Does it mean that the contents of the cannister are nothing but 100% pure cheese and no other ingredients at all (i.e., preservatives)? Does it mean that the contents of the cannister are 100% “grated”? Or 100% “parmesan”? Or 100% “cheese”?
We have previously written about the plethora of consumer lawsuits over the alleged false labeling of foods (e.g., “All Natural”) and the courts’ application of the “reasonable consumer” standard to decide whether the lawsuit has merit or must be dismissed.
A federal appeals court has recently ruled that it is not clear and obvious how a “reasonable consumer” would interpret “100% Grated Parmesan Cheese,” so the question must go to the jury, and the lower court was wrong to dismiss the lawsuit. Bell v. Publix Super Markets, Inc.
In the case, a group of consumers (“Plaintiffs”) sued grated cheese producers and the supermarkets that sold the products (“Defendants”), alleging that the statement “100% Grated Parmesan Cheese” on the front label of the cannister was false and deceptive because the product contains a small amount of cellulose powder intended to keep the cheese dry and from caking, and a small amount of potassium sorbate to keep it from molding. These additional ingredients are listed on the ingredients panel on the side or back of the cannisters.
The lower court had dismissed the lawsuit on the grounds that since the term “100% Grated Parmesan Cheese” is ambiguous, a reasonable consumer would look at the ingredients panel, see that there are other ingredients besides pure cheese, and not be deceived. In addition, the court determined that a reasonable consumer would have to know that a dried, unrefrigerated cheese product must contain preservatives to prevent spoilage, since the cannisters are sold on store shelves at room temperature, not in coolers. Therefore, the trial court dismissed the case. The consumers appealed.
The appeals court overturned the dismissal. Disagreeing with the lower court, it held that consumers should not have to, in every instance, look at the ingredients label to see whether a statement on the front label is false or misleading. Secondarily, the appeals court held that common sense does not necessarily require a reasonable consumer to assume that an unrefrigerated cheese product must contain preservatives, because some pure cheese products can be stored for some time unrefrigerated. Lastly, the appeals court held that federal labeling law did not shield the defendants from the false labeling claims, because federal law requires the producers to identify the product as “grated parmesan cheese,” but does not require the term “100%” on the product label.
For these reasons, the appeals court reinstated the lawsuit for further proceedings. The court pointed out that it was making no determination of whether the consumers should or would ultimately win the lawsuit, but only that it should not have been dismissed at the outset.
This appeals court decision is arguably at odds with other court decisions that have approved the dismissal of such “false labeling” lawsuits, especially where the ingredients list accurately tells the consumer exactly what is and is not in the product, so there is disagreement among the courts on the “reasonable consumer” standard, and we are likely to continue to see such lawsuits being brought.
