LEGAL NEWSLINE

TALLAHASSEE, Fla. (Legal Newsline) - Wal-Mart has filed a motion to dismiss in a class action lawsuit against it for allegedly deceptively marketing its Great Value brand cranberry pomegranate juice.

Wal-Mart claims the plaintiffs' claims are preempted by the federal Food, Drug, and Cosmetic Act, as modified by the Nutrition Labeling Education Act, which expressly preempts any state law claim that would impose food labeling requirements "not identical to" those of the FDCA.

"Even if plaintiffs' claims were not preempted, they are precluded by the 'safe harbor' provision of FDUTPA because the products at issue are labeled as specifically permitted by federal law and associated regulations," the Oct. 2 motion to dismiss states.

The plaintiffs' lack standing to assert their claims, and similarly fail to state a claim, because they have not pleaded an injury-in-fact, according to the motion.

Wal-Mart claims: Its juice label clearly states that it is a "flavored juice blend," as permitted under federal regulations; the ingredients list clearly identifies apple and grape juices, which the plaintiffs allege are the predominant juices; and all aspects of the label comply with federal regulations, even down to the font size.

"Plaintiffs nevertheless assert that the juice’s name and label conceal its true composition, making the product 'misbranded' and 'illegal' under Florida law," the motion states. "They assert claims under the Florida Deceptive and Unfair Trade Practices Act, and for common law breach of express warranties, breach of implied warranty under the Uniform Commercial Code, and unjust enrichment."

"Plaintiffs propose that the court second guess the labeling requirements of the FDCA with new terms, to plaintiffs’ liking," the motion adds. "Such forays are preempted, however, where (as here) the label complies with the FDCA's requirements."

In this case, the juice’s name mentions juices that are not predominant, according to the motion.

Wal-Mart claims FDA regulations governing the naming and labeling of fruit juices contemplate situations exactly like this, and explicitly provide that if a juice blend’s name mentions only juices that are "not the predominant juice, the common or usual name for the product shall… indicate that the named juice is present as a flavor or flavoring."

"The regulations further specify that, if the name of a multiple-juice beverage does not identify all component juices on the label, it must include a word such as 'flavored' or 'blend," the motion states. "Here, the label complies with the regulation precisely: the label clearly includes the words 'flavored juice blend.'"

Ira Reynolds and Patricia Bell, filed the lawsuit on July 17 in the U.S. District Court for the Northern District of Florida, claiming Wal-Mart markets its juice blend as "100% Juice Cranberry Pomegranate" on its label with much more prominence than other words on the label that show the juice to be a blend of five juices.

"In truth, the... product contains very little pomegranate juice concentrate when compared to the apple juice and white grape juice concentrates," the complaint states. "Far less than the 100% cranberry pomegranate juice that is predominately advertised on the front of their label.

"As a consequence of defendant's unfair and deceptive practices, plaintiffs and numbers of the class have purchased GV Pomegranate Juice under the false impressions that, by drinking defendant's product, they would enjoy the healthful and nutritional benefits associated with a product they believe at least primarily contains pomegranate juice."

The plaintiffs claim Wal-Mart violated the Florida Food Safety Act, which also constitutes violations of Florida's Consumer Protection Statutes and Florida's Deceptive and Unfair Trade Practice Act.

"Even though GV Pomegranate juice contains very little pomegranate juice, Wal-Mart made a tactical marketing and/or advertising decision to create a deceptive and misleading label with many elements not required by state or federal regulation," the complaint states.

The plaintiffs are seeking class certification, an order for the defendants to engage in corrective advertising of the juice, and compensatory damages. They are represented by Tim Howard of Howard & Associates.

Wal-Mart is represented by John Londot, Barry Richard and David E. Sellinger of Greenberg Trauig PA.

The case has been assigned to District Judge Mark E. Walker.

U.S. District Court for the Northern District of Florida case number: 4:14-cv-00381

From Legal Newsline: Kyla Asbury can be reached at classactions@legalnewsline.com.