Tuesday, May 23, 2023

Mexican flag and "taste of Mexico" not enough to deceive reasonable consumers about non-Mexican origin, 2d Cir rules

Hardy v. Olé Mexican Foods, Inc., 2023 WL 3577867, No. 22-1805 (2d Cir. May 22, 2023) (per curiam)

There was a CD Cal case raising the same “false Mexican origin” claims with a different result. Hardy alleged that defendant’s La Banderita tortilla products violated the NY GBL by deceiving consumers into believing the products were made in Mexico, not the US. The court of appeals affirmed the dismissal of the complaint.

Hardy had standing for the product he purchased, and class standing for three unpurchased products that made the same allegedly false claims that led to a price premium.

“On the La Banderita Products, a graphic resembling the Mexican flag (but with corn stalks instead of the coat of arms of Mexico) figures prominently in the center of the packaging and sets the green-white-red color scheme of the packaging.” The edges of the packaging may also display a smaller version of the flag graphic – this time with a white bull replacing the white segment of the flag – and the phrase “A Taste of Mexico!” On the back of the packaging there is a La Banderita logo and the flag graphic, followed by a “Nutrition Facts” table, heating instructions, and barcode. The bottom-left corner includes graphics stating that the products are “MANUFACTURED BY: OLÉ MEXICAN FOODS, INC. NORCROSS, GA 30071” and “MADE IN U.S.A.”

In the context of the whole package, this was not likely to mislead a reasonable consumer. While the front of package features “may encourage consumers to draw associations with Mexico and promote the belief that the products contain Mexican-style flavors and ingredients, no reasonable consumer would construe these elements to be an affirmative representation that the La Banderita Products were in fact manufactured in Mexico.” This was especially true given the conspicuous back-of-package statement. There is no rule that information on the back of a package is always irrelevant. While a small-print ingredient list cannot “cure” front-label representations that are otherwise highly deceptive because “reasonable consumers expect that the ingredient list contains more detailed information about the product that confirms other representations on the packaging,” that isn’t necessarily true outside the context of nutritional labels. It’s not true here, where “the front-side packaging makes no express representations as to the origin of the La Banderita Products, while the back of the packaging unambiguously notes where the products were ‘made’ and ‘manufactured.’”

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