Product or would have paid less for them.
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`38. The Product is sold for a price premium compared to other similar products, no less
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`than $6.49 for pack of three, higher than it would otherwise be sold for absent the misleading
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`Case 7:21-cv-00002 Document 1 Filed 01/01/21 Page 7 of 12
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`representations.
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`Jurisdiction and Venue
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`39.
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`Jurisdiction is proper pursuant to Class Action Fairness Act of 2005 (“CAFA”). 28
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`U.S.C. § 1332(d)(2)
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`40. Under CAFA, district courts have “original federal jurisdiction over class actions
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`involving (1) an aggregate amount in controversy of at least $5,000,000; and (2) minimal
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`diversity[.]” Gold v. New York Life Ins. Co., 730 F.3d 137, 141 (2d Cir. 2013).
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`41. Plaintiff Steven Beers is a citizen of New York.
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`42. Defendant Mars Wrigley Confectionery US, LLC is a Delaware limited liability
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`company with a principal place of business in Hackettstown, Warren County, New Jersey and
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`though at least one member of Defendant is a citizen of New York, upon information and belief,
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`at least one member of defendant is not a citizen of New York.
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`43. “Minimal diversity” exists because plaintiff Steven Beers and defendant are citizens
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`of different states.
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`44. Upon information and belief, sales of the Product and statutory and other monetary
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`damages, exceed $5 million during the applicable statutes of limitations, exclusive of interest and
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`costs.
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`45. Venue is proper because a substantial part of the events or omissions giving rise to
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`the claim occurred here – plaintiff’s purchase of the Product.
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`46. Venue is further supported because many class members reside in this District.
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`Parties
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`47. Plaintiff Steven Beers is a citizen of Mahopac, Putnam County, New York.
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`48. Defendant Mars Wrigley Confectionery US, LLC is a Delaware limited liability
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`Case 7:21-cv-00002 Document 1 Filed 01/01/21 Page 8 of 12
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`company with a principal place of business in Hackettstown, New Jersey, Warren County.
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`49. During the relevant statutes of limitations for each cause of action alleged, plaintiff
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`purchased the Product within his district and/or State in reliance on the representations of the
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`Product.
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`50. Plaintiff bought the Product at one or more locations, including 7-Eleven, 3650 Lee
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`Blvd, Jefferson Valley, NY 10535, during summer 2020, among other times.
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`51. Plaintiff bought the Product at or exceeding the above-referenced price because he
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`liked the product for its intended use and consumption and relied upon the representations the
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`Product contained chocolate and not vegetable oils..
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`52. Plaintiff would not have purchased the Product in the absence of Defendant’s
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`misrepresentations and omissions.
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`53. The Product was worth less than what Plaintiff paid for it and he would not have paid
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`as much absent Defendant's false and misleading statements and omissions.
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`54. Plaintiff intends to, seeks to, and will purchase the Product again when he can do so
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`with the assurance that Product's labeling is consistent with its composition.
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`Class Allegations
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`55. The class will consist of all purchasers of the Product who reside in New York during
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`the applicable statutes of limitations.
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`56. Plaintiff seeks class-wide injunctive relief based on Rule 23(b) in addition to a
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`monetary relief class.
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`57. Common questions of law or fact predominate and include whether defendant’s
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`representations were and are misleading and if plaintiff and class members are entitled to damages.
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`58. Plaintiff's claims and basis for relief are typical to other members because all were
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`Case 7:21-cv-00002 Document 1 Filed 01/01/21 Page 9 of 12
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`subjected to the same unfair and deceptive representations and actions.
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`59. Plaintiff is an adequate representative because his interests do not conflict with other
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`members.
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`60. No individual inquiry is necessary since the focus is only on defendant’s practices
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`and the class is definable and ascertainable.
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`61.
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`Individual actions would risk inconsistent results, be repetitive and are impractical
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`to justify, as the claims are modest relative to the scope of the harm.
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`62. Plaintiff's counsel is competent and experienced in complex class action litigation
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`and intends to protect class members’ interests adequately and fairly.
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`63. Plaintiff seeks class-wide injunctive relief because the practices continue.
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`New York General Business Law (“GBL”) §§ 349 & 350
`(Consumer Protection Statutes)
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`64. Plaintiff incorporates by reference all preceding paragraphs.
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`65. Plaintiff and class members desired to purchase a product which contained chocolate
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`and did not have vegetable oils.
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`66. Defendant’s acts and omissions are not unique to the parties and have a broader
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`impact on the public.
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`67. Defendant misrepresented the Product through its statements, omissions, ambiguities
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`and actions.
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`68. Plaintiff and class members would not have purchased the Product or paid as much
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`if the true facts had been known, suffering damages.
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`Negligent Misrepresentation
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`69. Plaintiff incorporates by reference all preceding paragraphs.
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`70. Defendant misrepresented the Product.
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`Case 7:21-cv-00002 Document 1 Filed 01/01/21 Page 10 of 12
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`71. This duty is based on defendant’s position, holding itself out as having special
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`knowledge and experience in the sale of the product type.
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`72. The representations took advantage of consumers’ cognitive shortcuts made at the
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`point-of-sale and their trust in defendant, a well-known and respected brand or entity in this sector.
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`73. Plaintiff and class members reasonably and justifiably relied on these negligent
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`misrepresentations and omissions, which served to induce and did induce, the purchase of the
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`Product.
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`74. Plaintiff and class members would not have purchased the Product or paid as much
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`if the true facts had been known, suffering damages.
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`Fraud
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`75. Plaintiff incorporates by reference all preceding paragraphs.
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`76. Defendant misrepresented the attributes and qualities of the Product.
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`77. Defendant’s fraudulent intent is evinced by its failure to accurately identify the
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`Product’s inclusion of vegetable oils, when it knew not doing so would mislead consumers.
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`78. Plaintiff and class members would not have purchased the Product or paid as much
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`if the true facts had been known, suffering damages.
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`79. Plaintiff incorporates by reference all preceding paragraphs.
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`Unjust Enrichment
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`80. Defendant obtained benefits and monies because the Product was not as represented
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`and expected, to the detriment and impoverishment of plaintiff and class members, who seek
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`restitution and disgorgement of inequitably obtained profits.
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`Case 7:21-cv-00002 Document 1 Filed 01/01/21 Page 11 of 12
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`Jury Demand and Prayer for Relief
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`Plaintiff demands a jury trial on all issues.
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` WHEREFORE, Plaintiff prays for judgment:
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`1. Declaring this a proper class action, certifying plaintiff as representative and the
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`undersigned as counsel for the class;
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`2. Entering preliminary and permanent injunctive relief by directing defendant to correct the
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`challenged practices to comply with the law;
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`3. Injunctive relief to remove, correct and/or refrain from the challenged practices and
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`representations, and restitution and disgorgement for members of the class pursuant to the
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`applicable laws;
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`4. Awarding monetary damages, statutory damages pursuant to any statutory claims and
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`interest pursuant to the common law and other statutory claims;
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`5. Awarding costs and expenses, including reasonable fees for plaintiff's attorneys and
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`experts; and
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`6. Other and further relief as the Court deems just and proper.
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`Dated: January 1, 2021
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`11
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`Respectfully submitted,
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`Sheehan & Associates, P.C.
`/s/Spencer Sheehan
`Spencer Sheehan
`60 Cuttermill Rd Ste 409
`Great Neck NY 11021-3104
`Tel: (516) 268-7080
`Fax: (516) 234-7800
`spencer@spencersheehan.com
`E.D.N.Y. # SS-8533
`S.D.N.Y. # SS-2056
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`Case 7:21-cv-00002 Document 1 Filed 01/01/21 Page 12 of 12
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`7:21-cv-00002
`United States District Court
`Southern District of New York
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`Steven Beers, individually and on behalf of all others similarly situated,
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` - against -
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`Mars Wrigley Confectionery US, LLC,
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`Plaintiff,
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` Defendant
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`Class Action Complaint
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`Sheehan & Associates, P.C.
`60 Cuttermill Rd Ste 409
`Great Neck NY 11021-3104
`Tel: (516) 268-7080
`Fax: (516) 234-7800
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`Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to practice in the courts of
`New York State, certifies that, upon information, and belief, formed after an inquiry reasonable
`under the circumstances, the contentions contained in the annexed documents are not frivolous.
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`Dated: January 1, 2021
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` /s/ Spencer Sheehan
` Spencer Sheehan
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