LOS ANGELES (Legal Newsline) – Like other courts, a Los Angeles federal judge should throw out a proposed class action lawsuit that alleges shoppers are misled into thinking where certain products are made because of how they are marketed.
Ole Mexican Foods made that plea in a motion to dismiss filed Dec. 22 in a lawsuit seeking compensation because its tortilla packages have “A taste of Mexico” written in Spanish on them, as well as the Mexican flag, even though the products are made in the U.S.
Four factually similar cases have been tossed recently, the company says, under a test of whether a “reasonable consumer” would be misled.
Three factors should be weighed, Ole says:
-The geographic specificity of the company’s representations;
-Whether the packaging expressly discloses where the products are made; and
-Whether the packaging “merely” evokes the cuisine, culture, history, people, spirit or feeling of a country or place.
“(A)ll of Defendant’s products at issue clearly disclose both that La Banderita tortillas are ‘MADE IN U.S.A.,’ and that they are ‘Manufactured by: Ole Mexican Foods, Inc., Norcross GA 30071,’” the motion says.
“These disclosures are not written in fine print or otherwise illegible or hidden in some place on the product packaging where the consumer is unlikely to encounter them at the point of purchase.
“Rather, both of these disclosures appear right alongside the alleged (mis)representations Plaintiff relies on to support his claim. Given these disclosures, a reasonable consumer would not assume that Defendant’s products are manufactured in Mexico.”
Lawyers at Faruqi & Faruqi filed suit Nov. 6, calling tortillas a “staple of Mexican cuisine.” Customers value tortillas made in Mexico, the suit says, but La Banderitas aren’t made there.
Thus, customers have paid more for a product because they thought it was made in Mexico, the lawsuit says.
To back its motion to dismiss, Ole pointed at four decisions. They involved “Hawaiian” snacks like potato chips, “Jamaica Style Lager” Red Stripe, Foster’s beer label with a kangaroo on it and Sapporo – “the original Japanese beer.”
Seven cases allowed to proceed are factually distinct from the tortilla case, Ole claims. One of those involved a Hawaiian beer brewed elsewhere but had a map of Hawaii identifying a Kona brewery there.