Food giant Whole Foods smells a bit fishy according to a new class action accusing the high-end food retailer of allegedly "short-weighting" its frozen packaged tilapia, allegedly making consumers pay for more ice and less fish.
Michael Daly, on behalf of himself and others, filed a new class action lawsuit against Whole Foods Market Group on March 3 in Cook County Circuit Court. The lawsuit accused the supermarket chain of violating Illinois state consumer fraud law by allegedly including fraudulent labeling and allegedly intentionally selling "short-weighted" packaged frozen tilapia fish in its retail locations.
Glazing is a normal and legal practice, the complaint concedes. However, overglazing, or adding additives that are not disclosed in packaging that boosts the net weight of the seafood, is not. The U.S. Department of Commerce also sets standards for packaged goods sold in retail markets. Within those standards, standard deviations are allowed, or Maximum Allowable Variances (MAV), the complaint said.
To account for glazing and other factors affecting weight, the complaint asserts the MAV for a 907g package is 31.7g. Daly contents in his complaint that the fish he purchased labeled as 907g was allegedly over-glazed and exceeded the MAV of 31.7g.
Daly claims Whole Foods intentionally sold the over glazed fish to extract more for the product. He states that a normal consumer would trust the declared package weight to be true and would use it to make a purchasing decision. Had he known the product might include the weight of the ice in the cost, he asserts he would not have purchased it. He further accused Whole Foods of knowingly selling the allegedly mislabeled tilapia to inflate the cost of the fish which he claims Whole Foods illegally profits from.
Seafood is heavily regulated by the USDA for inaccuracies, the most common of which is short-weighting. It is most common when buying frozen seafood.
A study by Chapman University in 2021 found that on a random sample of 111 fish samples, there was an average of 5% glaze. In retail terms, this amounts to an average bump of $1.14/kg to the consumer.
Whole Foods has faced similar actions before. In 2019, a complaint was filed accusing Whole Foods of the same practice over cupcakes. Judge Paul A. Engelmayer of the US District Court Southern New York dismissed the complaint, saying it proved the "lived kitchen experience," a random occurrence that is the result of what happens when real people prepare food, and not an intentional effort on the part of Whole Foods to defraud the consumer.
Michael Daly is represented by attorney Steve G. Perry, of The Law Offices of Todd M. Frideman, of Northbrook.