Court Dismisses Class Action over Salt in Denny’s Menu Items
A New Jersey appellate court has dismissed the second amended complaint
in a putative class action filed by a man who claims that Denny’s meals
contain excessive undisclosed levels of sodium in violation of the state’s
Consumer Fraud Act. DeBenedetto v. Denny’s, Inc., No. A-4135-09T1 (N.J.
Super. Ct. App. Div., decided January 11, 2011). The plaintiff was represented
by the Center for Science in the Public Interest. Additional information
about the litigation appears in Issue 312 of this Update.
The court agreed with the trial judge that the plaintiff’s complaint was, in
essence, a product liability claim for failure to warn for which the state’s
product liability law provided “a sole and exclusive remedy.” In the absence
of proof of injury, the courts determined that the plaintiff failed to state a
claim on which relief can be granted. The appellate court disagreed with
the plaintiff that recent state supreme court rulings on affirmative acts of
misrepresentation and the economic loss rule could be applied to his claims.
The court emphasized that a plaintiff alleging product defect or danger “must
also allege ‘harm.’” In this case, “neither the plaintiff nor the putative class
he claimed to represent asserted any physical injury or harm as the result of
defendant’s failure to disclose the sodium content.”
In a footnote, the court observed that legislation effective January 17, 2011,
will require restaurants to disclose the calorie content of their menu items,
but it does not require sodium content disclosure. According to the court,
“An earlier version of the legislation, which the Legislature chose not to
enact, would have required restaurants to also divulge the sodium content.”
The court further noted, while the law is not dispositive on the issues raised
in the appeal, “the enactment of that statute sends a strong signal that the
public policy of this State does not require a restaurant to disclose the sodium
content of the food it sells.”
This is not the first time that a court has dismissed excessive salt-related litigation against Denny’s. In April 2010, a federal district court in Illinois dismissed alleged deceptive omissions claims under that state’s consumer fraud law. Further details about the case can be found in Issue 345 of this Update.
