Dole Food Co. has filed a motion to dismiss or strike claims in a putative class action alleging that its food product labels mislead consumers. Brazil v. Dole Food Co., Inc., No. CV12-01831 LHK (U.S. Dist. Ct., N.D. Cal., San Jose Div., motion filed August 13, 2012). Identifying the plaintiff as a “repeat class representative” who recently received an incentive award in another lawsuit, Dole argues that his claims are preempted under federal law, he lacks standing because he has not been injured, the claims are not plausible, and he has failed to state a claim under California law. The company also notes that the case is “one of 24 (and counting) nearly identical ‘misbranding’ class action cases filed during a 15-week blitz by nine law firms from six different states,” thus making it an “assembly-line” complaint that follows “a common recipe.”
In summary, Dole contends, “By this lawsuit, Plaintiff seeks colossal damages, punitive damages, and a nationwide injunction asking the Court to redesign Dole’s product labels. These are matters that FDA [the Food and Drug Administration] already oversees. Plaintiff is saying, in effect, ‘Never mind, FDA, I get to do the mandating.’ But a ‘Brazil label’—named after this case—is both unwarranted and unnecessary.” The original complaint was nearly doubled in size after Dole moved to dismiss it and now apparently involves six products and one product line with multiple alleged violations pertaining to (i) use of the word “fresh,” (ii) preservatives, (iii) nutrient content and antioxidant claims, (iv) “sugarless” labeling, (v) “low calorie” claims, and (vi) “health” claims. According to Dole, under recent Ninth Circuit decisions, private enforcement of FDA requirements is barred.