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From Health Law Daily, August 8, 2013

A class action alleging deceptive labeling of food products by 7-Eleven dismissed

By Harold M. Bishop, JD

A class action alleging that the labeling on several of 7-Eleven’s food products, as well as websites, contained statements amounting to misbranding and deception in violation of California and federal laws was dismissed (Bishop v 7-Eleven, Inc., August 5, 2013, Davila, E). The court dismissed the California and federal warranty claims with prejudice because statements on product packaging are mere descriptions and not warranties. The remaining fraud claims were dismissed without prejudice for failure to meet the heightened pleading standard for fraud claims.

The products. According to the complaint filed by Scott Bishop, the allegedly offending products include 7-Eleven’s 7-Select potato chips, 7-Select Ice Cream, 7-Select Cheese Jalapenos, and Fresh to Go Parfait. Bishop’s complaint contains several statements that assert that he purchased what he refers to as the “Misbranded Food Products.” Bishop claims that several statements on the packages and websites were false, misleading, or otherwise unlawful. Bishop also alleges that 7-Eleven did not comply with state and federal regulations when making nutrient content claims; nutritional value claims; and “all natural,” and “fresh” claims. Bishop further alleges the failure to disclose the presence of artificial colors, and artificial flavors; and the use of “slack filled” containers to deceive consumers.

Warranty claims. 7-Eleven moved to dismiss Bishop’s breach of warranty claims brought under the Song-Beverly Consumer Warranty Act (SBCWA), Cal. Civ. Code sec. 1790 et seq., and the Magnuson-Moss Warranty Act (MMWA), 15 U.S.C. sec. 2301 et seq.

Section 1794 of the SBCWA provides a private right of action for buyers of consumer goods for express or implied warranty violations. “Consumer goods” under the SBCWA are defined in sec. 1791(a) as “any new product or part thereof that is used, bought, or leased for use primarily for personal family, or household purposes, except for … consumables.” The court found that the food products at issue here fall under the definition of consumables and are therefore excepted, which Bishop does not dispute.

Bishop instead argues that the product labels constitute express warranties and that the products fall under the provisions of sec. 1793.35, which provides for the enforcement of express warranties on consumables. The court rejected this argument because food labels, like the ones at issue, do not constitute express warranties against a product defect. The court found that the labels are mere product descriptions rather than promises that a food product is defect-free, or guarantees of specific performance levels. As a result, Bishop failed to state a claim for a violation of the SBCWA.

The MMWA creates a civil cause of action for consumers to enforce the terms of written warranties. Bishop contends again under MMWA that the labeling on the products at issue constitute express warranties. Having previously found that labels on product packaging and websites are mere product descriptions rather than warranties that a food product is defect-free, the court also rejected the MMWA express warranty argument and found that Bishop failed to state a claim for a violation of the MMWA.

The court dismissed both the SBCWA and MMWA claims with prejudice.

Remaining fraud claims. Because the remaining claims include allegations of fraudulent conduct, deception, or misrepresentation, the court needed to determine whether they were pled with sufficient particularity to fulfill the heightened pleading standard for fraud claims. In each of the causes of action set forth in his Amended Complaint, Bishop alleges that in selling the “Misbranded Food Products,” 7-Eleven violated state and federal laws. However, because the term “Misbranded Food Products” refers to no specific or particular products, the claims that use that term do not allege that specific and particular products contained unlawful labeling. As such, the court found that Bishop did not meet pleading standard.

The court found that this non-specificity existed throughout the complaint. For instance, Bishop’s use of the ambiguous assertion that he purchased a non-definite group of products alongside an enumerated list of the products created ambiguity as to precisely which products he purchased. Further, the complaint failed to link specific enumerated products and the offending language on their packaging to the specific violations of California and federal law.

Finally, in the section of the complaint entitled “Causes of Action,” Bishop failed to make a single mention of a specific product which allegedly contains unlawful labeling. Rather, Bishop again used the term “Misbranded Food Products” throughout this section. As a result, the court was unable to identify the particular products which contain unlawful labeling.

As a result, the court dismissed the remaining claims due to insufficient pleading without prejudice.

The case number is 5:12-cv-02621 EJD.

Attorneys: Angel A. Garganta (Arnold & Porter LLP) for 7-Eleven, Inc.

Companies: 7-Eleven, Inc.

MainStory: TopStory CaseDecisions FoodNews LabelingNews MisbrandingNews

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