Reuters reports of a new labeling lawsuit. This time plaintiffs have their sights set on Con-Agra in two venues, California and New York. The plaintiffs claim the food giant mislead the public by labeling its popular Wesson cooking oils ‘100% Natural’ and ‘Pure.’ Consumers were allegedly mislead because the oils are derived from genetically modified plants and organisms.
The plaintiffs are attempting to certify an enormous class. The class they contend includes Wesson oil purchasers since 2007. The two separate class-action suits (McFadden et al v. ConAgra Foods Inc., in the U.S. District Court for the Eastern District of New York, no. 11-3186; Briseno et al v. ConAgra Foods Inc., in the U.S. District Court for the Central District of California, no. 11-5379) seek millions of dollars in refunds on behalf of recent purchasers the Wesson oil line — including canola oil, vegetable oil, corn oil and a blend — as well as a court order prohibiting Con-Agra from making its all-natural claim on Wesson oils.
This label lawsuit faces a tough fight. The plaintiffs will need to prove economic harm – what is the difference in the price of a Wesson oil and an ‘all natural’ alternative? – prove reliance on the claim made on the label – did consumers choose Wesson over other brands because of the claims on the label? – and can they prove what it is in fact made of? The final question will raise thorny issues about the legitimacy of genetically modified foods, which are not as strictly regulated in the US as they are in Europe. The US’s relaxed view of genetically modified foods places the suit on wobbly knees.
A reminder from earlier posts about label lawsuits in California. The State has seen a number of label lawsuits this year, some of which changed the State’s case law. Under Kwikset the court held that “labels matter” allowing a plaintiff to make a claim solely on reliance on the label’s claims. Under Weiner a plaintiff must show that purchasing “similar products” would lead to significant economic damage (i.e. an amount that is not trivial). The bare-bones of a label lawsuit appear present in CA, presuming counsel is ready to substantiate the amount in controversy.
This case will be interesting to watch as it progresses. My hunch is that it won’t emerge past the class certification or summary judgment phase.
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