Warner v. StarKist Co., 2019 WL 1332573, No. 18-cv-406
(GLS/ATB) (N.D.N.Y. Mar. 25, 2019)

Warner survived a motion to dismiss his claims for deceptive
practices, false advertising, dealing in misbranded food, and unjust
enrichment, under New York law, based on StarKist’s use of a “Heart-Check Mark”
on certain seafood products. The failure to disclose that the check mark, accompanied
by “American Heart Association – CERTIFIED – Meets Criteria For Heart-Healthy
Food,” was a paid-for endorsement was plausibly misleading, though the court
thought it was “a close call, which could be revisited at the summary judgment
stage.”

Also, Warner’s mislabeling claim under the Agriculture and
Markets Law survived.  StarKist argued
that there was no private remedy, but Abounader v. Strohmeyer & Arpe Co.,
243 N.Y. 458 (1926), held that “the statute confers a right of action upon an
ultimate purchaser against the person who originally prepared for market and
sold the containers with false labels or statements of their contents” and “no
one doubts that the statute by express provision might give to an ultimate
purchaser of falsely labeled containers however remote a right of action
against the person who violated the statute by marketing them with false labels.”
StarKist argued that this case was old but “case law does not expire solely
with the passage of time.”

However, injunctive relief claims were dismissed because
Warner, who now knows the truth, lacks standing to maintain a request for
injunctive relief on behalf of the class.