A consumer has filed a putative class action alleging that Cento Fine Foods Inc. misleadingly markets its tomatoes as “Certified San Marzano” without having the proper certification. Sibrian v. Cento Fine Foods Inc., No. 19-0974 (E.D.N.Y., filed February 19, 2019). San Marzano tomatoes are grown vertically with supports in San Marzano sul Sarno in Italy, the complaint asserts. Cento’s San Marzano cans feature a logo for an Italian agency that “does not ‘certify’ that the Products are compliant with the San Marzano guidelines, and it is actually an entity which may have performed the [U.S. Department of Agriculture] Organic certification,” the complaint argues. Cento’s website also identifies a company that “verifies that the Products conform to the San Marzano official criteria,” but the plaintiff alleges that the company “is believed to be the company which supplies defendant with San Marzano seeds and possibly certifies whether the Products are organic, as opposed to certifying the growing and quality of the final product. … It has even been claimed that [the company] only ‘certifies’ the production chain traceability of the seeds, confirming that the subject tomatoes were grown in Italy.”

The complaint also asserts that Cento’s “Find My Field” website feature—which allows consumers to enter a lot code found on the tomato can to view the field in which the tomatoes were grown—only retrieves four fields. “It is implausible that defendant can sell more San Marzano tomatoes than all other companies in the US, combined, and do so by cultivating only four fields,” the plaintiff alleges.

“It would not necessarily be misleading to grow tomatoes from San Marzano seeds and label them as ‘San Marzano’ tomatoes,” the complaint argues. “It is misleading to grow tomatoes that may or may not be from San Marzano seeds and represent them as being ‘certified.'” For allegations of negligent misrepresentation, unjust enrichment, fraud and violations of New York consumer-protection statutes, the plaintiff seeks class certification, an injunction, damages 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.