Glazebrook v. Chobani, LLC

Filing 20

Chief Judge F. Dennis Saylor, IV: MEMORANDUM AND ORDER entered. For the foregoing reasons, defendant's motion to dismiss is GRANTED. So Ordered. (de Oliveira, Flaviana)

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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_______________________________________

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SUSAN GLAZEBROOK, individually and )
on behalf of all others similarly situated,
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Plaintiff,
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v.
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CHOBANI, LLC,
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Defendant.
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_______________________________________)

Civil Action No.
21-10181-FDS

MEMORANDUM AND ORDER ON DEFENDANT’S MOTION TO DISMISS
SAYLOR, C.J.
This is a putative class action concerning the allegedly deceptive labeling of vanilla
yogurt. Jurisdiction is based on the Class Action Fairness Act of 2005, 28 U.S.C. § 1332(d)(2).
Plaintiff Susan Glazebrook alleges that defendant Chobani, LLC, falsely represented
that its yogurt contained “vanilla” when, in fact, it contained only “vanilla extract” and “natural
flavors.” Glazebrook alleges that she, and other similarly situated consumers, were thereby
deceived, and consequently paid a price premium. She now seeks money damages and equitable
and injunctive relief. All claims are asserted under state law.
Chobani has moved to dismiss for failure to state a claim pursuant to Fed. R. Civ. P.
12(b)(6). For the reasons set forth below, the motion will be granted.
I.

Factual and Procedural Background
A.

Factual Background

Unless otherwise noted, the facts are set forth as alleged in the amended complaint.

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1.

The Parties

Susan Glazebrook is a Massachusetts resident. According to the complaint, she
purchased Chobani “Madagascar Vanilla & Cinnamon” yogurt several times from the Stop &
Shop grocery store in Saugus, Massachusetts. (Am. Compl. ¶¶ 24, 27).
Defendant Chobani, LLC, labels, markets, and sells the yogurt in question under the
brand name “Chobani.” (Id. ¶ 2). 1
2.

Product Label

The disputed label is depicted below. On the front, beneath the brand name “Chobani,”
are two lines of text. The first reads “Less Sugar Greek Yogurt”; the second, “Madagascar
Vanilla & Cinnamon.” (Id. Ex. A). 2 The label also displays an image of a vanilla flower and
beans in the background. (Id.). The top lid replicates much of the same wording and imagery,
with an additional descriptive phrase: “Just a hint of natural vanilla, blended with delicately
creamy Greek Yogurt.” (Id.).

The amended complaint inconsistently states that defendant is both a Delaware limited liability company
with a principal place of business in New York and that it is a New York corporation with its principal place of
business in New Jersey. For determining jurisdiction pursuant to the Class Action Fairness Act, a limited liability
company is an “unincorporated association” and a citizen of the state where it either has its principal place of
business or is organized. See Ferrell v. Express Check Advance of S.C. LLC, 591 F.3d 698, 699–700 (4th Cir.
2010); see also 28 U.S.C. § 1332(d)(10). Therefore, whether Chobani is properly considered a citizen of New York,
New Jersey, or Delaware, the minimal diversity requirement imposed by CAFA appears to be satisfied here.
1

The complaint inverts the yogurt label’s descriptive phrase, alleging that the label reads “Madagascar
Vanilla & Cinnamon Less Sugar Greek Yogurt.” (See Am. Compl. ¶ 2). However, the image of the label attached
with the amended complaint shows that “Less Sugar Greek Yogurt” is positioned above “Madagascar Vanilla &
Cinnamon.” (Id. Ex. A). In other words, from top to bottom, the phrase reads “Less Sugar Greek Yogurt
Madagascar Vanilla & Cinnamon.”
2

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The side label displays the ingredients. (Id. Ex. B). Among the ingredients listed are
“natural flavors” and “vanilla extract.” (Id.).

3.

Natural Flavors and Vanilla Extract

The complaint alleges that the front label deceives customers because it induces them to
believe that the yogurt contains “Madagascar vanilla” as an ingredient, when in reality the
vanilla flavor is due to the presence of “natural flavors” and “vanilla extract.” (Id. ¶¶ 6-7, 8283).
According to the complaint, “natural flavors” are chemicals synthesized in a laboratory,
derived from natural compounds and extractives. (Id. ¶ 85). The complaint alleges that isolated
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chemical compounds extracted from natural sources may not taste like their antecedent
ingredients. (Id.). For example, the compounds extracted from natural vanilla may not taste like
vanilla, so a “flavorist” must add other chemicals to create a “flavoring substance” that replicates
the desired taste. (Id. ¶ 88). The complaint alleges that some “natural flavor” mixtures contain
as many as 250 chemically identified constituents, some artificial or synthetic. (Id. ¶ 87).
Although the complaint appears to blur any distinction between “natural flavors” and
“vanilla extract,” it alleges that both ingredients are in effect engineered to provide the yogurt its
vanilla flavor and are not “vanilla” as that term would be understood by a reasonable consumer.
(See id. ¶¶ 82-92). According to the complaint, when Chobani replicated vanilla flavor by
adding “natural flavors” and “vanilla extract,” it was obligated to label the yogurt as “vanillaflavored” instead of “Madagascar vanilla.” (Id. ¶ 90).
4.

Demand Letter

On June 14, 2021, plaintiff lodged a formal demand letter with Chobani, as is required by
Mass. Gen. Laws ch. 93A. (Id. ¶ 62). She requested that Chobani cease its deceptive practice
and agree to remunerate her and similarly situated consumers. (Id.). On July 15, 2021, Chobani
responded that the letter failed to allege any viable claims and that there was nothing deceptive
about the yogurt’s labeling. (Id.).
B.

Procedural Background

Plaintiff initiated this lawsuit on February 3, 2021. The amended complaint alleges
claims for violation of the Massachusetts Consumer Protection Act, Mass. Gen. Laws ch. 93A,
§§ 2, 9; violation of Mass. Gen. Laws ch. 266, § 91; and unjust enrichment. Chobani has moved
to dismiss all counts for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6).
II.

Legal Standard
To survive a motion to dismiss, a complaint must state a claim that is plausible on its
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face. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). For a claim to be plausible, the
“[f]actual allegations must be enough to raise a right to relief above the speculative level . . . .”
Id. at 555 (internal citations omitted). “The plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 556). When
determining whether a complaint satisfies that standard, a court must assume the truth of all wellpleaded facts and give the plaintiff the benefit of all reasonable inferences. See Ruiz v. Bally
Total Fitness Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007) (citing Rogan v. Menino, 175 F.3d 75,
77 (1st Cir. 1999)). Dismissal is appropriate if the complaint fails to set forth “factual
allegations, either direct or inferential, respecting each material element necessary to sustain
recovery under some actionable legal theory.” Gagliardi v. Sullivan, 513 F.3d 301, 305 (1st Cir.
2008) (quoting Centro Medico del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1, 6 (1st Cir.
2005)).
III.

Analysis
Chobani has moved to dismiss the complaint on five grounds: (1) the complaint alleges

claims that are preempted by federal food-labeling regulations; (2) the complaint fails to plead
fraud-based claims with sufficient particularity; (3) the complaint fails to plausibly allege
deception; (4) claims for equitable relief cannot stand because an adequate remedy at law is
available; and (5) plaintiff lacks standing to pursue injunctive relief because she fails to allege a
non-speculative future harm. Because the Court finds that the claims are preempted, it will not
reach the remaining issues.
A.

Preemption

When a federal law and state law conflict, “the federal law takes precedence and the state
law is preempted.” Murphy v. National Collegiate Athletic Ass’n, 138 S. Ct. 1461, 1480 (2018).
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By statute, state food-labeling requirements that are “not identical” to federal food-labeling
requirements are preempted. 21 U.S.C. § 343-1(a)(3). Therefore, “[a] Massachusetts law that
imposed a labeling requirement beyond that imposed by federal law would be expressly
preempted.” Lee v. Conagra Brands, Inc., 958 F.3d 70, 79 (1st Cir. 2020) (quoting Dumont v.
Reily Foods Co., 934 F.3d 35, 41 (1st Cir. 2019)). The parties here agree that if the label
complies with federal law, all of the claims in the complaint are preempted. See Dumont, 934
F.3d at 41.
The principal question, therefore, is whether the label at issue complies with federal law.
The complaint alleges that it violates 21 C.F.R. § 101.22(i), which provides as follows:
If the label, labeling, or advertising of a food makes any direct or indirect
representations with respect to the primary recognizable flavor(s), by word,
vignette, e.g., depiction of a fruit, or other means, or if for any other reason the
manufacturer or distributor of a food wishes to designate the type of flavor in the
food other than through the statement of ingredients, such flavor shall be
considered the characterizing flavor and shall be declared in the following way:
(1) If the food contains no artificial flavor which simulates, resembles or
reinforces the characterizing flavor, the name of the food on the principal display
panel or panels of the label shall be accompanied by the common or usual name
of the characterizing flavor, e.g., “vanilla”, in letters not less than one-half the
height of the letters used in the name of the food, except that:
(i) If the food is one that is commonly expected to contain a characterizing food
ingredient, e.g., strawberries in “strawberry shortcake”, and the food contains
natural flavor derived from such ingredient and an amount of characterizing
ingredient insufficient to independently characterize the food, or the food contains
no such ingredient, the name of the characterizing flavor may be immediately
preceded by the word “natural” and shall be immediately followed by the word
“flavored” in letters not less than one-half the height of the letters in the name of
the characterizing flavor, e.g., “natural strawberry flavored shortcake,” or
“strawberry flavored shortcake”.
To begin, there is no question that the label makes a “direct . . . representation[] with
respect to the primary recognizable flavor(s), by word, vignette, e.g. depiction of a fruit, or other
means.” See 21 C.F.R. § 101.22(i). The label states that the flavor is “Madagascar Vanilla &
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Cinnamon,” and it displays an image of a vanilla flower and vanilla beans. That flavor (which,
for present purposes, will be deemed to be vanilla, not vanilla and cinnamon) is therefore
considered the “characterizing flavor.” Id. 3
The next issue is whether the yogurt contains an “artificial flavor which simulates,
resembles or reinforces the characterizing flavor.” Id. § 101.22(i)(1). Plaintiff does not appear
to contend that the yogurt contains an “artificial” flavor within the meaning of that regulation
(although she does contend that the yogurt does not actually contain “vanilla,” as opposed to
“natural flavors” and “vanilla extract”). Accordingly, under the regulation, the yogurt may be
labeled “by the common or usual name of the characterizing flavor, e.g., ‘vanilla,’” unless the
exception in § 101.22(i)(1)(i) applies.
That exception provides that the yogurt must be labeled as “vanilla flavored” if “the food
[the yogurt] is one that is commonly expected to contain a characterizing food ingredient, e.g.,
strawberries in ‘strawberry shortcake,’ and the food contains natural flavor derived from such
ingredient and an amount of characterizing ingredient insufficient to independently characterize
the food, or the food contains no such ingredient.” Id. § 101.22(i)(1)(i).
There are thus, in substance, two requirements that must be satisfied for the exception to
apply: (1) the food must be one that is “commonly expected to contain a characterizing food
ingredient” and (2) either the food must contain (in essence) an inadequate amount of that
ingredient or not contain that ingredient at all.
Plaintiff contends that vanilla is not a mere “characterizing flavor,” but a “characterizing
food ingredient,” such as strawberries in a strawberry shortcake. She further contends that
consumers would commonly expect that the yogurt would contain actual “vanilla” in the form of

3

There does not appear to be any issue as to the use of the word “cinnamon” as a designation of flavor.

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vanilla beans (presumably, although not necessarily, in ground form). She contends that the
flavor is in fact derived from two ingredients—“natural flavors” and “vanilla extract”—neither
of which is “vanilla.” (Am. Compl ¶¶ 6-7). Thus, plaintiff alleges, § 101.22(i)(1)(i) requires
Chobani to state on the label that its yogurt is only “vanilla flavored.” (Id. ¶ 8).
The first question is whether “vanilla” is a “characterizing flavor” or a “characterizing
food ingredient.”
To begin, the regulation itself gives “vanilla” as an example of a characterizing flavor.
That fact alone entirely undermines plaintiff’s contention that “vanilla” is a characterizing food
ingredient. In that respect, the federal regulation accords with the expectations of reasonable
consumers—in other words, what consumers would “commonly expect[]”—that the word
“vanilla” denotes a characterizing flavor. And, indeed, multiple courts have considered and
rejected the argument that the word “vanilla” represents an ingredient rather than a flavor. See,
e.g., Twohig v. Shop-Rite Supermarkets, Inc., 519 F. Supp. 3d 154, 161 (S.D.N.Y. 2021) (“A
reasonable consumer would understand that ‘vanilla’ is merely a flavor designator, not an
ingredient claim.”); Nacarino v. Chobani, 2021 WL 3487117, at *5 (N.D. Cal. Aug. 9, 2021)
(“This Court therefore joins the many other courts that have considered this issue and concluded
that the term ‘vanilla’ on vanilla-flavored products merely indicates flavor and not an ingredient
source.”); Pichardo v. Only What You Need, Inc., 2020 WL 6323775, at *5 (S.D.N.Y. Oct. 27,
2020) (“The label ‘Smooth Vanilla’ is not misleading because, absent additional
facts . . . reasonable consumers associate the word vanilla with a flavor, not with an
ingredient.”); Cosgrove v. Blue Diamond Growers, 2020 WL 7211218, at *3 (S.D.N.Y. Dec. 7,
2020) (“The Court finds the Product is not misleading because a reasonable consumer would
associate the representation of “Vanilla”—with no additional language modifiers—to refer to a

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flavor and not to vanilla beans or vanilla extract as an ingredient.”). 4 This Court sees no reason
to conclude otherwise, and therefore finds that vanilla is a “characterizing flavor.”
The second question—which the court need not reach, but will do so for the sake of
completeness—is whether the yogurt contains “vanilla.” It is undisputed that it contains vanilla
extract, but not whole or ground vanilla beans. Plaintiff contends that the yogurt label violates
federal regulations because it does not contain its “characterizing ingredient.” In other words,
the yogurt, according to plaintiff, contains no vanilla.
As noted, vanilla is not a characterizing ingredient. Furthermore, and in any event,
vanilla extract is, in fact, a form of vanilla derived from the vanilla plant. 5 The federal regulation
governing the standards for vanilla extract requires that any ingredient identified as vanilla
extract contain a minimum amount of vanilla derived from vanilla beans. See 21 C.F.R. §
169.175. Thus, if a product is flavored with vanilla extract, it must, according to federal
regulations, contain some amount of naturally occurring vanilla. 6
Plaintiff argues that a reasonable consumer would not understand the term “vanilla” to
encompass “vanilla extract.” That argument, however, has been rejected by multiple courts.
See, e.g., Zahora v. Orgain LLC, 2021 WL 5140504, at *5 (N.D. Ill. Nov. 4, 2021) (“Numerous
other courts have dismissed challenges to the use of the word ‘vanilla’ on food labels on the
Although the cases cited were evaluating the expectations of reasonable consumers within the context of
state consumer-protection laws, the Court finds their conclusions persuasive here. Section 101.22(i)(1) requires the
characterizing flavor be indicated by its “common or usual name,” and § 101.22(i)(1) defines a characterizing
ingredient as “one that is commonly expected to contain a characterizing food ingredient”—both of which seem to
necessarily implicate the expectations of a reasonable consumer. In any event, those cases reinforce what is clearly
stated in the regulation—that “vanilla” is the common name of a characterizing flavor.
4

5
In fact, the ubiquity of vanilla extract in food products has rendered the terms “vanilla” and “vanilla
extract” largely synonymous. See Vanilla, Webster’s Third New Int’l Dictionary 2532 (1986) (defining “vanilla” as
both the plant, its beans, and as “a flavoring extract made by soaking comminuted vanilla pods in a mixture of water
and grain alcohol”).
6
It is true that § 101.22(i)(1)(i) may apply if the amount of vanilla extract is “insufficient to independently
characterize the food”—that is, if other flavors predominate. The complaint here, however, does not so allege.

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basis that there is nothing in the word ‘vanilla’ itself that would lead a reasonable consumer to
understand a product’s flavor to be derived mostly or exclusively from the vanilla bean.”);
Budhani v. Monster Energy Co., 527 F. Supp. 3d 667, 679 (S.D.N.Y. 2021) (holding that label
using word “vanilla” and depicting a vanilla flower would be understood by reasonable
consumer as conveying that the product “contains some non-negligible amount of extract derived
from a vanilla bean”); see also Patenaude v. Orgain, 2022 WL 798274, at *3 (D. Mass. Mar. 16,
2022) (“The Court holds—as many district courts across the country have—that the word
‘vanilla’ without any qualifying terms does not lead a reasonable consumer to believe that the
vanilla flavor came exclusively or predominantly from vanilla beans.”).
In short, the yogurt at issue contains vanilla, albeit in the form of vanilla extract, and
therefore complies with federal labeling regulations.
That conclusion not only accords with common sense, but also with other federal foodlabeling regulations. Regulations governing the labeling of ice-cream products closely resemble
the provisions of 21 C.F.R. § 101.22(i). For example, 21 C.F.R. § 135.110(f)(2)(i) provides:
If the food contains no artificial flavor, the name on the principal display panel or
panels of the label shall be accompanied by the common or usual name of the
characterizing flavor, e.g., “vanilla”, in letters not less than one-half the height of
the letters used in the words “ice cream”.
However, if an ice cream’s natural vanilla flavor is reinforced by artificial means, the ice cream
must be characterized as “vanilla flavored.” See id. § 135.110(f)(2)(ii). If the artificial flavors
predominate, the ice cream must be labeled as “artificially flavored vanilla.” See id. The
regulation provides that an artificial flavor simulating vanilla is deemed to predominate “in the
case of vanilla beans or vanilla extract used in combination with vanillin if the amount of vanillin
used is greater than 1 ounce per unit of vanilla constituent . . . .” Id. § 135.110(f)(5)(i). Thus,
with respect to ice cream, “vanilla beans or vanilla extract” constitute natural vanilla that
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requires no qualification (as opposed to its artificial counterpart, vanillin). It would make little
sense if ice cream, flavored with vanilla extract, could be labeled “vanilla ice cream,” while
yogurt, flavored the same way, must be labeled “vanilla flavored.”
In summary, the term “vanilla” is clearly a “characterizing flavor” within the meaning of
the relevant federal regulation, § 101.22(i)(1). Furthermore, the yogurt “contains no artificial
flavor which simulates, resembles or reinforces the characterizing flavor,” and vanilla yogurt is
not a food “that is commonly expected to contain [the] characterizing food ingredient” of vanilla
in the form of vanilla beans. And even if the Court were to construe vanilla as a “characterizing
food ingredient” as defined in §101.22(i)(1)(i), the yogurt contains that ingredient in the form of
vanilla extract, and the complaint makes no allegations that the amount of vanilla extract is
insufficient to “independently characterize” the yogurt.
The yogurt container in question, therefore, comports with federal labeling requirements,
and any state-law labeling requirement that varies from the federal requirement is preempted.
And because the complaint asserts only state-law claims, it must necessarily fail.
Accordingly, the complaint fails to state a claim upon which relief can be granted and
will be dismissed.
IV.

Conclusion
For the foregoing reasons, defendant’s motion to dismiss is GRANTED.

So Ordered.
/s/ F. Dennis Saylor, IV
F. Dennis Saylor, IV
Chief Judge, United States District Court

Dated: August 1, 2022

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