Antitrust Law Daily Wrap Up, ADVERTISING—E.D. Cal.: Walmart avocado oil labeling suit dismissed, (Feb 14, 2025)

By Jody Coultas, J.D.

The consumer was unable to show that the labeling was actually false.

The federal district court in Fresno, California dismissed a false labeling claim alleging that Walmart, Inc. misrepresented that its Great Value Avocado Oil was pure. A consumer alleged that Walmart’s labeling of its Avocado Oil violated the California Unfair Competition Law (UCL), False Advertising Law (FAL), and Consumer Legal Remedies Act (CLRA) by misrepresenting that it was “pure.” The court dismissed the claims for failure to show that Walmart actually represented that its Avocado Oil was pure, or that a reasonable consumer would be misled by the labeling. Also, there was no evidence as to what would constitute “pure” avocado oil (Hawkins v. Walmart, Inc.,No. 1:24-cv-00374-KES-SKO (E.D. Cal. Feb. 13, 2025)).

Walmart markets, labels, advertises, and sells Great Value Avocado Oil. The packaging states that it is “Refined Avocado Oil”, and the back label lists avocado oil as the only ingredient. However, according to the complaint, the Avocado Oil is adulterated with other oils. The consumer argued he would not have purchased the Avocado Oil, or would have only paid a lower price for it, had he known that the product was not pure avocado oil.

False advertising. Walmart argued that the claims should be dismissed for failure to show the advertising would mislead a reasonable consumer. Under the reasonable consumer standard, a plaintiff must show a probability “that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled” by the defendant’s marketing claims.

The court dismissed the California consumer protection law claims for failure to provide evidence that the Avocado Oil labeling was actually false or misleading. The labeling does not contain any statements that the produce is “pure” or “100%” avocado oil. While Walmart’s website stated that the product was “Pure Avocado Oil,” that is not reflected on the label or elsewhere on the product. Even considering this reference on the website in conjunction with the label, the consumer failed to establish any defined meaning of the term “pure” based on which a reasonable consumer would be misled. Furthermore, the court dismissed the claim because the consumer did not define “pure.” The consumer’s assertion that third-party laboratory testing found that “fatty acid and sterol profiles” were included in the Avocado Oil was vague and insufficient to show that the avocado oil was not pure. There were also no allegation as to whether or how any such “purity” was compromised during the manufacturing or processing process, and no specific facts as to any other oils or ingredients allegedly present in the Avocado Oil.

Breach of the implied warranty of merchantability. A breach of the implied warranty of merchantability occurs if the product lacks “even the most basic degree of fitness for ordinary use.” The California Commercial Code also requires merchantable goods to “[c]onform to the promises or affirmations of fact made on the container or label if any.”

The court dismissed the claim for failure to show that the Avocado Oil labeling would mislead a reasonable consumer. The consumer did not allege that the avocado oil was unfit for consumption, but rather that the allegedly false representation constituted an implied promise that the product is pure avocado oil and the product failed to conform to that promise. When an implied warranty of merchantability cause of action is based solely on whether the product in dispute conforms to the promises or affirmations of fact on the packaging of the product, the implied warranty of merchantability claim rises and falls with express warranty claims brought for the same product.” The complaint failed to sufficiently allege facts showing a representation concerning the Avocado Oil that would mislead a reasonable consumer.

Intentional misrepresentation. Intentional misrepresentation claims require that the defendant knew of the material fact and either misrepresented or concealed that fact to induce reliance by the plaintiff. Because the complaint failed to sufficiently allege a misrepresentation, the court dismissed the claim.

The case is No. 1:24-cv-00374-KES-SKO.

Judge: Sheriff, K.

Attorneys: Aubry Wand (The Wand Law Firm, PC) and Lisa Tamiko Omoto (Faruqi & Faruqi, LLP) for Matthew Hawkins. Heather F. Canner (Davis Wright Tremaine LLP) for Walmart, Inc.

Companies: Walmart, Inc.

Cases: Advertising CaliforniaNews