A federal court in Florida has dismissed with prejudice most of the claims asserted in a putative class action alleging that “percent fat free” labels on the packages of deli meats are misleading and deceptive. Kuenzig v. Kraft Foods, Inc., No. 11-838 (Tampa Div., decided September 12, 2011). Additional information about the case appears in Issue 391 of this Update. The court found all but one of the plaintiff’s claims preempted by federal food-labeling law and also found that all but one of his claims failed to state a claim because they were frivolous or disingenuous.

As to defendant Hormel Foods Corp., the plaintiff had alleged that while the
company’s labels do not indicate the number of calories per serving next to
the “percent fat free” claim on the front of its product packaging, the labels
are “somehow misleading by association, since Hormel’s products are on
grocery shelves next to Kraft’s products.” The court found as a matter of law
that Hormel’s labels do not misrepresent that the “percent fat free” claims are
based on calories. As to defendant Kraft Foods, the court determined that the
front-of-package labeling, which did pair “percent fat free” claims with calorie
counts, could not mislead consumers because “the number of calories that
come from fat is clearly disclosed in the nutrition panel on Kraft’s labels.”

The plaintiff also alleged that the defendants’ use of their “percent fat free”
claims on labels and websites and in advertising is misleading and constitutes
a violation of every state’s “Little FTC Act.” According to the court, application
of Florida’s Deceptive and Unfair Trade Practices Act (or Little FTC Act)
is preempted as to label claims, but not as to those claims implicating the
defendants’ Websites and non-label advertising. Because the plaintiff did not
“describe the context of the misrepresentations,” the court dismissed this
remaining claim, but without prejudice, giving the plaintiff leave to amend
the complaint.

About The Author

For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.

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