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David Salazar can press his case against the shopping giants Target and Walmart. The Court of Appeal revived his two class-action suits alleging each company falsely markets their “White Baking Morsels” and “White Baking Chips”  as containing white chocolate Sept. 19.

The court found that his claims for false and misleading advertising have merit.

“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,” the court ruled in their published ruling regarding the Target suit.

“‘(W)hite’ also could reasonably be interpreted as shorthand for ‘white chocolate.’ The White Baking Chips look like chocolate chips, they are sold next to other real chocolate chip products, and their label depicts them on cookies to show they can be used for baking like chocolate chips,” the court ruled in their published ruling regarding the Walmart suit.

San Bernardino Superior Court had dismissed both of Salazar’s cases.

Target’s “White Baking Morsels” contain no chocolate, and are made out of sugar, palm kernel, oil and milk, according to Salazar’s complaint.

“Not only did Target create a cheaper product that contained no chocolate but it then deceptively passed it off as the real thing by placing its fake white chocolate product among real chocolate products, including the ones it manufacturers (sic) and sells. Not only were Salazar and other reasonable consumers deceived by the White label and its intentional placement with real chocolate products Salazar and other reasonable consumers were otherwise prevented from learning of the Product s true non chocolate nature,” Salazar’s complaint argues.

His complaint describes chocolate as having chemicals that trigger euphoria, and that provide antioxidants. He distinguishes between chocolate as a positive food, and the morsels sold by Target as a “pedestrian ingredient” and a “cheap knock-off pretending to be chocolate.”

Court dismissal

San Bernardino Superior Court had dismissed the case after ruling both that a reasonable consumer would be misled by the morsel’s packaging and label, and that Salazar couldn’t base his argument on the marketing on Target’s website, because he did not consult the website before buying the morsels.

“A reasonable consumer could be misled however by references to chocolate allegedly found on the companies websites but Plaintiff does not allege and apparently cannot allege that he visited either website or relied on the alleged misrepresentations before making his two purchases in April and May 2019 Walmart and Target are correct that Plaintiff lacks standing as a class representative to pursue any claims arising from advertising which he admittedly never saw or relied upon,” the court had ruled.

Case information

San Bernardino Superior Judge David Cohn presided over both cases at the trial court level.

Fourth District Court of Appeal, Division Two, Acting Presiding Justice Carol Codrington wrote both opinions, which Associate Justices Michael Raphael and Frank Menetrez joined.

Target case

Ryan Clarkson, Yana Hart, Lauren Anderson and Glenn Danas of Clarkson Law Firm represent Salazar in the Target case. 

William Delgado, Lauren Hudecki and David Ramirez-Galves of DTO Law represent Target.

Target: San Bernardino Superior Court number CIVDS1919405.

Target: Court of Appeal number E076001

Read the Target complaint here.

Read the motion dismissing the Target case in San Bernardino Superior Court here.

Read the appellate ruling on Target here.

Walmart case

Gregory Nylen, Robert Herrington and Dominic Draye of Greenberg Traurig represent Walmart.

San Bernardino Superior Court number CIVDS1920757.

Walmart: Court of Appeal number E076006.

Read the appellate ruling on Walmart here.

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