15-Second Advertising Law Alert: Nutella Consumer Plaintiffs are Back, at Least for Awhile

Date: Aug 31, 2011

We return to the allegedly misled Nutella® spread consumers. They assert that they relied upon "long-term advertising" claims that Nutella was healthy and beneficial to children only to discover that it contains "dangerous" levels of fat and sugar.

When last we met these putative class action plaintiffs, they had suffered a near-fatal blow from defendant's motion to dismiss. But they amended their complaint and very recently survived another motion to dismiss.[1]

That decision is part of the evolving law for pleading false and misleading advertising cases under the Supreme Court's relatively new specificity doctrine.[2]


The case was brought under a host of California authorities, including its Unfair Competition and False Advertising Laws. Under these, a plaintiff must show actual reliance on the allegedly misleading claims.

In moving to dismiss, defendant argued that plaintiffs lacked standing because their new complaint had not pled individualized reliance on stated representations in the alleged long-term ad campaign. Defendant also argued that its campaign was not long-term, among other factual disputes with plaintiffs.


The court denied the motion. Citing one of the California tobacco misrepresentation cases, it held that, where "a plaintiff alleges exposure to a long-term advertising campaign, the plaintiff is not required to plead with an unrealistic degree of specificity that the plaintiff relied on particular … statements."

The court was quick to point out that it was required at this stage to draw all reasonable inferences in plaintiffs' favor. But, it said, Defendant's factual contentions and other arguments raised valid issues for a motion for summary judgment or an opposition to class certification.

We may visit this case again.

For more information please contact Dick Leighton at 202-434-4220 or Leighton@khlaw.com.

[1] In re Ferrero Litigation, No. 11-CV-205 H (CAB) (S.D. Cal., Aug. 29, 1011).

[2] See Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009).