Retail

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Breyers to Pay $8.8-mil Over Misleading Natural Vanilla Labeling

Connoisseurs of vanilla ice cream generally prefer products made from real vanilla beans that are in the product evidenced by with those little black specs. And that is exactly what purchasers of Breyer’s Natural Vanilla ice cream should expect to get.

You can see the little black specs depicted in the scoop of ice cream right on the front of their packages along with a picture of vanilla beans and their flowers.

Breyer's Vanilla

We wrote about Breyers Natural Vanilla back in 2016 concerning a separate issue when the ingredients statement explicitly listed “vanilla beans.” Now, that is no longer stated. (See original story.)

So recently some crafty consumer lawyers decided to have the product chemically analyzed to see if it had real or artificial vanilla or both.

*MOUSE PRINT:

Laboratory analysis, specifically by the Center for Advanced Food Technology at Rutgers University, demonstrated that Breyers Natural Vanilla Ice Cream contains vanilla flavor from non-vanilla plant sources.

The testing of Breyers Natural Vanilla Ice Cream did not detect p-hydroxybenzaldehyde, vanillic acid or p-hydroxybenzoic acid, which means the Breyers Natural Vanilla Ice Cream has, at most, a small amount of real vanilla…

So they sued Unilever in June (see complaint) and believe it or not, they already announced a tentative settlement.

Therefore, if you bought any size container of Breyer’s Natural Vanilla ice cream from April 21, 2016 through August 14, 2024, you are entitled to get one dollar back for each one. If you have proofs of purchase, you can claim as many as you bought. Otherwise, the maximum claim is for eight cartons and you can get back $8. File a claim here.

The company is also being required to reformulate the product and not include vanilla flavor derived from non-vanilla plant sources.

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In MA, Clothing is Not Taxed, But This Jacket Was

We got an email recently from Bin D. questioning whether she had been wrongfully charged sales tax by REI on a biking jacket she bought for her husband.

REI jacket

In Massachusetts, clothing and footwear up to $175 is free of sales tax year-round. Lucky us. Otherwise the sales tax is 6.25-percent. But our unlucky consumer was charged tax anyway.

She questioned the erroneous charge three times with REI, particularly after realizing that other sellers did not charge tax on this jacket. Here is their response:

We will not provide a refund of tax for this order. This is a sports specific jacket and as a result tax levied is correct. The clothing tax exemption does not apply to clothing and footwear that are primarily designed and used for athletic activities or for protective use and that are normally [not] worn except for such purposes.

We asked Boston’s ace consumer reporter at WCVB, Ben Simmoneau, to take on the case and hopefully get REI to stop charging sales tax on exempt items like that jacket.

Well, despite the TV news story, the company continues to buck the system not fully understanding the Massachusetts tax law.

The actual statute, MGL. c. 64H, Sec. 6 provides:

*MOUSE PRINT:

(k) Sales of articles of clothing, including footwear, intended to be worn or carried on or about the human body up to one hundred and seventy-five dollars of the sales price on any article of clothing. For the purposes of this section clothing or footwear shall not include special clothing or footwear primarily designed for athletic activity or protective use and which is not normally worn except when so used.

The Massachusetts Department of Revenue explains the law in plain English:

Tax Exempt:
… jackets, windbreakers

While apparel designed solely for athletic or protective use is taxable, items that are also suitable for everyday use are exempt.

Taxable:
… athetic uniforms (baseball, football, etc.), Clothing primarily designed to protect from physical injury…

In our view, there is nothing about this jacket that would make it unsuitable for everyday wearing, and just because a manufacturer decides to market it as a “cycle jacket” doesn’t limit its use because of its design, looks, or functionality.

We think REI is incorrectly applying the law in this case.

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Robitussin Puts Non-Drowsy Lawsuit to Bed

In 2022, two different consumers sued the makers of Robitussin alleging that package claims of the products being non-drowsy were false and misleading. (See complaint.)

In particular, the suits said that one of the active ingredients in these cough suppressants, dextromethorphan (DXM), was actually known to cause drowsiness. Further, the complaints alleged that the “drug facts” disclosure on the back of the boxes did not warn about possible drowsiness.

*MOUSE PRINT:

Robitussin DM

The plaintiffs also cited various medical studies supporting the fact that DXM could make one sleepy, and pointed out that the Federal Aviation Administration advised pilots not to fly if they have taken it.

In 2023, the case was decided in favor of the manufacturer on the theory that the state law consumer violations cited were pre-empted by the federal Food, Drug, and Cosmetic Act governing drug products like this. The consumers appealed.

Despite that, the parties negotiated with each other since the court decision, and came to a settlement of the claims for $4.5-million. The company has agreed to discontinue the non-drowsy claims. Purchasers as far back as 2016 may be entitled to between $1.50 and $4.75 per claim. More details will be available after a judge signs off on the agreement.