calling pork “prime” doesn’t misleadingly imply USDA grading

Davis v. Fresh
Market, Inc., 2020 WL 3489369, No. 19-CV-24245-PCH (S.D. Fla. Jun. 26, 2020)
 

Plaintiffs alleged
that defendants violated Florida consumer protection law by misrepresenting,
via the name, that their Chairman’s Reserve Prime Pork product had been graded
prime by the USDA, even though the USDA does not grade pork (and approved the
product name). Plaintiffs alleged additional statements, such as a newsletter
stating, “Just like prime beef, the new Chairman’s Reserve Prime Pork is the
upper-echelon of quality in terms of having superior marbling …. ‘We’re excited
to provide our guests with fresh pork that’s the same caliber as our prime beef
offerings….”; a quote from Tyson’s President of marketing and premium
products reading, “People know of ‘prime.’ They get it right away”; a website
displaying images of prime pork next to prime beef; and the like. But
defendants never used the term “USDA.” The court found the theory implausible.
 

First, USDA approval
of the name/labeling wasn’t preemptive. While FDUTPA doesn’t apply to an “act
or practice required or specifically permitted by federal or state law,” there
was no approval of the promotional materials; the USDA has no authority to
regulate ads in conjunction with labels.
 

However, plaintiffs’
theory was still unpersuasive because there were no allegations that the
defendants did anything to communicate that the USDA even grades pork; they
didn’t claim that the product is graded. According to defendants, plaintiffs’
theory assumed that a reasonable consumer would be aware of USDA’s grading
scheme for beef but not aware that there was no such scheme for pork. This was
implausible: “A reasonable consumer sufficiently familiar with USDA grading
would note the absence of the term ‘USDA.’”

from Blogger https://ift.tt/2VPHcaE

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