tuna surprise: undisclosed slack fill was plausibly misleading

Hendricks v. StarKist Co., No. 13–cv–729, 2014 WL 1244770 (N.D. Cal. Mar. 25, 2014)

Hendricks brought the usual California claims against Starkist alleging that its canned tuna products were underfilled (anywhere from 1.1% to 17.3% less tuna than there was supposed to be), as confirmed by independent lab testing using the weighing methodology and standard of fill set forth in the referenced federal regulations. The FDA has the power to promulgate regulations establishing reasonable standards of container fill for any food, and the FDA has done so for canned tuna.  Filling a container in a manner that is misleading is considered “misbranding.”

Starkist argued preemption. The claims weren’t expressly preempted because they relied on FDA standards.  And they weren’t impliedly preempted because Hendricks wasn’t suing to enforce the FDCA directly (he can’t); he was suing to enforce identical state law, threading the “narrow” gap allowed. Pom Wonderful doesn’t change that; it was limited to the Lanham Act.  Though Starkist argued that it and other tuna manufacturers had petitioned the FDA to change the standard of fill, that wasn’t relevant to whether the claims here were preempted.

Starkist also argued that the claims should be dismissed/stayed based on primary jurisdiction.  “Given that the applicable FDA standard here is clear, detailed, and long-standing, the Court sees no reason to stay or dismiss the complaint pending any resolution of the issue before the FDA.” Though canned tuna manufacturers filed a citizen’s petition requesting that the FDA amend or suspend the regulation, the FDA hasn’t done anything.  “Unless and until there is some indication beyond mere speculation that the FDA may change the regulation, the Court sees no need to defer under the primary jurisdiction doctrine.”

Deception: StarKist argued that the FDA standard of fill didn’t require any information be communicated to consumers or that the products be labeled in any particular way. Starkist isn’t required to, and doesn’t, include pressed weight on the can, but rather says “NET WT 5 OZ (142g)” and “Serv[ing] Size: 2oz drained (56g—about 1/4 cup); Servings about 2.” Hendricks didn’t allege that these were false or how they misled him.  But that missed the point of the allegations: he alleged that the cans contained less tuna than would be expected from a 5-ounce can.  The reasons the feds regulate fill is so that tiny amounts don’t get misleadingly placed in large containers.  If fill is substandard, the label has to say so.  Starkist argued that injury wasn’t plausible; the court disagreed.

As a result, various warranty and consumer protection claims survived, though the unjust enrichment claim was dismissed as duplicative. Fraud was sufficiently pled with particularity, given the allegations above.

Starkist also sought to dismiss claims based on products Hendricks didn’t buy. He bought Chunk Light Tuna in Water, but not Solid White Albacore Tuna in Water, Solid White Albacore Tuna in Vegetable Oil, and Chunk Light Tuna in Vegetable Oil.  Whether these products should be included depends on whether common misrepresentations were the crux of his case and whether there was sufficient similarity between purchased and unpurchased products.  Starkist argued that solid tuna was governed by different pressed weight standards from the product Hendricks bought. The court disagreed that this mattered—there was sufficient similarity, given that he alleged the same misrepresentation as to all four varieties.