In Weiss v. The Kroger Co., No. 2:14-cv-03780, plaintiffs claimed that the label for Kroger Sunflower Seeds was deceptive because it listed the sodium content for the “edible portion” of the product—i.e., the seed, not the shell—which misled consumers into believing they were consuming less salt than they actually were. The claim was based on the premise that sunflower seed consumers generally place the entire seed, including the shell, into their mouths before spitting out the empty shell and, in so doing, they ingest the salt on the shell.
Judge Real found plaintiffs’ claims implausible because the label identified the amount of sodium contained in the “edible portion” of the product. He dismissed the case with prejudice, ruling that:
[T]he presence of the words “edible portion” on the label means that the label obviously contemplated and communicated that there was an inedible portion of the product. What did Weiss think was the inedible portion that the nutrition label omitted if not the shell?
Judge Real also rejected plaintiffs’ claim that Kroger deceptively marketed its sunflower seeds as a “good” snack, which consumers might construe as “healthy,” despite the allegedly high sodium content. He found the label statement upon which this claim was based—“[t]here’s a whole lot of goodness contained in each and every tiny sunflower seed”—to be non-actionable puffery. Weiss v. The Kroger Co., No. 2:14-cv-03780 (C.D. Cal., Dkt. No. 33, Aug. 18, 2014).
Since Williams v. Gerber, 552 F.3d 934 (9th Cir. 2008), discussed here, courts have been hesitant to dismiss food mislabeling cases on the pleadings, instead finding plausibility to be a question of fact. This opinion, together with the earlier Judge Real opinion in Balser v. The Hain Celestial Group, Inc., No. CV-13-5604-R (C.D. Cal., Dkt. No. 38, Dec. 18, 2013), and the Judge Wu opinion in Shaker v. Nature’s Path Foods Inc. et al., No. CV-13-1138-GW (OPx) (C.D. Cal., Dkt. No. 40, Feb. 7, 2014), suggest that raising implausibility at the pleading stage can still be worthwhile.