In re 100% Grated Parmesan Cheese Marketing & Sales Practices Litigation
275 F. Supp. 3d 910
N.D. Ill.2017Background
- Purveyors sold grated parmesan cheese with labels stating 100% cheese while products contained non-cheese ingredients, notably cellulose 3.8%–8.8%.
- MDL consolidated these consumer actions alleging state CPAs, express/implied warranties, and unjust enrichment; multiple defendants included Kraft Heinz, Albertsons, Supervalu, Target, Wal-Mart, ICCO, and Publix.
- Each product listed non-cheese ingredients on the ingredient panel, with front labels claiming 100% cheese; ingredient lists disclosed cellulose and other additives.
- Front-label descriptions are ambiguous; ingredient panels are small, rear-labeled, and provide the actual composition, including cellulose used to prevent caking.
- Court analyzed standing first, then merits; Rule 12(b)(1) motions denied, but Rule 12(b)(6) motions granted, allowing plaintiffs to amend by Sep. 14, 2017.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs have Article III standing. | Plaintiffs suffered financial injury from overpayment due to non-cheese ingredients. | Standing lacking because injuries are conjectural or not traceable to conduct. | Plaintiffs have standing. |
| Whether CPAs claims are pled to show likelihood of deception. | Labels misled reasonable consumers about 100% cheese content. | Ambiguity and ingredient panel dispel deception; context shows no likelihood of deception. | Claims fail as a matter of law. |
| Whether express warranty claims survive. | Labels promise 100% cheese; consumer reliance on that promise. | Ambiguity of label in context; no specific cheese-only warranty. | Express warranty claims fail. |
| Whether implied warranty of merchantability claims survive. | Product does not conform to the cheese-only promise. | Label-backed use fits ordinary purpose; no breach of merchantability. | Implied warranty claims fail. |
| Whether unjust enrichment claims survive. | Defendants were unjustly enriched by misleading marketing. | No deception; plaintiffs received what was promised on the label. | Unjust enrichment claims fail. |
Key Cases Cited
- In re Aqua Dots Prod. Liab. Litig., 654 F.3d 748 (7th Cir. 2011) (financial harm supports standing even without physical injury)
- Ebner v. Fresh, Inc., 838 F.3d 958 (9th Cir. 2016) (reasonable consumer standard for deceptive practices)
- Williams v. Gerber Prods. Co., 552 F.3d 934 (9th Cir. 2008) (front-label deception depends on potential misperception; context matters)
- Zlotnick v. Premier Sales Grp., Inc., 480 F.3d 1281 (11th Cir. 2007) (deception requires likelihood of consumer deception)
- Bober v. Glaxo Wellcome PLC, 246 F.3d 934 (7th Cir. 2001) (deception must be likely; not mere possibility)