LOS ANGELES (Legal Newsline) - A woman who alleged she thought La Banderita tortillas were made in Mexico because of the flag on their package is not giving up on her lawsuit, even though a federal judge recently ruled the issue was as simple as reading the back.
Attorneys for Tammy La Barbera on June 20 filed their notice of appeal to the U.S. Court of Appeals for the Ninth Circuit. She is represented by lawyers at Faruqi & Faruqi
Judge Jesus Bernal on May 18 granted Ole Mexican Foods' motion to dismiss, in which the company argued a recent decision by the U.S. Court of Appeals for the Ninth Circuit clarified the "reasonable consumer" test this type of case requires.
Bernal had denied the company's first motion to dismiss and had been asked by plaintiff lawyers at Faruqi & Faruqi to certify a class. But the Ninth Circuit's decision, known as Moore, killed that chance.
"The bottom line is this: under Moore, the reasonable consumer does not approach purchasing decisions with a professorial genius or inclination toward exhaustive research, but she is also not a chump, too doltish or careless to engage in the following simple analysis," Bernal wrote.
That analysis would involve a consumer who cares whether their tortillas are made in Mexico and does not find the answer to that question on the front searching for it on the back.
In Ole's case, it printed that the tortillas are "Made in U.S.A." and listed its address as Norcross, Ga. The lawsuit claimed the Mexican flag on the front of the package, as well as the phrase "A taste of Mexico" in Spanish led customers to believe they were made in Mexico.
Only unreasonable consumers would fail to check the back of the package, Bernal wrote.
A reasonable consumer "would know that foods associated with other cultures, from Chinese to Italian to Mexican, have become enormously popular in the United States, with Americans of all kinds enjoying these cuisines, or Americanized versions of them, at restaurants and at home," Bernal wrote.
"Because these foods are commonplace in the United States, not just in their countries of origin, she understands that there are American businesses, or multinational businesses, that sell these kinds of food - i.e., it is an inherently unreasonable assumption that just because a food clearly originates from a foreign country, whether it is pasta or tortillas, that ipso facto it must be made in that country."