Duelling results in Mexican origin cases

v. Olé Mexican Foods Inc., 2021 WL 1731604, No. EDCV 20-2324 JGB (SPx) (C.D.
Cal. Apr. 22, 2021)

alleged that Olé’s La Banderita tortillas falsely advertised Mexican origin
based on  a Mexican flag front and center
on the packaging, the phrase “El Sabor de Mexico!” or “A Taste of Mexico!”, the
brand name “La Banderita” (“the flag”), and the Spanish phrase “Tortillas de
Maiz” on the label of the Corn tortillas. Some of the products also contain a
circular logo with the Mexican flag and the word “Authentic,” as well as other
Spanish words and phrases.  

argued that its products merely invoked the “spirit” of Mexico and didn’t make any
specific geographic references (other than “MADE IN U.S.A.” and “Manufactured
by: Olé Mexican Foods, Inc., Norcross, GA 30071” at other places on the
package, which properly disclosed origin). The court disagreed. Although a
previous case found that “The Taste of Jamaica” wasn’t plausibly misleading,
that product was prominently marked “Jamaican Style Lager,” and style or type
language strongly affects the meaning of a geographic term used on food or
drink.  Here, there was no such
indication about “style.” Moreover, deception was still plausible here in
context, even if some reasonable consumers would not be deceived. Though the
back disclosed the true origin, a reasonable consumer is not “expected to look
beyond misleading representations on the front of the box to discover the

from the complaint; disclosure: I have purchased these and I have never given a second’s thought to their geographic origin one way or another

version with the “authentic” graphic

v. Gruma Corp, 2021 WL 1557748, No. CV 20-8585-MWF (JCx) (C.D. Cal. Mar. 1,

packaging here wouldn’t plausibly mislead a reasonable consumer into believing
that Guerrero Tortillas are produced in Mexico, though the court granted leave
to amend.

One of the accused packages

allegedly saw and relied on the word “Guerrero” (the name of a Mexican state,
also “warrior”) and the Spanish phrases on the packaging, which included: “Un
pedacito de México” and “Calidad Y Frescura” (“a piece of Mexico” and “quality
and freshness” respectively). They also allegedly relied on the Spanish descriptions
of the products they purchased: Tortillas De Maiz Blanco, Riquisimas Tortillas
De Harina, and Tortillas De Harina Integral. The rule is that “the language or
imagery of a product’s packaging is actionable if it falsely indicates a
specific place that the product is purportedly made.” “Originated in Germany,”
“Born in Brazil,” and “Belgium 1926” were plausibly false and misleading
statements of origin where the products at issue were not made in those
countries and lacked a visible origin disclaimer. In contrast, if the packaging
merely evokes the spirit of a generalized location or culture in a vague and
non-specific manner, such claims are properly dismissed at the 12(b)(6) stage.”

there were no “born in” statements, and “un pedacito de México,” was “a vague
and meaningless phrase” that is meant to “evoke the spirit or feeling of
[Mexico].” Nor did the packaging expressly describe the tortillas as Mexican.
All the packages disclosed that the Gruma Corporation was based in Irving,
Texas, and at least some of the Packaging also stated that the Tortillas are
“[l]ocally baked and delivered fresh from your Guerrero Bakery.” Nor did the
package name a specific address, city, or location in Mexico where the
tortillas were purportedly baked or invite a visit.

One of
the prior cases refusing to dismiss a complaint also noted allegations of
survey evidence that more than 85% of a “demographically representative U.S.
sample of over 1,000 adults” who viewed the accused beer or its packaging
believed that it was produced in Japan. There was no such evidence here. While
the court was dubious that it could be done, it did give plaintiffs a chance to
augment their allegations with a similar consumer survey, which might or might
not alter the court’s overall impression.

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