Six weeks after the Supreme Court gave POM Wonderful the green light to sue Coca-Cola over its juice labels, Walmart has been targeted in a consumer class action lawsuit making near-identical allegations.
In a complaint filed in Florida on July 17, plaintiffs Ira Reynolds and Patricia Bell accuse Walmart of deceiving shoppers by labeling a juice comprising predominantly apple and white grape juice concentrate as ‘100% Cranberry Pomegranate’, with the phrase ‘flavored juice blend’ underneath in smaller type.
The juice, which also features pictures of pomegranates and cranberries on the label, in fact contains a “minuscule” amount of pomegranate and cranberry juice, but is priced at $2.78 per 64 oz bottle, whereas Walmart's “virtually identical” Great Value apple juice product retails at $1.88 per 64 oz bottle, alleges the complaint.
Owing to the allegedly deceptive label, the plaintiffs paid over the odds for the juice because “they would be enjoying the healthful and nutritional benefits associated with a product they believe at least primarily contains pomegranate juice,” it adds.
Compliance with FDA juice labeling rules ‘does not provide a shield from liability’, say plaintiffs
Whether the labels comply with the letter of the law governing juice labeling enshrined in the federal Food Drug and Cosmetic Act (FDCA), is not the issue here, stresses the complaint.
“Plaintiffs’ claims are predicated on the fact that the naming and labeling are misleading and deceptive even if they comply with the minimum requirements set forth by the FDA regulations, as the FDA regulations simply set a 'floor,' or 'minimum requirements.
“Indeed, compliance with the minimum requirements is necessary, but is not sufficient to determine if a product’s label is false and misleading, and simply does not provide a shield from liability.”
For example, it adds: “FDA regulations did not require Defendant to name its product 'Cranberry Pomegranate,' as opposed to 'Apple Grape' or myriad of other options. Defendant made that decision because of its marketing strategy.
“Similarly, FDA regulations did not require Defendant to place a pomegranate image on its label in conjunction with the name 'Cranberry Pomegranate.' Defendant made that decision because of its marketing strategy.”
Attorney: I suspect the primary defense will be that the product, in its totality, is not deceptively labeled
So what do the lawyers make of the case?
Arnie Friede, senior food and drug law attorney with Sandler, Travis & Rosenberg, P.A in Miami, told FoodNavigator-USA: “It is a bit surprising that the plaintiffs’ lawyer filed this putative class action on July 17, 2014 yet is apparently unaware of the Supreme Court’s decision in the POM case.”
Asked whether the plaintiff’s bar has been emboldened by the recent Supreme Court ruling in the POM v Coke case, he said: “To be sure, they like the decision in POM. What plaintiff’s lawyer wouldn’t?
"At the same time, they’ve been pretty bold already in bringing all manner of false advertising cases involving food labeling.”
As for the defense Walmart is likely to mount in this case, he said: “I suspect the primary defense will be that the product, in its totality, is not deceptively labeled.
"Strategically, it seems that Walmart would try to get this knocked out at the class certification stage. That way, it may not have to deal with the underlying merits.”
Reynolds et al v Walmart Stores Inc
The case is Reynolds et al v Walmart Stores Inc, 14-cv-00381 filed in the northern district of Florida.
The lawsuit seeks to represent two proposed classes of consumers: A nationwide class of shoppers who bought the product in the past four years; and a state wide class of shoppers who bought the product in Florida over the same period.
The allegations include violations of Florida’s consumer protection statues and its deceptive and unfair trade practice act.
A Walmart spokeswoman told FoodNavigator-USA: "We are reviewing the specific claims and will respond appropriately.”