Kroger Says Coconut Milk Class Action Should be Dumped

A class action lawsuit alleging Simple Truth Coconutmilk is falsely advertised should be dismissed, says Kroger, because reasonable consumers would not be deceived by the product’s labeling.

Lead plaintiff Eva Grausz alleged in the Kroger class action lawsuit that she and other consumers were duped into thinking the coconut milk was healthy based on claims made on the cartons.

The plaintiff says the coconut milk is labeled as being “100% Free” of cholesterol, but it actually contains saturated fat.

“Ms. Grausz was recruited by her attorney, who has effectively declared war on coconut products in at least seven other cases based on essentially the same allegations,” argues Kroger in its motion to dismiss the class action lawsuit.

“The challenged statements in this case, however, are nothing like those in the other cases litigated by Ms. Grausz’s attorney, which generally involved coconut products with prominent labels claiming that they were ‘healthy’ due to their nutritional contents and based on direct comparisons to products like butter.”

Contending that the lawsuit is a “no-injury consumer class action,” Kroger says the plaintiff’s claims are based on an informational paragraph contained on cartons of Simple Truth Coconutmilk. The advertising statements, argues Kroger, are not regulated by U.S. Food and Drug Administration regulations.

“The regulations that Ms. Grausz claims were violated simply do not apply,” says Kroger in its motion to dismiss, pointing out that the statute cited by the plaintiff applies to products with more than 13 grams of total fat. Simple Truth Coconutmilk only contains five grams, according to Kroger.

Kroger further contends that its advertising statements are “inactionable puffery,” also not regulated by the FDA.

“The purported ‘healthiness’ of the product is non-actionable puffery that cannot form the basis of a misrepresentation claim,” argues Kroger in its motion to dismiss. “In particular, the use of the term ‘healthy’—on its own or considered in the context of the ‘Question and Answer’ Information Paragraph in which it appears—is not capable of objective verification and is inactionable puffery.”

Kroger further argues that the other Simple Truth Coconutmilk class action lawsuit allegations should be dumped as well as consumers would not be deceived by the advertising statements on the product’s labeling.

“No reasonable customer could be deceived by the ‘Question and Answer’ Information Paragraph regarding the purported ‘health’ or ‘cholesterol’ content of the Product given that the Product’s label and numerous disclaimers disclose the exact amount of ‘saturated fat,’ ‘cholesterol,’ and every other nutrient of the Product,” states the motion to dismiss.

In addition, Kroger says that the Simple Truth Coconutmilk class action lawsuit claims based on breach of warranty should be dismissed and the First Amendment protects the company’s advertising claims.

Grausz and proposed Class are represented by Paul K. Joseph of The Law Office of Paul K. Joseph PC.

The Kroger Simple Truth Coconutmilk Class Action Lawsuit is Grausz v. The Kroger Co., Case No. 3:19­-cv­-00449, in the U.S. District Court for the Southern District of California.

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