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Advertising Law Alert: National Class Denied In Nutella Spread Case

Date: Nov 22, 2011

In the on-going saga of the Nutella® spread false advertising case, plaintiffs recently were granted class action status, but the class was limited to California consumers.[1] The California district court relied heavily on the Supreme Court's recent Wal-Mart decision.[2] However, the results were vastly different.

BACKGROUND

Plaintiffs allege that Defendant falsely marketed its hazelnut spread as healthy for children. They alleged violations of California's Unfair Competition and False Advertising codes, among other state laws. Nutella advertisements indicated that the spread, which contains allegedly high fat and sugar, was nutritious as part of a healthy breakfast.

Plaintiffs sought a nationwide restitution class certification for all persons who purchased Nutella on or after January 1, 2000. Defendants argued that the plaintiffs did not satisfy the commonality requirement needed for a class action because there was no common injury and the injuries would require individualized assessment. They further argued that there was no connection between the California advertisements and non-California purchasers.

DECISION

The court found that the commonality requirement was met because Plaintiffs' allegations were based on a common advertising campaign. However, the court refused to impose California law on non-California residents and certified a class for state residents only.

The court also rejected Plaintiffs' request for certification from January 1, 2000. It limited the class to Californians who purchased Nutella on or after August 1, 2009.

It has not been determined how Plaintiffs are to prove injury in this litigation for what appears to be a large number of California consumers. Perhaps we'll hear about that next.

Dick Leighton: Leighton@khlaw.com

Jacki Thompson: Thompsonj@khlaw.com


[1] In re Ferrero Litigation, No. 11-CV-205 H (CAB) (S.D. Cal., Nov. 15, 2011).

[2] Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011).