Mexican origin claims revitalized by survey

Govea v. Gruma Corp., 2021 WL 4518457, No. CV 20-8585-MWF (JCx) (C.D. Cal. Aug. 18, 2021)

Previous discussion. The amended complaint fares better: the tortilla packages at issue plausibly misrepresented Mexican origin. Plaintiffs added allegations that “[u]n pedacito de México” translates to “a piece from Mexico,” in addition to “a piece of Mexico.” And they alleged a consumer survey that showed 401 participants the following image: 

It then asked: “Based on the label of the product, where do you believe the product is made?” 70.1% of participants answered Mexico. Gruma argued that the survey was unreliable because it failed to use open-ended questions and controls and failed to consider whether the participants actually zoomed in on the label or read any of its text. “Even if Gruma is correct that the Survey suffers from certain flaws, the Survey at least demonstrates that it would not be ‘impossible for the plaintiff to prove that a reasonable consumer was likely to be deceived.’” Thus, dismissal at this stage was unwarranted. As with another recent case, Rodriguez v. Olé Mexican Foods Inc., 2021 WL 1731604, No. EDCV 20-2324 JGB (SPx) (C.D. Cal. Apr. 22, 2021), the packaging “evokes the spirit of Mexico, which … may also mislead a reasonable consumer about the Tortillas’ geographic origin.”

Plaintiffs had standing to seek injunctive relief because they desired to buy the tortillas in the future, but were currently unable to rely on the packaging.