Kuenzig v. Kraft Foods, Inc., Case No. 8:11-cv-838-T-24 TGW
| Decision Date | 12 September 2011 |
| Docket Number | Case No. 8:11-cv-838-T-24 TGW |
| Parties | BRAD KUENZIG, on behalf of himself and all others similarly situated, Plaintiff, v. KRAFT FOODS, INC. and HORMEL FOODS CORP., Defendants. |
| Court | U.S. District Court — Middle District of Florida |
This cause comes before the Court on Defendants' Joint Motion to Dismiss. (Doc. No. 27). Plaintiff opposes the motion. (Doc. No. 41). As explained below, the motion is GRANTED.
In deciding a motion to dismiss, the district court is required to view the complaint in the light most favorable to the plaintiff. See Murphy v. Federal Deposit Ins. Corp., 208 F.3d 959, 962 (11th Cir. 2000)(citing Kirby v. Siegelman, 195 F.3d 1285, 1289 (11th Cir. 1999)). The Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim. Instead, Rule 8(a)(2) requires a short and plain statement of the claim showing that the pleader is entitled to relief in order to give the defendant fair notice of what the claim is and the grounds upon which it rests. See Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964 (2007)(citation omitted). As such, a plaintiff is required to allege "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id.at 1965 (citation omitted). While the Court must assume that all of the allegations in the complaint are true, dismissal is appropriate if the allegations do not "raise [the plaintiff's] right to relief above the speculative level." Id. (citation omitted). The standard on a 12(b)(6) motion is not whether the plaintiff will ultimately prevail in his or her theories, but whether the allegations are sufficient to allow the plaintiff to conduct discovery in an attempt to prove the allegations. See Jackam v. Hospital Corp. of Am. Mideast, Ltd., 800 F.2d 1577, 1579 (11th Cir. 1986).
Plaintiff Brad Kuenzig alleges the following in his complaint (Doc. No. 1): Plaintiff purchased and consumed both Defendant Kraft and Defendant Hormel's lunch meat products that contain "percent fat free" claims on their labels. Plaintiff contends that both Kraft and Hormel's "percent fat free" claims on their labels are unfair, deceptive, and misleading and that such packaging has allowed Kraft and Hormel's sales to outpace their industry's growth.
Plaintiff contends that "Kraft employs a clever psychological technique to trick consumers into believing that its Percentage-Fat-Free claims are calculated based on calories[,]" because Kraft lists the calories immediately adjacent to the Percentage-Fat-Free claim on its labels. (Doc. No. 1, ¶ 22). Thus, Plaintiff alleges that Kraft links its "percent fat free" claim to the calories listed on the front of its labels via the close proximity of the information and by inserting a small hyphen or dot between the information to imply a correlation (i.e., that the "percent fat free" claim refers to the percent of non-fat calories). As such, Plaintiff contends that Kraft's labels are misleading because: (1) the "percent fat free" claims misrepresent that they arebased on the amount of calories that come from fat in the product, which misleads consumers into believing that there are less fat calories in the product than there actually are; and (2) the labels do not contain qualifying language next to the "percent fat free" claims to explain that the claim is actually based on weight, not calories.
For example, Plaintiff alleges that the label on the front of Kraft's Oscar Mayer brand Oven Roasted White Turkey contains the claim "95% fat free" above the claim "30 calories per serving." Plaintiff contends that such labeling misleads consumers into believing that only 5% of the 30 calories per serving (or 1.5 calories) actually come from fat. However, the actual number of calories that come from fat for that product is 15 calories per serving, which equates to 50% of the total calories coming from fat.1
Plaintiff acknowledges that on the back label of Kraft's packaging, there is a nutrition panel that discloses the number of calories per serving, as well as the number of those calories that come from fat. However, Plaintiff contends that Kraft uses the smallest permissible font to disclose such information.
Plaintiff concedes that Hormel does not include a calorie content claim on its front labels near its "percent fat free" claim. However, Plaintiff contends that because Hormel knows that its products will be placed on grocery shelves near Kraft's products, Hormel's "percent fat free" claim on its labels on the front and back of its products is equally unfair, deceptive, andmisleading. Specifically, Plaintiff states that because Kraft's "percent fat free" claim on the front labels of its packaging is linked to the amount of calories in Kraft's products, "Hormel's identical Percentage-Fat-Free claims lead consumers to believe that both companies are using the same measure"-that is, that Hormel's "percent fat free" claims refer to the percent of non-fat calories in its products (even though Hormel's "percent fat free" claims are not accompanied by a statement of calories per serving). (Doc. No. 1, ¶ 33). As such, Plaintiff contends that Hormel's labels are misleading because: (1) the "percent fat free" claims misrepresent that they are based on the amount of calories that come from fat in the product, which misleads consumers into believing that there are less fat calories in the product than there actually are; and (2) the labels do not contain qualifying language next to the "percent fat free" claims to explain that the claim is actually based on weight, not calories.
For example, Plaintiff alleges that the label on Hormel's Natural Choice brand Smoked Deli Ham claims that the product is "97% fat free." Since the nutrition panel reveals that a serving of the ham has 60 calories, Plaintiff contends that Hormel's "percent fat free" claim misleads consumers into believing that only 3% of the 60 calories per serving (or 1.2 calories) actually come from fat. However, the actual number of calories that come from fat for that product is 15 calories per serving, which equates to 25% of the total calories coming from fat.2
Plaintiff acknowledges that on the back label of Hormel's products, there is a nutrition panel that discloses the number of calories per serving, as well as the number of those caloriesthat come from fat. However, Plaintiff contends that Hormel uses smaller font than necessary to disclose such information, while it also prints the "percent fat free" claim on the back label of the package in larger font than the nutrition panel.
Plaintiff filed this lawsuit under the Class Action Fairness Act on behalf of all people similarly situated throughout the country that purchased Defendants' products that contained "percent fat free" claims on the labels since 2006. He asserts eleven counts in his complaint.
In Count I, Plaintiff asserts a claim for injunctive and declaratory relief. Specifically, he asks the Court to order Defendants to remove their "percent fat free" claims from their labels and then to undertake an advertising campaign to clear up consumer confusion about the true fat content of their products.
In Count II, Plaintiff asserts an express warranty claim, based on his contention that Defendants' labels misrepresent the amount of fat in their products. Specifically, Plaintiff asserts that Defendants' "percent fat free" claims are representations that the claims are based on calories. As such, Plaintiff contends that Defendants' "percent fat free" claims misrepresent the true percentage of calories that come from fat, and by extension, the actual number of fat calories in their products. Therefore, because the products at issue actually contain more fat calories, and thus a higher percentage of fat calories, than represented by their "percent fat free" claims, Defendants have breached their express warranties created by their "percent fat free" claims.
Similarly, in Count III, Plaintiff asserts a claim for breaches of the Uniform Commercial Code ("UCC"). Specifically, Plaintiff contends that because Defendants' products at issue actually contain more fat calories, and a higher percentage of fat calories, than represented bytheir "percent fat free" claims, Defendants have also breached their express warranties under the UCC. Therefore, Plaintiff contends that he has the right to revoke his acceptance of the products under the UCC. Furthermore, Plaintiff alleges that because the "percent fat free" claims are misleading regarding the amount and percentage of fat calories in the products, Defendants have also breached the UCC's obligation of good faith and fair dealing.
In Count IV, Plaintiff alleges that Defendants' use of the "percent fat free" claims on their labels, websites, and advertising is misleading, and as such, it is an unfair and deceptive trade practice. Therefore, Plaintiff asserts a claim for Defendants' violation of every state's Little Federal Trade Commission Act ("Little FTC Act claim").
In Counts V and VI, Plaintiff asserts claims for fraudulent and negligent misrepresentation. Specifically, Plaintiff contends that Defendants' "percent fat free" claims on their labels are affirmative misrepresentations regarding the percentage and amount of fat calories present in their products.
In Counts VII through XI, Plaintiff asserts claims for unjust enrichment, quantum meruit, fraudulent conversion, trespass to chattels, and repleven. Essentially, in these claims, Plaintiff alleges that Defendants wrongfully took Plaintiff's money when he purchased the products at issue, because the products had more fat calories, and thus a higher percentage of fat calories, than represented on their labels via the "percent fat free" claims.
Plaintiff's claimed damages consist of the money he spent on Defendants' products that ...
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