Bimbo Bread Misbranding Class Action Lawsuit Gets Trimmed

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A class action lawsuit alleging Bimbo Bread Company mislabeled some of its products was trimmed by a California federal judge last week.

The lead plaintiff, Alex Ang, alleged in his class action lawsuit that the Bimbos products he purchased, including Thomas’ Plain Bagel Thins, Sara Lee 100% Whole Grain Bread, Sara Lee Soft & Smooth Whole Grain White Bread, Sara Lee Classic 100% Whole Wheat Bread, Entenmann’s Soft’ees and Bimbo Original Toasted Bread, along with Bimbo products he did not purchase were misbranded in “substantially similar” ways.

The class action lawsuit alleges the misbranding included a “misleading American Heart Association endorsement,” “the label of Bimbo Bakeries’s Thomas’ Plain Bagel Thins claims that the product is an ‘excellent source of fiber,'” “Sara Lee 100% Whole Wheat Bread claims that the bread is an ‘Excellent Source of Whole Grain,'” “the labels of Bimbo Bakeries’s Sara Lee Soft & Smooth Whole Grain White Bread and Sara Lee Classic 100% Whole Wheat Bread claim that each is a ‘Good Source of Whole Grains,'” “the labels on Sara Lee Classic 100% Whole Wheat Bread and Sara Lee 100% Whole Wheat Bread say that the products are made of ‘100% Whole Wheat’ when they are partially made with non-whole wheat flour,” “the label of Bimbo Bakeries’s Entenmann’s brand products indicate that the Entenmann’s bakery goods are made fresh every day and delivered to stores daily, but they are not and the products contain preservatives that belie any claim that they are ‘fresh,'” and “the label of Bimbo Bakeries’s Bimbo Original Toasted Bread represents that product to be ‘bread’ but due to added coloring, the product fails to satisfy the standard of identity for bread.”

The class action lawsuit was trimmed in October of last year and U.S. District Judge William Orrick ruled to further trim the lawsuit on March 13, 2014. The judge dismissed claims related to Ang’s arguments regarding the “Soft’ees,” a form of doughnut he purchased and other “substantially similar” products he did not purchase. “Here, I find a problem with plaintiffs’ ability to pursue their various claims for the unpurchased products,” the judge wrote. “First, consideration of each product’s label is required because, according to the [complaint], it is the ‘relative location’ of the words ‘fresh’ and ‘baked daily’ that make the labels false, misleading, and unlawful. … Yet the complaint does not plead that all labels for each of the unpurchased products has an identical ‘relative location’ of the allegedly actionable terms and the labels are not attached.”

“Second, fact-specific analyses of each product will be required; namely determination of each product’s ingredients and formation to determine whether each is in fact ‘processed and preserved’ to such a level that the use of the term ‘fresh’ becomes misleading,” the judge continued. “Finally, although these products are all ‘baked goods,’ differences in the products themselves (cake vs. pies, pastries vs. cookies) could impact whether a ‘reasonable consumer’ would be misled by the labels’ use of the terms ‘fresh’ and ‘baked daily.'”

“In sum, the numerous contextual determinations needed regarding each product’s label, ingredients, and appearance defeat plaintiffs’ attempt to bring their ‘fresh’ and ‘baked daily’ claims with respect to the unpurchased products,” Judge Orrick concluded. The judge retained Ang’s other claims.

Alex Ang is represented by Bradley F. Silverman and Keith M. Fleischman of the Fleischman Law Firm and Ben F. Pierce Gore of Pratt & Associates.

The Bimbo Bread Misbranding Class Action Lawsuit is 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.