D.C. Court Dismisses Part of “Extra Virgin” Olive Oil Consumer-Fraud Suit
A District of Columbia court has determined that a plaintiff who purchased a bottle of Pompeian-brand extra-virgin olive oil (EVOO) after learning that testing done in 2010 and 2011 concluded that certain EVOO brands did not satisfy U.S. and international EVOO standards has standing to bring certain consumer-fraud claims despite purportedly believing that the product was defective when purchased. Mostofi v. Mohtaram, Inc., No. 2011 CA 163 B (D.C. Super. Ct., order entered November 12, 2013). Thus the court rejected the defendant’s “manufactured” or “self-inflicted” injury standing argument. According to the court, “The dispositive consideration is that Plaintiff is a consumer who engaged in a consumer transaction.”
The court also disagreed with the defendant that the plaintiff lacked expert testimony or that his sampling testing was insufficiently reliable to support two claims of statutory consumer fraud, finding they were matters of fact to be determined by a jury. The court granted the defendant’s motion for summary judgment with prejudice, however, on claims that the defendant’s acts violated the Tariff Act and violated D.C. law “by selling Pompeian as EVOO imported from Italy.” The court ruled that it lacked jurisdiction over the Tariff Act claim because that law “does not provide for a private right of action,” and the plaintiff had not litigated this claim before the International Trade Commission.
Examining in detail the labeling on a bottle of the defendant’s EVOO, the court found nothing there to support the plaintiff’s claim that it misrepresents its alleged Italian origin. “Contrary to Plaintiff’s assertions, there is no label, marking, or any other text on the bottle of Pompeian that states that Pompeian is ‘imported from Italy,’ solely ‘from Italy,’ ‘of Italian origin,’ or any other plain text representation that the bottle came solely from Italy or is solely of Italian origin.” The court noted that the label identified other countries of origin, including Italy, and that the name itself would not lead the reasonable consumer to conclude it had come from Italy. In this regard, the court rejected the plaintiff’s argument that the company should not be allowed to use its own name on product labels. The court further ruled that the label colors were not, as claimed by the plaintiff, the colors of Italy’s flag.
