Nestle Opposes Class Certification in False Advertising Suit on Nestle Products

Nestle USA last week filed a motion opposing class certification in a lawsuit alleging that it "deceptively labels its chocolate as a sustainable, fair trade product" when its cocoa beans are allegedly farmed using child and trafficked labor in West Africa (Renee Walker v. Nestle USA, S.D. Cal. # 19-00723).

Marie Falcone asked for class certification, saying 59 different product labels on Nestle products are misleading "in the same way" because consumers all saw representations about the "Nestle Cocoa Plan as promising the end of all risks of child labor in West Africa" and those representations were the only reason consumers bought the products. Nestle cited "several problems with this theory," with the main one being that "Falcone herself does not even believe it."

Falcone said at a her deposition she has "no problems" with the labels and "was not sure whether she would have joined the case if she knew that it was what the current product labels looked like," the brief said. Falcone, a California resident, also said that Nestle's Cocoa Plan shows that the company is "putting their money where their mouth is" and "delivering progress."

The chocolate company added that internal Nestle surveys and expert evidence shows that consumers weren't exposed to the same representations on the 59 different labels, didn't interpret the representations as "having anything to do with child labor" and didn't find any of the representations "material in their buying decisions."

Falcone's theory of class certification also suffers flaws pertaining to damages in the suit, Nestle said. Plaintiffs in false advertising cases must show a "classwide methodology" establishing the difference in value between the advertised product and what "actually was delivered." Nestle said Falcone skipped this step. "Many consumers did not even see the small, back-of-label statements Falcone challenges," the brief said. "Those who did see the statements did not interpret them in the way the motion suggests, nor ascribe any value to them in making their purchases."