On Wednesday, Judge Charles Norgle, of the Northern District of Illinois, granted a motion to dismiss in favor of Kraft Heinz Food Company in a putative class action brought by Latonya Jackson. The plaintiff alleged that Kraft violated consumer protection statutes and the common law through deceptive labeling of its Bagel Bites product.
Judge Norgle summarized the salient allegations in the complaint. The plaintiff alleged that Defendant’s labeling misleads consumers into believing that Bagel Bites, “frozen bite – size pizza bagels,” are made with three kinds of cheeses and tomato sauce, when the product also contains “starch, nonfat milk and whey.” Plaintiff also alleged that Defendant’s reference to “tomato sauce” is misleading because Bagel Bites contain “non-tomato thickening agents.” In addition, the plaintiff claimed that the labeling misleadingly uses the “REAL dairy seal, a trademark owned by the National Milk Producers Foundation.”
Plaintiff alleged two classes: one under the Illinois Consumer Fraud and Deceptive Business Practices Act; and a multi-state class under Iowa and Arkansas consumer protection statutes. In addition to causes of action under state consumer protection statutes, Plaintiff sought relief for breach of express and implied warranty; violation of the federal Magnuson Moss Warranty Act; negligent misrepresentation; fraud; and unjust enrichment.
Judge Norgle found that Kraft’s labeling is not misleading as a matter of law. His discussion focused primarily on the Illinois statute, but he applied his reasoning to all causes of action. “These statements [regarding cheese and tomato sauce content] are deceptive, in Plaintiff’s view, because they omit that the Product’s [Bagel Bites] cheese blend and sauce also contain additives and thickening agents.” Although omission of any material fact can constitute deception under the Illinois statute, “Plaintiff alleges nothing of what reasonable consumers of the Product [expect]…. Expectations differ when one purchases mozzarella sticks or tomato sauce alone, from when one purchases a frozen bagel pizza snack. It seems that when purchasing ‘junk food’ (or ‘processed food,’ to use Defendant’s term) like frozen pizza, the reasonable consumer would expect some ‘junk’ (or ‘processed’) ingredients.”
Judge Norgle cited 7th Circuit precedent for the proposition that “[a] district court should generally grant leave to amend a complaint after granting a motion to dismiss unless any amendment would be futile.” In view of his summary of the law in his Circuit, Judge Norgle’s decision to grant the motion to dismiss under FRCP 12(b)(6) is particularly noteworthy. Plaintiff’s counsel is Sheehan & Associates P.C. Kraft Heinz was represented by Winston & Strawn.
