When It’s Okay to Claim Something is 100% When It’s Not

When It’s Okay to Claim Something is 100% When It’s Not

by Jerry Glover

September 5, 2017

 Have you ever gone to the grocery store and purchased an item that claimed to be made of “100%” of some ingredient just to get it home and note on the back label that there are other ingredients as well and none of them seem “edible?” Well, that what a federal district court in Illinois recently contended with. In re 100% Grated Parmesan Cheese Marketing and Sales Practices Litigation, 2017 WL 3642076 (N.D. Ill. August 24, 2017).

The plaintiffs, members of a class action lawsuit, bought various Kraft products labeled “100% Grated Parmesan Cheese” in stores throughout the U.S. One product example is noted below:

But the back labels on each of those products showed that the cheese also contained anywhere from 3.8% to 8.8% cellulose and/or an organic polymer with no nutritional value often used as a filler. Some parmesan products contained potassium sorbate and corn starch. Each of the products contained an expiration date.

The label on the back of the parmesan packaging was in a relatively small, all-capital-letters font. The “100% Grated Parmesan Cheese” description was featured prominently on the front label.

The multi-state plaintiffs alleged violations of various state consumer protection statutes, unjust enrichment and breaches of express and implied warranties and claimed they would never have purchased the cheese had they known of these additional ingredients. The defendants, including Kraft, Albertsons, Target, and Wal-Mart, claimed that the plaintiffs lacked standing to sue because they had not suffered an injury traceable to the defendant’s conduct.

The court noted that the plaintiffs alleged financial injury because they purchased a product they claim was worth less than what they paid because it contained non-cheese ingredients and they received something different (less valuable) than what they were promised because of the misleading labeling. Relying on a 2011 decision from the U.S. Court of Appeals for the Seventh Circuit (In re Aqua Dots Products Liability Litigation, 654 F.3d 748 (7th Cir. 2011), the court held that the plaintiffs had demonstrated standing to sue because of the financial loss alleged. Physical injury, the court noted, is not the only kind of loss that a plaintiff need suffer before they have standing to sue.

But the court did not allow the plaintiffs to go forward with their claims that the labeling violated various state consumer protection laws. All of those state consumer laws require plaintiffs to show conduct on the part of the defendant that plausibly could deceive a reasonable consumer. The court noted that the alleged deception must be looked upon in light of the totality of the information made available to the consumer. The court concluded:

“Where a plaintiff contends that certain aspects of a product’s packaging are misleading in isolation, but an ingredient label or other disclaimer would dispel any confusion, the crucial issue is whether the misleading content is ambiguous; if so, context can cure the ambiguity and defeat the claim, but if not, then context will not cure the deception and the claim may proceed.”

The court claimed it was a “common sense” matter that a container on a store shelf with an expiration date cannot contain “fresh” anything. Customers, the court believed, would suspect that something other than cheese might be in the container to keep it fresh so they would turn the product around and learn the truth from a “skim” of the ingredient label.

The one exception to this rule that the court pointed to required some type of deception on the label that the manufacturer tried to explain away on small print on the product label. The attempt to dispel the deception would be unavailing.

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