Antitrust Law Daily Wrap Up, STATE UNFAIR TRADE PRACTICES—N.D. Cal.: Issues of material fact existed in seafood labeling dispute, (Jan 6, 2014)

By Linda O’Brien, J.D., LL.M.

Genuine issues of fact precluded summary judgment on a consumer’s claims against a seafood producer for allegedly making unlawful, false, and misleading advertising regarding the omega-3 nutrient content of certain of its products in violation of California’s Unfair Competition Law (UCL), False Advertising Law (FAL), and Consumers Legal Remedies Act (CLRA), the federal district court in San Jose has ruled (Ogden v. Bumble Bee Food, LLC, January 2, 2014, Koh, L.). However, the consumer lacked standing to pursue claims under the UCL, FAL, and CLRA, based on statements of the quantities of vitamin A, iron and purported health claims.

Bumble Bee Foods, LLC is a producer of seafood products that are sold to consumers through grocery and retail stores throughout the United States. Tricia Ogden, a consumer, routinely purchased Bumble Bee and its King Oscar brand products. Ogden filed a class action suit against Bumble Bee claiming that the products were misbranded due to false and misleading statements about the amount of omega-3 fatty acids, vitamin A, and iron in the products and certain health benefits as advertised on product labels and on the company website, in violation of the UCL, FAL, and CLRA, among other claims. She also claimed that she relied on the product labels in deciding to purchase the products and she would have purchased other lower-priced products if it were not for the company’s nutrient content statements. Bumble Bee moved for summary judgment on the grounds that Ogden lacked standing to pursue the UCL, FAL, and CLRA claims and there was no genuine issue of material fact regarding whether Ogden purchased Bumble Bee products as a result of any false or misleading statement.

Standing. To establish standing under the UCL, FAL, and CLRA, the plaintiff must allege that she relied on the defendant’s misrepresentations and suffered economic injury as a result of the defendant’s conduct. Bumble Bee argued that, under the Federal Food, Drug, and Cosmetic Act (FDCA), a food manufacturer could petition the Food and Drug Administration (FDA) for permission to use nutrient content claims not previously authorized and the omega-3 statements on the Bumble Bee and King Oscar brand products were authorized by federal law. The court found that Bumble Bee could not rely on the FDA notification by another food manufacturer to place a materially different nutrient content claim on its own product labels.

Since Bumble Bee’s omega-3 statements were not authorized by the FDA, the statements should not have appeared on the company’s product labels. Ogden provided evidence that she saw the misrepresentations, relied on them substantially in purchasing Bumble Bee products, and suffered economic harm as a result. Her evidence was sufficient to create a genuine issue of material fact regarding whether Ogden has standing to pursue her UCL, FAL, and CLRA claims with respect to the omega-3 nutrient content claims, according to the court.

Additionally, the plaintiff demonstrated the existence of a material fact regarding whether she relied on the company’s failure to include the FDA-mandated front-of-package disclosure statement on the fat and cholesterol content when deciding to purchase the Bumble Bee and King Oscar products. Although Ogden stated that she did not generally read the nutrition information panel on food products, it was reasonable to infer that the presence of disclosures on the fat and cholesterol conduct would have alerted the plaintiff to check the nutrition information and may have changed her decision to purchase the products as a result.

Vitamin and health claims. The court found that Ogden lacked standing to pursue claims based on statements of the quantities of vitamin A, iron and purported health claims. The sole mention of vitamin A and iron appeared on the nutrition information panel which the plaintiff stated that she did not generally read. Moreover, Ogden conceded that she did not go to the company website for nutrition information before purchasing the products. Finally, she failed to show how the company’s use of a heart symbol on the product label was unlawful. Accordingly, the court concluded that the plaintiff failed to raise a genuine issue of material fact concerning these claims.

The case is No. 5:12-CV-01828-LHK.

Attorneys: Ben F. Pierce Gore (Pratt & Associates) for Tricia Ogden. Forrest Arthur Hainline (Goodwin Procter LLP) for Bumble Bee Foods, LLC.

Companies: Bumble Bee Foods, LLC

Cases: StateUnfairTradePractices CaliforniaNews