Metropolitan News-Enterprise


Tuesday, September 20, 2021


Page 1


C.A. Revives Suits Over Non-Chocolate White Baking Chips

Codrington Says Reasonable Consumer Might Assume Products Are Chocolate


By a MetNews Staff Writer


Div. Two of the Fourth District Court of Appeal yesterday ordered reinstatement of an action under three consumer protection statutes against Target, and a second one against Walmart, brought by a man who bought a package of white candy chips at each of the corporation’s stores thinking they contained white chocolate, and found they didn’t.

Plaintiff David Salazar brought a putative class action against Target on June 28, 2019, based on his purchase Pantry-brand “White Baking Morsels,” and three days later, instituted a like action against Walmart over his disappointment with its “Great Value White Baking Chips.” San Bernardino Superior Court Judge David Cohn on Sept. 1, 2020, sustained demurrers to Salazar’s pleading in both cases, and judgments of dismissal were entered.

The Court of Appeal opted not to consolidate the cases.

In her opinion in both cases, Acting Presiding Justice Carol D. Codrington said that Salazar pled that the product names contain the word “white,” the package depicts what look like chocolate chip cookies, and the products were sold near chocolate products. That, she said, was sufficient to overcome a demurrer to causes of action under the Unfair Competition Law, the False Advertising Law, and the Consumers Legal Remedies Act. 

Action Against Target

Codrington noted that a key fact differentiates the action brought by Salazar against Target from a similar action in the U.S. District Court for the Eastern District of California in Cheslow v. Ghirardelli Chocolate Company: the price tag on the package purchased by Salazar bore the words, “WHT CHOCO.” The action in the District Court was dismissed in 2020 without leave to amend; an appeal was taken but later dropped.

Codrington wrote:

“By its plain terms, ‘WHT CHOCO’ suggests precisely what Salazar alleges: that the White Baking Morsels contain white chocolate. At a minimum, a reasonable consumer could be confused about whether the morsels are made with white chocolate given the price tag’s description of the morsels as ‘WHT CHOCO’ and the fact that the product’s label does not clearly state whether they contain white chocolate….A reasonable consumer thus could see ‘WHT CHOCO’ on the White Baking Morsels’ price tag next to the product, which depicts the white chocolate-chip-like morsels, and fairly conclude that they contain white chocolate.”


Depicted above is a package of “Great Value White Baking Chips.” The Court of Appeal held yesterday that a reasonable consumer might assume that product, sold by Walmart, and a like product formerly sold by Target, are made of white chocolate, reinstating a consumer’s action.


Adequate Pleading

That’s all Salazar needed to plead to state a cause of action under the Unfair Competition Law, the False Advertising Law, and the Consumers Legal Remedies Act, Codrington wrote.

The jurist made clear, however, that the wording on the price tag was not determinative, saying: “Even without the price tag, a reasonable consumer could be misled by the White Baking Morsels’ label into believing that they contain white chocolate. A reasonable consumer might know there are white chocolate chips used for baking while not knowing that white-colored baking chips that do not contain white chocolate exist. When viewed in that context, a reasonable consumer could reasonably be misled to believe that the chips are white chocolate chips, because the consumer would not be aware that the chips could be something else.”

District Court Case

The District Court’s decision in Ghirardelli, she declared, aside from being “inapplicable” is also “unpersuasive.”

In that case, Judge Phyllis J. Hamilton found a cause of action was not stated under California law “given the lack of affirmative deceptive statements combined with an ingredient list that dispels any confusion about the actual content of the product.”

Codrington, in addressing the lack of reference to “chocolate” in the list of ingredients in the package he purchased, reverted to the wording on the price tag.

“Because the ingredient list conflicts with the White Baking Morsels’ price tag’s representation that they are ‘WHT CHOCO,’ Salazar’s claims are ‘not defeated,’ ” she wrote. 

The case was remanded to the San Bernardino Superior Court.

“This is not one of those ‘rare situations’ where we can decide as a matter of law on a demurrer that Target’s advertising of the White Baking Morsels is not deceptive or misleading,” Codrington explained. “Whether a reasonable consumer is deceived by that advertising is not properly resolved at the pleading stage.”

The case is Salazar v. Target Corp., E076001.

Action Against Walmart

Codrington also authored the opinion reinstating Salazar’s suit against Walmart. That opinion contains much of the same language as the opinion filed a few hours earlier.

“Walmart emphasizes that the White Baking Chips label does not state ‘chocolate’ anywhere and that the product’s ingredient list confirms the chips have no white chocolate,” she wrote. “Walmart thus argues that the label is not misleading because it contains no false statements.”

Codrington said that “[a]lthough the White Baking Chips’ packaging may not have any false statements,” the question “is whether a reasonable consumer could find the White Baking Chips’ truthful label to be deceptive or misleading.”

The allegations of the complaint are sufficient to warrant a trial on the issues, she determined.

The case is Salazar v. Walmart, Inc., E076006.


Copyright 2022, Metropolitan News Company