CHICAGO (Legal Newsline) - A class action lawyer's second chance at suing Walmart over whether it can label its honey as raw has failed.
Chicago federal judge Lindsay Jenkins on May 9 rejected the first amended complaint of lawyer Spencer Sheehan, after dismissing the original complaint Feb. 22. Plaintiff John Wertymer and Sheehan allege Walmart adds foreign sugars during processing and excessively heats it.
The heat causes the enzymes in raw honey to be destroyed, the suit says, despite Walmart marketing its Great Value-brand honey as organic and raw.
"The First Amended Complaint does not plead facts that make it plausible that a reasonable consumer would expect raw honey to have a mannose level below a specific level," Jenkins wrote.
"Even under the assumption that an ordinary consumer would not expect 'raw' honey to contain foreign sugars, the First Amended Complaint does not support an inference that Organic Raw Honey had such foreign sugars."
Walmart argued in its motion to dismiss that its "Raw Honey" and "Organic Raw Honey" satisfy the U.S. Department of Agriculture's definition of "raw honey." It adds the following arguments:
-Wertymer's own lab found no foreign sugars;
-A product's status as organic is not impacted by foreign sugars unless those sugars are prohibited by governing federal regulations;
-Wertymer can't allege the honey he bought is worth less than what he paid for it;
-He alleges no violation of a public policy or conduct so oppressive that consumers couldn't avoid it;
-He can't show Walmart had knowledge any statement was false;
-He does not face threat of future injury; and
-He has not alleged an intention to buy the honey again in the future.