A federal court in California has dismissed the claims of one named plaintiff in a putative class action alleging that certain Costco Kirkland-branded products are misbranded and deceptive, and narrowed the claims of the other named plaintiff. Thomas v. Costco Wholesale Corp., No. 1202908 (U.S. Dist. Ct., N.D. Cal., San Jose Div., order entered March 31, 2014).
The plaintiff whose claims were dismissed for lack of standing had alleged that the “0 grams trans fat” labeling on Kirkland signature Kettle Chips was untruthful or misleading. The court agreed with the defendant that she had not cured the standing defects in her second amended complaint (sAC) and thus dismissed her claims with prejudice. Among other matters, she failed to (i) allege that the chips she purchased included any amount of trans fat or that she received a product different from the one as labeled, (ii) demonstrate that the label violated 21 C.F.R. § 101.13(h)(1), or (iii) allege in detail how she was misled.
As to the remaining named plaintiff, the court ruled that “claims for nutrient content, antioxidant content, health, no sugar added, preservative free, propellant and slack-fill claims” were properly pleaded, may deceive a reasonable consumer and are inappropriate to resolve at this stage of the proceedings. The court dismissed with leave to amend this plaintiff’s “evapo- rated cane juice” (eCJ) allegation because she, like plaintiffs in other cases, “included the label of the purchased product, which lists ‘sugar’ as an included nutrient and clearly show[s] how much sugar is contained in the product [and] indicates in the sAC that she knows that eCJ is the same as ‘sugar’ and ‘dried cane syrup.’ Further, the SAC fails to allege what Plaintiff Liddle believed ECJ to be if not sugar and does not explain what a reasonable person would believe ECJ to be.” While the court found that “the majority of courts in this district have decided that [ECJ] claims are not barred by the doctrine of primary jurisdiction,” it declined to address the argument, having already dismissed the ECJ claims for failure to state a claim.