A New York resident has filed a putative class action against Boar’s Head Provisions Co., alleging that the company’s advertising and labeling representations—“ 47% lower sodium,” “42% lower sodium,” and “40% lower sodium”—for some of its deli meats, including turkey breast and ham, contain as much sodium as its regular deli meat products and a higher percentage of sodium than stated when compared to U.S. Department of Agriculture (USDA) reference products. Mackles v. Boar’s Head Provisions, Co., Inc., No. 13-4855 (U.S. Dist. Ct., S.D.N.Y., filed July 12, 2013).
According to the complaint, the defendant’s representations are inaccurate by a factor of more than 10 percent. The plaintiff also alleges that when he asked the company about the lower-sodium claims on its product labels, he received a letter stating that they “were submitted to and approved by the USDA.” On further investigation, the plaintiff allegedly learned from USDA that companies must ensure labeling accuracy, and “[r]egardless of what reference food they are using (their own regular product, market leader, USDA data, etc) the company has to ensure that the claims remain accurate.” USDA’s alleged response to a Freedom of Information Act request about Boar’s Head applications to approve lower-sodium product labels was “that a search by knowledgeable staff in FSIS [Food Safety and Inspection Service] failed to locate any documents that would be responsive to your request.”
While the plaintiff seeks to certify a class of “all purchasers” of the specified Boar’s Head products, he appears to limit the class to New York purchasers, noting his belief that “there are thousands of New York consumers who are members of the Class.” Alleging damages in excess of $5 million, violation of New York’s deceptive acts and practices law and breach of express warranty, the plaintiff seeks injunctive relief, attorney’s fees and costs.