Wednesday, April 29, 2020

Reasonable restaurant consumers wouldn't think "krab mix" had real crab in it

Kang v. P.F. Chang’s China Bistro, Inc., No. CV 19-02252 PA (SPx), 2020 WL 2027596 (C.D. Cal. Jan. 9, 2020)

Kang alleged that P.F. Chang’s “employed a classic bait and switch tactic whereby it falsely labeled and advertised food products containing crab on their menu, when in fact, no crab meat was present in the product” by selling “food items containing ‘krab mix’ on their menu, including but not limited to [Defendant’s] Kung Pao Dragon Roll, Shrimp Tempura Roll, and/or California Roll.” He brought the usual California claims and a couple of others. The court dismissed all the claims.

Without representative plaintiffs from other states, Kang had no Article III standing to bring claims based on alleged violations of consumer fraud and deceptive trade practices laws of states other than California.

As for the California claims, this one could be resolved on a motion to dismiss. Reasonable consumers would not interpret “krab mix” to contain actual crab meat; it didn’t need to be labeled “imitation crab” or otherwise explained. (Citing McKinnis v. Kellog USA, 07-cv-02611, 2007 WL 4766060, at *4 (C.D. Cal. Sept. 19, 2007) (granting motion to dismiss without leave to amend on plaintiff’s UCL, FAL, and CLRA claims, finding no reasonable consumer would be misled by the word “Froot” in “Froot Loops” into believing the product contained “Fruit”); Pelayo v. Nestle USA, Inc., 989 F. Supp. 2d 973, 979 (C.D. Cal. 2013) (granting motion to dismiss on plaintiffs’ CLRA and UCL claims finding no reasonable consumer would be misled by the use of the words “All Natural” on a pasta product’s package into believing the product contained only natural ingredients, where pasta contained two artificial ingredients).)  In addition, “a reasonable consumer understands that cheaper sushi rolls, such as a California Roll, contain imitation as opposed to real crab.”  (Citing Werbel v. Pepsico, Inc., 2010 WL 2673860, at * (N.D. Cal. July 2, 2010) (holding, as a matter of law, that no reasonable consumer would be led to believe that “Cap’n Crunch’s Crunch Berries” cereal contained real fruit berries despite the use of the word berries in the product).)

Additionally, other dishes on P.F. Chang’s menu are labeled “crab,” where they contain actual crab. A reasonable consumer would recognize the contrast.

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