On February 16, 2016, U.S. District Judge Sam Sparks of the Western District of Texas dismissed a multidistrict litigation involving 11 putative class action lawsuits against various Whole Foods corporate entities and Skotidakis, Inc., a third-party manufacturer, based on an alleged misrepresentation regarding the sugar content in Whole Foods’ store-brand yogurt.  In re: Whole Foods Mkt., Inc., Greek Yogurt Mktg. and Sales Practices Litig., Case No. 1:14-mc-02588-SS.  The court granted defendants’ motion to dismiss after concluding that plaintiffs’ state law claims were expressly preempted because the sole evidence substantiating their claims did not comply with FDA testing methodology.

Plaintiffs alleged that the yogurt’s nutrition label was false and misleading because it stated that the yogurt contained two grams of sugar per serving, but according to six tests conducted by Consumer Reports magazine, the yogurt actually contained 11.4 grams of sugar per serving.  Plaintiffs claimed that defendants intentionally mislabeled the product to charge a price premium and that plaintiffs would not have purchased the product had they known the truth about the sugar content.  On this basis, plaintiffs brought claims for violations of various state consumer protection and unfair competition statutes, breach of warranty, unjust enrichment, negligent misrepresentation, and requested declaratory and injunctive relief.

The court granted defendants’ motion to dismiss, finding that plaintiffs’ state law claims were expressly preempted because the sole evidence substantiating their claims—the Consumer Reports testing—did not comply with FDA testing methodology, which requires a composite of 12 subsamples from 12 randomly selected shipping cases.  In what the court deemed a “far cry” from the FDA protocol, Consumer Reports analyzed only six samples from six different lots.  The court granted plaintiffs leave to amend and encouraged them to test products in a manner that complied with FDA protocol.