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Wednesday, December 11, 2019

Bumble Bee Tuna faces class action over legally fishy advertising on omega 3 levels

By Dana Herra | Dec 9, 2015

Bumblebee tuna

A class action lawsuit has been cleared to move forward against Bumble Bee Foods, claiming the food packager improperly labeled its canned tuna to promote health benefits it may not have been legally entitled to advertise, after a federal judge threw back the food company’s motions to dismiss.

Plaintiff Joseph McMahon, filing as an individual and class representative, has claimed Bumble Bee had no legal right to label its canned tuna and other seafood as an “excellent source of Omega-3s.” Under federal law, food manufacturers can only label their product as an “excellent source” of a nutrient if it contains 20 percent or more of the Food and Drug Administration’s recommended daily intake (RDI) or daily reference value (DRV) of the nutrient.

The FDA has not established an RDI or DRV for Omega-3 fatty acids. In cases where those baseline amounts have not been set, the law allows food manufacturers to label their products with qualitative statements only if they submit to the FDA an application that includes an authoritative statement published by the National Academy of Sciences or a governmental public health body identifying the appropriate dietary level for that nutrient.

In 2005, according to court documents, three food manufacturers submitted such applications regarding Omega-3s, and subsequently began labeling their canned tuna as an “excellent source of Omega-3s.” Bumble Bee did not submit an application, but shortly after its competitors began using the Omega-3 claim on their labels, it appeared on cans of Bumble Bee tuna, as well.

In late 2007, the FDA rejected the public health statement the tuna manufacturers had used in establishing how much Omega-3 should be present in a healthy diet, and in 2014, concluded that food labels could no longer make qualitative statements about the products’ level of Omega-3s. The implementation of the new labeling rule was delayed until Jan. 1, 2016, to give manufacturers time to phase out old labels.

In its motion to dismiss, Bumble Bee claimed the federal Food, Drug and Cosmetic Act preempts McMahon’s allegations the company violated the Illinois Food, Drug and Cosmetic Act. The company asked the court to dismiss the claim or at least stay the litigation until the new labeling regulations go into effect Jan. 1.

In his decision, U.S. District Judge John C. Tharp Jr. wrote Bumble Bee appears to have misunderstood the nature of the lawsuit it faces. Tharp said the food company seems to think the claim is about enforcing the new rule prohibiting all Omega-3 claims. Actually, he said, the lawsuit is about Bumble Bee using the Omega-3 claim without applying for permission from the FDA.

“Nothing in McMahon’s complaint indicates that he is seeking to enforce the Omega-3 rule that becomes effective on Jan. 1, 2016,” he wrote. “McMahon’s complaint makes abundantly clear that he is seeking to enforce provisions of the FDCA that are in effect now.”

Tharp denied both the motion to dismiss and the motion to stay the proceedings. He also denied the company’s motion to dismiss McMahon’s unjust enrichment claim under the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA). According to court documents, Bumble Bee alleged that under Illinois law, unjust enrichment is not a stand-alone cause of action, but a theory of recovery for other damages.

“McMahon has the better of this argument, as well,” Tharp wrote, explaining Bumble Bee had improperly cited an Illinois appellate court ruling as precedent to support its assertion. Rather, “the Illinois Supreme Court has repeatedly described unjust enrichment claims as independent claims,” Tharp said.

Tharp went on to point out that even though an unjust enrichment claim can stand alone without an underlying claim, it doesn’t even have to in this case, as McMahon’s unjust enrichment claim is tied to his claim that Bumble Bee violated the ICFA.

McMahon and the putative class are represented in the action by the Clifford Law Offices, of Chicago.

Bumble Bee Foods is defended by the firms of Goodwin Procter LLP, of San Francisco, and the Bernstein Law Firm, of Chicago.

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Organizations in this Story

Goodwin Procter LLPIllinois Supreme CourtBernstein Law Firm, LLCBumble Bee FoodsClifford Law