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On Monday, August 5, a federal judge dismissed a proposed class action lawsuit that accused 7-Eleven Inc. of falsely claiming that its potato chips contain no trans fats or cholesterol because the complaint included allegations that were too vague.
By filing the class action lawsuit, plaintiff Scott Bishop was seeking restitution for a class of consumers who relied on the “0 Grams Trans Fat/No Cholesterol” claims when choosing to purchase the 7-Eleven potato chips. He alleges that the labels on the potato chip bags do not contain statements required by the U.S. Food & Drug Administration (FDA) identifying the total grams of fat per serving or recommending the customer to “See nutrition information for fat content.” Bishop claims that the potato chip label dupes consumers into believing the chips are healthier than they actually are.
Bishop brought breach of warranty claims under the Song-Beverly Consumer Warranty Act (SBCWA) and the Magnuson-Moss Warranty Act (MMWA). In August 2012, 7-Eleven moved to dismiss the class action lawsuit, arguing that the claims on its potato chip labels are accurate and Bishop never suffered an economic injury. The company accused Bishop of bringing a class action lawsuit that was “unusually meritless.”
U.S. District Judge Edward Davila agreed with 7-Eleven that Bishop’s allegations were not specific enough to allow the class action lawsuit to proceed.
In his decision to dismiss the 7-Eleven potato chip class action lawsuit, Judge Davila found that the SBCWA provides a private right of action for express or implied warranty violations for buyers of consumer goods. According to the definitions provided in the SBCWA, a “consumer good” excludes food products such as potato chips.
Under the MMWA, consumers are granted a civil cause of action to enforce the terms of written warranties. However, Judge Davila disagreed with Bishop’s claim that the product labels constitute an express warranty.
“The court rejects this argument and finds that the plaintiff fails to state a claim for a violation of the MMWA. Accordingly, the court dismisses plaintiff’s claims based on violations of the SBCWA and the MMWA,” the judge wrote in his decision to dismiss the class action lawsuit.
Judge Davila also took issue with the fact that Bishop failed to specify which products allegedly violated labeling requirements and which statements he relied on while making the decision to purchase the 7-Eleven potato chips. While Bishop referred to “misbranded food products” in the class action lawsuit, he did not mention which specific products contained illegal labels. Judge Davila found that Bishop’s claims did not provide a “clear and particular account of the allegedly fraudulent, deceptive, misrepresentative or otherwise unlawful statements.”
Bishop is represented by Ben F. Pierce Gore of Pratt & Associates and David M. McMullen Jr. of Barrett Law Group PA.
The 7-Eleven Potato Chips False Advertising Class Action Lawsuit is Scott Bishop v. 7-Eleven Inc., Case No. 5:12-cv-02621, in the U.S. District Court for the Northern District of California.
UPDATE: Bishop filed an amended complaint that was dismissed a final time on April 21, 2014. He will not be allowed to re-file.
UPDATE 2: On May 11, 2016, Bishop asked the 9th U.S. Circuit Court of Appeals to revive a false advertising class action lawsuit that alleges 7-Eleven Inc. mislabels its store-brand potato chips because it omits legally-required disclaimers about the products’ fat content.
UPDATE 3: On June 7, 2016, The Ninth Circuit Appeals Court granted plaintiffs’ motion to revive a class action lawsuit against 7-Eleven alleging the store falsely labeled the nutritional value of its store-branded potato chips.
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UPDATE 3: On June 7, 2016, The Ninth Circuit Appeals Court granted plaintiffs’ motion to revive a class action lawsuit against 7-Eleven alleging the store falsely labeled the nutritional value of its store-branded potato chips.
UPDATE 2: On May 11, 2016, Bishop asked the 9th U.S. Circuit Court of Appeals to revive a false advertising class action lawsuit that alleges 7-Eleven Inc. mislabels its store-brand potato chips because it omits legally-required disclaimers about the products’ fat content.