California resident Tricia Ogden has filed a putative class action in federal court against Bumble Bee Foods, LLC, alleging that it misbrands its seafood products by claiming they “are an excellent and affordable source of protein, nutrients and Omega 3 fatty acids” and “Rich in Natural Omega-3.” Ogden v. Bumble Bee Foods, LLC, No. 12-01828 (U.S. Dist. Ct., N.D. Cal., San Jose Div., filed April 12, 2012). The only injury apparently alleged is economic, i.e., “Plaintiff would have foregone purchasing Defendant’s products and bought other products readily available at a lower price,” and “Plaintiff would not have purchased Defendant’s Misbranded Food Products had he [sic] known they were not capable of being legally held or sold.”
According to the complaint, such representations and labeling establish that the company’s products are drugs under federal law “because they are intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease” and are sold without prior Food and Drug Administration approval. The plaintiff also contends that food producers using an Omega 3 nutrient content claim must specify whether the claim refers to “ALA, DHA, or EPA omega 3 fatty acids” and that the company fails to do so. Further, the complaint alleges that the company’s food products bearing the Omega-3 labels “make such claims despite disqualifying levels of unhealthy components without proper disclosure,” and cites fat, sodium and cholesterol warning-statement omissions.
Seeking to certify a nationwide class of consumers, the plaintiff alleges violations of California’s unlawful and fraudulent business acts and practices laws, misleading and deceptive advertising, untrue advertising, violation of the Consumers Legal Remedies Act, unjust enrichment, and breach of warranty under the Beverly-Song Act and Magnuson-Moss Act. She asks for damages, restitution or disgorgement, punitive damages, attorney’s fees and costs, interest, and an order for injunctive relief “requiring Defendant to immediately cease and desist from selling its Misbranded Food Products in violation of law; enjoining Defendant from continuing to market, advertise, distribute, and sell these products in the unlawful manner described herein; and ordering Defendant to engage in corrective action.”