Seeking to represent a statewide class of product purchasers, a California resident has filed a putative class action against Costco, alleging that the company falsely sells its Kirkland Signature Kettle Brand Potato Chips®, which purportedly contain “more than 13 grams of fat per 50 grams,” with a “0 Trans Fat” label. Thomas v. Costco Wholesale Corp., No. CV12-02908 (U.S. Dist. Ct., N.D. Cal., San Jose Div., filed June 5, 2012).
Citing 21 C.F.R. § 101.13(h), plaintiff Karen Thomas contends that the defendant is “prohibited from making the unqualified nutrient claims of ‘0 grams Trans Fat’ on its food products if they contain fat in excess of 13 grams, saturated fat in excess of 4 grams, cholesterol in excess of 60 milligrams, or sodium in excess of 480mg per 50 grams, unless the product also displays a disclosure statement that informs consumers of the product’s fat, saturated fat and sodium levels.” She alleges that the product label does not include a disclosure statement as required by California and federal law. This information appears in the “Nutrition Facts” panel, but the complaint alleges that Food and Drug Administration guidance requires a more prominent disclosure.
Claiming that she would not have purchased “Defendant’s Misbranded Food Products had he [sic] known they were not capable of being legally sold or held,” the plaintiff alleges unlawful, unfair and fraudulent business acts and practices; misleading and deceptive advertising, untrue advertising, violations of the Consumers Legal Remedies Act, Beverly-Song Act and Magnuson-Moss Act; and restitution based on unjust enrichment/quasi-contract. She seeks damages in excess of $5 million, injunctive relief, attorney’s fees, costs, and interest.