LOS ANGELES (Legal Newsline) - New developments on what is reasonable from a consumer should cause the dismissal of a class action lawsuit over tortillas made in the U.S.A. that feature a Mexican flag on the front of the package.
That's the argument of Ole Mexican Foods, which is again urging Los Angeles federal judge Jesus Bernal to throw out a case filed by lawyers at Faruqi & Faruqi. Their lawsuit says customers associate Mexico with a higher quality tortilla than America, and it is misleading to capitalize on that sentiment.
But Ole says it discloses where the tortillas are made on the back of the package. Bernal rejected that argument in April 2021.
since then, plaintiff lawyers filed a new complaint in order to name a new lead plaintiff. Ole's Jan. 24 motion to dismiss says a decision by the U.S. Court of Appeals for the Ninth Circuit made in the meantime raises the "reasonable consumer" test for this type of claim.
The Ninth Circuit ruling came in a case involving Trader Joe's honey.
"(T)he expectations for the reasonable consumer set forth in Moore are markedly higher than the expectations previously identified for the reasonable consumer evaluating Ole's product packaging," the motion says.
"Under Moore, the reasonable consumer takes into account all available information 'and the context in which that information is provided and used.'"
This means reasonable consumers evaluating a product's packaging would read the Made in U.S.A. label on the back of the tortillas, Ole claims.
The tortillas at issue have packages that say “A taste of Mexico” in Spanish. But the packages also disclose they are made in America and that Ole is a Georgia company.
Lawyers at Faruqi & Faruqi filed suit in 2020, 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.