SYRACUSE, NY — Nestle USA, Inc., a business unit of Nestle SA, is being sued for two claims printed on the packaging of its Ovaltine brand flavored drink mix. The case, filed Oct. 11 in the US District Court, Northern District of New York, objected to written claims on Ovaltine packaging stating, “a good source of 12 vitamins & minerals,” and, “no artificials.”
The lawsuit identified the statement, “a good source of 12 vitamins & minerals,” as a nutrient content claim under federal and state regulations.
“This means the product should provide between 10 and 19 percent of the recommended daily intake (RDI) or daily recommended value (DRV) of no less than 12 vitamins and minerals,” the filing stated. “However, the product is not a ‘good source’ of 12 vitamins and minerals, because this requires the purchaser to ‘mix [it] with 1 cup low fat vitamin A & D milk,’ indicated in the third column on the nutrition facts.”
Ovaltine is not a good source of 12 vitamins and minerals without adding other ingredients, a matter that was discreetly indicated by the dagger accompanying the front label statement of “a good source of 12 vitamins & minerals,†” which corresponds to a smaller statement several lines below, “† when prepared as directed,” according to the plaintiff.
The second item in dispute was the representation on Ovaltine packaging stating, “no artificials.”
“Consumers seeing the bigger font of ‘no artificials’ will expect this means the product does not contain artificial ingredients,” the lawsuit said. “However, the product contains artificial and bioengineered ingredients, disclosed several lines beneath the ingredient list.
“The probable bioengineered ingredient is soy lecithin, because like most soybean products, it is derived from genetically modified soybean plants. While lecithin may be naturally occurring in soybeans, it is extracted using nonnatural processes and with artificial, chemical solvents. Consumers consider bioengineered or GMO ingredients, and those produced with the use of chemical compounds, to be artificial, because they are modified in a laboratory by scientists and use substances not found in nature.”
The plaintiff further alleged that misleading symbols used on the front of the package “took advantage of consumers’ cognitive shortcuts made at the point-of-sale and their trust in defendant.”
The plaintiff, a resident of East Syracuse, purchased a 12-oz container of Ovaltine brand product at a Wegmans between July and August 2022. As a result of representations on the packaging, the product was sold at a premium price, which was higher than similar products, represented in a non-misleading way, according to the lawsuit.
Had she known the claims on the package were false and misleading, the plaintiff said she would not have bought it or would have paid less.“Nestle sold more Ovaltine and at higher prices than it would have in the absence of these claims, resulting in additional profits at the expense of consumers,” the filing stated. The aggregate amount in case was more than $5 million, including any statutory or punitive damages and exclusive of interest and costs, according to the filing.