A proposed class action lawsuit alleges chocolate malt-flavored Ovaltine drink mix is misleadingly labeled as “a good source” of 12 vitamins and minerals and containing “no artificials.”
According to the 13-page suit, reasonable consumers would not expect upon reading the front-label statements that Ovaltine is a “good source” of certain vitamins and minerals only when mixed with low-fat milk. Moreover, the “no artificials” claim falsely indicates to buyers that the product contains no artificial ingredients, even though the drink mix contains soy lecithin from genetically modified soybean plants, the case contends.
The lawsuit claims Ovaltine’s maker, Nestlé USA, has sold more of the product, and at higher prices, than it would have absent the allegedly misleading labeling.
Per the suit, federal and state food labeling regulations require that a product advertised as a “good source” of a certain nutrient contain between 10 and 19 percent of the recommended daily intake or daily recommended value of that nutrient.
The lawsuit alleges that although the Ovaltine drink mix is represented as “A Good Source of 12 Vitamins & Minerals,” the product’s back label reveals that the powder itself contains enough of only nine vitamins and minerals to be considered a “good source” of those nutrients.
A third column in the Ovaltine nutrition facts panel indicates the amounts of vitamins and minerals provided when the powder is mixed with “1 cup low fat vitamin A & D milk,” the suit specifies.
The lawsuit argues that the fact that Ovaltine is a good source of 12 vitamins and minerals only when other ingredients are added is “discreetly indicated” with a dagger accompanying the front-label claim. Per the case, the dagger refers to a “smaller statement” below that says “When Prepared As Directed.”
Even if shoppers see the smaller qualifying statement, the directions for preparing the Ovaltine, found on the product’s back label, are “inconsistent and unclear,” the case continues. Although the third column of the nutrition facts panel instructs consumers to add “low fat vitamin A & D milk,” a box next to the column, the suit says, references “one cup fat free milk,” and a third location states that a “Thoughtful Portion” of the drink contains “1 cup (8 oz) of milk,” which the case says is “presumably whole milk.”
The lawsuit goes on to claim that the “No Artificials” statement on the Ovaltine front label is similarly misleading given the back label states that the drink mix “contains a bioengineered food ingredient.” This ingredient is most likely soy lecithin, which is derived from genetically modified soybean plants, the complaint says.
The case argues that reasonable consumers consider bioengineered or GMO ingredients, which are produced in a laboratory using substances that do not occur naturally, to be artificial and would not expect them to be included in a product labeled as containing “No Artificials.”
Consumers would not have been willing to buy the Ovaltine product, or pay as much as they did, had they known the drink mix was misleadingly labeled, the case contends.
The lawsuit looks to represent anyone in New York, Alabama, Wyoming, Montana, Alaska, Texas, Arizona, New Mexico, Mississippi, Utah, Nebraska, North Carolina, Tennessee and West Virginia who purchased the Ovaltine drink mix during the applicablestatute of limitations.
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