AD-ttorneys@law – March 23, 2023

Alerts / March 23, 2023

In This Issue:

Snack Dragon Sues Over Syncretic Snack

Does the name ‘pizza roll’ imply real cheese?

Chocolate and Peanut Butter, Caramel and Popcorn...

Occasionally we stumble across a story that transcends the underlying legal issues. That’s exactly what happened with our latest tale. The lawsuit in question concerns a ubiquitous, often-mocked, and secretly cherished American snack – the pizza roll – but it led us to deeper truths about our nation, embodied in the person of a truly American character.

The inventor of the pizza roll, Jeno Paulucci, was born in Minnesota in 1918, a son of Italian immigrants. A keen businessman, he noticed the surge in popularity of Chinese food in the 1940s and decided to mass produce it for consumers to eat at home. By the time he sold it to R.J. Reynolds in the mid-sixties, it was worth a cool $63 million. Not long after, Paulucci started up Jeno’s Inc., which sold frozen pizzas.

And that’s when the American part kicked in.

Drawing on his earlier business experience, Paulucci pulled off one of the great combinations in American snack history – he stuffed Italian pizza ingredients inside the familiar Chinese egg roll shell, and the pizza roll was born. In 1985, Paulucci sold Jeno’s to Pillsbury for $135 million (the rolls were rebranded to “Totino’s,” the name they retain to this day).

A poor, first-generation American earning hundreds of millions of dollars through cultural appropriation, culinary syncretism, and a deep appreciation for the marketplace? Jeno Paulucci was as American as they come.


Given Paulucci’s background developing prepared food and snack lines, we doubt that he would be at all bothered by the class action suit launched last March against Totino’s brand pizza rolls (now owned by General Mills). Everyone’s favorite plaintiffs’ firm, the Snack Dragon, reared its head in the pizza roll space – we’re surprised it didn’t happen sooner – by filing suit on behalf of one Lakita Smith in the Northern District of Illinois. The line of attack focuses on cheese.

Smith argues that because Totino’s pizza rolls are made with fake cheese, its packaging tags (“cheese naturally flavored in a golden crust”) and imagery violate the Illinois Consumer Fraud and Deceptive Business Practices Act.

“The representations cause consumers to expect the product contains a non-de minimis amount of ingredients associated with pizza, such as cheese,” the complaint alleges. “However, the representations are false, deceptive, and misleading, because the cheese used is almost entirely imitation cheese instead of traditional cheese.”

(Anyone familiar with Snack Dragon’s MO will recognize this as a signature argument.)

The Takeaway

General Mills moved to dismiss back in August, and the court sided with the company in a recent order. “None of the dictionary definitions plaintiff offers defines pizza as containing a certain amount of traditional cheese,” the court wrote.

Further, “even if federal regulations provide a standard of identity for pizza [which they do not], and that standard required pizza to contain more real cheese than fake cheese, a reasonable consumer’s expectations wouldn’t necessarily align with the regulations because average consumers are not likely to be aware of the nuances of the FDA’s regulations.”

Even Smith’s issue with the labeling of the product as “Cheese Naturally Flavored” failed to sustain a claim, as the court found that “cheese is not a characterizing ingredient of the product.” The court mused that cheese “likely would be a characterizing ingredient” if the product were named ‘Cheese Pizza Rolls,’ as is true of strawberries in strawberry shortcake and peanuts in peanut butter. However, “Cheese Pizza Rolls” isn’t the name of the product at issue.

Smith is allowed to file an amended complaint, and if we know anything about the Snack Dragon team, this suit is far from over.

Fourth Circuit: Cheese Orgs Turned Out Stinky Arguments

After more than a decade, court nixes Gruyere origin certification

Working Bleu

When does a joke go too far?

Any of the non-gourmets among us might have laughed out loud at the opening lines in the Fourth Circuit’s recent opinion in a dispute regarding Gruyere cheese:

“Like a fine cheese, this case has matured and is ripe for our review.”

Yes, they wrote that.

This quip, of course, is a groaner, but we’re talking about a circuit court here; this is practically George Carlin-level material in the appellate universe.

Are Switzerland’s Interprofession du Gruyere (IDG) and France’s Syndicat Interprofessionnel du Gruyere (SIG) finding any humor in it at all? Probably not. But to be fair to the Fourth Circuit’s burgeoning comedy routine, these international organizations don’t appear to be given to yuks.

Where There’s a Wheel...

The IDG and the SIG, you see, are all about preserving standards related to the production of Gruyere cheese, which is produced from the unpasteurized milk of cows that dine on the fine Alpine grasses that grow on either side of the France-Switzerland border. This recipe for this distinct type of cheese is 900 years old, and the delicious taste and reputation of the product are such that one can understand how Gallic pride would be engaged.

Hence the series of legal conflicts in U.S. courts that the two organizations set in motion, attempting to tie the use of the word “Gruyere” to the specific region of the cheese’s origin. In 2010 and 2015, the duo applied to the U.S. Patent and Trademark Office to register the name Gruyere as a certification mark. Unfortunately, they were rebuffed by the Trademark Trial and Appeal Board (TTAB), which found the term was generic because “purchasers and consumers of cheese understand the term ‘gruyere’ as a designation that primarily refers to a category within the genus of cheese that can come from anywhere.”

In 2020, IDG and SIG filed a complaint in the Eastern District of Virginia hoping to overturn the TTAB decision. This gambit also failed, with the court granting summary judgment to the U.S. Dairy Council and other opposers, finding that “the factual record in this case points indisputably to the conclusion that cheese purchasers in the United States understand the term GRUYERE to refer to a generic type of cheese without reference to the geographic location where the cheese is produced.”

The Takeaway

With the very je ne sais quoi of Gruyere at stake, the consortium took another shot at an appeal – this one with the Fourth Circuit, which weighed in early this March with an opinion that undoubtedly blunted the effectiveness of its own cheesy humor.

Noting that cheese produced outside of France and Switzerland but called Gruyere had been sold in the United States for decades, the Fourth Circuit leaned heavily on the FDA’s standards to deal the consortium yet another blow.

“The FDA standard of identity, the pervasive sales of non-Swiss and non-French cheese labeled as gruyere in the United States, and the common usage of gruyere establish that when purchasers walk into retail stores and ask for gruyere, they regularly mean a type of cheese, and not a cheese that was produced in the Gruyère region of Switzerland and France.”

While there’s been a notable uptick in origin claim cases of late, it’s possible that this sprawling, 10-year dispute may put other attempts back on their heels. After 13 years of filings in four separate courts yielding the same results, a similar attempt to assert control over the American market may seem like a fool’s errand.

Walgreens Still Smarting over ‘Maximum Strength’ Claims

District court rubs out most claims, but leaves the big ache alone

Numb Luck

The Northern District of Illinois took a hatchet to a class action filed against Walgreens, but what it left behind may still be a bit of a headache.

Californian Tam Dang filed the action back in January 2022, alleging that Walgreens violated Illinois, California, and other state consumer protection laws when it falsely advertised several pain-relieving products as “maximum strength” when they were … not.

The active ingredient in the patches and creams in question is lidocaine, the numbing agent that’s been helping deaden aches and pains for 80-odd years.

The problem? According to Dang, Walgreens’ “maximum strength” representation is “knowingly false and deceptive” because its products contain only 4% lidocaine, while its competitors offer similar prescription patches and an over-the-counter cream product that contain 5% lidocaine.

In a recent order, the court dismissed most of Dang’s claims, including fraud claims deemed “too conclusory to survive dismissal” and warranty claims that Dang neglected to notify the company about prior to the filing of the suit.

The Takeaway

But the claims related to misleading labeling survived, and the reasons why should be of interest to anyone marketing over-the-counter medication.

The court found that plaintiffs had plausibly alleged that defendants deceived customers by labeling products with 4% lidocaine as “maximum strength” when products with 5% lidocaine were readily available because “[r]eading the phrase ‘Maximum Strength’ to mean the maximum strength of lidocaine available generally” is not an “unreasonable or fanciful interpretation” of the product’s label.

Moreover, because case law on the subject supported plaintiffs’ position, the court declined at this stage to find that the label was not misleading as a matter of law and instead determined that the case required factual development to determine how reasonable consumers would interpret the label.

Do yourselves a favor: Take a “practical and fact-intensive approach to consumer behavior” when creating your packaging, labeling, and advertising. And don’t lose sight of what the average consumer might reasonably believe.

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Can I Run March Madness Promotions? And How Legal Is That Bracket Challenge?

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FTC’s 19th Public Commission Meeting – Some Drama and Some 6(b) Studies

For those who haven’t been following Federal Trade Commission (FTC or Commission) news too closely for the past few weeks, there has been lots of turmoil and drama. A few weeks ago – on Valentine’s Day, no less – Commissioner Christine Wilson issued a statement in the Wall Street Journal that, let’s just say, was a less-than-flattering portrayal of the leadership, ethics and policies of FTC Chair Lina Khan. To be clear, our texts exploded that day, and it wasn’t because we were receiving loads of (or any) Valentine’s Day messages.

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