A federal court in California has granted in part and denied in part the motion to dismiss filed by Dole Food Co. in a putative nationwide class action alleging that the company misbrands a number of its fruit products by making certain “all natural,” “fresh,” nutrient content, antioxidant, sugar-free, and health claims, as well as failing to disclose that the products contain artificial additives, chemical preservatives and other artificial ingredients. Brazil v. Dole Food Co., No. 12-1831 (N.D. Cal., order entered September 23, 2013).

According to the court, the plaintiff has standing at this stage of the proceedings
to bring claims as to products he did not purchase, ruling that he
may proceed with “substantially similar claims based on both products he
purchased and substantially similar products he did not purchase” on behalf
of unnamed class members. The court dismissed with prejudice claims based
on the company’s website statements because the plaintiff “concedes that
he did not view Defendants’ website” and he will be unable to demonstrate
that “he actually relied on” these representations in making his purchases.
So ruling, the court rejected the plaintiff’s argument that the Food and Drug
Administration’s position that website statements are incorporated into the
product label by reference rendered the products “illegal” and made the
purchase of them a “sufficient injury to confer standing.”

While the court rejected the defendants’ assertion that the claims were not
pleaded with sufficient particularity under Federal Rule of Civil Procedure
9(b), it dismissed with prejudice the claim that “the very fact that Defendants
sold misbranded products and did not disclose this fact to consumers is a
deceptive act in and of itself.” According to the court, this theory is preempted
by federal law because it would impose a requirement—disclosing “one’s own
violation of federal labeling regulations on the very labels that violate those
regulations”—not identical to those imposed by federal law.

Finally, the court refused to strike the plaintiff’s nationwide class allegations on the ground that Mazza v. American Honda Motor Co., 666 F.3d 581 (9th Cir. 2012), prevents a plaintiff from pursuing claims under California law on behalf of consumer who purchased the products in another state. According to the court, no choice-of-law analysis has yet been conducted, and striking the nationwide class allegations at this stage would be premature.


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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