Monday, July 06, 2020

calling pork "prime" doesn't misleadingly imply USDA grading

Davis v. Fresh Market, Inc., 2020 WL 3489369, No. 19-CV-24245-PCH (S.D. Fla. Jun. 26, 2020) 

Plaintiffs alleged that defendants violated Florida consumer protection law by misrepresenting, via the name, that their Chairman’s Reserve Prime Pork product had been graded prime by the USDA, even though the USDA does not grade pork (and approved the product name). Plaintiffs alleged additional statements, such as a newsletter stating, “Just like prime beef, the new Chairman’s Reserve Prime Pork is the upper-echelon of quality in terms of having superior marbling …. ‘We’re excited to provide our guests with fresh pork that’s the same caliber as our prime beef offerings....”; a quote from Tyson’s President of marketing and premium products reading, “People know of ‘prime.’ They get it right away”; a website displaying images of prime pork next to prime beef; and the like. But defendants never used the term “USDA.” The court found the theory implausible. 

First, USDA approval of the name/labeling wasn’t preemptive. While FDUTPA doesn’t apply to an “act or practice required or specifically permitted by federal or state law,” there was no approval of the promotional materials; the USDA has no authority to regulate ads in conjunction with labels. 

However, plaintiffs’ theory was still unpersuasive because there were no allegations that the defendants did anything to communicate that the USDA even grades pork; they didn’t claim that the product is graded. According to defendants, plaintiffs’ theory assumed that a reasonable consumer would be aware of USDA’s grading scheme for beef but not aware that there was no such scheme for pork. This was implausible: “A reasonable consumer sufficiently familiar with USDA grading would note the absence of the term ‘USDA.’”

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