A federal court in California has dismissed with prejudice the breach of warranty claims made by a putative class as to purportedly “misbranded food products” sold by 7-Eleven, but dismissed the remaining consumer fraud claims without prejudice to allow the plaintiff to amend the complaint to meet the stringent pleading requirements for fraud-based allegations. Bishop v. 7-Eleven, Inc., No. 12-2621 (U.S. Dist. Ct., N.D. Cal., San Jose Div., order entered August 5, 2013).

While the plaintiff defined “misbranded food products” as pertaining to potato chips, pretzels and other foods labeled “0 grams Trans Fat,” “No Cholesterol,” “All Natural,” “Fresh to Go,” “guaranteed fresh,” or “Fresh,” as well as products “sold in oversized slack filled container,” the court determined that he failed to “provide a clear and particular account of the allegedly fraudulent, deceptive, misrepresentative, or otherwise unlawful statements” and failed to “unambiguously specify the particular products that have violated particular labeling requirements, the allegedly unlawful representations that were on the products, and the particular statements Plaintiff allegedly relied on when making his purchases.” According to the court, the term “Misbranded Food Products” used throughout the complaint refers only to ambiguous categories of food products rather than specific and particular products, leaving the defendant and court “to draw [their] own inferences about the particular misconduct that is alleged to constitute fraud, deception, or misrepresentation.”