A California federal court has dismissed two claims and allowed four to continue in a putative class action alleging that (i) Salov North America Corp. mislabeled its Filippo Berio olive oils as “Imported from Italy” despite using olives grown and pressed in other countries and (ii) its extra virgin olive oils do not meet the high standards required to qualify as “extra virgin,” partly due to inefficient bottling and transportation. Kumar v. Salov North Am. Corp., No. 14-2411 (U.S. Dist. Ct., N.D. Cal., order entered February 3, 2015).

The court first assessed Salov’s challenge to the plaintiff’s standing and found that it could not, as a matter of law, determine that a reasonable consumer would not interpret “Imported from Italy” to mean that the product was made exclusively of Italian olives. Salov also asserted that the plaintiff must have seen the statement on the label that informed consumers that the product was “Packed in Italy with select extra virgin olive oils from Italy, Spain, Greece & Tunisia” because she alleged that she read the “best by” date, which appears near the statement on the back label of the product. The court found that, as a matter of law, it could not determine whether the plaintiff saw those statements.

The court also dismissed Salov’s arguments against granting an injunction barring the use of the label. The company asserted that the plaintiff could not “demonstrate a ‘real or immediate threat’ that she will be misled in the future.’” If the court agreed with that argument, it said, it “would lead to the result that a class action plaintiff alleging mislabeling or false advertising could never seek injunctive relief on behalf of the class. [] The possibility of future injury is alleged sufficiently if the plaintiff would encounter the same statements today and could not be any more confident that they were true.”

Salov also challenged the plaintiff’s standing to claim that the bottle of extra virgin olive oil was not of extra virgin quality when she purchased it. The plaintiff alleged that she had bottles of the extra virgin olive oil tested, and a lab found that the product did not meet extra virgin standards; Salov asserted that the bottle tested was not the bottle the plaintiff purchased. The court dismissed the challenge, finding that the plaintiff’s theory of the claim “does not require that she prove the particular bottle of oil she purchased had, in fact, degraded to the point of not being extra virgin. Whether some bottle of olive oil might not have degraded, despite the mixing, packaging, and shipping defects alleged, does not defeat the claim.” The court also dismissed arguments against the plaintiff as the representative of a class to be appropriate for the later certification stage rather than the pleading stage.

The court denied Salov’s motions to dismiss the plaintiff’s allegations that the Filippo Berio packaging violates California’s Consumer Legal Remedies Act, False Advertising Law and Unfair Competition law as well as the claim of fraud. It dismissed the plaintiff’s breach of contract and breach of covenant of good faith and fair dealing claims, finding that she failed to allege the existence of a contract with the company.