Wal-Mart Disputes Claims in Pork and Beans Class Action

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Wal-Mart continues to aggressively dispute a proposed consumer class action lawsuit alleging that it’s Great Value Pork and Beans in Tomato Sauce lacks an important ingredient: pork. Wal-Mart filed a motion to dismiss the plaintiff’s first amended complaint on grounds that the consumers’ opposition brief lacks factual allegations regarding the sensitivity of the alleged testing performed on the product.

Wal-Mart’s motion calls the brief “vague and conclusory with regard to the testing that allegedly occurred,” essentially stating that the Class, led by Matthew Tye, makes no effort to factually address that Wal-Mart’s Pork and Beans product does not contain pork.

Wal-Mart ties its argument to plaintiff’s alleged concession that the product contains less than two percent pork but fails to include allegations regarding the sensitivity of the alleged testing. The sensitivity of the alleged testing is central to the claims alleged in the amended complaint because the Pork and Beans ingredient list states that the product contains “less than 2% of … pork.”

“Thus, if plaintiffs’ purported testing could not detect pork in the cans tested at levels below 2% of the total product volume, then their testing allegations do not actually support the claim that the product does not contain any amount of pork whatsoever,” Wal-Mart said.

Wal-Mart also noted that the plaintiff’s complaint refers to FDA documents that establish “pork and beans” is the “common or usual name of canned beans packed in sauce and that has been prepared with even relatively small quantities of pork.” Accordingly, Wal-Mart argues that, so long as its product includes very small quantities of pork, federal regulations necessarily require that it be labeled as “pork and beans” and plaintiff’s claims are thus preempted.

In fact, Wal-Mart specifically argues that “the [Nutrition Labeling and Education Act of 1990] actually requires Wal-Mart to label its Pork & Beans product as ‘pork and beans’ because that is the ‘usual or common name’ of the product.”

In October 2015, Tye brought the putative class action lawsuit against Wal-Mart in the U.S. District Court for the Central District of California. The lawsuit alleges that Wal-Mart’s store-brand Great Value Pork and Beans in Tomato Sauce does not actually contain pork and that “rigorous scientific testing, including microscopic and chemical analysis, has revealed that the product contains no pork whatsoever.” Tye says that the labels for each and every can of these products is false and misleading.

The plaintiff further argues that the USDA requires pork and beans products to contain at least 12 percent pork in order to advertise pork on its labels, and that plaintiff’s testing did not show any traces of pork in the product.

The complaint was amended in November with new allegations that Wal-Mart violated various states’ false advertising statutes and engaged in unfair and fraudulent business practices.

In a motion to dismiss filed in January, Wal-Mart vehemently denied the plaintiff’s claims, arguing the allegation is deficient and that the consumers’ “rigorous scientific testing” does not really meet the standards of the FDA nor the Association of Official Analytical Chemists International and are irrelevant.

“Plaintiffs apparently believe if they mention enough scientific jargon (whether relevant or not) in their complaint and in their opposition to Wal-Mart’s motion to dismiss, it will distract this court from plaintiffs’ failure to meet their pleading obligations,” Wal-Mart stated.

However, the consumers countered back stating that they are not claiming that the GV Pork and Beans products contain a traces of pork, but instead are arguing that the product does not contain any pork at all and that Wal-Mart’s motion to dismiss at this point is premature.

The consumers are represented by Todd M. Friedman, Suren N. Weerasuriya and Adrian R. Bacon of the Law Offices of Todd M. Friedman PC and Stephen P. DeNittis of DeNittis Osefchen PC.

The Wal-Mart Pork and Beans Class Action Lawsuit is Matthew Tye, et al. v. Wal-Mart Stores Inc., et al., Case No. 8:15-cv-01615, in the U.S. District Court for the Central District of California.