NY false food labeling law still exists despite being old

Warner v. StarKist Co., 2019 WL 1332573, No. 18-cv-406 (GLS/ATB) (N.D.N.Y. Mar. 25, 2019)

Warner survived a motion to dismiss his claims for deceptive practices, false advertising, dealing in misbranded food, and unjust enrichment, under New York law, based on StarKist’s use of a “Heart-Check Mark” on certain seafood products. The failure to disclose that the check mark, accompanied by “American Heart Association – CERTIFIED – Meets Criteria For Heart-Healthy Food,” was a paid-for endorsement was plausibly misleading, though the court thought it was “a close call, which could be revisited at the summary judgment stage.”

Also, Warner’s mislabeling claim under the Agriculture and Markets Law survived.  StarKist argued that there was no private remedy, but Abounader v. Strohmeyer & Arpe Co., 243 N.Y. 458 (1926), held that “the statute confers a right of action upon an ultimate purchaser against the person who originally prepared for market and sold the containers with false labels or statements of their contents” and “no one doubts that the statute by express provision might give to an ultimate purchaser of falsely labeled containers however remote a right of action against the person who violated the statute by marketing them with false labels.” StarKist argued that this case was old but “case law does not expire solely with the passage of time.”

However, injunctive relief claims were dismissed because Warner, who now knows the truth, lacks standing to maintain a request for injunctive relief on behalf of the class.