LOS ANGELES (Legal Newsline) - A customer survey to find out to what extent tortilla-eaters prefer them to be made in Mexico forgot to show respondents the "Made in U.S.A." disclaimer on the back.
Ole Mexican Foods, which faces a class action lawsuit that complains about a Mexican flag on La Banderita brand tortillas, on April 28 moved to exclude the testimony of one of the plaintiffs' expert witnesses, J. Michael Dennis.
Attorneys at Faruqi & Faruqi asked the court in March to certify a class of consumers for their case. Dennis was hired to pinpoint how much more shoppers would pay for tortillas they thought were made in Mexico than tortillas they knew were made in America.
He outsourced the survey to Dynata, the motion says, and did not perform the "pretest" to make sure the design of the survey was proper, relevant and reliable.
That design gave respondents only half the information shoppers had, Ole says.
"The survey provided the survey respondents with the front of Ole's product labels but did not equally provide the respondents with the product's back label, which includes the disclosure at issue in this lawsuit: 'Made in U.S.A.'
"Instead, the survey inlcuded only an optional, small link in the bottom left corner of the image to click to view the back of the Ole product package. The survey did not track or measure whether the survey respondents clicked to view the back of the package."
The survey asked consumers where they thought the product was made based on the front label, so the question "suggests to respondents that the answer to the question must be found on the product packaging itself," the motion adds.
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.
Dennis' survey showed nearly 58% of respondents in California thought th 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.