In re 100% Grated Parmesan Cheese Mktg. & Sales Practices Litig.
348 F. Supp. 3d 797
E.D. Ill.2018Background
- Plaintiffs filed consolidated putative class actions against manufacturers/retailers (Kraft, Albertsons/SuperValu, Target/ICCO, Wal‑Mart/ICCO, Publix) over containers labeled "100% Grated Parmesan Cheese," alleging they contained non‑cheese ingredients (notably cellulose).
- Front labels prominently displayed the "100%" phrase; ingredient lists on rear labels disclosed cellulose and other additives; some defendants removed "100%" from packaging after litigation began.
- Plaintiffs allege two misrepresentations: (1) the front‑label "100%" claims imply the product is all cheese; and (2) ingredient lists saying cellulose is an anticaking agent are misleading because the amount serves also as undisclosed filler ("Anticaking claims").
- The court previously dismissed the 100% claims; plaintiffs amended complaints adding survey and linguist reports and patent evidence; defendants moved to dismiss under Rule 12(b)(6).
- The court again dismisses all 100% claims (consumer fraud, warranty, unjust enrichment) as a matter of law given context (shelf‑stable packaging plus ingredient disclosure). Many Anticaking claims survive pleading rules, but numerous state statutory and warranty claims were dismissed for lack of causation, privity, or available remedies.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether "100% Grated Parmesan Cheese" is misleading under state consumer‑protection laws | Phrase unambiguously means product consists entirely of cheese; survey and linguists support | Context (shelf‑stable product, rear ingredient list) makes the phrase ambiguous; no reasonable consumer would think product is pure cheese | Dismissed: court holds phrase ambiguous in context; no viable consumer‑protection, warranty, or unjust enrichment 100% claims |
| Whether Anticaking claims meet pleading standards (Rules 8 and 9(b)) | Allegations that cellulose percentages exceed anticaking needs and serve as filler are sufficient notice | Defendants contend plaintiffs lack specifics (e.g., Target/ICCO: no cellulose percentage) and fail Rule 9(b) particularity | Partially granted/denied: Anticaking claims survive Rules 8/9(b) against Kraft, SuperValu, Wal‑Mart/ICCO, Albertsons (except Alabama), but dismissed as to Target/ICCO and Alabama claims against Albertsons |
| Whether state consumer‑protection statutes require reliance/causation for Anticaking claims | Plaintiffs argue statutory theories permit class relief without individualized reliance | Defendants: many statutes require a causal nexus or actual reliance/injury from the specific misrepresentation | Court: dismisses Anticaking claims under multiple statutes (ADTPA, CLRA, UCL, FDUTPA, NJCFA, NYGBL, MUTPA, MDTPA, MFSAA, MPCFA) for failure to plead causation/reliance or likelihood of future injury (for injunctive relief statutes) |
| Whether warranty, privity, class and unjust enrichment theories survive | Plaintiffs assert express/implied warranty and unjust enrichment based on label affirmations; nationwide classes permitted at pleading | Defendants assert lack of privity, inadequate notice, and that multistate/nationwide classes are improper | Mixed: many express/implied warranty claims survive (varies by state and defendant); some expressly dismissed for lack of privity or reliance (e.g., NY warranty claims); unjust enrichment claims largely preserved at pleading stage except where tied to dismissed claims or Alabama against Albertsons |
Key Cases Cited
- Zahn v. N. Am. Power & Gas, LLC, 815 F.3d 1082 (7th Cir. 2016) (pleading standard—court assumes truth of factual allegations but not legal conclusions)
- Phillips v. Prudential Ins. Co. of Am., 714 F.3d 1017 (7th Cir. 2013) (consideration of documents integral to the complaint on Rule 12(b)(6))
- Fink v. Time Warner Cable, 714 F.3d 739 (2d Cir. 2013) (court may determine as a matter of law that allegedly deceptive advertising would not have misled a reasonable consumer)
- Pirelli Armstrong Tire Corp. Retiree Med. Benefits Trust v. Walgreen Co., 631 F.3d 436 (7th Cir. 2011) (Rule 9(b) particularity and discouraging frivolous fraud claims)
- Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732 (7th Cir. 2014) (Rule 9(b) requires particularity but the requisite detail varies with circumstances)
- Swanson v. Citibank, N.A., 614 F.3d 400 (7th Cir. 2010) (pleading standard: provide a story that holds together)
- Jay E. Hayden Found. v. First Neighbor Bank, N.A., 610 F.3d 382 (7th Cir. 2010) (district court need not vouch for factual accuracy at pleading stage)
- In re Kraft Heinz Co. (consolidated prior opinion), 275 F. Supp. 3d 910 (N.D. Ill. 2017) (earlier opinion dismissing 100% claims and setting context analysis used here)