A D.C. court has dismissed a lawsuit challenging Deoleo USA Inc.’s “extra virgin” olive oil, finding that the plaintiff failed to state a claim. Fahey v. Deoleo USA Inc., No. 18-2047 (D.D.C., entered November 8, 2018). Deoleo settled a similar lawsuit in March 2018, and the plaintiff “apparently caught wind of this news,” the court noted. “Six days after the settlement was publicized, he purchased a bottle of Bertolli EVOO … [and] filed suit some six weeks later.” The court did not consider whether the plaintiff was bound by the terms of the settlement because it first found that the plaintiff failed to plead facts that could give rise to a right of relief.

The plaintiff “marshals but one ‘fact’ to substantiate his claim that this defendant deceptively mislabeled the bottle of extra virgin olive [oil that the plaintiff] purchased in 2018: the results of a 2010 study on olive oil quality by the University of California, Davis,” the court found. “As it sees things, the Court would have to indulge at least three major—and dubious—assumptions to draw the inference [the plaintiff] asks for here: one methodological, one temporal, and one geographic. Start with the methodological assumption: is there good reason to think the methods used in the UC Davis study can support general conclusions about the quality of Bertolli olive oil? Not really,” the court stated, noting that the study’s sample size was small and none of the bottles tested came from the same lot, contrary to U.S. testing regulation protocol. Further, the study was conducted eight years before the plaintiff bought his bottle of olive oil, the court found, noting that the plaintiff “offers no explanation for why the testing done on three bottles of Bertolli EVOO eight years ago should tell us anything about the quality of the Bertolli EVOO on store shelves today.” Finally, the study was conducted in California, and the plaintiff purchase his olive oil from a D.C. supermarket. “As Deoleo notes, the fact that three bottles ‘sitting on random store shelves in California’ didn’t pass a taste test does not plausibly suggest that the bottle [the plaintiff] purchased was similarly deficient, much less that every bottle sold in D.C. was as well.”

Holding that the plaintiff “has pled facts that suggest a plausible right to relief would require the Court to entertain not one, not two, but all three of these assumptions,” the court stated. “Unconvinced that any single one of them is warranted, the Court will grant Deoleo’s motion to dismiss.”

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.