7th Circuit revives '100% Grated Parmesan' deceptive labeling claims
12/9/20 REUTERS LEGAL 01:11:11
Copyright (c) 2020 Thomson Reuters
Brendan Pierson
REUTERS LEGAL
December 9, 2020
A Heinz Ketchup bottle and a bottle of Kraft parmesan cheese are displayed in a grocery store in New York March 25, 2015. Kraft Foods Group Inc, the maker of Velveeta cheese and Oscar Mayer meats, will merge with ketchup maker H.J. Heinz Co, owned by 3G Capital and Berkshire Hathaway Inc, to form the world's fifth-largest food and beverage company. REUTERS/Eduardo Munoz
(Reuters) - A federal appeals court has revived lawsuits accusing food manufacturers Kraft Heinz and the ICCO-Cheese Company and retailers Walmart and Albertsons of falsely labeling products as "100% Grated Parmesan Cheese" when in fact they contained fillers.
A unanimous panel of the 7th U.S. Circuit Court of Appeals ruled Tuesday that it was unreasonable to expect consumers to rely on fine print on the products' packaging, reversing a lower court judge that dismissed the case.
"I'm very happy with the 7th Circuit's decision," Leslie Hurst of Blood Hurst & O'Reardon, a lawyer for the plaintiffs, said in an email. "It reaffirms the importance of false advertising laws and recognizes that powerful companies like Walmart and Kraft must exercise their significant powers of persuasion in the marketplace responsibly and ethically."
Michael Brody of Jenner & Block, a lawyer for Kraft Heinz; Joseph Collins of Fox Rothschild, a lawyer for Albertsons; Francis Citera of Greenberg Traurig, a lawyer for Walmart; and Joshua Glikin of Bowie & Jensen, a lawyer for ICCO, did not immediately respond to requests for comment.
The claims were filed in a multidistrict litigation in Chicago federal court. Plaintiffs alleged that the defendants sold falsely labeled products that contained cellulose, an anti-clumping agent made from wood pulp, causing them to pay more than they would have if the products had been labeled correctly.
In 2018, U.S. District Judge Gary Feinerman dismissed the central claim in the case. He found that the products' labels accurately disclosed the presence of cellulose in their ingredient list, and that the larger front label was ambiguous because "100%" could mean that 100% of the cheese in the container was Parmesan, not that the product was 100% cheese.
Feinerman also said "common sense" would let plaintiffs know that the products were not pure cheese, because they were not sold in refrigerated dairy aisles.
Circuit Judge David Hamilton, writing for the panel on Tuesday, said Feinerman's interpretation of the "100%" label erred by "attributing to ordinary supermarket shoppers a mode of interpretation more familiar to judges trying to interpret statutes in the quiet of their chambers."
"Consumer-protection laws do not impose on average consumers an obligation to question the labels they see and to parse them as lawyers might for ambiguities, especially in the seconds usually spent picking a low-cost product," Hamilton wrote.
Hamilton also said Feinerman was wrong, at the motion to dismiss stage, to disregard surveys offered by the plaintiffs showing that a large majority of consumers interpreted the labels to mean 100% cheese. He noted that pure cheese was also sometimes sold outside a refrigerated dairy aisle.
"What matters here is how consumers actually behave - how they perceive advertising and how they make decisions," he said.
Hamilton was joined by Circuit Judge Michael Kanne. Then-Circuit Judge Amy Coney Barrett heard arguments in September but was elevated to the U.S. Supreme Court before she could take part in deciding the case.
The court did not revive claims against retailers Publix and Target, which were also in the underlying multidistrict litigation, finding that the procedural posture in the lower court was different for those defendants and rendered the appeals untimely.
The cases are Bell et al v. Publix Super Markets Inc et al and Bell et al v. Albertson Cos Inc et al, 7th U.S. Circuit Court of Appeals, Nos. 19-2581 & 19-2741.
For plaintiffs: Leslie Hurst of Blood Hurst & O'Reardon
For Kraft Heinz: Michael Brody of Jenner & Block
For ICCO and Target: Joshua Glikin of Bowie & Jensen
For Walmart: Francis Citera of Greenberg Traurig
For Albertsons and Publix: Joseph Collins of Fox Rothschild
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