Monthly Archives: February 2016

Wal-Mart Seeks Dismissal of “Pork and Beans” False Advertising Lawsuit

On October 7, 2015, a putative class action lawsuit was filed against Wal-Mart Stores Inc. and Wal-Mart Stores East, LP (collectively “Wal-Mart”) in the U.S. District Court for the Central District of California.  The lawsuit alleges breach of warranty, unjust enrichment, and violations of California, Pennsylvania and New Jersey law.

Plaintiffs allege that Wal-Mart’s store-brand Great Value Pork and Beans in Tomato Sauce does not actually contain pork. They allege that “rigorous scientific testing, including microscopic and chemical analysis, has revealed that the product contains no pork whatsoever” and that the labels for each and every can of these products is false and misleading.

On January 27, 2016, Wal-Mart filed a motion to dismiss the complaint, asserting that “Plaintiffs concede that the label on Great Value Pork & Beans in Tomato Sauce states very clearly that the product ‘contains less than 2%’ of pork” and that Plaintiff’s test results are therefore not surprising.  Wal-Mart’s motion continues:

If Plaintiffs relied on testing that was not sensitive enough to detect an ingredient that was less than 2% of a product, then the fact that their testing failed to detect pork does not mean that pork is not an ingredient in the product at issue. Thus, without more detail, Plaintiffs’ allegation – that because their testing was unable to detect pork in the product means it does not contain pork – is logically fallacious, an invalid inference.

Put differently, Wal-Mart alleges that the Complaint is too vague and conclusory with regard to the testing that allegedly occurred.  Wal-Mart further argues:

In essence, at least as currently pled, Plaintiffs are alleging that the product at issue does not contain enough pork to use the name “Great Value Pork & Beans in Tomato Sauce.” But such an allegation is preempted – federal law mandates that this product include the work “pork” in its title if it contains any pork.

Thus, Wal-Mart’s motion is based on two key arguments.  First, that Plaintiffs’ allegation about testing lacks specificity and is thus not facially plausible because it does not plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”  In this regard, Wal-Mart ties its argument to Plaintiffs’ alleged concession that the product contains less than 2% pork but fails to include allegations regarding the sensitivity of the alleged testing.  Second, Wal-Mart notes that Plaintiffs’ Complaint refers to FDA documents that establish that “pork and beans” is the “common or usual name of canned beans packed in sauce and that has been prepared with even relatively small quantities of pork.”  Accordingly, Wal-Mart argues that, so long as its product includes very small quantities of pork, federal regulations necessarily require that it be labeled as “pork and beans” and Plaintiffs’ claims are thus preempted.  In fact, Wal-Mart specifically argues that “the [Nutrition Labeling and Education Act of 1990] actually requires Wal-Mart to label its Pork & Beans product as ‘pork and beans’ because that is the ‘usual or common name’ of the product.”

This case is definitely worth watching and I’ll provide an update with the court’s ultimate ruling.