Health Law Daily Wrap Up, LABELING AND PACKAGING (FOOD, DRUGS & MEDICAL DEVICES)—N.D. Ill.: Court agrees, something ‘fishy’ with ‘100% Whole Fish Fillets’ labeling, (May 1, 2026)

By Martin A. Steinberg, J.D.

Conagra allegedly deceptively labeled Van de Kamp’s and Mrs. Paul’s frozen fish products as containing “100% Whole Fish Fillets.”

The federal district court in Chicago largely denied Conagra Brands’ motion to dismiss a proposed class action alleging that Van de Kamp’s and Mrs. Paul’s frozen fish fillet products were deceptively labeled as “100% Whole Fish Fillets.” The consumers claimed that the label was misleading because the fish fillets allegedly contained sodium tripolyphosphate and added water, even though the ingredient list disclosed the additive on the back of the package. The court held that the plaintiffs adequately alleged Article III standing based on purchases of substantially similar fish fillet products bearing the challenged label, and that any issues concerning unpurchased products or a nationwide class were better addressed at class certification. Applying the reasonable-consumer standard, the court found that the plaintiffs plausibly read “100% Whole Fish Fillets” to mean that the fillet portion of the product was entirely fish, not fish with sodium tripolyphosphate (STPP) and water added. The court also held that the complaint satisfied Rule 9(b), but dismissed the request for injunctive relief because the plaintiffs, now aware of the alleged deception, did not face an imminent risk of being misled again (Pappert v. Conagra Brands, Inc., No. 1:24-cv-04835 (N.D. Ill. Apr. 29, 2026)).

Background. The plaintiffs alleged that Conagra Brands deceptively marketed certain Van de Kamp’s and Mrs. Paul’s frozen fish products as containing “100% Whole Fish Fillets.” The challenged products included several varieties of crispy battered, crunchy breaded, beer-battered, and haddock fillet, sold under the two brands. Although the front of the packaging displayed the “100% Whole Fish Fillets” statement, the back-panel ingredient list stated that the pollock contained sodium tripolyphosphate, which was “added to retain moisture.” The plaintiffs claimed that the label was misleading because the products allegedly consisted of fish combined with STPP and water, rather than fish-only fillets.

The named plaintiffs, residents of California, New York, and Massachusetts, alleged that they purchased the products several times in their home states in 2022 or 2023, reviewed and relied on the packaging, and would not have bought the products, or would have paid less for them, had they known the products were allegedly mislabeled. They asserted claims under California, New York, and Massachusetts consumer protection statutes, as well as breach of warranty and unjust enrichment theories, and sought to represent state-specific and nationwide classes. Conagra moved to dismiss under Rules 12(b)(1) and 12(b)(6), challenging both standing and the sufficiency of the plaintiffs’ deceptive-labeling theory.

Standing. The court first addressed Conagra’s Rule 12(b)(1) standing arguments because Article III jurisdiction was a threshold issue. Conagra argued that the plaintiffs lacked standing in three respects: (1) to assert claims involving products they did not purchase, (2) to seek injunctive relief, and (3) to represent a nationwide class. The court accepted only the injunctive-relief argument.

Unpurchased products. Conagra argued that the plaintiffs failed to plead injury in fact because they did not identify the exact Van de Kamp’s or Mrs. Paul’s products they purchased. The court disagreed, holding that the allegation that they bought the “subject” products several times and would not have done so, or would have paid less, absent the alleged mislabeling, was enough to plead economic injury.

The court agreed that the plaintiffs had to establish their own standing before relying on a putative class, but rejected Conagra’s demand for product-by-product specificity. After the plaintiffs dropped fish-stick products that did not bear the challenged “100% Whole Fish Fillets” statement, the case involved eight fish fillet products with the same allegedly deceptive label. Because each plaintiff alleged purchases of at least one of those products, and the alleged deception did not materially vary among them, the court found standing adequately pleaded.

The court treated any gap between the named plaintiffs’ purchases and absent class members’ purchases as a Rule 23 issue, not an Article III defect. Whether the plaintiffs may represent purchasers of unpurchased but substantially similar products, the court said, goes to adequacy, typicality, class definition, and related class-certification questions.

Injunctive relief. The court held that the plaintiffs lacked standing to seek injunctive relief. Because standing must exist for each form of relief, the plaintiffs had to show an imminent risk of future injury, not merely past exposure to allegedly unlawful conduct. Their alleged injury was deception: they claimed they bought products believing the fillets were only fish, when the fillets allegedly contained STPP and added water. But by filing the lawsuit, the plaintiffs necessarily demonstrated that they now knew about the alleged deception. Under Seventh Circuit precedent, once a consumer is aware of the allegedly deceptive practice, future deception generally is not plausible.

The plaintiffs tried to frame future harm differently, alleging that they remained interested in buying the products but could not know whether Conagra had corrected the labeling and were likely to be misled again. The court found that theory insufficient. It accepted that the plaintiffs might want to purchase the products again and might distrust the labeling, but it held that uncertainty about whether the labels had changed was not itself a concrete Article III injury. Nor could the plaintiffs create standing by choosing not to buy a product they otherwise would have purchased; the court treated that as a self-imposed injury rather than imminent, direct harm.

The court rejected the plaintiffs’ argument that denying injunctive standing would effectively bar injunctive relief in most false-advertising cases. The court distinguished cases involving information that consumers could not verify from the label itself, such as an allegedly false SPF rating on a sunscreen. Here, the plaintiffs could check the ingredient list for additives before making future purchases. The court also noted that Article III limits apply in federal court; state courts may entertain state-law injunctive claims even where federal standing is lacking. The court therefore dismissed the claims only to the extent they sought injunctive relief.

Nationwide class. Finally, the court rejected Conagra’s argument that the plaintiffs lacked standing to represent a nationwide class because the named plaintiffs purchased products only in California, New York, and Massachusetts, while absent class members in other states would have claims governed by different laws. Relying on its prior decision in Liston v. King.com, Ltd., 254 F. Supp. 3d 989 (N.D. Ill. 2017), the court reasoned that once the named plaintiffs adequately alleged a concrete injury from Conagra’s conduct, the availability of different state-law theories did not create an Article III standing problem. The issue was not constitutional standing, but whether the plaintiffs could satisfy Rule 23.

The court recognized that a nationwide class could raise serious class-certification concerns, including numerosity, commonality, typicality, adequacy, and predominance. Conagra argued that variations among state consumer-protection laws would defeat predominance, but the court found the argument insufficiently developed at the pleading stage because Conagra did not identify the specific material conflicts among state laws that would make the class unmanageable. The court therefore declined to dismiss the nationwide class allegations, while indicating that discovery on the nationwide class allegations might be stayed because the viability of such a class was doubtful. Conagra remained free to renew the predominance and manageability arguments at class certification.

The reasonable-consumer standard. The court held that the plaintiffs plausibly alleged that Conagra’s “100% Whole Fish Fillets” label could mislead a reasonable consumer. The parties agreed that the California, New York, and Massachusetts consumer-protection theories were governed by the reasonable-consumer standard, and at the pleading stage, Conagra had to show as a matter of law that the plaintiffs’ interpretation was unreasonable—a showing the court said is rarely made on a motion to dismiss.

Conagra argued that no reasonable consumer would think the products contained only fish because the packages plainly showed battered or breaded fillets. The court rejected that framing because the plaintiffs did not challenge the breading or other visible ingredients added to the product as a whole. Their theory was that sodium tripolyphosphate and water were pumped into the fillet itself, making it plausible to read the label as falsely suggesting that the fillet portion was “100%” fish.

The court distinguished Hicken v. Quaker Oats Co., No. 22-cv-06043, 2024 WL 4953783 (N.D. Ill. Dec. 2, 2024), where “Simply Granola: Oats, Honey, Raisins & Almonds” was not deceptive merely because the product contained other ingredients. Unlike “granola,” the court reasoned, “100% Whole Fish Fillets” referred to a food with an agreed-upon ingredient list: fish, and used exclusivity language that may support a deception claim.

The court found Bell v. Publix Super Mkts., Inc., 982 F.3d 468, 474—75 (7th Cir. 2020), controlling. There, the Seventh Circuit held that “100% Grated Parmesan Cheese” could plausibly mean the product was entirely cheese despite back-label ingredient disclosures. Applying that reasoning, the court held that “100% Whole Fish Fillets” could plausibly mean that the fillet in the product was entirely fish. Because that reading was plausible and allegedly false, the complaint stated a claim under the reasonable-consumer standard.

Rule 9(b) pleading requirements. The court held that the complaint satisfied Rule 9(b) because it alleged the “who, what, when, where, and how” of the claimed deception. The plaintiffs alleged that Conagra deceptively labeled the products as “100% Whole Fish Fillets,” that they reviewed and relied on that label before buying, that the fillets allegedly contained STPP and added water, and that they would not have purchased the products, or would have paid less, absent the alleged mislabeling. They also alleged purchases in 2022 and 2023 at supermarkets in California, New York, and Massachusetts. The court rejected Conagra’s demand for more details about the purchases, the amount or timing of the STPP and water, product weight, or consumer perceptions, concluding that nothing more was required. Because the consumer-protection theories stated a claim, the court did not reach the warranty or unjust-enrichment theories. The motion to dismiss was denied except as to injunctive relief.

The Case is No. 1:24-cv-04835.

Judge: Tharp, Jr., J.

Attorneys: Joel Dashiell Smith (Smith Krivoshey, PC) for Cindy Pappert. Andrew Garner Phillips (Alston & Bird LLP) for Conagra Brands, Inc.

Companies: Conagra Brands, Inc.

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