Montana and California residents have sued Safeway, Inc. in a California state court on behalf of a putative nationwide class of customers that the company allegedly failed to notify about tainted food recalls despite the ability to contact purchasers of contaminated products through its “club card” loyal customer program. Hensley-Maclean v. Safeway, Inc., No. n/a (Cal. Super. Ct., Alameda County, filed February 2, 2011). Backed by the Center for Science in the Public Interest (CSPI), the plaintiffs allege that they purchased Salmonellatainted peanut butter and egg products from the grocery and learned only by chance on the news or from neighbors that the products were subject to a recall.
According to the complaint, the company’s club card program gives the grocery contact information for participating customers and a history of the purchases they have made. The plaintiffs allege, “Many of Safeway’s competitors already use their own customer data to notify their customers of Recalled Products and to offer refunds, reducing the risk of harm to their own customers [and] all routinely issue food safety alerts directly to customers using a variety of methods.”
Alleging purely economic injury, the plaintiffs contend that the company has violated the Consumers Legal Remedies Act, by selling unsafe goods while leading customers to believe they were safe for consumption and of a particular quality, and the Unfair Competition Law; they also allege breach of a duty to warn, breach of implied warranty of merchantability and unjust enrichment, denominated in the complaint as “money had and received.” They seek injunctive relief requiring Safeway to post accessible warnings online and in stores and to contact each customer by any means “to advise them not to consume the product and credit the amount paid for the product if possible, or, in the case of cash purchases, offer a refund.” They also seek monetary damages, statutory or punitive damages, an order for restitution and disgorgement of all profits from the sale of recalled products, costs, and attorney’s fees.