Case where hazelnut coffee did not contain hazelnut reinstated

A federal appeals court has reinstated a putative class action filed by a woman who charged her hazelnut coffee did not contain any hazelnut in a divided ruling.

Kathy Dumont purchased a “hazelnut crème” coffee produced by Malden, Massachusetts-based New England Coffee Co., whose label described it as “freshly ground,” “100% Arabica Coffee,” “Hazelnut Crème,” “Medium Bodied,” and “Rich Nutty Flavor,” according to Thursday’s ruling by the 1st U.S. Circuit Court of Appeals in Boston in Kathy Dumont v. Reily Foods Co.; New England Coffee Co.

The ingredients list on the back, however, said “100% Arabica coffee Naturally and Artificially Flavored.” There was no image of a hazelnut anywhere on the label.

Ms. Dumont filed suit in U.S. District Court in Boston on charges including an unfair and deceptive practice. The district court dismissed the case which was reinstated by a divided three-judge appeals court panel.

“One might presume that a reasonable consumer who, like Dumont, cared whether the coffee she intended to purchase contained real hazelnut would check the list of ingredients,” said the majority opinion.

“On the other hand, perhaps a reasonable consumer would find in the product name sufficient assurance so as to see no need to search the fine print on the back of the package, much like one might easily buy a hazelnut cake without studying the ingredients list to confirm that the cake actually contains some hazelnut,” it said.

“And the complaint makes clear that convention in the industry — presumably in large part because of federal labeling requirements — is to state on the front of package contain a product that is nut flavored (but that contains no nuts) that the product is naturally or artificially flavored.”

The ruling notes also that another subsidiary of New England Coffee’s parent company sells a “hazelnut” coffee that includes a “flavoring” disclosure on the package’s front.

In reinstating the litigation, the ruling said it disagreed with the defendants that the case is “impliedly preempted” by federal law.

The dissenting opinion said, “In my view, Dumont has not pleaded that there was deceptive act or practice. The case should end there.”

Ms. Dumont’s attorney, John T. Longo, founder of Citadel Consumer Litigation P.C. in Providence, Rhode Island, said, “We are pleased with the decision and we look forward to getting justice” for consumers who are deceived by mislabeled products that cheat consumers and “also hurt the honest companies that incur the cost of putting hazelnut in hazelnut products, only to be undercut by the businesses that don’t.”

Mr. Longo said, “I don’t think it’s too high a standard for a business that sells hazelnut coffee to include hazelnut in the product. It’s sad that it is going to take a lawsuit to do what most people would recognize is the right thing, which is to include hazelnut in your hazelnut coffee.”

The coffee company’s attorneys did not immediately respond to a request for comment.