Buying 100% Cheese? You May be Getting the Squeeze

December 10, 2018

Imagine walking into a grocery store with bright lights and high ceilings. You enter through the main entrance into the often-typical arrangement of fresh produce starring you back, daring you to pick some fresh greens and place it in your cart. Not to be too tempted with healthy eating right off the bat, you decide to pick perhaps a pre-mixed garden variety salad, some apples in case the old adage was true, and tomato ripe for the picking. You make your way through the fresh produce and decide you need to go to the other end of the store for some dairy products. In the dairy section your eyes land on the cheese isle. Now, not being too much of a cheese aficionado, you nonetheless desire some dairy please. Your brain’s endorphins start rushing at the notion of trying some cheesey brie. On the package you notice it says “100% cheese.” Do you ever stop to wonder and think whether the cheese you picked up is really 100% cheese? Perhaps, it is easier not to know so you do not become blue. Either way, you move on to the next item on your shopping list.

Is a label that says “100% cheese” really “100% cheese,” that was the subject of a class action lawsuit that was partially dismissed in the Northern District of Illinois earlier this month. Now, the path of this specific lawsuit is a long and convoluted journey. Suffice to say, there were multiple lawsuits filed in multiple courts in various states around the country that eventually got consolidated into one multidistrict litigation that fell into the brie-llient hands of Judge Gary Fienerman. And if that were not enough legal excitement, the initial complaint was grated by a motion to dismiss. Subsequently, the plaintiffs caerphilly modified their arguments and filed an amended complaint hoping this time it could culture past another motion to dismiss.

Plaintiffs consists of consumers who purchased grated parmesan cheese products with labels that stated variations of “100% Grated Parmesan Cheese” [“100%”]. But Plaintiffs argue that such labelling was too gouda to be true as it contains cellulose and other non-cheese ingredients such as potassium, sorbate, and corn starch.. Moreover, the Plaintiffs claim that the ingredient lists are also misleading as the lists indicate that cellulose was included to prevent caking but was really used as a filler. The amended complaint alleges violations of various state consumer protection laws, breaches of express and implied warranty, and unjust enrichment from the misrepresentations from the “100%” labelling terms and the ingredient list indicating cellulose being used to prevent caking instead of as a filler [anti-caking].”

Defendants include heavy cheddar players like Krafts Heinz Company, Albertsons Companies, SuperValue, Target Corporation, Wal-Mart, ICCO-Cheese company, and Public Super Markets who are collectively involved in the design, development, manufacture, selling, testing, packaging, labelling, distribution, promotion, marketing, and advertising of the grated parmesan cheese products.

To prove their claims, Plaintiffs made three evidentiary arguments with regards to the confusion of “100%” term. First, the Plaintiffs indicated that most people who see the labelling of “100%” would believe that the cheese products they are buying were 100% cheese and not some velveeta-cheese and for proof they included a consumer survey to back their assertion. In addition, the Plaintiffs also included two reports from linguistic professors who back the claim that consumers would interpret the “100%” term on labels to mean just what the term implies. Lastly, the Plaintiffs pointed to a Kraft patent that mentioned fully cured parmesan cheese “keeps almost indefinitely.”

The Court dismissed all three arguments. With regards to the survey, the Court stated under Seventh Circuit jurisprudence whether a deceptive advertisement would mislead a reasonable consumer is a question of law that the court can determine on its own and it determined – that under an ambiguous standard – the “100%” label is not deceptive. As for the reports from the linguistic professors, the Court proffered that under consumer fraud statutes, the standard of analysis requires a reasonable consumer perspective and linguistic professor would not be reasonable consumers. The Court quoted language indicating that a reasonable consumer “need not be exceptionally acute and sophisticated . . . and that . . . the reasonable consumer test focuses on the perspective of ordinary minds.”  Moreover, with regards to the Kraft patent, the Court stated:

there is no reason to believe that either the patent or the Department of Agriculture report would be familiar to a reasonable consumer with an ordinary understanding of how dairy products generally fare with unrefrigerated . . . [and that] the materials therefore do not undermine the court’s view that a reasonable consumer would not presume that a shelf-stable dairy product was “100%” cheese.

The Court also dismissed the warranty and unjust enrichment claims as it already determined that a reasonable consumer would not reach the conclusion that the cheese they buy is really 100% cheese from reading such a term on products.

With regards to the anti-caking claims, the Court found that the Plaintiffs satisfied the pleading requirements under the Federal Rules of Civil Procedure with a few exceptions. The Court went through the litany of state consumer protection, express and implied warranty, and unjust enrichment claims regarding the anti-caking allegation in its order. The Court dismissed some of the anticaking claims and allowed others to proceed.

While most of the claims are feta finished by the Court, the Plaintiffs can take some solace from the fact that a part of their case will ricotta get through, and both Publix and Wal-Mart have removed the “100%” term from their labels after the lawsuit began. However the remaining claims end up, the cheese business seems to be a holey one.

You can read the whole order here.

Image source: REUTERS/Petr Josek

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