Antitrust Law Daily Wrap Up, STATE UNFAIR TRADE PRACTICES—11thCir: Florida Little FTC Act Claims over Lunch Meat Advertising Barred, (Feb 4, 2013)

By Jeffrey May, J.D.

Florida Little FTC Act claims against Kraft Foods Global, Inc. and Hormel Foods Corporation for allegedly misleading consumers regarding the amount of fat-calories in their lunch meat products were properly dismissed, the U.S. Court of Appeals in Atlanta has decided in a not-for-publication decision. The claims were barred by a safe harbor provision of the Florida Deceptive and Unfair Trade Practices Act (FDUTPA) (Kuenzig v. Hormel Foods Corp., January 31, 2013, per curiam).

A complaining consumer brought a putative class-action complaint, alleging that the companies misled consumers into believing their lunch meat products contained fewer fat-calories than they actually did. According to the consumer, the companies achieved this alleged deception by listing caloric amounts and fat-free percentages immediately adjacent to one another on the products’ labels.

The lower court dismissed state law labeling allegations on the grounds that they were preempted by federal law and failed to state a claim. However, the court granted the consumer leave to file an amended complaint to assert the Little FTC Act claim based on non-label advertising. In this claim, the consumer contended that the companies' advertisements misled consumers by including pictures of the lunch meat labels and by identifying the products by their fat-free percentages.

The appellate court upheld the lower court's determination that the companies did not violate Florida’s Little FTC Act, because they were protected under the safe harbor provision of the FDUTPA. Pursuant to its safe harbor provision, the FDUTPA does not apply to acts specifically permitted by federal law.

The labels were specifically permitted by federal law. The labels complied with federal regulations regarding the use of percentage fat-free claims and were approved by the Food Safety and Inspection Service prior to their commercial use, the court explained.

Moreover, the consumer failed to state a claim based on the advertising. The consumer had not shown that Hormel’s label was unfair or deceptive on its own. Thus, Hormel's label could not become unfair or deceptive simply by virtue of being pictured in an advertisement, the court noted.

The case is No. 12-11180.

Attorneys: Aaron C. Mayer (Mayer Law, LLC) for Plaintiff-Appellant. Kristin R. Eads (Faegre Baker Daniels, LLP) for Defendant-Appellee Hormel Foods Corp. Dean N. Panos (Jenner & Block, LLP) for Defendant-Appellee Kraft Foods Global, Inc.

Companies: Hormel Foods Corp., Kraft Foods Global, Inc.

Cases: Advertising StateUnfairTradePractices AlabamaNews FloridaNews GeorgiaNews