Trader Joe’s Must Face Underfilled Tuna Class Action, Judge Rules

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Earlier this week, a California federal judge denied a motion by Trader Joe’s Co. to dismiss a class action lawsuit accusing the grocery chain of underfilling its cans of tuna.

In June, the judge granted a previous motion by Trader Joe’s to dismiss the underfilled tuna can class action lawsuit, but gave the plaintiffs the ability to amend their complaint.

A second amended Trader Joe’s tuna class action lawsuit was filed June 30, accusing Trader Joe’s of violating California’s Sherman Food, Drug and Cosmetics Law, which imposes nearly identical requirements as the federal Food, Drug and Cosmetics Law. Trader Joe’s subsequently filed a motion asking the judge to dismiss the underfilled tuna can class action lawsuit.

On Oct. 3, 2017, U.S. District Judge Otis D. Wright II granted in part Trader Joe’s motion to dismiss the underfilled tuna can class action lawsuit, which alleges cans of tuna sold by the grocery chain are deceptively packaged and contain less tuna than indicated on the label.

Plaintiffs Sarah Magier of New York and Atzimba Reyes of California allege they purchased Trader Joe’s canned Albacore Tuna products that were underfilled and underweight. According to the Trader Joe’s tuna class action lawsuit, they determined that the tuna cans were underfilled and underweight based on commissioned testing with the U.S. National Oceanic and Atmospheric Administration (NOAA).

NOAA reportedly tested the Trader Joe’s tuna products using the Pressed Weight Standard, which involves a complicated process using specific machinery. The NOAA tests determined that several varieties of Trader Joe’s tuna fell significantly below the Pressed Weight Standard, according to the Trader Joe’s class action lawsuit.

“Trader Joe’s canned tuna labels do not contain any statements regarding the ‘pressed weight,’ but do contain representations as to the ‘net weight’ (5 oz.), and the ‘drained weight’ (4 oz.),” Judge Wright wrote in his order.

Trader Joe’s claims that the Pressed Weight Standard is currently being reconsidered by the U.S. Food and Drug Administration over concerns it is outdated and inaccurate. The grocery chain also argues that its alleged failure to follow the Pressed Weight Standard was not deceptive because other major tuna companies including Chicken of the Sea International, Bumble Bee Foods LLC and StarKist Co. have been granted a temporary marketing permit by the FDA allowing them to market tuna without complying with the labeling requirements associated with the Pressed Weight Standard.

According to the court documents, Trader Joe’s applied for a temporary marketing permit in February.

Judge Wright was not persuaded by Trader Joe’s arguments because the grocery chain is not covered by the temporary marketing permit and was not covered at the time the Trader Joe’s tuna class action lawsuit was filed.

The judge also found that Trader Joe’s can preempt New York claims because California’s Sherman Law does not apply to sales outside of the state. He dismissed the consumers’ negligent misrepresentation claim after finding the plaintiffs cannot recover economic damages without proving some form of harm to person or property.

Judge Wright refused to dismiss the plaintiffs’ California claims of fraud and violations of the state’s Consumer Legal Remedies Act, Unfair Competition Law and False Advertising Law.

The plaintiffs are represented by L. Timothy Fisher and Scott A. Bursor of Bursor & Fisher PA.

The Trader Joe’s Tuna Class Action Lawsuit is In re: Trader Joe’s Tuna Litigation, Case No. 2:16-cv-01371, in the U.S. District Court for the Central District of California.

UPDATE: On Nov. 9, 2017, Trader Joe’s has redoubled its efforts to buck a class action lawsuit alleging it dupes consumers by underfilling its tuna cans. The grocer contends that the class action plaintiff failed to exhaust her administrative remedies under the Federal Food Drug and Cosmetic Act before filing the lawsuit. Trader Joe’s also disputes the plaintiff’s claims that she and the proposed Class were harmed by the alleged underfilled tuna cans.

UPDATE 2: On Sept. 14, 2018, the Trader Joe’s class action lawsuit regarding underfilled tuna cans has ended in a $1.3 million settlement agreement.