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New Jersey Judge Refuses to Transfer Nutella Health Claims Class Action to California



In October 2011, a federal judge in New Jersey, refused a motion to dismiss or transfer to California a potential class action case that was filed against Ferrero USA Inc. The presiding judge in the New Jersey case is the Honorable Freda L. Wolfson, a U.S. District Court Judge. Ferrero is the maker of a popular chocolate hazelnut spread called Nutella. The putative class action case claims that Ferrero misleadingly promoted Nutella as a healthy food, despite its ingredients, fat and sugar content, and calories.

What Is Nutella?

Nutella is a brand name for a chocolate hazelnut spread that was first sold in 1963. The product was developed in Piedmont, Italy, by a patisserie owner. Its recipe was created from an earlier spread made by the same manufacturer, Ferrero, in 1944.

One of the reasons for its creation was the tax levied on cocoa beans, which prevented the manufacture and distribution of chocolate in its conventional format. The product was originally sold in solid form but was later sold as a creamier substance. Before coming to the United States, the product was marketed throughout Europe as "Supercrema." More than 75 countries sell Nutella today.

Why Did California Claimants Want New Jersey Nutella Litigation to Join Their Suits?

The New Jersey judge overruled arguments lodged by California parties that there were two prior suits of a similar nature already in place in that jurisdiction. As a result, the health claims suit filed in New Jersey will remain there for the duration of the trial, rather than join other California claimants in consolidated litigation. Judge Wolfson dismissed the California parties' motion to intervene in the New Jersey health claims Nutella litigation. In so doing, the federal district judge denied the California plaintiffs' claim that the suits were duplicative and should not proceed simultaneously in two competing jurisdictions on opposite coasts of the country. Judge Wolfson pointed to the fact that there was not yet any certified class of plaintiffs in any pending litigation filed against Nutella anywhere in the United States, in support of her decision to deny the motion to intervene and transfer the case to the West Coast.

Judicial Panel on Multi-district Litigation Previously Refused to Consolidate Nutella Class Actions

The recent New Jersey decision is not the first time litigants have been defeated in efforts to consolidate litigation against Nutella's creator, Ferrero. In August 2011, the U.S. Judicial Panel on Multi-district Litigation refused to grant a New Jersey consumer's request to consolidate multiple class action suits against Ferrero. The three class actions proposed for consolidation claimed that Ferrero misleadingly promoted its chocolaty spread as a healthy food. Despite the common nucleus of facts amongst the suits that call into question the manufacturer's marketing claims for the popular spread, efforts by both defense and various plaintiffs to transfer or consolidate litigation from one coast to another have been defeated in the courts.