Antitrust Law Daily Wrap Up, ADVERTISING—S.D. Fla.: Claims over allegedly deceptive cough drops packaging against Publix tossed, (May 30, 2023)

By Thomas K. Lauletta, J.D.

The plaintiff’s complaint was dismissed for failure to establish Article III standing.

A U.S. District Court in Miami has dismissed a purchaser’s multi-cause class action complaint based of Publix’s alleged deceptive statements made on its Honey-Lemon cough drops packaging. Because the label of the cough drops stated that Publix offered an unconditional money-back refund if a purchaser was dissatisfied with the product, the purchaser could not effectively allege an injury-in-fact. Accordingly, the court held that the purchaser did not have Article III standing to sue. Further, the purchaser’s motion for injunctive relief was denied because he failed to show that he would suffer a future harm, in that he stated that he would not purchase more Publix cough drops until he could be sure that his product labelling allegations were cured (Valiente v. Publix Super Markets, Inc., May 24, 2023, Scola, R.).

The plaintiff purchased Publix-branded Honey Lemon cough drops in June 2022. He noted that the product label contained that phrase “honey-lemon,” pictures of lemons and honeycombs, and the statement “sooths sore throats.” The front of the package also contained the statement: “Menthol Cough Suppressant/Oral Anesthetic.” The plaintiff conceded that the product’s ingredients list does not list any lemon ingredients. However, the plaintiff alleged that he was misled in two ways: (1) that the product contains a non-de minimis amount of lemon ingredients; and (2) that it is capable of “soothing bronchial passages.” The plaintiff also alleges that product’s “false and misleading label allows Publix to sell the product at the “premium price” of “no less than $1.79 per 30.”

Defendant Publix noted that the product’s back label states “PUBLIX GUARANTEE: COMPLETE SATISFACTION OR YOUR MONEY BACK.”

The plaintiff sought both damages and injunctive relief, alleging six claims against Publix: violation of Florida’s Deceptive and Unfair Trade Practices Act; violation of state consumer fraud acts of Alabama, Georgia, North Carolina, South Carolina, Tennessee, and Virginia; breaches of express warranty, implied warranty of merchantability, and the Magnuson Moss Warranty Act; negligent misrepresentation; fraud; and unjust enrichment.

Standing. The court dismissed the complaint, holding that the plaintiff failed to establish the first requirement for standing: that he suffered an injury-in-fact. This conclusion was based on the fact that the lemon drop’s labelling contained a statement of Publix’s unconditional promise to refund the purchase price to any purchaser who is not satisfied with the product, “no questions asked.” The court noted that other than the plaintiff’s conclusory allegations that the cough drops were sold at a premium price, the complaint lacked any factual support for the contention that the cough drops were worth less than the stated price of $1.79 for 30 cough drops. Further, the complaint did not allege the lemon drops were defective, did not work as advertised, or otherwise were so flawed as to render them worthless.

Injunctive relief. The court dismissed the plaintiff’s motion for injunctive relief, noting that such relief is granted only with respect to plausible allegations of future harms. Here, the court declined to issue an injunction because the plaintiff failed to allege that he had demonstrated a real and immediate threat of future injury. The plaintiff’s statement that he would not purchase Publix’s lemon drops in the future until Publix changes its deceptive product labelling did not qualify as showing an immediate threat of future injury.

The case is No. 1:22-cv-22930-RNS.

Attorneys: Spencer Sheehan (Sheehan & Associates, P.C.) for Heriberto Valiente. Daniel Brandon Rogers (Shook, Hardy & Bacon, LLP) for Publix Super Markets, Inc.

Companies: Publix Super Markets, Inc.

Cases: Advertising StateUnfairTradePractices FloridaNews