Switching tomato varieties but keeping nearly exact labels may be misleading

Valiente v. Simpson Imports, Ltd., No. 23-cv-02214-AMO (N.D. Cal. Feb. 20, 2024)

According to the complaint, San Marzano tomatoes “originate[] from the town of San Marzano sul Sarno, near Naples, Italy.” San Marzano tomatoes “bear a special designation: D.O.P. (Denominazione d’Origine Protetta, ‘Protected Designation of Origin’).” San Marzano tomatoes grown in the United States do not have the D.O.P. designation but are labeled “San Marzano style” or “San Marzano” without the D.O.P designation. San Marzano tomatoes are thicker than Roma tomatoes with fewer seeds and a stronger, sweeter, less acidic taste. They are thus “perfectly suited for making sauces” and “are widely considered the best tomato in the world for the task.” “[C]hefs and home cooks alike seek out canned San Marzano tomatoes and are willing to pay for them.” Indeed, San Marzano tomatoes “command double or triple the asking price of regular canned Roma tomatoes or generic tomatoes.”

sample price chart showing SMT selling at San Marzano prices

Simpson used to sell San Marzano tomatoes under a label similar to its current label.

Old label showing "San Marzano" on top of elongated, pointed tomatoes

But now it sells a variety of Roma tomato products under the “San Merican Tomato” or “SMT” brand.

same image, now with SMT on the tomato

On the label, embedded within the letters corresponding to Simpson’s brand is text: “San” for “S,” “erican” is nested within the letter “M,” and “omato” appears under “T.” The complaint alleges that the text is “so comically miniscule that it is almost impossible to see with the naked eye.” The label also features illustrations of a San Marzano tomato (longer and more pointed than a Roma tomato). The complaint alleged that, with inconsequential differences, all of Simpson’s tomato products, including boxed tomatoes, canned tomatoes, tomato sauces, and tomato pastes, “are all packaged with the same visually distinct and eye-catching label.”

Valiente brought the usual California claims.

She had standing as to products she didn’t purchase that were substantially similar to those she did, with uniform misrepresentations, as alleged here.

Nor did the FDCA preempt Valiente’s claims. Although Simpson characterized Valiente’s claims as imposing a disclosure requirement that the FDCA does not contain, i.e., a requirement that Simpson specify the tomato varietal the consumer is purchasing, Valiente’s claim was based on the additional content on the product label—the illustration of a San Marzano tomato, the letters “SMT,” and the text “San Merican tomato”—none of which federal regulation requires. However, this did mean that Valiente couldn’t bring deception-by-omission (failure to use the Roma label) claims.

Plausibility: yes, it was plausible that reasonable consumers would be fooled.  Maybe “the illustration is subject to artistic interpretation” and the label makes clear that “SMT” stands for San Merican tomato. But it was plausible that reasonable consumers would interpret the illustration and the letters SMT as Valiente did, and miss the imbedded “San Merican tomato” text. “The price of Simpson’s tomatoes further contributes to the plausibility of a consumer’s expectation that Simpson’s tomatoes are San Marzano tomatoes. A 28 ounce can of Simpson’s whole peeled tomatoes sells for $5.99, the same price as a 28 ounce can of a D.O.P. product by another seller – a price which incorporates a premium San Marzano tomatoes command.” (The court allowed amendment which counsel represented would include more specifics, including that if she had seen San Merican she would have interpreted it as “US-grown San Marzano,” which additional allegations would also suffice for a fraud claim.) The limited changes to the old label – adding “SMT” and illegible text stating “San Merican Tomato” – “support a strong inference that Simpson intended to make as few changes as possible to its product label to keep consumers under the impression that its Roma tomato products were the same as the San Marzano tomatoes it previously sold.”

Express warranty claims also survived, but not claims for injunctive relief. Simpson further argued that Valiente couldn’t pursue any equitable claims because she had an adequate remedy at law. But at the pleading stage, it was enough to allege that she “may lack an adequate remedy at law” if the amount of damages recoverable is less than the price premium she paid for Simpson’s tomatoes. She also alleged that “[r]estitution and/or injunctive relief may also be more certain, prompt, and efficient than other legal remedies . . . .” The court accepted these arguments at this stage (citing, inter alia, Murphy v. Olly Pub. Benefit Corp., 651 F. Supp. 3d 1111, 1129 (N.D. Cal. 2023) (declining to dismiss the request for equitable relief where the plaintiffs alleged that legal remedies were not as certain as equitable remedies because, for example, a full refund would require a showing that the product at issue had no market value but no such showing was required for restitution).