Montana and California residents have sued Safeway, Inc. in a California state court on behalf of a putative nationwide class of customers that the company allegedly failed to notify about tainted food recalls despite the ability to contact purchasers of contaminated products through its “club card” loyal customer program. Hensley-Maclean v. Safeway, Inc., No. __ (Cal. Super. Ct., Alameda Cty., filed February 2, 2011). Backed by the Center for Science in the Public Interest (CSPI), the plaintiffs allege that they purchased Salmonella-tainted peanut butter and egg products from the grocery and learned only by chance on the news or from neighbors that the products were subject to a recall.

According to the complaint, the company’s club card program gives the
grocery contact information for participating customers and a history of
the purchases they have made. The plaintiffs allege, “Many of Safeway’s
competitors already use their own customer data to notify their customers of
Recalled Products and to offer refunds, reducing the risk of harm to their own
customers [and] all routinely issue food safety alerts directly to customers
using a variety of methods.”

Alleging purely economic injury, the plaintiffs contend that the company
has violated the Consumers Legal Remedies Act, by selling unsafe goods
while leading customers to believe they were safe for consumption and of a
particular quality, and the Unfair Competition Law; they also allege breach
of a duty to warn, breach of implied warranty of merchantability and unjust
enrichment, denominated in the complaint as “money had and received.”

They seek injunctive relief requiring Safeway to post accessible warnings
online and in stores and to contact each customer by any means “to advise
them not to consume the product and credit the amount paid for the product
if possible, or, in the case of cash purchases, offer a refund.” They also seek
monetary damages, statutory or punitive damages, an order for restitution
and disgorgement of all profits from the sale of recalled products, costs, and
attorney’s fees.

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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