White Chocolate Worries Still Plague Ghirardelli

(CN) - A federal judge refused to let Ghirardelli off the hook from a federal class action alleging that its white chocolate chips do not actually contain any white chocolate.

Lead plaintiff Scott Miller bought a package of Ghirardelli white chocolate chips in June 2012, and discovered the next day that they did not taste like white chocolate.

"He reviewed the ingredients list on the packaging and noticed that the white chips contained no white chocolate, cocoa, or cocoa butter," according to U.S. Magistrate Judge Laurel Beeler's summary of the complaint.

The class action accuses Ghirardelli of misrepresenting the white chocolate content in its chocolate chips, wafers, white chocolate flavor, mocha mix, and frappes. It alleges violations of Food and Drug Administration regulations, as well as various state-law infractions such as false advertising, unfair competition and fraud.

Miller, a resident of Auburndale, Fla., sued in San Francisco, where Ghirardelli is based. The confectioner removed the case to U.S. District Court and sought dismissal, arguing that Miller lacks standing to sue over white chocolate products he did not buy.

In December 2012, Beeler limited the suit to white chocolate chips. The judge noted that that four other Ghirardelli products Miller targeted are all different from each other, both in labeling and composition.

"This is not the type of case where similar products or similar misrepresentations injured Miller in the same way as the unnamed plaintiffs," Beeler wrote.

At oral argument, Miller's attorney argued that "the combination of the 'Ghirardelli Chocolate' branding on the front of the label on top of the characterization of the product means that - under FDA regulations and standards - the harm is identical across product lines."

Miller then filed an amended complaint, but Ghirardelli complained that Miller was complaining about four products he did not buy.

On Friday, Beeler again tossed all allegations not pertaining to white chocolate chips.

"[The] identity of the commodity here under FDA regulations is 'white chocolate,' not 'chocolate,'" Beeler wrote. "That in turn means that a determination of standing is back to an examination of the entire label, and the court previously found that - even with the juxtaposition of 'Ghirardelli' to 'Chocolate' and the resulting implication of a connection to chocolate - the five products and the alleged misrepresentations were not sufficiently similar."

Ghirardelli had also argued that Miller's claim that the chocolate violated California's Sherman Food, Drug and Cosmetic Law does not apply because federal regulation for white chocolate was not made public until 2002.

Judge Beeler disagreed, however, noting that the California Supreme Court applied FDA regulations from 2007 without questioning the constitutionality of the Sherman Law.

Miller can also argue that the labeling was an unlawful trade practice even though Ghirardelli said he should have pleaded "nutritional inferiority."

"The allegations are more than merely labels or general assertions," the ruling states.

"At the pleadings stage, and based on the case-specific record, the court concludes that Ghirardelli has enough information to answer the complaint."

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