Monday, August 30, 2021

Duelling results in Mexican origin cases

Rodriguez v. Olé Mexican Foods Inc., 2021 WL 1731604, No. EDCV 20-2324 JGB (SPx) (C.D. Cal. Apr. 22, 2021)

Rodriguez alleged that Olé’s La Banderita tortillas falsely advertised Mexican origin based on  a Mexican flag front and center on the packaging, the phrase “El Sabor de Mexico!” or “A Taste of Mexico!”, the brand name “La Banderita” (“the flag”), and the Spanish phrase “Tortillas de Maiz” on the label of the Corn tortillas. Some of the products also contain a circular logo with the Mexican flag and the word “Authentic,” as well as other Spanish words and phrases.  

Olé argued that its products merely invoked the “spirit” of Mexico and didn’t make any specific geographic references (other than “MADE IN U.S.A.” and “Manufactured by: Olé Mexican Foods, Inc., Norcross, GA 30071” at other places on the package, which properly disclosed origin). The court disagreed. Although a previous case found that “The Taste of Jamaica” wasn’t plausibly misleading, that product was prominently marked “Jamaican Style Lager,” and style or type language strongly affects the meaning of a geographic term used on food or drink.  Here, there was no such indication about “style.” Moreover, deception was still plausible here in context, even if some reasonable consumers would not be deceived. Though the back disclosed the true origin, a reasonable consumer is not “expected to look beyond misleading representations on the front of the box to discover the truth.” 

from the complaint; disclosure: I have purchased these and I have never given a second's thought to their geographic origin one way or another

version with the "authentic" graphic

Govea v. Gruma Corp, 2021 WL 1557748, No. CV 20-8585-MWF (JCx) (C.D. Cal. Mar. 1, 2021)

The packaging here wouldn’t plausibly mislead a reasonable consumer into believing that Guerrero Tortillas are produced in Mexico, though the court granted leave to amend.

One of the accused packages
Plaintiffs allegedly saw and relied on the word “Guerrero” (the name of a Mexican state, also “warrior”) and the Spanish phrases on the packaging, which included: “Un pedacito de México” and “Calidad Y Frescura” (“a piece of Mexico” and “quality and freshness” respectively). They also allegedly relied on the Spanish descriptions of the products they purchased: Tortillas De Maiz Blanco, Riquisimas Tortillas De Harina, and Tortillas De Harina Integral. The rule is that “the language or imagery of a product’s packaging is actionable if it falsely indicates a specific place that the product is purportedly made.” “Originated in Germany,” “Born in Brazil,” and “Belgium 1926” were plausibly false and misleading statements of origin where the products at issue were not made in those countries and lacked a visible origin disclaimer. In contrast, if the packaging merely evokes the spirit of a generalized location or culture in a vague and non-specific manner, such claims are properly dismissed at the 12(b)(6) stage.”

Here, there were no “born in” statements, and “un pedacito de México,” was “a vague and meaningless phrase” that is meant to “evoke the spirit or feeling of [Mexico].” Nor did the packaging expressly describe the tortillas as Mexican. All the packages disclosed that the Gruma Corporation was based in Irving, Texas, and at least some of the Packaging also stated that the Tortillas are “[l]ocally baked and delivered fresh from your Guerrero Bakery.” Nor did the package name a specific address, city, or location in Mexico where the tortillas were purportedly baked or invite a visit.

One of the prior cases refusing to dismiss a complaint also noted allegations of survey evidence that more than 85% of a “demographically representative U.S. sample of over 1,000 adults” who viewed the accused beer or its packaging believed that it was produced in Japan. There was no such evidence here. While the court was dubious that it could be done, it did give plaintiffs a chance to augment their allegations with a similar consumer survey, which might or might not alter the court’s overall impression.

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