Some of the country’s biggest sellers of cans of shelf-stable grated Parmesan cheese will need to again defend themselves against class action lawsuits over the question of whether their cans of cheese actually contained 100% grated Parmesan cheese.
On Dec. 7, a two-judge panel of the U.S. Seventh Circuit Court of Appeals sliced up the ruling from a Chicago federal district judge. The appeals panel overturned the ruling that found the Parmesan cheese sellers couldn’t be sued for including cellulose filler in their cans of cheese, because the cellulose was listed among the ingredients printed on the same can.
The decision was authored by Seventh Circuit Judge David F. Hamilton. Judge Michael S. Kanne concurred.
U.S. Seventh Circuit Court of Appeals Judge David F. Hamilton
| law.columbia.edu
“What matters most is how real consumers understand and react to the advertising,” Judge Hamilton wrote. “We therefore join our colleagues in at least three other circuits in holding that an accurate fine-print list of ingredients does not foreclose as a matter of law a claim that an ambiguous front label deceives reasonable consumers.
“Many reasonable consumers do not instinctively parse every front label or read every back label before placing groceries in their carts.”
In 2016, lawsuits piled up in courts across the country, targeting some of America’s biggest retailers and food product manufacturers. The list of defendants included Walmart, Kraft, Jewel and its corporate parent, Albertsons, Target, Publix and others.
The lawsuits alleged companies made and sold Parmesan cheese that legally contained cellulose as a filler and anti-caking agent, but still advertised on the label affixed to the can, that the contents were “100% grated Parmesan cheese.”
The plaintiffs claimed this amounted to deceptive advertising, and violated a number of state and federal consumer protection laws.
The cases were consolidated in Chicago federal court, before U.S. District Judge Gary Feinerman.
Judge Feinerman granted the cheese sellers’ requests to dismiss the cases. In his ruling, Feinerman determined the cheese cans’ claims did not mislead consumers, because the presence of the cellulose was disclosed by the cheese sellers on the cans themselves.
The decision dismissed Target and Florida-based Publix Super Markets from the litigation. But cases remained pending against all other retailers and food makers.
Feinerman’s decision prompted appeal from the plaintiffs.
At the Seventh Circuit, judges said Feinerman’s conclusions concerning the actions of “reasonable consumers” were misinformed and legally invalid, at least at this point in the litigation process.
They noted Feinerman determined consumers using “common sense” should know that cheese cannot be shelf-stable for very long without either refrigeration or additives.
The appellate judges, however, noted Parmesan cheese can, in fact, “be shelf-stable for a long time without refrigeration.”
“… Today’s grocery shoppers can often spot unrefrigerated cartons of pure grated Parmesan sold beside the cheese wheels that source them,” Hamilton wrote. “It is true the defendants’ products are not displayed in that way but are instead shelved in the main grocery aisles.
“But since pure grated Parmesan can be and sometimes is sold unrefrigerated, common sense is not a substitute here for evidence, and certainly not as a matter of law. Reasonable consumers’ expectations about the need to use either additives or refrigeration cannot be decided as a matter of law.”
Hamilton and Kanne said the question of just how “reasonable consumers actually understand … ‘100% Grated Parmesan Cheese’ labels is a question of fact” that required more court proceedings to unravel.
The judges further rejected the cheese sellers’ contentions that federal law should block the lawsuits from continuing under state law claims.
The defendant companies had, for instance, claimed that the plaintiffs’ claims ran up against federal labeling regulatory rules.
In this case, though, the appellate judges said the plaintiffs are not demanding anything be added to any labels, rather “only to stop defendants from voluntarily adding deceptive language to the federally permitted labels.”
While the appellate judges determined Feinerman was too hasty in dismissing the lawsuits, Hamilton and Kanne determined the cases can’t continue against Target and Publix.
The judges ruled the plaintiffs waited three months too long to appeal a final order, which dismissed those two retailers entirely from the litigation.
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.