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A Chicago federal judge has mostly melted a group of class actions against Kraft, Walmart, Jewel Food, Target and others, which alleged the companies misled consumers as to the purity of grated Parmesan cheese by including hidden cellulose filler, finding labels may have promised unadulterated product, but cellulose was nonetheless listed as an ingredient on those labels.
The rulings were laid down Nov. 1 by U.S. District Judge Gary Feinerman.
In June 2016, more than 50 class actions from around the country were consolidated in Chicago before Feinerman . The suits alleged a number of companies made and sold Parmesan Cheese that legally contained cellulose as a filler, but nonetheless advertised the products as “100 percent Grated Parmesan Cheese.” Plaintiffs claimed this alleged deceptive advertising breached sundry state and federal consumer protections laws.
In August 2017, Feinerman tossed the suits on grounds that, although labels boast pure Parmesan, the ingredient list on packaging shows the presence of cellulose, which any “reasonable consumer” could review and thus see the product was not all cheese. However, Feinerman allowed plaintiffs to amend their suit, which they did.
In the amended complaint, plaintiffs made the new argument the ingredient list says cellulose is added “to prevent caking,” but the amount used exceeds the little needed for that purpose, because grated Parmesan is cured and dried in such a way, not much “clumping or agglomeration” occurs.
As a consequence, most of the cellulose is present as an undisclosed filler, which deceives consumers, plaintiffs alleged.
Feinerman shredded this argument, saying plaintiffs staked their position on the belief they were buying 100 percent cheese, implying they “never consulted, let alone relied upon,” the allegedly misleading ingredient list, where it was asserted cellulose was included to prevent caking.
As a consequence, plaintiffs cannot contend the assertion about anticaking misled them, because they maintain they were taken in by the words “100% Grated Parmesan Cheese.” They would not have allegedly been so deceived if they had read the anticaking declaration, according to the judge. Feinerman observed this conclusion of his “dooms” many of the anticaking claims.
Plaintiffs also revived the argument from the first version of their complaint, which argued consumers were misled into believing the cheese is unadulterated.
Plaintiffs cited two linguistics professors, who said more than one meaning could be given “100 percent Grated Parmesan Cheese” — 100 percent of the cheese was Parmesan or 100 percent of the cheese was grated. Feinerman countered a “reasonable consumer” does not read a label as does a professor and the professors read the wording without the context a reasonable consumer would see, that the cheese was not refrigerated and so had to have additives, or else it would quickly spoil.
Plaintiffs also submitted surveys showing the “vast majority” of consumers believe “100 percent Grated Parmesan Cheese” means the product only contains cheese. Feinerman found the surveys “valueless,” because they also did not take context into account.
In the end, Target and Florida-based Publix Super Markets were dismissed from the litigation, and cases were diminished, but not yet entirely dismissed, against other defendants.
Plaintiffs in the local class actions have been represented by the following Chicago law firms and attorneys: Pomerantz LLP; Barnow & Associates; Kanuru Law Group; Bock & Hatch; Cohen Milstein Sellers & Toll; Wolf Haldenstein Adler Freeman & Herz; Zimmerman Law Offices; and McGuire Law; and attorneys Aron D. Robinson and James P. Batson. The New York-based firm of Levi & Korsinsky also is representing clients in a Chicago cheese lawsuit.
Defendants have been represented by: Greenberg Traurig, of Chicago; Fox Rothschild, of Chicago; Bowie & Jensen, of Towson, Md.; Zuber Lawler & Del Duca, of Chicago; and Jenner & Block, of Chicago and Los Angeles.