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EDNY Passes on Potatoes Lawsuit

These are incredibly trying times, filled with concerns about what most of us have largely taken for granted – keeping ourselves and our families safe, being able to go to work each day, seeing loved ones and friends, and finding the things we want and need at the store. In the hope of providing our readers with a moment of distraction, we bring you an update on a compelling topic – mashed potato litigation, specifically the dismissal with prejudice by Judge Alynne R. Ross of the Eastern District of New York of a putative class action suit alleging false and deceptive labeling of BEF Food’s “Bob Evans” brand of refrigerated, ready-to-eat mashed potatoes. Sarr v. BEF Foods, Inc., 18-cv-6409 (E.D.N.Y. Feb. 13, 2020).

Plaintiffs commenced the putative class action in November 2018, alleging that BEF misleadingly labels its mashed potatoes as containing “real” butter and “fresh” potatoes when they also contain vegetable oils and preservatives. Plaintiffs asserted causes of action under the consumer protection statutes of all fifty states, as well as for negligent misrepresentation, breach of express and implied warranties, fraud and unjust enrichment.

According to the suit, the statement on Bob Evans labels that its mashed potatoes are made with “real” butter is misleading because it would cause consumers to believe that the products do not also contain vegetable oils. In addition, the complaint alleged that use of the word “fresh” on the labels is misleading because consumers believe that “fresh” means “just prepared,” and that use of the word “real” is misleading because consumers understand “real” to be synonymous with “fresh.” Further, Plaintiff alleged that the front label’s depiction of a pat of butter on mashed potatoes is deceptive because the nutrition facts section of the label indicates that the products contain less Vitamin A than a pat of butter would contain. Finally, the complaint alleged that BEF’s promotion of its use of butter – rather than other natural flavors such as those derived from a margarine ingredient – misleads consumers to believe that the products’ flavor derives exclusively from butter.

Judge Ross held that plaintiffs failed to state a claim under New York’s consumer protection statute because BEF’s labeling is not likely to mislead reasonable consumers. She emphasized that the mashed potatoes do contain real butter and reasonable consumers would not believe that because they contain real butter, they do not also contain other fats; indeed, the label’s ingredient list confirms that the products contain vegetable oils as well as butter. As to BEF’s use of the word “fresh” to describe the package’s potatoes, the court held that reasonable consumers would not understand this to mean that the product was “just prepared” or entirely lacking in preservatives. The court also noted that the use of the phrase “farm-fresh goodness” was a slogan for the “Bob Evans” brand in general, not a representation as to the specific mashed potato product. Moreover, consumers understand that mashed potatoes are cooked, and therefore necessarily undergo some kind of processing between their cultivation on the farm and their consumption.

Judge Ross also dismissed plaintiffs’ remaining theories as implausible. With respect to the amount of butter used in the products, the opinion noted that the size of a pat of butter varies. As for BEF’s failure to state in the products’ names that they contain natural flavor other than butter, Judge Ross held that reasonable consumers would not be deceived into thinking that the products – which consist primarily of potatoes – are flavored only by butter.

The reasoning of the opinion closely followed that of a similar suit – which we previously covered on this blog  – that also alleged frozen mashed potatoes were deceptively labeled as “made with real butter” and “fresh.” The ruling serves as a reminder that the most important factor in assessing allegations of false advertising is often a healthy dose of common sense, and that far-fetched interpretations of packaging are not sufficient to sustain a false advertising claim – particularly when the alleged misrepresentations consist of literally true statements.

© 2020 Proskauer Rose LLP.

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About this Author

Lawrence I Weinstein, False Advertising and Trademark Copywright Law, Proskauer
Partner

Larry Weinstein is a Partner in Proskauer's Litigation Department. He is co-head of the firm’s Intellectual Property Litigation Group, and also co-head of the firm’s False Advertising & Trademark Practice. Larry is both a distinguished trial lawyer and counselor, whose practice covers a broad spectrum of intellectual property law, including Lanham Act false advertising and trademark cases, consumer class action cases, NAD and FTC proceedings, and trade secret and copyright litigations, as well as sports, art and other complex commercial cases.

212-969-3240
Carl Mazurek Litigation Law Clerk
Law Clerk

Carl Mazurek is a law clerk in the Litigation Department. His area of concentration in the firm is litigation law. Carl Mazuerk is a contributing author for the firm's blog content. 

Education 

  • New York University School of Law, J.D., 2017
  • University of Cambridge, Ph.D., 2014
  • University of Cambridge, M.Phil., 2009
  • McGill University, B.A., 2007
212- 969- 3539
Brooke G. Gottlieb Litigation Proskauer
Associate

Brooke Gottlieb earned a J.D. from New York University School of Law, where she was a cyber security scholar and served as an executive editor of the Journal of Legislation and Public Policy. While attending law school, Brooke worked as a research assistant for Professor Arthur R. Miller on his Federal Practice and Procedure treatise and was an extern at the U.S. Attorney’s Office for the Southern District of New York. She also earned a B.A. from Barnard College.

212-969-3257