Antitrust Law Daily Wrap Up, ADVERTISING—N.D. Cal.: Claims against 7-Eleven for mislabeling food products dismissed, (Aug 7, 2013)
Law Firms Mentioned:Arnold & Porter LLP | Pratt & Associates
Organizations Mentioned:7 Eleven, Inc. | 7-Eleven, Inc. | Arnold & Porter, LLP
By Jody Coultas, J.D.
A 7-Eleven customer that purchased various products from one of its stores could not state any claims against 7-Eleven, Inc. for allegedly misbranding and mislabeling its food products, the federal district court in San Jose has held (Bishop v. 7-Eleven, Inc., August 5, 2013, Davila, E.).
The purchaser alleged that 7-Eleven mislabeled its 7-Select potato chips, 7-Select Ice Cream, 7-Select Cheese Jalapenos, Fresh to Go Parfait, and “misbranded food products.” 7-Eleven allegedly failed to comply with state and federal regulations by misstating the nutrient contents and nutritional values, using “all natural,” and “fresh” claims, failing to disclose the presence of artificial colors and flavors, and using allegedly “slack filled” containers.
Because the claims did not meet the heightened pleading standard of Federal Rule of Civil Procedure 9(b), the court dismissed the purchaser’s California consumer protection law claims. The purchaser failed to specify the particular products that violated particular labeling requirements, the allegedly unlawful representations that were on the products, and the particular statements the purchaser allegedly relied on when making his purchases. Use of the term “misbranded food products” throughout the complaint alongside the enumerated list of products created ambiguity and confusion as to precisely which products were at issue. The purchaser did not mention a single, specific product that allegedly contained unlawful labeling.
The court also dismissed with prejudice the purchaser’s breach of warranty claims brought under the Song-Beverly Consumer Warranty Act and the Magnuson-Moss Warranty Act.
The case is No. 5:12-cv-02621 EJD.
Attorneys: Ben F. Pierce Gore (Pratt & Associates) for Scott Bishop. Angel A. Garganta (Arnold & Porter LLP) for 7-Eleven, Inc.
Companies: 7-Eleven, Inc.
Cases: Advertising StateUnfairTradePractices ConsumerProtection CaliforniaNews