Federal Court Allows Diacetyl-Related Claims to Proceed Against Popcorn Maker

A federal court in California has denied defendant’s motion to dismiss a putative class action alleging that the company deceived the public by promoting and labeling its reformulated microwave popcorn as containing “No Added Diacetyl.” Fine v. ConAgra Foods, Inc., No. 10 01848 (D.C. Cal., order entered June 29, 2010). According to the plaintiff, she relied on defendant’s claims about “no added diacetyl” when purchasing its products, yet the popcorn still contains diacetyl. Accepting the plaintiff’s allegations as true for the purpose of ruling on the motion, the court noted that while plaintiff does not have “direct knowledge of the presence of diacetyl in Defendant’s products, Plaintiff relies on the work and statements of several health experts and alleges that ‘[k]nown “substitutes” for diacetyl still contain molecules of diacetyl.’”

The defendant sought to dismiss the claims on the grounds that the plaintiff did not allege a cognizable injury and thus lacks standing; her claims failed for lack of specificity under Federal Rules of Civil Procedure 8(a) and 9(b); and she failed to state a claim under California’s unfair competition, false advertising and consumer legal remedies laws as a matter of law under Rule 12(b)(6). The court found no merit to any of the defendant’s challenges. This lawsuit was previously brought under the name of plaintiff Dale Emery, but the parties stipulated to dismissing Emery as the named plaintiff and putative class representative. The parties also apparently stipulated to Emery’s replacement with Courtney Fine.