Sara Lee, Entenmann’s Class Action Lawsuit Survives Dismissal

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A California federal judge last week trimmed claims from a class action lawsuit accusing Bimbo Bakeries USA Inc. of misbranding its products, but will allow most of the action to proceed.

On September 25, U.S. District Court Judge William Orrick denied Bimbo’s motion to dismiss the Bimbo false labeling class action lawsuit. Bimbo had argued that plaintiff Alex Ang lacked standing to bring the action, failed to provide adequate notice, brought arguments that are preempted and failed to sufficiently plead his claims.

Ang took issue with several products made by Bimbo and its subdivisions, including Thomas’ Plain Bagel Thins, several varieties of Sara Lee whole wheat bread products, Entenmann’s brand products and Bimbo Original Toasted Bread. He claims that the bagel thins contain a misleading American Heart Association (AHA) endorsement indicating that the product is “an excellent source of fiber.”

According to his class action lawsuit, the Sara Lee breads contain inaccurate statements claiming that they are an “Excellent Source of Whole Grain,” a “Good Source of Whole Grains,” or “100% Whole Wheat,” even though the products are made partially with non-whole wheat flour. Ang also claims that the Entenmann’s brand products falsely indicate that the bakery goods are freshly made each day and delivered to stores daily, even though they actually contain preservatives. The class action lawsuit further alleges that Bimbo Original Toasted Bread is processed so heavily that it can no longer be considered “bread.”

Based on these allegations, Ang asserted claims under California’s Unfair Competition Law, California’s False Advertising Law, the California Consumers Legal Remedies Act and restitution based on unjust enrichment/quasi contract. Ang filed the Bimbo class action lawsuit on behalf of himself and a nationwide class of consumers who had purchased the allegedly deceptively labeled Bimbo products in the last four years.

“Plaintiffs have … identified with specificity the precise representations alleged to be illegal, fraudulent and misleading, as well as the specific products on which that language is found,” Judge Orrick said. “This is not a case … where the plaintiffs failed to identify each product they claimed was mislabeled or attempted to include unspecified misleading language.”

Judge Orrick dismissed the unjust enrichment restitution claim, finding that it did not involve an independent cause of action that can stand alone under California law. He also dismissed Ang’s claims under the California Consumer Legal Remedies Act with leave to amend with regard to “substantially similar” products that Ang did not adequately specify.

Judge Orrick found that Ang’s argument that the AHA “heart check” logo is a paid endorsement could stand, as a ruling on that issue is improper at this early stage of the legal process. He will also allow Ang’s allegations that the bread products are mislabeled as “good” or “excellent” sources of whole grains, finding that Bimbo did not point to a specific section of the federal Food, Drugs and Cosmetics Act (FDCA) that governed these statements.

The federal judge also ruled that Bimbo’s assertions of preemption fell short because the requirements under California’s Sherman Law are identical to those of the FDCA.

“Defendant points to no claims or allegations in the (class action lawsuit) that seek to impose standards in excess or otherwise in contravention to the requirements of the FDCA,” Judge Orrick said. “Moreover while defendant argues that its labeling is in compliance with the FDCA (and therefore cannot be the basis of a state law claim), defendant’s compliance or non-compliance with federal standards has yet to be determined.”

Ang is represented by The Fleischman Law Firm and Pratt & Associates.

The Bimbo Products Class Action Lawsuit is Alex Ang, et al. v. Bimbo Bakeries USA Inc., Case No. 3:13-cv-01196, in the U.S. District Court for the Northern District of California.

UPDATE 5/8/15: This class action lawsuit continues to fight its way through court. Plaintiffs asked the court May 6, 2015, to certify four proposed classes of California buyers.