LOS ANGELES (Legal Newsline) - Class action lawyers alleging consumers were misled by a Mexican flag on packages of tortillas are asking a federal judge to certify a California class as they face a motion to dismiss.
Attorneys at Faruqi & Faruqi submitted their motion for certification on March 13 in Los Angeles federal court. They proposed two classes for California citizens who purchased La Banderita brand tortillas from Nov. 6, 2016 to May 1, 2022.
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 Mexican Foods is a Georgia company.
Attorneys filed the 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.
Lawyers plan to use Dr. J, Michael Dennis to determine to what financial extent consumers were deceived. He's already conducted a survey that found 57.9% of respondents in California thought the packaging indicated the tortillas were made in Mexico.
Ole filed a motion to dismiss in January that says new developments in the Ninth Circuit on what constitutes a "reasonable consumer" in these types of cases dictate that the case be tossed.
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.