Summary of a Recent
Judicial Development in
Food Labeling

Dismissal Due to Failure to Allege Defendant's Prior
Notice of "Deceptive or Unconscionable"

Walt McCarter
National AgLaw Center Research Associate

Summary of Decision

In St. Clair v. Kroger Co., 581 F. Supp. 2d 896 (N.D. Ohio 2008), the United States District Court for the Northern District of Ohio dismissed a plaintiff's class action claim for violation of the Ohio Consumer Sales Protection Act for failing to allege that the defendant had prior notice that its conduct was "deceptive or unconscionable," and also dismissed her Uniform Commercial Code (UCC) breach of warranty claim for failure to provide pre-litigation notice of the alleged defect.

Background

To meet the United States Department of Agriculture's (USDA) requirements for "aged beef," a product must be maintained in a fresh unfrozen state for a minimum of fourteen days from the day of slaughter, and when an aging claim is made at the point of sale to a consumer, the minimum claimed number of days for aging must appear on the label. Id. at 898. Plaintiff brought a class action against Kroger on behalf of herself and all others who had bought Kroger's "aged beef," claiming that the meat had not been aged for fourteen days and that Kroger did not advertise the number of days of aging on its meat labels. Id. at 898-899.

Arguments

Plaintiff argued that Kroger falsely and incorrectly labeled its "aged meat" in a deliberate attempt to deceive consumers about the quality of its beef, in violation of the Ohio Consumer Sales Protection Act (CSPA). Id. at 899. She also brought a claim for breach of warranty under the UCC. Id.

Kroger argued that the USDA's authority to regulate labeling of meat products made the agency's process a more appropriate venue for adjudication; therefore, the case should have be dismissed pursuant to the doctrine of primary jurisdiction. Id.

Analysis and Holdings

The court began by explaining that the doctrine of primary jurisdiction applies when a court and administrative agency have concurrent jurisdiction over the same matter, and is only applicable if there is a "desire for uniformity of regulation" and "need for an initial consideration by a tribunal with specialized knowledge." Id. The court held that the doctrine was not applicable in this case because determining whether Kroger marketed and labeled its beef in a false and misleading way did not require specialized knowledge of the meat industry or the body of regulations of the USDA, and the court was competent to make such a determination. Id. at 900.

The court then noted that to pursue a violation of the CSPA on behalf of a class, a plaintiff must allege that the defendant had prior notice that its conduct was "deceptive or unconscionable," which the plaintiff had failed to do, and so the court dismissed the class claim. Id. at 901. With the class action dismissed, the court also dismissed the plaintiff's individual claim for lack of subject matter jurisdiction, but granted the plaintiff leave to show why the court continued to have jurisdiction, noting that although the issue of continuing jurisdiction in this situation was unclear, it seemed appropriate to dismiss the plaintiff's individual claim in light of a recent holding in a case substantially similar to this one. Id. at 902.

Turning to her breach of warranty claim, the court explained that the plaintiff was required to show: "1) a warranty existed; 2) the product failed to perform as warranted; 3) plaintiff provided defendant with reasonable notice of the defect; and 4) plaintiff suffered injury as a result of the defect." Id. The court dismissed her claim for failure to provide the required pre-litigation notice, holding that independent "actual knowledge" did not satisfy the requirement. Id.

The case was decided on October 14, 2008.