A California federal court has denied a motion to dismiss a putative class action alleging that Deoleo USA Inc., importer of Bertolli and Carapelli olive oils, misrepresented the quality of the oils as “extra virgin” despite being mixed with refined oil and using bottles insufficient to prevent sunlight and heat degradation. Koller v. Med Foods, Inc., No. 14-2400 (U.S. Dist. Ct., N.D. Cal., order entered January 6, 2015).

Deoleo attacked the complaint for failing to supply the studies supporting the argument that “’imported ‘extra virgin’ olive oil often fails international and USDA standards’ and that packaging olive oil in clear bottles can lead to rapid degradation of its quality,” but the court dismissed the argument for being premature to the pleading phase. Deoleo also asserted that while studies may support the proposition that the oil it imports may not meet extra virgin standards, the plaintiff could not show that the oil in the bottle he actually purchased did not meet those standards. The court agreed that the plaintiff’s theory allowed for some of the olive oil sold to be extra virgin, but found that the exception was not fatal; if the plaintiff “succeeds in proving that the oil typically does not qualify as ‘extra virgin,’ then consumers likely would not pay a price premium for it, even if they knew some bottles might still qualify.”

The plaintiff also argued in an amended complaint that Deoleo’s marketing materials asserting that its oils are “imported from Italy” are false because the oils come from several countries besides Italy, including Greece, Tunisia and Australia. Deoleo challenged the amendment because, it argued, the plaintiff had mentioned the “best if used by” date—which appears on the back near a clarification of what countries the oil may originate—in its original complaint, so he had previously had the opportunity to plead that allegation and failed to do so. The court dismissed the argument, disagreeing that a mention of content on the back label was not an admission that the plaintiff had read the entire back label before purchase.