This past week, several consumer actions took place that affect the retail industry.

Trader Joe’s Catches a Winner in Tuna Can Underfilling Litigation

A California judge has granted Trader Joe’s motion to dismiss in the case In re: Trader Joe’s Tuna Litigation, 2:16-cv-01371, in the U.S. District Court for the Central District of California, where plaintiffs had alleged fraud, breach of warranty and other claims for the company’s alleged underfilling of its cans of tuna as prescribed by the U.S. Food and Drug Administration.

According to the court’s order, plaintiffs improperly made claims under the Federal Food, Drug and Cosmetic Act, which does not allow for a private right of action.

“Consequently, the theory underlying plaintiffs’ state law claims depends entirely on an FDA regulation,” the court wrote. “Plaintiffs’ state law claims are in reality claims violations of an FDA regulation, and therefore, the FDCA prohibits plaintiffs from bringing them.”

This case was a consolidation of a number of similar cases filed in California, Illinois and New York. The court’s order does give plaintiffs a month to amend their lawsuit should they wish to refile.

Second Circuit Reverses District Court, Revives Overcharging Suit Against Whole Foods

A unanimous three-judge Second Circuit panel reversed and remanded a district court’s decision to toss a putative class action against Whole Foods that alleged the grocer overcharged for underweight prepackaged foods in Sean John v. Whole Foods Market Group Inc. In support of his allegations, the plaintiff attached a report by the New York City Department of Consumer Affairs that made a similar finding based off of 80 types of prepackaged goods, which found that 89 percent of them were missing more product than is allowed under federal guidelines. The Second Circuit found that the district court erred in its finding that the shopper had not sufficiently pled his injury.

The putative suit seeks compensatory damages, refunds, punitive damages, injunctive relief, attorneys’ fees and costs.

Baby “Experts” is Puffery According to NAD, but Recommends Ad Modifications

Responding to a challenge brought by Mizkan America, Inc., the makers of Ragú pasta sauce, against the Campbell Soup Company (“Prego”), the NAD determined that the use of babies in a toddler taste-off amounted to humorous puffery and did not constitute an objectively provable claim about the taste preferences of toddlers. Nevertheless, the NAD recommended that Campbell modify ads featuring babies eating pasta in order to clarify that the claim “even Ragú users prefer the taste of Prego Traditional 2-to-1” is based on a comparison with Ragú Old World Style Traditional sauce.

Rust-Oleum Case Referred to FTC After Company Rejects NARB Recommendation

The Rust-Oleum Corporation has rejected a recommendation by the National Advertising Review Board (“NARB”) to discontinue use of “2X” as part of the Painter’s Touch Ultra Cover product name. Given Rust-Oleum’s refusal to follow the NARB’s recommendation, the NARB has referred this issue to the FTC for further examination.

In the underlying competitive challenge, the NAD recommended that the “2X” coverage claims, including the product name and visuals, be discontinued. Rust-Oleum agreed to accept the NAD’s recommendations but appealed the recommendation that Rust-Oleum change its product name. The NARB panel agreed with the NAD’s finding that both the product’s original name (Painter’s Touch Ultra Cover 2X) and its current name (Painter’s Touch 2X Ultra Cover) conveyed an unsubstantiated performance claim that the product delivers twice the coverage of other spray paint products.